Director of Public Prosecutions v Gretelianos
[2017] VCC 242
•10 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-16-02103
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL GRETELIANOS |
---
JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 March 2017 | |
DATE OF SENTENCE: | 10 March 2017 | |
CASE MAY BE CITED AS: | DPP v Gretelianos | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 242 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Judgment:
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms S. Clancy and Ms L. Treasure | Office of Public Prosecutions |
| For the Accused | Mr C. Farrington and Ms C. Salter | Vale Criminal Law |
HER HONOUR:
1 Daniel Gretelianos, you have pleaded guilty to one charge of armed robbery. The maximum penalty applicable to that offence is 25 years’ imprisonment.
2 This crime arises out of events which took place on 18 August 2016. It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened by the prosecutor consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case in my opinion are most serious and disturbing.
3 I turn to a summary of your offending.
4 At the time you were 23 years of age, and you were also 23 at sentence.
5 Your co‑offender, Daniel Brittain, indicated a plea of guilty to armed robbery and also theft of a motor vehicle. His plea hearing is listed in the County Court on 16 March 2017. He is also 23 years of age.
6 The other alleged co‑offender, Shane Hodgson, has a contested committal hearing on 11 May 2017 at Melbourne Magistrates’ Court. He is 22 years of age.
7 The main victim of your offending, Andrea North, was working as a compliance manager at the Ferntree Gully Bowling Club.
8 In the early hours of Thursday, 18 August 2016, you went to Brittain’s address in Dandenong. Brittain borrowed his girlfriend’s silver Holden Cruze, registration XNL 938, drove you to Hodgson’s address in Ashwood and picked him up.
9 At some point during the morning, prior to the armed robbery, stolen number plates were fixed over the existing number plates on that car.
10 At 7.20am all three of you went to Ferntree Gully Bowling Club. The club was not open at the time. CCTV footage showed Brittain walking to the front door of the venue. The opening time was 10.00am. He returned to the car and told you and Hodgson the club did not open until 10.00am and the three of you then left.
11 At approximately 10.30am the three of you returned to the club. I note you had a period of time between approximately 7.20am and your return at 10.30am, to reconsider going ahead with your plan, however declined to desist.
12 Brittain parked the car in a nearby street, and you and Hodgson left the car. Brittain waited in the car.
13 You were wearing a mask and were armed with a machete.
14 Hodgson was wearing a black balaclava and a black hooded jumper, carrying a black-coloured backpack, and armed with an over and under double-barrel sawn-off shotgun.
15 At the time the two of you entered the bowling club there were approximately 25 patrons present, a number there for a weekly bowling competition.
16 Primary victim Andrea North was in the gaming-room bar making coffee when she saw the two of you walk through the club’s entrance. Hodgson walked directly to her and told her to “Go and get the money.” She initially said “No.” Hodgson then pointed the gun at her chest and pulled the trigger, which made a clicking sound but did not fire. He again told her to “Go and get the money.”
17 North walked to the strongroom where the safes were kept, and told Hodgson the safes were on time-delay.
18 Once in the strongroom North set the time delay on the black safe. Hodgson opened the door of the grey safe, demanding she open the drawer of the safe.
19 North told him there was nothing in the safe, but Hodgson demanded she open it. She opened the door of the safe then stood back to show him that there was no money in the safe.
20 Hodgson then pointed to the Chubb safe and told North to open it. North told Hodgson it was a two-key safe and that the club only had one key. Hodgson located a set of keys in a drawer and unsuccessfully attempted to open the Chubb safe.
21 Hodgson then took cash from a lock-box on the wall, again pointed the gun at North’s chest, looked her in the eye and said “Open the safe.” North thought Hodgson was going to shoot her, and was terrified. She again explained the time delay.
22 Hodgson left the strongroom and took cash from the cashier’s drawer and put it into the black backpack. He returned to the strongroom and told North to give him the rest of the money. North told him that there wasn’t any more except for that in the time-delay safe.
23 Whilst Hodgson was in the strongroom, you stood outside the entrance to the gaming-room bar and told the other patrons to keep down. You banged the machete on the counter and said “Stay where you are and you won’t get hurt” also saying “Don’t call the cops and you won’t get hurt.” At times you waved the machete around. You struck the counter and the wall with that machete to reinforce the point.
24 Both you and Hodgson then left the venue and returned to the waiting car and Brittain drove you from the scene.
25 Both you and Hodgson were inside the venue for approximately three minutes, and stole $5,000 from that club.
26 The offending was captured on the club’s CCTV system, which I viewed. Whilst it was three minutes, there is no doubt this was very frightening for North and the other patrons. North was with your co-offender in a confined, small room with the gun pointed directly at her.
27 You, meanwhile, held a number of patrons ‘at bay’ in the club wielding a very intimidating weapon.
28 At approximately 11.00am after this armed robbery, Brittain was seen by another road-user driving at a high speed and constantly changing lanes. That witness also observed the car’s rear number plate appeared to be covering up another number plate underneath. He advised police of Brittain’s dangerous driving. As he was on the phone to police he saw the same car displaying a registration plate beginning with XNL.
29 At approximately 1.40pm Hodgson contacted an associate, Andreas Sianas, and arranged to meet him to hand over the firearm for Sianas to store on his behalf.
30 On 6 September 2016, police downloaded the contents of your mobile phone, found on you at your arrest. They located a number of Facebook messages between yourself and Hodgson from 17 August 2016 at 5.56pm.
31 On 13 September 2016 police executed a search warrant at Sianas’ address and located an over and under double-barrel sawn-off shotgun.
32 You and Brittain were arrested at Brittain’s home in Dandenong at approximately 9.20pm on 18 August 2016.
33 Police executed a search warrant at that address and located a Holden Cruze, registration plates XNL 938, used in the armed robbery. Inside the car they found the face mask worn by you, a machete, a white glove with blue painted palm, a red and black backpack, and two dark-coloured beanies.
34 Police also seized clothing worn by you during the offending and your mobile phone.
35 You were interviewed on 19 August 2016 and answered ‘no comment’ to the allegations put to you by police, and of course, to answer that way was your right.
36 Brittain made admissions regarding his, yours and Hodgson’s involvement in the armed robbery.
37 Hodgson was arrested on 23 September 2016 and made a ‘no comment’ interview.
38 There are a number of aggravating features of your offending, disguise of yourself, a level of planning involving the getaway car having false number plates on it, the opportunity to desist from offending between 7.30am and 10.30am, your offending occurred in company and involved, as I said, a level of pre-planning, and also, the number of victims of your offending.
39 The primary victim of your offending, North, has suffered considerably, and I shall return to pass some remarks on that subject shortly.
40 You have pleaded guilty to this charge, and you are entitled to have that taken into account in your favour, and I do so. The community, by your plea of guilty, has been spared the need for a trial, and also witnesses have not been required to give evidence upon your trial, and in particular I refer to North and the club patrons.
41 I accept you entered your plea of guilty at an early stage, and an initial filing hearing occurred in the Magistrates’ Court on 19 August 2016. On 29 November 2016, at a committal case conference, you were committed by way of straight hand‑up brief and indicated your intention to plead guilty to this charge.
42 As at the time of your plea hearing on 1 March 2017 you had spent 194 days in custody by way of pre-sentence detention.
43 I am prepared to accept that your plea of guilty indicates some remorse for your offending.
44 You have admitted a prior court appearance at Dandenong Magistrates’ Court on 31 May 2013 on charges of criminal damage and possessing graffiti implements. The matter was without conviction adjourned to 20 November 2013. I am aware you do not have an extensive prior criminal history, and certainly not for anything of the seriousness of your offending before me.
45 I discussed with your counsel, Mr Farrington, a number of pending matters which concern me when assessing your rehabilitation prospects. Specifically, as I understand it, you committed the offence of theft of $500 on 28 October 2015 from a person using an ATM machine. Also of offending on 9 November 2015 involving theft of cash, on that occasion $900, from another person withdrawing money from an ATM. I was told you were charged on 9 January 2016 with both these offences. That troubles me, given the offending before me occurred just some months later, in August 2016, that is, despite your involvement with the police in January 2016.
46 A further matter was yet to be heard involving offending on 2 June 2016, just approximately two months prior to this offending before me. You were charged with burglary, possession of stolen goods and trafficking in methyl-amphetamine. On that occasion you were also interviewed by police, and you were then charged on 3 June 2016.
47 On 3 June you entered bail relevant to those Court appearances. They are yet to be dealt with by the Court and are, therefore, not subsequent court appearances. However, your counsel has indicated that you intend to plead guilty to those charges, and such a course is relevant when assessing your rehabilitation prospects.
48 Again, it concerns me that on 9 January and 3 June 2016, you entered bail in relation to those offences ultimately to appear at Ringwood Magistrates’ Court on 22 June 2016. You did not appear at Court in accordance with both undertakings of bail. A warrant was issued for your arrest relevant to those matters and the Magistrate also made an order forfeiting your undertaking of bail to both matters.
49 Whilst you were not subject to bail at the time the armed robbery before me was committed, you had two outstanding warrants for your arrest. Those warrants were executed on 18 August 2016 after you were arrested for the offence of armed robbery. You were at least under the impression you were on bail and that did not deter you from the offending before me.
50 Your counsel conceded your offending was serious, and he is correct.
51 Mr Farrington also conceded a number of aggravating features of your offending, including pre-planning, that it occurred in company, that you wore a disguise by way of a mask to prevent you from being identified and also that there was, for want of a better word, some disguise in the form of changing number plates of the getaway car (by one of you). Further, the opportunity to desist from this offending between the hours of 7.30am and 10.30am.
52 Mr Farrington urged, however, there were no physical injuries actually caused to any of the persons present in the premises, in particular North, and that is so. He also submitted if the gun had been a loaded gun, such would have been an aggravating feature. The gun not being loaded meant that the potential consequences of serious harm, or worse, were less and that is so. By not being loaded, there was no chance that there could have been accidental shooting of anyone at the venue.
53 Mr Farrington prepared a written outline of submissions for your plea hearing, and addressed them during the course of it.
54 As I have said, you are at sentence 23 years of age, the younger of two sons to your parents, who separated when you were 2 years of age.
55 Following separation of your parents you lived with your mother, although maintained regular contact with your father.
56 You continued to enjoy the support of both your parents and also your older brother, Andrew.
57 You have also been in a relationship with Emily Burns for the past five years.
58 You completed Year 11 but did not complete Year 12. Part‑way through Year 12 you began an apprenticeship as a cabinet-maker, leaving just 12 months after commencing. Thereafter you worked in a variety of trades, including painting, maintenance and caravan-building. You were not working in the two years prior to your recent remand, and were in that time in receipt of Centrelink benefits.
59 Mr Farrington urged that your plea of guilty was at the earliest opportunity to this charge, and I accept that is so, and such is relevant in mitigation of sentence.
60 I also accept your plea of guilty is indicative of some remorse, as I have previously stated. In your discussion with Dr Loretta Evans, Senior Clinical Neuro-psychologist, you also said you were sorry for the impact that your offending had had on the victims.
61 You have a history of drug use and addiction, having commenced smoking marijuana from the age of 14, and smoking daily by the age of 17. Approximately two years ago you ceased smoking marijuana and commenced smoking meth-amphetamine. At the time of your recent incarceration you said you were smoking 1–2 grams per day. You were also consuming GHB daily between 17 and 21 years of age.
62 Mr Farrington urged that you were still relatively young and that your rehabilitation was an important sentencing consideration, although he conceded in cases such as Azzopardi v R[1], youth would be of reduced mitigation when sentencing for a serious or persistent crime such as armed robbery.
[1][2011] VSCA 37
63 I am also aware of R v Mills[2], referrable to ‘young offenders’ as defined. At 23, whilst not ‘young’ as defined, your rehabilitation is a relevant consideration. Each case depends ultimately upon the circumstances of the offending as well as the offender.
[2][1998] 4 VR 235
64 In Scott v The Queen[3], the court cited with approval the observations of Redlich JA in Azzopardi:
“The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.”
[3] [2013] VSCA 347
65 In R v Tran[4] at p.462, Callaway JA said:
“The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, but the word I have italicized is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important.”
[4] (2002) 4 VR 457
66 I do have some concerns regarding your rehabilitation prospects. Your prospects of rehabilitation however will be improved if you give up your drug use completely and remain drug free, but I am sure you are well aware of that. To date, you have not addressed this issue professionally. In sentencing you of course, I must however, seek to maximise your chances of rehabilitation.
67 A neuropsychological assessment was conducted by Dr Loretta Evans, and I now turn to her report dated 15 February 2017. Dr Evans interviewed you whilst you were on remand.
68 Further details were contained within her report relevant to your background.
69 You described a good relationship with your father and a somewhat conflictual relationship with your mother (see page 2).
70 At school you enjoyed sport but there had been increasing truancy in your senior years and you left the cabinet-making apprenticeship due to an altercation you had with another worker.
71 You have been in a relationship with Emily for the past six years, according to her report. I note Mr Farrington’s written submissions referred to five years (paragraph 6.6), so somewhere between five and six it would seem. You described her as highly supportive of you.
72 You said you had been homeless and ‘couch-surfing’ just prior to your incarceration.
73 Regarding your alcohol use, you began drinking at age 12 or 13, and described a pattern of weekend binge-drinking. However, since your change to illicit drugs in your late teens you had “rarely” consumed alcohol. The author noted, however, that was not consistent with medical notes she had obtained from Alfred Health.
74 Cannabis use began from 14 or 15, until you ceased approximately two years ago. You then used methamphetamine and GHB, although ceased that, you said, about eighteen months ago.
75 You had never participated in any formal drug detoxification or rehabilitation program, I note despite being aware, I have absolutely no doubt that your illicit drug use was an issue for you, and also given your involvement with police prior to this offending before me.
76 You described having experienced multiple physical assaults as an adult, with your head being struck in an incident you described as a kidnapping in 2014. That incident was apparently not reported to police, and I note you describe it as a ‘drug deal gone bad’.
77 Reference was made to notes obtained by Dr Evans from the Alfred Hospital referable to attendance by you on 18 November 2011 following being assaulted with a crowbar. You were treated but not admitted.
78 You were also involved in a high-speed single motor vehicle collision on 1 February 2015, and admitted to the acute unit before being transferred to Caulfield ABI unit on 5 February for ongoing treatment and management.
79 A consultant psychiatrist at that time reviewed you and diagnosed you with severe OCD, post-traumatic stress disorder, major depressive disorder, and poly-substance abuse. You were discharged on 20 February and whilst a number of outpatient reviews were arranged for you, you failed to attend those appointments.
80 Psychiatry notes from Alfred Health on 20 February 2015, noted a long history of chronic OCD and PTSD. Both had been untreated and were severe in intensity, complicated by a moderate major depressive disorder as well as poly-substance abuse.
81 Dr Evans observed you realised your drug use was the main reason you were in gaol. You referred to your time in custody being “the first time you had been off drugs since 17”.
82 You described your offending behaviour as pathetic, and that you realised it had caused harm to the victims, your family and yourself.
83 Turning to her summary and recommendations, your neuropsychological profile characterised you as generally “Average”. In Dr Evans’ opinion you possessed the cognitive skills required for adequate judgment, reasoning, awareness, insight, and decision making.
84 Regarding any impact upon you of imprisonment, Dr Evans noted the limitations to her qualifications to proffer such opinions, although as I discussed with counsel, there was reference to various medical opinions, proffered by those including psychiatrists, within her report.
85 Your counsel, Mr Farrington, was not relying on any principles in R v Verdins[5], and that, on the material before me in my opinion, was an appropriate concession. He did, however urge I order a Forensicare report to address the impact of imprisonment upon you.
[5](2007) 16 VR 269
86 I declined to order such a report. Whilst Dr Evans expressed a limit to her ability to provide psychiatric details of the impact of a term of imprisonment, she did, however, refer to material she had obtained, as set out within her report (pages 3-4) referrable to your attendance at hospital on 18 November 2011 and again on 1 February 2015.
87 Reference was also made by her to a review in 2015 by a neuro-psychologist and also opinion of Dr Harrison (Consultation Liaison Psychiatric Services), and that of Professor David Martin, Consultant Psychiatrist, also material from a General Practitioner, Dr Abdelnalak. I accept, while not specifically enlivening the principles in Verdins, that I can take into account those matters and accept incarceration is likely to exacerbate those issues. This can be and is taken into account by me, consistent with general sentencing principles.
88 Mr Farrington urged that while you had not previously sought assistance for your drug use during this recent period on remand, you had been abstinent from drug use and now had clarity of mind. You had been able to express genuine remorse for your offending, and your family were now well aware of your drug use and would, as I understood his submission, be alert to you falling back into that lifestyle.
89 I was told my Mr Farrington you had also been drug-free at times in the two years prior to this offending. You had employment and used Ice ‘after hours’. I note, however, you had not chosen to do anything to address your drug use.
90 There were a number of references before me. Your brother, Andrew, dated 24 February 2017, who described your offending as out of character. He said you had good moral character. He believed you were remorseful. The family would continue to support you.
91 A reference from Marie Gretelianos, your mother, dated 24 February 2017. You were always there for her. You were loyal to family, and would continue to have her love and support. Your offending was out of character. She had not known you to be a violent person. Since the motor vehicle collision in February 2015 many things had changed regarding your personality. You were remorseful.
92 A reference from Spiros Gretelianos, your father, dated 24 February 2017. He described you as a kind-hearted person with a good employment history. You were supported by your family. Following the collision on 1 February 2015 you became depressed and frustrated. You stopped taking your medication, met up with the wrong crowd, and started to use ice. Your offending was out of character.
93 A reference from Emily Burns dated 24 February 2017. She has known you for nearly six years, been in a relationship with you for the past five and a half years. She described you as kind and caring. She was shocked to hear of your offending. You had her support. In the time she had been visiting you in custody you had shown a positive change in your attitude and personality. You were remorseful for this offending.
94 I turn then to the Victim Impact Statement.
95 There was a victim impact statement from Andrea North, sworn 10 February 2017. She described the armed robbery as having had a huge impact on her emotional, physical and financial wellbeing. As a result of being terrorised with the sawn-off shotgun and the machete, she had to deal with fear and physical shaking, hot and cold sweats, nervousness, nightmares, sleeplessness, and the terror of uncontrollably reliving the event.
96 For a number of weeks after this armed robbery she had to take sleeping tablets and medication for her anxiety and stress.
97 For months she was “numb” to a lot of things in her life, not finding joy in what she was doing, or feeling indifferent about it. She felt listless and incapable of organising activities with her children.
98 Exercise and normal physical activity had been difficult to maintain because of her fear of running into a person with a hoodie over their head, as that was the clothing that was worn. She had to see a psychologist on a weekly or fortnightly basis since this armed robbery, and counselling was ongoing. Her trauma had affected her young son’s schooling.
99 In the weeks after the armed robbery, she tried to go back to work, however, had anxiety and panic attacks, could not concentrate or keep attention to her duties.
100 After the first robbery she convinced herself that the likelihood of this happening again would be low, as security had been increased, and she began to feel safe at work. However, she has not been able to convince herself this time, and did not know if she would ever feel safe at work again.
101 After 12 weeks of trying to return to work, her anxiety was such that her psychologist recommended a two-month break. That took her away from work at the busiest time of the year, creating stress on those she worked with.
102 At the time of the armed robbery she was about to sign a contract for a promotion she had been working 18 months towards. You and your co‑offenders had stolen her ability to accept that role and this had impacted on her finances.
103 As at the date of her victim impact statement she had been unable to return to work. She felt angry your offending has turned her life upside down, and hoped that you had some understanding about the impact of your offending upon her.
104 I note the importance of social rehabilitation also referable to the effects of offending upon a victim, which includes cases such as DPP v Toomey[6] with reference to DPP v DJK[7]. Of course, that was a different type of offending and I am conscious of that, but nevertheless, the effect upon a victim is a relevant sentencing consideration, as I have previously stated (s5 Sentencing Act 1991). I am conscious, however, that I must not allow the effects upon a victim to swamp the sentencing process.
[6] [2006] VSCA 90
[7] [2003] VSCA 109
105
Mr Farrington urged while conceding a term of imprisonment was appropriate for your offending, he submitted the imposition of a term of imprisonment together with a Community Correction Order, would be the appropriate disposition. He submitted that on a Community Correction Order you could obtain drug treatment, also participate in programs to reduce your risk of
re-offending and address any mental health issues.
106 His secondary submission, without abandoning his primary submission, was if I did not consider such to be an appropriate disposition, he urged a sentence which was weighted heavily towards the imposition of a lengthy period on parole.
107 Ms Clancy, who appeared on behalf of the prosecution, prepared a written outline of submissions on sentence and addressed that during the hearing.
108 The prosecution submitted this was a serious example of armed robbery, and I agree. The offence was committed in company, you were disguised with face covering, as was your co-offender. Your co-offender pointed the firearm directly at the victim. There was planning, with stolen registration plates fixed over the registration plates of the car used in the offending. Approximately twenty-five people inside the venue at the time, exposed to the violence. Also there was a significant impact on the victim, North.
109 In referring to the offence of armed robbery as a serious offence, I note it carries a maximum penalty of twenty-five years’ imprisonment, indicative of the seriousness with which this offending is regarded. Also, there is concern this offending often involved soft-targets, that is, people going about their normal daily business being subjected to serious offending of this type. Ms Clancy referred to R v Orlikowski[8], in which the President stated at page 4:
“One has to be careful, I think, … not to allow too readily the personal circumstances of the offender to mask the features of this crime which required the sentencing judge to properly regard principles of general and specific deterrence as important features in the exercise of the sentencing discretion. The crime is one which is perpetrated upon usually defenceless members of the community whilst those persons are going about their business, often in circumstances of isolation. The crime is one which instils terror into its victims … .”
[8] VCA 16/10/97
110 The prosecution referred to the ongoing adverse impact upon North as a direct result of your offending.
111 It was conceded by the prosecution you were a youthful offender, 23 years of age at the time of the offence and sentence, and as I have said, I am conscious of that.
112 The prosecutor conceded you pleaded guilty to this offending at the earliest opportunity, and as I have said, I accept that was so.
113 I note you have a limited criminal history, with only one prior court appearance. I am, however, troubled by further offending by you, to which you intend to plead guilty.
114 The prosecutor referred to a number of cases which I read during the course of the plea hearing, and again since, including DPP v Abdi[9]. The prosecution submitted that offending was a less serious example of armed robbery noting, however, the offender was older than you at the time of offence and sentence, and had previously been on a Community Correction Order.
[9] [2016] VCC 1981
115
I was also referred to DPP v Glasby& Ors[10]. The prosecution described that as similar gravity to this offending, although I note weapons used at that stage were a baseball bat and a crowbar. The weapons before me are a firearm and a machete. The offenders were much younger than you and during the
three-year period between the commission of offence and sentence, there had been significant rehabilitation.
[10] [2016] VCC 927
116 I was also provided with a decision of DPP v Willis-Bentley[11]. The prosecution submitted, whilst similar gravity of offending to that before me, it was not committed in company, no disguise by the offender and it would appear to be not multiple victims, as was the case before me.
[11] [2016] VCC 954
117 Most recently in Younan v The Queen[12] which is a decision in February of this year, but which I only received yesterday, but I have read it. The Court of Appeal addressed the offence of armed robbery and a number of relevant matters in that case.
[12] [2017] VSCA 12
118 The Court referred to ‘current sentencing practices’ citing R v Kilic[13], including their limitations (paragraph 28).
[13] (2016) 339 ALR 30
119 The Court also referred to a number of cases involving armed robberies (paragraphs 30-37).
120 The Court noted the powerful mitigating factors relevant to Younan.
121 While all these authorities are of assistance, it is very difficult comparing cases factually, as facts vary enormous case to case, as do all matters in mitigation and personal to an offender.
122 Ultimately, I must determine the appropriate sentence in your case based on all relevant sentencing considerations, including the gravity of your offending and all matters personal to you in mitigation of sentence. In so many respects, your case is distinguishable from that in Younan.
123 The prosecutor submitted on the material before me, that it would be difficult to conclude your time in custody would be onerous. However, as I have said in my opinion I can so conclude, consistent with general sentencing principles.
124 Turning to community correction orders.
125 I am conscious that such involve not just a punitive element, but also rehabilitative. Boulton & Ors v R[14] has been considered in a number of authorities subsequently, including DPP v Maxfield[15], Alam v R[16], Marocchini v R[17] and Hutchinson v R[18], and Gul v The Queen[19]. That list is not exhaustive.
[14][2014] VSCA 342
[15] [2015] VSCA 95
[16][2015] VSCA 48
[17][2015] VSCA 29
[18][2015] VSCA 115
[19][2016] VSCA 82
126 Boulton urged sentencing judges to “rethink the conventional wisdom about whether prison is really the only option”. It has always, of course, been that gaol must be the last resort of the Court. Boulton did not remove the need for a sentencing judge to take into account all of s5 Sentencing Act 1991, not just s5(4).
127 Sentencing principles stated by the Court of Appeal and other courts relevant to the offence of armed robbery and seriousness of it continue to apply.
128 As stated by Priest JA in Hutchinson:
“… it should not be thought that Boulton offers a ‘Get Out of Jail Free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.” [17].
129 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
130 There is also the need for specific deterrence when sentencing you. You do have a prior criminal history, although I note somewhat limited and dated, and not for the same type of offending. Also matters pending to which you intend to plead guilty occurring in the months prior to this offending before me.
131 I must also consider the question of the protection of members of the community from you, and bear in mind the likelihood of your re‑offending. This concerns me, primarily referrable to your drug use. If you address your drug use, then that need to protect the community will be reduced.
132 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
133 In my opinion, to impose a disposition of a term of imprisonment together with a Community Correction Order, would not adequately or appropriately reflect all relevant sentencing considerations.
134 I therefore sentence you as follows.
135 On Charge 1 you are convicted and sentenced to 4 years’ imprisonment.
136 I direct that you serve a period of 2 years and 4 months before you are eligible for parole. In so sentencing, I have imposed what I regard as a longer parole period.
137 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of this offence following jury verdict, in other words, if you had pleaded not guilty to this and been found guilty of it, I would have sentenced you to a term of imprisonment of 6 years and set a non-parole period of 4 years.
138 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 203 days in custody, up to and including yesterday 9 March 2017, by way of pre-sentence detention, and I direct that that be entered into the records of the court.
139 The prosecution made an application for a forfeiture order. That was not opposed by counsel on your behalf and I make the order in the terms sought.
140 I don't think there were any other orders were there?
141 MS TREASURE: No, Your Honour.
142 HER HONOUR: What about the days of the PSD, is that correct?
143 MS TREATURE: That's what I had Your Honour.
144 HER HONOUR: Do you agree, up to and including yesterday?
145 MS SALTER: Yes, Your Honour, that's correct.
146 HER HONOUR: Yes, that is all right. Anything further in this matter from the parties.
147 HER HONOUR: All right, thank you Mr Gretelianos. You will need to leave now, thank you. Yes, thank you.
- - -
0
3
0