Director of Public Prosecutions v Grixti

[2016] VCC 1743

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01500

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA GRIXTI

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2016
DATE OF SENTENCE:	18 November 2016
CASE MAY BE CITED AS:	DPP v Grixti
MEDIUM NEUTRAL CITATION:	[2016] VCC 1743

REASONS FOR SENTENCE
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Subject:  Armed Robbery and Others (3)
Catchwords:
Sentence:  Youth Justice Centre - 2 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Parkes
For the Accused	Mr R. Backwell

1HIS HONOUR:  Joshua Grixti, you have pleaded guilty to each of three charges in Indictment G10378556.1. The first charge is a charge of armed robbery for which the maximum penalty is 25 years' imprisonment. The second charge is a charge of theft for which the maximum penalty is 10 years' imprisonment. The third charge is that of making a threat to kill for which the maximum penalty is also 10 years' imprisonment.

2The offending in each of the charges occurred on 7 February 2016 and at the time of the offending you were 20 years of age and you celebrate your 21^st birthday on 26 November next.

3The circumstances of your offending are contained in a written summary of the prosecution opening dated 4 November 2016. That summary was admitted into evidence as Exhibit A on your plea, which was conducted before me on 11 November 2016. The summary was read in open court by Ms Parkes, who appeared to prosecute. Your counsel, Mr Backwell accepted that the summary was accurate and forms a proper basis upon which I can proceed to pass sentence upon you.

4It is not necessary that I here set out in full that which is contained in the summary. These sentencing remarks need to be read in conjunction with what is contained in the summary.

5On 7 February 2016 you and an associate entered the BP service station in Ballarat Road at Burnside. You stole a sweet, which you hid under your black hooded jumper and left the store without paying. The value of the item was a mere $7. This is the subject of the theft charge which, in summary form, is a charge of shoplifting. It is very low level theft.

6After you left the service station you and your associate approached the victim of Charge 2. He is a young man of Indian extraction, who was doing nothing more than walking along a street in daylight during summertime minding his own business. You blocked his path and confronted him and you deliberately provoked an incident with him by what you said to him and what you did to him. You produced a flick knife and walked towards the victim who beckoned with you to calm down. You repeatedly verbally abused him and after you produced the knife you demanded that he give you his mobile phone and money and you threatened to stab him.

7When he told you that he could not give you his mobile phone and he did not have any money, you kicked him in the groin, which caused him to fall to his knees. The victim stood up and you began slashing at him with the knife in a cutting motion. Fortunately, you did not connect with him with the knife. You put the knife in your pocket and then twice punched the victim to the face and when he fell to the ground you tried to kick him. Again, fortune would have it that you did not connect with him.

8A member of the public who was driving by saw what was happening and told you to leave the victim alone. For his trouble you pulled the knife from your pocket and began walking towards the bystander and you said "I'm trying to cut this dog, do you have any problem with that?" You were then joined by your girlfriend to whom you gave the knife before again running at the victim, bear tackling him to the ground and whilst he was on the ground you kicked and punched him. Both of you stood up and you again struck the victim to the right side of his face, causing him to fall over again and briefly lose consciousness. Your associate, who was nearby, told you to stop.

9Your girlfriend stepped forward and punched the victim twice in the face and while she did this you tried to remove the victims mobile phone from his pocket. There was a struggle over the phone, causing the phone cover and the battery to fall apart. You took these items and a pair of earphones. These facts form the charge of armed robbery.

10The victim suffered multiple soft tissue injuries, swelling and bruising to his head and face, abrasions to his neck and lower back and experienced pain moving his jaw.

11Police were called and arrived in the vicinity soon after. Your girlfriend was caught and arrested. She was found with a knife in each hand, together with the items that you had stolen from the victim.

12You went home and you changed your clothes and a short time later you came across your housemate Matthew McInnes. You told him that your girlfriend had been arrested and you offered him money to provide an alibi, which he declined.

13A short time later you approached a nearby police vehicle. You were observed to have scratches on your neck but you told the police that you had been at home all day and that your housemate was your alibi. You were immediately arrested. When your housemate would not substantiate your alibi that you tried to set up, you threatened him, in the presence of the police saying “you fucking wait mate, when I get out in three hours I’m coming back to kill you.” This is the offending that comprises Charge 3. Your housemate was in extreme fear as a result of your threat, which he took very seriously.

14You were interviewed by the police where you made some admissions, but otherwise lied to the police, endeavouring to portray yourself as the victim.

15Whilst the charge of theft is a very low level shoplifting offence, the same cannot be said for the armed robbery charge, or the charge of making a threat to kill. I was told and accept that your offending occurred in the context where you were drug affected, having administered yourself with methylamphetamine or ice. This helps to explain the way you acted during the course of the offending, but it does not excuse it.  You voluntarily chose to take the drugs and must bear the consequences of your actions.

16Whilst the charge of armed robbery is not anywhere near the highest level because of the low value of the property stolen, it was an offence committed by you in broad daylight, in a public place, in company with another and was accompanied by a relatively high level of gratuitous violence which included an attempt to injure the victim using the knife. Your victim was alone and he pleaded with you to leave him alone, but you ignored him and you threatened him with a knife. I have received into evidence a victim impact statement from the victim of your armed robbery.  Your offending was a terrifying experience for him and has left him in constant fear and has affected the way he now lives his life.  In passing sentence I have taken the victim impact statement into account, as I must.

17The offence of making a threat to kill also was not at the highest end but nor could it be said that it falls at the lowest end. At the time you threatened violence a short time after you had carried out violence and the victim no doubt thought that you were going to carry out your threat.

18You were arrested on the day of the offending and you were not bailed until 7 March 2016. You were released on bail on that day, but were arrested again on 17 July 2016 on an arrest warrant, after you failed to appear. You have now served 153 days presentence detention on remand in an adult prison.  Part of that time has been in protection and you have not been able to partake in programs designed to assist your rehabilitation.

19You pleaded guilty to these charges at the sixth committal mention on 29 August. I treat you as having pleaded guilty at the earliest possible opportunity. For this, you are entitled to a reduction in sentence. Importantly, by your pleas of guilty to the charges you have saved the time and costs of a trial and you have saved the need for the victim to have to give evidence against you, thereby reliving the violent events that you subjected him to. The reduction in sentence which I have applied will be reflected in the sentence that I will shortly pass.

20You have other charges pending and these are to be dealt with in the Melbourne Magistrates’ Court on 23 November. Those charges involve allegations of breach of an intervention order, possessing methamphetamine, criminal damage, offending whilst on bail, assault and make threat to kill. I was told by your counsel that the offending involved in these charges allegedly occurred between June 2015 and June 2016.

21I turn to some other matters personal to you. Critical in arriving at a proper sentencing disposition for you is the fact that you fall for sentence as a young offender, not having yet reached the age of 21. I appreciate that you are about to turn 21, but you are a young offender and in arriving at an appropriate sentence, I have to give full regard to a sentence that will best bring about your rehabilitation and give you the opportunity to achieve that.

22Your counsel submitted that I should release you immediately on a community corrections order, subject to appropriate conditions. Alternatively, that I should have you assessed for suitability to serve any further term of detention in a Youth Justice Centre. I can see the sensible reasons for this disposition and to that end I have had you assessed for a community corrections order and I have also had you assessed for a Youth Justice disposition.

23I received into evidence a psychological report prepared in relation to you by Mr Bernard Healey. He examined you over a period of three hours on 30 October this year. He reported that you had gained 20 kg in weight whilst in custody. He said that you manifested considerable stress and a rather depressed demeanour, because you were in custody for the first time. You told him that after you went into custody you underwent marked symptoms of withdrawal from drugs including agitation, disturbed sleep, increased appetite and the need for sleep.

24You began smoking cannabis at age 14 and you were a daily user by the age of 15. You began smoking ice at age 16 and you rapidly developed a daily habit, which continued up until the time you were taken back into custody. You had also imbibed benzodiazepines and you tried GHB and ecstasy. You have been prescribed with an antidepressant whilst in custody.

25You told Mr Healey that your time in custody that you have now reflected on the disastrous course which your life has taken. Your partner is pregnant, expecting your child on 16 January.

26When you were arraigned, you admitted a very limited past criminal history. In November 2014 you were dealt with in South Australia for the contravention of an intervention order and possessing a dangerous article (a slingshot). You received a non-conviction bond. In passing sentence I have taken this limited history into account. It is of little relevance.

27You are estranged from your mother. You told Mr Healey that you have not spoken to her in eight months. Your father is age 55 and lives in a nursing home and suffers a number of ailments. Your parents separated when you were aged eight years old and you lived with your father at Corio and your sister continued to live with your mother. In your early years your family travelled around Australia and you thus moved from school to school and we you were never able to grasp a firm footing in one place. Your sister is aged 21 and you have two other half-sisters and a half-brother. You have lived with your paternal grandmother between the ages of 19 and 20 and then in a boarding house in Footscray.

28When you were aged 18 you were apparently struck in the head with a baseball bat and you have had two subsequent falls, injuring your head, although there was no evidence that you suffer any long-term effects. You have never had treatment in a hospital. Your only serious relationship has been with your co-offender Courtney Smith who, as I said earlier, is pregnant with your child at the age of 18. She is also a drug user. Intellectual testing of you by Mr Healey shows that you have a borderline intellectual capacity with a full scale IQ of 78, placing you on the 7^th percentile where 93% of people your age would perform better.

29Offending of this nature is serious. Armed robbery is a very serious offence, as may be seen from the maximum penalty prescribed by the Parliament. Your offending in Charge 2 was serious because you used a weapon and you threatened violence and you carried out violence to the victim. This aggravated the offence and elevated it to a level which I regard as serious.

30Normally in offending of this kind the sentence is guided by application of the sentencing principle known as general deterrence. Applying that principle, the sentence should serve to deter others who may seek to offend as you have. However, when sentencing a young offender, general deterrence is often moderated to a certain extent so that the sentence imposed has less emphasis on general deterrence and more emphasis given to the offender's rehabilitation. In your case, I must have full regard to the fact that I sentence you as a young offender in circumstances where, at the age of nearly 21, you have a negligible past criminal history.

31Were it not for the fact that your offending resulted in a violent incident, I would have released you immediately on a community corrections order with conditions. However, having regard to the seriousness of your offending, I have reached the view that you should spend more time in prison but in a Youth Justice centre.  Presently, I think your prospects for rehabilitation are reasonably poor until you rid yourself of drugs.  The fact your partner is also a drug user will not help you. 

32I had you assessed for suitability for a community corrections order and whilst you are suitable, you are also assessed as being at a high risk of re-offending. 

33You have also been assessed as suitable to serve any prison sentence in a Youth Justice Centre.  In my assessment, the seriousness of your offending warrants more time in prison.  However, in my view your prospects for rehabilitation are best served by any prison term being served in this way.  That is, in a Youth Justice Centre. I think you are impressionable, immature and because of your young age, small stature and fairly low intelligence you are likely to be subjected to undesirable influences should you remain as an inmate in an adult prison.

34On Charge 1, theft, you are convicted and sentenced to be detained in a Youth Justice Centre for one week.

35On Charge 2, armed robbery, you are convicted and sentenced to be detained in a Youth Justice Centre for a period of two years. 

36On Charge 3, make a threat to kill, you are convicted and sentenced to be detained in a Youth Justice Centre for a period one month.

37I declare that there has been 154 days presentence detention under the sentences passed this day and that 154 days be reckoned as having been already served and be entered into the records of the court and be deducted administratively.

38For the purposes of s.6AAA of the Sentencing Act 1991, I state that had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of three years' imprisonment in an adult prison and I would have fixed a non-parole period of two years.

39The prosecution seeks the making of a disposal order. That was not opposed and I have signed the order.  Any questions arising out of that, Mr Backwell?

40MR BACKWELL:  No sir.

41HIS HONOUR:  Ms Parkes?

42MS PARKES:  No, Your Honour.

43HIS HONOUR:  Very well, thank you.

44MR BACKWELL:  Sorry, yes there is, sir.  Your Honour said Charge 1 of theft.  On the indictment, my recollection is Charge 1 is the armed robbery.  Charge 2 is the theft.

45HIS HONOUR:  Can I see the file there, please?

46MR BACKWELL:  I understand the effect of Your Honour's sentence.

47HIS HONOUR:  I'm sorry, you're quite right.  I've got them around the wrong way.  Just for the purposes of clarity, let me do that again.  On the charge of armed robbery, Charge 1 - on the Charge ‑ ‑ ‑

48MR BACKWELL:  Sorry, sir ‑ ‑ ‑

49HIS HONOUR:  Sorry, on Charge 1, armed robbery, you are convicted and sentenced to be detained in a Youth Justice Centre for a period of two years.  On Charge 2, theft, you are convicted and sentenced to be detained in a Youth Justice Centre for one week.  On Charge 3, make threat to kill, you are convicted and sentenced to be detained in a Youth Justice Centre for a period of one month.

50MR BACKWELL:  Thank you Your Honour.

51HIS HONOUR:  Thank you for clarifying that with me, Mr Backwell.

52MR BACKWELL:  Your Honour, Mr Bell just raised with me the fact that Mr Grixti is on remand for the matters that are before the Sunshine Magistrates' Court ‑ ‑ ‑

53HIS HONOUR:  Yes.

54MR BACKWELL:  ‑ ‑ ‑ and he advises Your Honour would need to transfer that remand to the Youth Justice system in order that he, Mr Grixti that is ‑ ‑ ‑

55HIS HONOUR:  Can be taken to ‑ ‑ ‑

56MR BACKWELL:  ‑ ‑ ‑ taken to a Youth Justice facility today.

57HIS HONOUR:  Yes, yes.

58MR BACKWELL:  Otherwise, he would remain in adult prison.

59HIS HONOUR:  Yes.  Well, I'm quite happy to do that.  Do I have the power to do that?

60MR BACKWELL:  Mr Bell says you do.

61HIS HONOUR:  It's in the Bail Act, I would think.

62MR BELL: Good morning, Your Honour. Yes, it's - I think it's s.5A in the Bail Act.

63HIS HONOUR:  Just pardon me for a moment?  Mr Backwell, I'm quite happy, provided I have the power ‑ ‑ ‑

64MR BACKWELL:  Yes, I understand that, Your Honour and I ‑ ‑ ‑

65HIS HONOUR:  I'm not quite ‑ ‑ ‑

66MR BACKWELL:  ‑ ‑ ‑ I have some reservations as to whether Your Honour does have the ‑ ‑ ‑

67HIS HONOUR: I don't know that I do have the power in - I don't think s.5A of the Bail Act provides the power.  It speaks of a situation where the accused in a criminal proceeding in this court and the court adjourns the proceeding.  Well, I'm not doing that.

68MR BACKWELL:  Right, that's right.

69HIS HONOUR:  Regrettably, I think what will have to happen is that - and this may be able to be brought about today, I'm not sure, have the matter mentioned in the Magistrates' Court for variation of the bail.  That may able to be dealt with by a magistrate sitting in the fourth court of this - sitting in one of the courts in this court, hearing matters where Magistrates' Court - people brought before the Magistrates' Court are held in the cells here.

70MR BACKWELL:  Yes, sir, I understand that.  I'll make some enquiries, just to see what can be done.

71HIS HONOUR:  Certainly if I - I'll be - I'll be here for the rest of the day.  If there's anything that I can do to assist, I'm - I'm more than happy to - to do that ‑ ‑ ‑

72MR BACKWELL:  Yes, thank you sir.

73HIS HONOUR:  ‑ ‑ ‑ but I'm not sure that that's the power and I just - as I sit here, can't see any other power.

74MR BACKWELL:  No.  I think it's back to the Magistrates' Court.

75HIS HONOUR:  Yes, so I regret that you'll have to go to that trouble.  I'm sorry, Mr Bell.

76MR BELL:  No, that's all right, Your Honour.

77HIS HONOUR:  Yes.

78MR BELL:  I had another matter that I was working on yesterday and I've - I think I've confused them, because I thought it was listed in this court next week ‑ ‑ ‑

79HIS HONOUR:  No, thanks for bringing it to my attention.

80MR BELL:  ‑ ‑ ‑ but it is in the Magistrates' Court.  You're correct.

81HIS HONOUR:  It's a bit of a lacuna, really, that needs to be attended to by legislative amendment.

82MR BELL:  Correct.  Thank you Your Honour.

83HIS HONOUR:  Thanks very much.  Could you take Mr Grixti into custody please?  I'll just leave the Bench for a short time.

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