Director of Public Prosecutions v Handley
[2018] VCC 1529
•25 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-18-00155
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK JASON HANDLEY |
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JUDGE: | Her Honour Judge Lewitan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 August 2018 | |
DATE OF SENTENCE: | 25 September 2018 | |
CASE MAY BE CITED AS: | DPP v Handley | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1529 | |
REASONS FOR SENTENCE
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Subject: Armed Robbery
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. B. Hamill | John Cain Solicitor for Public Prosecutions |
| For the Accused | Mr A. J. Lavery | Kerry Clancy (solicitors) |
HER HONOUR:
1 You, Mark Jason Handley, have been convicted, after trial, of one charge of armed robbery. The maximum penalty for this offence is 25 years imprisonment.
2 At 10.30 am on 27 August 2017 you entered the Bottle-O at shop 5, 158 Sunshine Avenue Kealba. Dung Tran (Tran) was behind the counter. You were holding a pair of scissors in your right hand and demanded “Money, money, money” from Tran. At some point Tran saw that you had another object in your left hand which Tran said could have been another pair of scissors or a knife.
3 Tran was scared and in a state of panic. He gave you $50 from the till because he did not want you to attack him. You then leaned over to help yourself to some more money from the till. At that point Tran retreated from where he had been behind the counter. You jumped on the counter and opened the cigarette cabinet. Tran said that he was not sure whether you took any packets of cigarettes with you, because some of them fell on the floor. Tran was however sure that you took some cash. He was not sure how much. He thought that perhaps you took $250 because some of the money fell on the floor in the course of this incident. You then ran out of the store and Tran followed you for a little while. Ultimately the police were called. The events in the store were all captured on the CCTV.
4 The facts in this case are very serious. Your behaviour was threatening and disturbing.
5 As has been pointed out by your counsel, there are however some mitigating factors.
6 I have been told something of your personal history and your circumstances. You were born in Dandenong on 16 January 1981 and are 37 years old. You grew up with your mother and her new partner with whom she formed a relationship after her separation from your father. You have a stepbrother who is 8 ½ years younger than you.
7 You had no contact with your father until you were about 8 or 9 years old. Your education was disrupted and you attended numerous schools but managed to complete year 10 at Fountain Gate Secondary College.
8 Your mother’s partner was an alcoholic and had been violent towards your mother. At the conclusion of your schooling you had a violent falling out with your mother’s partner. You went to live with your father and commenced an apprenticeship as a diesel mechanic. You completed 3 ¼ years out of a four year apprenticeship in Dandenong. During this time you mostly lived alone in your father’s house as your father was away driving a truck.
9 After obtaining a driver’s license you obtained a heavy articulated license and license to drive B double trucks. You have worked for most of your adult life driving interstate with either refrigerated produce or parcel delivery. Your father is now the manager for a transport company.
10 Prior to this offending you had been working as an interstate truck driver and were in a relationship.
11 Since you have been in custody, you have spent approximately five months at the Melbourne Remand Centre. You were transferred to Fulham prison on 4 January this year. You have been working in the kitchen at Fulham prison. Since the time you have been at Fulham, there have been some restrictions in terms of your ability to move about the prison. There is an earlier lockdown for remand prisoners. You have also had limited access to programs.
12 You have admitted before me to prior convictions. There are 118 such convictions involving 10 court appearances between 2005 and 2016. The nature of some of those prior convictions and in particular the convictions for theft and burglary are such that they are highly relevant to my task of sentencing you today. This offence marks an escalation in the seriousness of your previous offending.
13 I have been informed of certain subsequent convictions. On 31 October 2017 you were sentenced in the Shepparton Magistrates Court to an aggregate term of imprisonment of 6 months for offences which included two counts of obtaining property by deception, two counts of theft from a motor vehicle, six counts of theft, two counts of dishonestly undertaking and retention of stolen goods, committing an indictable offence whilst on bail, four counts of burglary, two counts of attempting to obtain property by deception and further single charges of handling and dealing with property suspected to be the proceeds of crime and some ammunition and drug charges (the subsequent offences). The prosecution submitted that the commission of the subsequent offences are relevant to the question of your prospects for rehabilitation.
14 Your counsel submitted that the convictions for the subsequent offences have limited impact on the question of your prospects for rehabilitation. At least some of those offences were committed at or around the same time as the commission of this offence which has resulted in the loss of opportunity for concurrency. You were remanded on 9 October 2017 in respect of this armed robbery. Had this matter been heard first, you would have been entitled to claim 12 months’ pre-sentence detention. At the moment you are claiming pre-sentence detention of just over 6 months. Your counsel submitted that the sentence for this matter needs to be moderated so that the overall sentence complies with the principles of totality.
15 The prosecutor, Ms Hamill, submitted that one of the subsequent offences of burglary occurred on 26 August 2017, a few hours before the commission of this armed robbery. At the very least the subsequent conviction for that offence occurred at around the same time as the commission of this offence.
16 In relation to Mr Lavery’s submission that you have lost the opportunity to have all your pending matters dealt with together, the prosecution submits that this matter proceeded to trial and was dealt with by way of a contested trial and it has not been said that there was any substantial delay in the progression of this matter to this point. You were charged in relation to this armed robbery in October last year, whilst you were on remand in relation to the subsequent offences. The prosecution submits that to have a matter progress from charge to verdict within one year is a speedy resolution.
17 I accept the prosecution’s submission that in sentencing you the Court should not impose a crushing sentence, having regard to the aggregate sentence of 6 months' imprisonment that you have already served in relation to the subsequent offences. I have taken into account the six month period that you have spent in custody in relation to the subsequent offences to ensure that the overall sentence complies with the principles of totality.
18 Your counsel submitted that you do have prospects for rehabilitation given that you have managed to keep yourself offence free for significant periods of time earlier in your life and you have worked. However having regard to your criminal history, in my view your prospects for rehabilitation remain guarded.
19 A victim impact statement by Tran signed 29 August 2018 has been filed.[1] He said that “from the day of the incident, there’s a part of me that is still scared that it might happen again.” I accept that the victim has suffered considerably in the manner described in that statement as a result of your actions.
[1] Exhibit A.
20 Your counsel submitted that this offence falls in the lower end of the scale of offending for this offence. There is no evidence of detailed planning. Your counsel submitted that the use of scissors falls below the level of a knife. To the extent that there was a disguise, you wore a jacket turned inside out and gloves. Your counsel submitted that the amount stolen was not substantial.
21 Ms Hamill submitted that it cannot necessarily be said that an armed robbery involving scissors is less serious than an armed robbery involving a knife. Both scissors and knives have a blade. Tran’s evidence in relation to the item that was in your left hand was that he thought that it may have been a knife or another pair of scissors. The prosecution did not submit that this is the most serious example of armed robbery but noted that Tran was a ‘soft target’, working alone in a bottle shop on a Sunday morning, which is not the most busy time for a bottle shop. Tran’s evidence was that it had not been a busy morning. There was some degree of planning and an attempt by you to disguise yourself. You turned your jacket turned inside out and put the hood up.
22 In my view your offending is at the low level of seriousness for armed robbery.
23 However, as well as those matters personal to you to which I have referred, including your prospects for rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. 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. I am called upon by the Sentencing Act 1991 (Sentencing Act) to manifest the community's denunciation of your conduct and generally to impose a just punishment.
24 This is without doubt a serious offence. In all the circumstances I have no alternative to the imposition of a custodial sentence. I propose to record a conviction on charge 1 and sentence you to be imprisoned for 4 years. Could you please stand? I direct that you serve a minimum of 2 years and six months before becoming eligible for parole.
25 Lastly I order that the property referred to in the schedule to the disposal order, which I have signed this day, be forfeited to the State and direct that it be placed in the custody of the Chief Commissioner of Police and held by him until 28 days from this date and then destroyed.
26 As prescribed by s18(4) of the Sentencing Act I declare that the period of time you have already spent in custody is 211 days. I direct that such be noted in the records of the court. Are there any further matters?
27 MS HAMILL: No, Your Honour.
28 MR LAVERY: No, thank you, Your Honour, no.
29 HER HONOUR: Yes. Thank you. Would you please take Mr Handley into custody and adjourn the court until 12.
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