Director of Public Prosecutions v Holmes

[2020] VCC 944

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02549

DIRECTOR OF PUBLIC PROSECUTIONS

v

STUART HOLMES

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	19 June 2020
DATE OF SENTENCE:	25 June 2020
CASE MAY BE CITED AS:	DPP v HOLMES
MEDIUM NEUTRAL CITATION:	[2020] VCC 944

REASONS FOR SENTENCE
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Subject:  Criminal Law
Catchwords:  Armed Robbery
Legislation Cited:  Sentencing Act 1991
Cases Cited:  Brown v The Queen [2020] VSCA 60

Sentence:9 months imprisonment; 2 year community corrections order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. McCarthy	Office of Public Prosecutions
For the Accused	Mr B. Johnston	Pica Criminal Lawyers

HER HONOUR:

1Stuart Holmes, you have pleaded guilty on indictment to a single charge of armed robbery, committed on 23 September 2019. 

2In sentencing you for this crime, I must have regard to the maximum penalty for the offence that you have committed.  The charge of armed robbery carries a maximum penalty of 25 years imprisonment, which reflects the seriousness with which Parliament regards this offence. 

3The circumstances of your offending is set out in a document entitled 'Summary of Prosecution Opening for Plea’, dated 21 May 2020.  It is a detailed document and represents an acceptance by you of the elements of the offence to which you have pleaded guilty and the factual basis on which I am to sentence. 

4In short compass, at approximately 1:29 pm on 23 September 2019, you entered the Mackie Road Post Office in East Bentleigh, which is an authorised Australia Post outlet. At that time, you had disguised yourself with a black wig and a pair of black novelty sunglasses.  When you entered the post office, you withdrew what was described as a bread knife from your clothing.  It was approximately 30 centimetres long.  You approached the business operator, Greg Lanyon, who was at the service counter and you stated “nobody move, I want all of your money.”  You did this in a loud voice, whilst holding the knife in your hand.  You then turned and pointed to witness Gabriella McPherson and said in a loud voice, 'Get against the wall'.  Ms McPherson was aged 17 years at this time and in response stood against a wall behind her.  You then directed her again by saying 'no, over there'.  She did as you asked.  She apparently thought the event was a joke and recorded it on her mobile phone.  This footage was made available to the court.  You then returned your attention to Mr Lanyon and said 'I mean it, give me your money'.  In response, he grabbed a bag, unlocked the cash register and removed all of the cash, putting it in the bag.

5Mr Lanyon's wife, Debbie, was standing next to him at the time, working on a second cash register.  She hit a panic button and also removed money from her register, putting it in the bag.  You received that bag from Mrs Lanyon which by this stage contained $6,472 in cash.  You left the post office and returned home on a skateboard, completing the offence of armed robbery.  Apart from the footage taken by Ms McPherson, your offending was also captured on CCTV. 

6Fortunately, your offence was of a relatively short duration and no person was physically harmed.  Members of the public in fact followed you to your nearby address and police were notified. You were arrested at your home approximately 15 minutes after the armed robbery and police located the wig used.  The cash and knife were not located, so at some point you had the foresight to dispose of each of these items in some way.  You do not recall your offending so apparently are unable to offer any insights.

7You were arrested and interviewed by police at which time you denied being responsible for the armed robbery.  Whilst presenting in a somewhat ridiculous fashion, this is a serious offence, which showed a degree of planning.  You must have been aware of the target, given its proximity to your home and took the time to disguise and arm yourself.  You chose a venue described as a ‘soft target’, where your direct victims were likely - and did - respond to your armed request for money, given their vulnerabilities.  You managed to dispose of the moneys taken and the knife on your return route home and removed your jacket and shoes, decreasing your risk of identification.

8You say that on the day of your offence you had consumed white wine, Diazepam, methamphetamine and GHB.  This in my view does not reduce your moral culpability. 

9You, as I have said, are fortunate to recall little of the day, a reality that is not available to the other witnesses.  This was a husband and wife business.  They were in their chosen place of work.  This is an environment in which they were entitled to feel safe, as were their customers.  Onlookers were also exposed to your criminal actions.  Whilst there are no victim impact statements, I have little doubt that each day the Lanyons return to the operation of their business after the armed robbery, they were reminded of 23 September 2019.  You also took what was their hard-earned money.  As a direct consequence, you were remanded into custody and have remained there since 23 September 2019.

Criminal History

10This is your first exposure to the custodial setting.  I have little doubt that the 277 days of pre-sentence detention now served will be capable of acting as both a sanction to you and a deterrent for the future. 

11You do have a prior criminal history.

12In the Cairns District Court in July of 1995 you received a fine without conviction and a recognizance to be of good behaviour for dishonesty offences.  Some eight years later on 9 January 2003, you were dealt with in the Byron Bay Local Court for driving offences, including drink driving.  You were again fined and your license was disqualified.  In September of that same year, you were again sentenced by the Byron Bay Local Court for driving offences and fined. 

13There is then another considerable gap in your history which recommences in Victoria, fourteen years later in 2017, and seems to be largely related to the breakdown of your then marriage and your inability to cope with that circumstance.  On 3 February 2017, you appeared at the Moorabbin Magistrates' Court in relation to various charges relating to contravening family violence intervention orders and contravening bail orders.  You were placed on a community corrections order for a period of 15 months with treatment conditions.  This order was without conviction.

14On 8 March 2017, you again appeared at the Moorabbin Magistrates' Court in relation to contravening a family violence intervention order and breach of bail conditions.  You were again placed on a community corrections order without conviction with treatment conditions, this time for a period of 14 months.  Some months later on 28 August 2017, you appeared at the Moorabbin Magistrates' Court for breach of the order that had been imposed upon you on 3 February 2017.  The original order was confirmed.

15On 15 January 2018, you appeared at the Moorabbin Magistrates' Court for contravening a community corrections order imposed on 28 August 2017 and the order imposed on 8 March 2017.  Those contraventions were found proven and you were fined with conviction.  The original community corrections orders were confirmed.  On 5 February 2019 at the Moorabbin Magistrates' Court, you were dealt with for contravening the community corrections order that had been imposed upon you at the same court on 15 January 2018.  The contraventions were found proven and Corrections orders confirmed.

16On 15 August 2019, you next appeared at the Moorabbin Magistrates' Court in relation to using a carriage service to harass.  You entered a recognisance to be of good behaviour for a period of 12 months in the amount of $500.  This appearance was in close proximity to your offence of armed robbery and it appears that the armed robbery was in breach of that recognisance order.  If so, it is an aggravating feature to your offending. 

17Let me assure you, you are not to be punished a second time for your prior criminal history.  It does, however, have relevance in the assessment that I need to undertake, as to the weight to be given to specific deterrence - that is, putting you off further offending - denunciation and protection of the community.  The offending in your prior history is largely irrelevant to the offence of armed robbery, however, in those more recent times I have described, your prior criminal history is relevant as to your prospects for rehabilitation.

18In the main, your history shows an inability to abide by court orders, which in your case includes community corrections order, bail orders and family violence orders. 

19I do accept that you entered your plea of guilty to the charge at the earliest opportunity.  As such, your plea does have utilitarian value.  It has saved the court the time and expense associated with contested proceedings, as well as the need for witnesses to attend and relive the events 23 September 2019.

20Based on the materials tendered on your behalf, particularly your character references to which I will later refer, I am satisfied that your plea is one of remorse.  These things will all be reflected in your favour. 

Personal circumstances

21I take into account your personal circumstances, which to some degree, shed light on the prior matters and your more recent offending. You were born in Adelaide to parents Marian and Angus, but grew up in Melbourne.  You are the youngest of three children from that marriage and have two older sisters, Helen and Andy.

22You are well educated, having completed Year 12 at Caulfield Grammar School, where your father was the school principal.  I am told you were a good student.  You were brought up in the Christian faith as your father was also a Baptist pastor.  Your father died of Parkinson's disease in 2015 and your mother currently resides in a retirement village.  Following your secondary education, you completed a Bachelor of Arts at Monash University and completed a post-graduate diploma in Public Relations.  You initially spent some time traveling around Australia, living in both Cairns and Byron Bay, where it would appear there was at least a few younger indiscretions, given your offending around that time.

23I am told that you have an excellent working history.  You have been employed through most of your adult life.  You have worked in computer sales for Telstra and been self-employed since 2005, having started your own consulting business in recruitment.  In 2015, your employment within that company was terminated, due to concerns with your substance abuse.  Since that time, you have held a number of positions as a contract sales manager for a wine company and in human resources.  You have had a difficulty maintaining long term employment since 2015, due to ongoing substance abuse issues, which seem to both wax and wane. 

24When in your early 30s, you met your ex-wife Hannah. You had two sons from that marriage, Ned born in 2010 and Henry born in 2012.  When your father died in 2015 you had difficulty coping and your alcohol intake increased.  You began using recreational drugs such as cocaine and ice and began using them more regularly.  That use increased between 2016 and 2017 and spiralled out of control, when you began using ice on a regular basis.

25Your marriage fell apart due to your drug and alcohol abuse.  It was during this period that your wife eventually obtained an intervention order against you and there were periods in which you were prevented from seeing your children.  This response by your ex-wife is hardly surprising in the circumstances in what would have been her perceived need to protect your children from you.  Your more recent offending appears in the context of this relationship breakdown.  Rather than use it as a wakeup call, it instead, exacerbated your drug use.

26Also, during this time, you met your current partner, Ms Edwina Gulyas, with whom you were residing at the time of the offence before me.  At various stages between 2017 and 2019, you spent time in residential rehabilitation and detoxification services, but without any real success.  Your family has located another rehabilitation facility for you called Refocus located in Toorak and are willing to fund that program for you.  A bed is apparently currently available.  It is ultimately a matter for you as to whether or not you take up that opportunity and whether you do so with greater success than you have in the past.  As they say, you can lead a horse to water, you cannot make it drink.

27You were hospitalised on three occasions for drug overdoses in June of 2017, June of 2019 and on 10 September 2019, some ten days prior to this offence.  On these occasions you were variously diagnosed with depression, suicidal ideation, a polypharmacy drug overdose, a dependence on alcohol and a situational crisis, according to the report of Mr Jeffrey Cummins, consulting clinical and forensic psychologist, dated 17 June 2020, which has been tendered on your behalf.  You told Mr Cummins that you committed the armed robbery when seeking money, which you could then spend on drugs.  You had lost your employment approximately six weeks before and increased your drug and alcohol use and abuse.  You now accept that you are an alcoholic.  In
Mr Cummins' opinion, you do not have a personality disorder.  In his opinion you suffer from alcohol, methamphetamine, GHB and Valium dependence.

28He is also of the view that you have suffered from major depression since your mid-20s, which has become entrenched, as you become more dependent on alcohol and other drugs.  You acknowledge the need for further treatment and Mr Cummins recommends a long-term residential drug and alcohol program.  As already outlined, that would appear to be available to you.  This has been organised by your family, but the real commitment would need to come from you.

29You are fortunate to enjoy the continuing support of your mother, your two sisters and Ms Gulyas, each of whom were present for your plea hearing on a previous date and are present here today, even if it be virtually.  Your mother has paid back the moneys that you stole from the post office. 

30Character references have been tendered on your behalf, authored by James Witcombe, Lachlan Strafford, Marian Gulyas - effectively your de facto mother in law - your mother, Marian Holmes, Stuart Bayles, your partner Edwina and sister Helen Knight.

31Whilst each of these persons have known you in a different capacity and for different periods of time, you are variously described as talented, generous, compassionate and that the offending is out of your normal character.  Your referees also speak of your strong bond with your sons, but that your drug use led to your inability to properly maintain those relationships and focus on their importance in a more positive way.  A number of your referees also speak of your remorse, not only for yourself in your current predicament, but also for your family members and your victims.  I take the contents of those references into account. 

32Whilst in custody, you have completed a drug related program and re-found your faith, with the assistance of Reverend Heather Toms, who has also provided a letter to the court.  You initiated a program for other prisoners called Green Collar, to assist them to create a CV, write a cover letter and have a mock interview, where the intention was for companies to employ ex-prisoners, through application for a government grant.  You did the initial works in this program, but it was unable to get off the ground because of the COVID-19 pandemic.  Your intentions, however, would appear to be pure.

33You have been prescribed antidepressant medication and methadone, which in the absence of your drug use, appears to have provided you with stability.  You are well supported by family and in the context of your romantic relationship with Edwina.  You intend to live with her upon your release.  You have had extended periods of stability in the community in the past and are obviously intelligent, with work related skills.  You have had pause and cause for thought, during the period of time you have been remanded in custody, which in your case, would appear to have already had a salutary effect.

34However, your return to the community will not be without its difficulties.  You face the transition itself, a degree of shame and embarrassment and having to repair the relationship with your two sons.  Federal Court orders are in place.  At this stage you are able to send letters and cards to your children.  It is proposed that you recommence a physical relationship with your children via supervised access.  You are not to consume drugs or alcohol 24 hours in advance of that access and to undergo supervised urine testing for drug use at your own expense.  You are also to undertake a comprehensive psychological assessment and undergo treatment, as recommended for an extended period of time.  These orders commence upon your release from prison and have a clear focus on ensuring your contact with your children is when it is safe for them for you to do so.  This process is likely to be frustrating and stressful for you and therein lies the danger, if you do not find a mechanism to cope, which does not involve the resort to drug use and abuse.

35Hopefully, those court orders will be highly motivating for you to make a positive change, which is clearly in your interests, that of your children and your other family members and ultimately, to the community.  Taking into account your level of support from family and friends, your skills, your motivators for change and the period in custody - which offers you a circuit breaker from the depths to which you had sunk - your prospects for rehabilitation remain live, providing you draw down on the supports that are available to you, and undergo further treatment in relation to your mental health and drug use.

36I am satisfied in all the circumstances, that less emphasis can be placed on specific deterrence and the need to protect the community from you. 

37The impact of the COVID-19 pandemic has also been raised on your behalf.  I have had recourse to recent decisions in terms of this pandemic and its relevance to sentencing.  In Brown v The Queen [2020] VSCA 60, Justices of Appeal Priest and Weinberg considered how the pandemic might impact on sentencing.

38Their Honours stated:

'In the absence of any adequate material concerning the impact of the virus upon the Corrections' system, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle, regarding how this court and others, should deal with this crisis as regards to its effect upon relevant sentencing principles.  We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community.  The extent to which that may be taken into account, if at all, will be a matter to be resolved in the particular facts of any individual case'.

39Your mother was visiting you once or twice a month, as were other family members, up until the response by the Corrections system to the pandemic, which resulted in a cessation of physical visits, access to some programs and restricted general prisoner movement.  You have been able to communicate with family through letters, emails, phone calls and Skype, but I accept this is not the same as actual visits.

40You completed one course in relation to ‘Ice and Me’ and your ability to better yourself whilst in custody through such programs is not presently available.  You were not able to get your Green Collar program up and running.  Whilst there is still no information indicating that COVID-19 is within the prison system, I accept that there remains understandable anxiety associated with that risk and I take these factors into account in a general sense. 

41I make the ancillary order as sought for the forfeiture of the wig and the skateboard.

42The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims.  I am also required to balance the interest of the community in denouncing your criminal conduct, with the interest of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.

43I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act, where relevant to your case.  I have been referred to a number of decisions by the Office of Public Prosecutions in their sentencing submissions which have been helpful. I have also taken into account the current sentencing practices for the offence to which you have pleaded guilty.  Both parties have submitted that the relevant sentencing considerations to which I have just referred can be properly reflected, in what is referred to as a combination sentence.  That is, a term of imprisonment in combination with a community corrections order.  That corrections order should have its focus on the therapeutic aspects, given the gaol sentence you have already served via remand.  It is a responsive order to your treatment needs and also to your non-compliance, should that situation arise. There is punishment in the expectations of such an order and the duration of any order.

44I could not consider taking such a course without having you assessed as to your suitability for a Corrections order.  That assessment was undertaken and you are found to be suitable.  The assessor reflects that you have displayed insight into the impact on your victims and your offending and the factors which contributed to it.  You are described as being motivated and insightful regarding your needs to engage in further treatment.

Sentence

45In terms of the single charge of armed robbery, you are convicted and sentenced to nine months imprisonment, of which 277 days will be reckoned as having already been served.  In addition to that prison sentence, you are placed on a community corrections order for a period of two years.  That Corrections order includes a requirement that you undergo drug and alcohol treatment, be assessed as to your need for mental health assistance, be assessed for programs to reduce your risk of reoffending, be supervised by the Office of Corrections and to submit, at least initially, for judicial monitoring, so that I can keep an eye on your progress.

46In addition to the conditions that I have imposed, there are what are called standard conditions.  Given your history with the Office of Corrections, you are probably well familiar with them, but the first and foremost of those is that you must not commit any other offences during the two-year period, which could be punished by imprisonment.  You must report within two working days of your release, which would be today, to the nearest Community Corrections Office.  You are also required to advise your supervisor in the Corrections Office of any change of address where you are living or working and you must do so within two clear working days.  It is a term of all community corrections orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections officer. You are not able to leave the state of Victoria without their prior permission. 

47This order presents you, in my view, with a chance to change your life in a positive fashion, should you choose to take up that opportunity and the supports that should be made available.  This order can be breached if you do not comply with the terms or conditions of it, or if you reoffend whilst it is in place.

48If you do so, you will have to appear before me for contravening the order.  I may have to resentence you for the charge of armed robbery and consider an appropriate sentence for what would be a charge of breach. 

49The courts now have more discretion in terms of choosing a sentencing disposition which does enable all the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to the option of imprisonment which is skewed towards retribution and deterrence, factors which in my view have less weight in the overall sentencing mix for you.

50Whilst the path to rehabilitation may be a difficult one, it seems your ability to access appropriate services now has a role to play.  A Corrections order can be punitive, achieve deterrence, and may be suitable, even in cases of relatively serious offences such as this, which might have otherwise attracted a medium term of imprisonment.  I can only place you on such an order if you are willing to sign documents to that effect.  Are you willing to do so?

51OFFENDER:  Yes, Your Honour.

52HER HONOUR:  Those documents will print out shortly, I will disappear and get Mr Johnston to take you through it, to make sure that you are understanding of it and happy to sign it and then of course we will have to go through the process of getting it out to the prison where you are currently are because you are not at the back of the courtroom.

53I am also obliged to tell you what would have happened if you had not pleaded guilty. Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges.  If not for your plea of guilty, I would have sentenced you to a total effective sentence of two years, with a minimum of 15 months before being eligible for parole.  Now are there any glaring errors before I disappear?  Mr McCarthy?

54MR McCARTHY:  This may be my inexperience, Your Honour, but I've calculated the pre-sentence detention as nine months and two days.

55HER HONOUR:  Yes.

56MR McCARTHY:  But the sentence is not - unless that presents an error, an issue, but I don't have any further submissions.

57HER HONOUR:  No, it is in accordance with my intention, but thank you very much for bringing that to my attention, just in case it was not my intention.  Anything from your end Mr Johnston?

58MR JOHNSTON:  No, Your Honour.

59HER HONOUR:  Very well.  Well providing you will - once you have finished with Mr Johnston, you are willing to sign a document, that will complete the matter, other than the need for you to come back and see me for a judicial monitoring.  I will just fix a date for that.  I might get you back in a couple of months, just to make sure things are happening fairly quickly. 

60All right, 27 August.  I am not going to ask you if you have got anything else on that day.  It will be part of a court order.  You will need to be here at 10 o'clock on 27 August Mr Holmes and what happens is that the Office of Corrections write a report for me to telling me how you are going with everything. 

61OFFENDER:  Okay.

62HER HONOUR:  You will get a copy of that as well.

63OFFENDER:  Yep.

64HER HONOUR:  And you will be able to contribute to that.  It is designed really to be therapeutic and when I say I am keeping an eye on you, that is true, but I am also making sure that the Office of Corrections are implementing services in a timely manner, so that you get the help that you actually need. 

65OFFENDER:  Sure, thank you.

66HER HONOUR:  All right.  So if all goes according to plan with Mr Johnston, you will not see me again until that date.  If there is a problem, I am available and I will come back.

67MR JOHNSTON:  As Your Honour pleases.

68HER HONOUR:  All right.  Can I thank you very much for your assistance
Mr Johnston, which is always appreciated.

69MR JOHNSTON:  As Your Honour pleases.

70HER HONOUR:  Mr McCarthy, thank you very much for your assistance as well, which is also appreciated.

71MR McCARTHY:  Thank you, Your Honour.

72HER HONOUR:  All right, close the court till 2.15, Monday.  Thank you very much.

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