Director of Public Prosecutions v Homer

[2014] VCC 143

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01967
CR 13-01968

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANNE HOMER
JOHN STOJANOVIC

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 February 2014
CASE MAY BE CITED AS:	DPP v Homer & Anor
MEDIUM NEUTRAL CITATION:	[2014] VCC 143

EX TEMPORE REASONS FOR SENTENCE
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Catchwords: CRIMINAL  LAW: Sentence, attempted armed robbery, co-accused, disparate sentences, imprisonment, community corrections order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L Exell
For Accused Homer	Mr L Gwynn
For Accused Stojanovic	Mr N Tehan

HIS HONOUR:

1John Josan Stojanovic and Anne Homer, you have both pleaded guilty to one charge of attempted armed robbery which carries with it a maximum penalty of 20 years' imprisonment.

2That attempted armed robbery occurred on 18 July 2013 upon an attendant at a 7-Eleven store.  The circumstances surrounding that attempted armed robbery are as follows.

3You, John Stojanovic, are 29 years old now, 28 at the time of this offending.  You, Anne Homer, are 51 years old, and were so at the time of this offending.  The two of you had determined to rob a 7-Eleven store.  To that end, you had equipped yourself with disguises for your head, a knife, and got into a car to drive there.

4This offending occurred in the very early hours of that morning at approximately 3.50. The victim was behind the counter of the 7-Eleven store, Anne Homer entered the store and walked around the area of the store.  Shortly after John Stojanovic, entered the store.  I have viewed the DVD CCTV footage showing the victim and the front door to the store.  It shows John Stojanovic coming to the store entry, briefly halting and then entering the premises.  John Stojanovic  walked towards the counter, and yelled loudly at the victim, "Give me the money".

5At that time, John Stojanovic had in his possession a brown handle kitchen knife, which is seen in the photographs tendered during the course of this plea.  But, John Stojanovic did not produce the knife at any stage, nor was it seen by the victim.  The victim immediately retreated from the counter area into an adjoining office and shut the door activating the emergency panic button.  John Stojanovic immediately turned and left through the front door, having been in the store a matter of just a few seconds, followed immediately by Anne Homer.

6You were both subsequently arrested and in each case made confessional records of interview.  Whilst you equivocated in relation to some matters, and sought to blame each other in relation to other matters, those factors are of no moment in my sentencing of either of you.

7It is plain that you were both fully cooperative with police.  The statements you made during the course of each of your records of interview were not merely of an admission kind, but fully confessional.  Furthermore, each of you demonstrated during the course of your record of interview, your true and genuine regret for your conduct.  Each of you took responsibility for the grave offending that you both engaged in.  This approach starting with your records of interview has been continued throughout these proceedings.  Each of you have pleaded guilty at the earliest possible opportunity.  Those pleas of guilty are not only to be taken into account in relation to their utility, but demonstrate further your remorse, your regret and your preparedness to take responsibility for your actions is full.

8During the course of these sentencing remarks which are ex tempore, I may not advert to some of the matters which I have concluded upon during the course of discussions with counsel, for each of you, and with the learned prosecutor.  If I do not advert to them, that is not to say I have not taken them into account.  It may simply be a matter of an inadvertent omission.  Thus, my ex tempore reasons, must be read with my discussions with all counsel during the course of the two days of these pleas.

9Statements made by me on matters concerning for example Verdins are to be incorporated in my sentencing considerations.

10I wish to turn first to you, Mr Stojanovic.  As I have indicated, you are now a 29 year old man.  You have a disability of some considerable moment which has effected you throughout your life.  Whilst you are a 29 year old man, you are a young 29 year old man in terms of your maturity, in terms of your thinking and in terms of your educational development.

11You are the eldest of three and unfortunately when you were around 16 years old your parents separated.  That separation was an acrimonious one and had profound effects upon you, particularly given your disabilities which I will come to in due course.  You were then a very young 16 year old boy.  What had been a stable family environment involving a strict upbringing turned for you into an unsettled life, with you no longer having the stability that is ordinarily assumed in our society.  Nonetheless, your grandparents in particular have done as much as they possibly can for you as doubtless have other members of your family.  They have been present not only on other occasions, but both today and yesterday, in support of you.  I have no doubt that their support will continue for the future, as will your support from your mother.

12I do accept that because of that unsettled family life, you, as your Counsel put it, "Lost your way".  That losing of way had the effect that not only did you lose your way with your education which was compromised by your disabilities, but also lead you to the abuse of alcohol and later on illicit drugs.  This is because you were not well equipped to deal with such vicissitudes of life and turned to drugs to compensate.

13You have had various employment, Pizza Hut, unskilled work, and in particular, scaffolding which apparently you were good at and you enjoyed and wish to return to.  Whilst in custody you have undertaken as many courses as you possibly can and have completed all of those courses satisfactorily.  Of particular moment, you have been employed for some months in the bakery, doing the morning shift from 7.30 am to 2 pm.  This speaks to your industriousness, your willingness to work and your work ethos.

14Those matters, together with other matters that I have already adverted to about the way in which you have dealt with these matters by confessing, pleading guilty, expressing your remorse, your contrition for what you have done and empathy with the victim in this case, speaks to your prospects for rehabilitation.

15You come before the court however, with a prior criminal history, which is worrisome.  You have been to court on three separate occasions.  The first, the Heidelberg Magistrates' Court on 14 May 2007, charged with among other things, possession of a prohibited weapon and criminal damage, and earlier court appearances of no relevance.  The second relevant court appearance of significance is that you appeared before His Honour Judge Leckie on 11 May 2009 in this court, charged with making an unwarranted demand with menaces and intentionally cause injury.  The circumstances of that offending are set out in His Honour's sentencing remarks.  You were sentenced to a total effective sentence of 12 months' imprisonment which was wholly suspended for a period of two years.  You complied with conditions of that suspension to your credit.

16However, on a third occasion of relevance, you appeared at the Heidelberg Magistrates' Court on 8 November 2012 charged with a number of driving offences, including unlicensed driving which is pertinent to the summary charge which I must deal with, as well as trafficking and using methamphetamine and recklessly causing injury and were placed on a community corrections order for a period of 12 months'.  You apparently failed to comply with some aspects of the requirements of that order and that matter will be dealt with on 20 February 2014.

17The fact that in your second relevant court appearance you were dealt with for the charge of making an unwarranted demand with menace, as is an intentionally cause injury, is a matter of concern to me.  That offending, having similar hallmarks to the attempted armed robbery, in terms of the threat of violence, the demand for money and your first relevant court appearance which also included the charge of possession of a weapon.

18Insofar as the summary charge of unlicensed driving  I have received a Road Safety Act certificate which details other road relating offending which I will not further consider in my sentencing remarks.

19Of great moment in this case are the two neuropsychological reports that have been tendered during the course of Mr Tehan's comprehensive and most helpful plea.  The first of those reports was authored by Dr Robert Burke, and was dated 23 August 2012.  It became Exhibit 2JS on the plea.  Among other statements, Dr Burke pined p.3 under the heading "Summary and opinion", the following:

"Mr John Stojanovic is a 27 year old man with a history of learning difficulties together with periodic amphetamine and cannabis use.  On neuropsychological assessment, Mr Stojanovic demonstrated significant weakness on all tasks involving verbal and language abilities in comparison to visual and spatial abilities.  His difficulties on verbal based tasks bring his overall full scale IQ in the borderline range, full scale IQ-79.  Mr Stojanovic's literacy was assessed at grade two to five equivalent, reading and writing single letters with very high frequency words.  He demonstrated poor verbal reasoning and comprehension abilities, and was inflexible and rigid in his thinking.  His limited verbal language impacted on his ability to learn new verbal information, however, he showed the ability to learn and reliably retain new information especially when structure, repetition and prompts were provided.  Consistent strengths were evident on spatial tasks and measures of visual problem solving".

20That report was prepared for your last hearing in the Heidelberg Magistrates' Court on 8 November 2012.  A further neuropsychological report of Ms Jane Lofthouse dated 20 January 2014 was tendered as Exhibit 1JA.  This report is a more comprehensive report and I intend to select portions from it.  In relation to drug and alcohol, Ms Lofthouse stated:

"Mr Stojanovic outlined his drug and alcohol use which he indicated dates back to his late adolescence, and early 20's.  As to alcohol, Mr Stojanovic stated that he started drinking alcohol in his teenage years, and this became a problem in his early 20's.  At this time he was drinking on a daily basis, up to a slab or two of mixed spirits on the weekend.  Mr Stojanovic stated that this pattern continued until his late 20's but had dropped off prior to his recent incarceration (after being informed about his liver damage)".

21So far as methamphetamine, the neuropsychologist continued:

"Mr Stojanovic stated that his use of methamphetamines dates back to his early 20's, and that over the last few years has become a problem with him using on a daily basis.  This pattern of use continued up to his recent incarceration".

22In relation to your schooling, she observes:

"Mr Stojanovic outlined his educational achievements stating that he completed year 10.  Mr Stojanovic stated that he attended main stream schooling and although he experienced problems with literacy based subjects he did not receive any extra classroom support.  Mr Stojanovic indicated that he had just scraped through, being better suited to hands on subjects, such as wood, metalwork and also sport".

23Concerning forensic matters, she continues:

"Mr Stojanovic was able to remember the events that resulted in his current charge, and take responsibilities for his actions.  He was also able to express remorse for his actions, and understood the impact his criminal behaviour had on the victim in the robbery.  Mr Stojanovic has stated that he was quite sorry for what he did".

24You were tested Mr Stojanovic, by Ms Lofthouse, as had occurred earlier by Dr Burke.  As to your general intelligence, she reported:

"The results of this assessment reveal that Mr Stojanovic's general intellectual function as expressed by his full scale intelligence quotient was 81, which is a score that falls within the low average range (at the tenth percentile).  This score indicates that 90 per cent of same aged persons would have obtained a score that is higher than that of Mr Stojanovic.  Although Mr Stojanovic's score is commeasured with his predicted premorbid intellectual function, some significant variance was noted with him being better able to process non-verbal in comparison to verbal material".

25As to literacy, she observed:

"Mr Stojanovic's literacy skills were significantly impaired including his understanding of common words.  His reading age was noted as suboptimal and similar to that of a ten year old".

26In relation to your frontal lobe and executive function, she opines as follows:

"Mr Stojanovic's approach to abstract problem solving was impaired, and his answers were for the most part based on concrete ideas.  He struggled with higher order verbal problem solving as noted when he was required to understand the abstract likeness between two concepts, or explain the abstract meaning imbedded in common proverbs".

27Later, on the topic of emotional screening, she notes:

"There was no indication of Mr Stojanovic suffering from a psychotic disorder or thinking disorder, and he denied any incidence of self-harm including suicide attempts".

28Then follows statements by Ms Lofthouse which are of particular moment:

"On testing Mr Stojanovic's full scale intelligence quotient was 81, and within the low average range.  Mr Stojanovic's test results were for the most part, consistent with test results reported in August 2012 and commeasured with his predicted premorbid intellectual function.  Significant impairment was noted in Mr Stojanovic's verbal processing, including acquired factual knowledge, literacy and his understanding of social norms.  Mild impairment was noted in Mr Stojanovic's non-verbal processing including his understanding of underlying patterns and attention.  Learning and abstract reasoning deficits were also noted.  In comparison Mr Stojanovic's achieved average scores across the areas of numeracy, verbal attention, working memories, speed of information processing, visuospatial knowledge, and attention to visual details.  Mr Stojanovic's scores were somewhat varied, and consistent with him being better able to process non-verbal material in comparison to verbal material".

29She then continues:

“Due to significant memory defects and the difficulty Mr Stojanovic experiences processing verbal material he will be prone to miss or forget details, particularly in conversations".

30And still later:

"Mr Stojanovic has demonstrated a mild to moderate level of executive dysfunction on testing and in particular, with verbal abstract reasoning.  He also demonstrates behavioural anomalies, which may also be attributed to executive dysfunction.  These deficits may impinge on his capacity for reasoned and informed problem solving and behavioural regulation, and put Mr Stojanovic in a position where his responses will be based on learnt and inappropriate responses resulting rigid and/or impulsive behaviour".

31She continues:

"Mr Stojanovic has demonstrated marked intellectual impairment in his verbal processing.  His other scores were for the most part commensurate with his predicted premorbid intellectual function.  His pattern of results is suggestive of an aetiology marked by a verbal processing disorder, rather than an acquired brain injury.  His intellectual deficits are most likely long standing and permanent in nature.

32Still later:

"In addition to intellectual impairment, Mr Stojanovic demonstrated marked psychological symptoms consistent with modern levels of depression and anxiety, and severe stress responses".

33There, then prepared at p.12, the following observations of moment and at least two errors:

"Due to the current level of Mr Stojanovic's psychiatric symptoms coupled with his intellectual deficits, it is likely that Mr Stojanovic may find imprisonment more difficult than a person who is not suffering from these disorders.  Based on these test scores, Mr Stojanovic demonstrated intellectual impairment, in particular, with respect to processing verbal material.  The contribution of this impairment to his criminal offending needs to be considered against the background of alcohol and drug use which both place him at risk of poor problem solving and impulsive behaviour.  Psychiatric symptoms may have also increased the risk of his drug and alcohol use.  All of these factors are likely to have contributed to his criminal offending".

34In relation to the two references to psychiatric symptoms it would appear that that is a slip, and what in fact Ms Lofthouse was referring to was psychological symptoms, there being no psychiatric symptoms identified by her or by anybody else.

35There is therefore in my view a causal connection between your preparedness to become involved in this matter and your deficits, as articulated both in the reports of Dr Burke and Ms Lofthouse.  These matters therefore relate to your capacity to make an appropriate judgment on the day in question to be calm and rational in your choices and to be somewhat disinhibited.  Overall, I am satisfied that the deficiencies which you suffer from did contribute to you committing this offence with the consequence that you are a person who is less suitable, not unsuitable, as a vehicle for general deterrence and that in accordance with the principles articulated in Verdins case and following, I must moderate the sentence that I would otherwise pass.

36It was submitted, and there is a statement in Ms Lofthouse's report which I have read, that imprisonment for you would be more burdensome than for others in similar circumstances.  I reject that submission.  You have demonstrated your capacity for hard work.  You have demonstrated your capacity to undergo the coursework, such as has been proven and has been successfully undertaken by you as evidence by the certificates which became Exhibit 3JS.  Whilst that aspect of Mr Tehan's plea is rejected you have demonstrated as I have indicated a strong worth ethic and in prison demonstrated your determination to make good of yourself and to rehabilitate yourself, consistent with your conduct from the time of your record of interview and onwards.

37With some hesitation given your prior criminal history, I assess your prospects of rehabilitation as nonetheless being good.

38I now turn to other matters particular to the accused Anne Homer.  I will deal with these matters in shorter order than that which I have dealt with the matter of Mr Stojanovic because of what is conceded to be a course within the range in relation to you, Ms Homer, that is to release you on a community corrections order.

39You as I have indicated are a 51 year old woman.  The materials before me speak clearly to a number of matters.  First of all, you had a full working life and have contributed to the community by dent of that and your past excellent behaviour.  You have no prior criminal history.  Indeed you are a person previous to this matter of excellent good character.

40I do not intend to go through your history other than to indicate you were born in the United Kingdom and came to Australia when you were aged five.  You have a stable family background, a supportive family and in particular your sister Caroline has been very good to you and supportive of you.  Her description of you which I will exhibit as Exhibit 8AH said among other things:

"Anne is sorry for what has happened.  She is ashamed of the upset it caused.  She is humiliated that my children have witnessed all this.  Now that Anne is back living with us and away from the influence of Tanya and her lifestyle, I can assure you nothing like this will ever happen again".

41I am confident it will not so long as you keep away from the drug scene and those who are involved in it. 

42Your offending so late in your life is however, explicable.  In 2000 an intruder into your home attacked you, threatened you and raped you.  What he did was brutal.  The consequences for you were catastrophic.  Those matters are set out among other places, in the report of Dr John Gill dated 2 October 2001.  In his report he says as follows:

"Following the assault, Ms Homer developed a range of post-traumatic symptoms including generalised anxiety and hypervigilance, intrusive flashback images, insomnia and nightmares, socially avoidable behaviour, depressive mood and suicidal ideation, impaired concentration and memory, insomnia, generalised hyper-arousal and irritability, feelings of helplessness and vulnerability, agoraphobic and social phobic symptoms, loss of confidence and feelings of humiliation and anger".

43He opined:

"The symptoms she described would in my view fulfil the DSM-IV diagnosis criteria for this condition, namely post-traumatic stress disorder.  She also describes having suffered significant depressive symptoms which would have fulfilled the DSM-IV diagnosis criteria for major depression".

44Later Dr Gill states:

"She still suffers from a significant sense of vulnerability and emotional insecurity.  She remains fearful in her dealings with men, and limited in her social interactions".

45As to your prognosis, he opines:

"Overall, I think Ms Homer's prognosis is good.  She is making progressive improvements, symptomatically and provided there are no unforseen complications I would anticipate further progress over the next six to nine months with probably only minimal residual disability".

46As to that prognosis, I think it was optimistic.

47In your victim impact statement you said in the last two paragraphs:

"Basically, when Ronald Fry broke into my house that morning and raped me, he started off the total and utter destruction of what used to be Anne Homer.  He took my confidence, he took my pride and self-respect.  He took my peace of mind and he ruined my finances.  I am now just a fragment of the person I used to be.  I know I will never ever get over what he did to me, and I know I will never forgive him for ruining my life".

48That is close to the mark, in my view.  You have coped as best you can with the events of that evening.  I am satisfied that those traumatic events still impact upon your life and your search for love and security bought you into the relationship with Tanya Stojanovic and in turn, she being an abuser of drugs, introduced you to illicit drugs commencing for you as a 51 year old, a belated descent into a lifestyle utterly unknown to you beforehand.

49The courts are constantly learning about the ongoing effects of sexual abuse of children, of rape and the like.  It is not to be underestimated.  The consequences are far etched in the short and long term.  You have to your credit, endeavoured to make as much of your life as you can since that incident, and I wish you well in the future in that regard.  You are entitled to call upon your past excellent history in significant mitigation of your criminal conduct.

50Your role in this attempted armed robbery was a lesser one.  You have since endeavoured to rehabilitate yourself by ridding yourself of the curse of your addiction to various drugs.  You are willing, as I understand it to continue your endeavours with the assistance of professionals to permanently rid yourself of what has brought you here - drugs.

51Each of you must understand that this conduct is to be condemned.  Stores such as this which are open 24 hours seven days a week employ staff who are entitled to go to work believing that they will be secure, that they will not be attacked, that they will not be threatened.  Whilst there is no victim impact statement here I have no doubt that the victim was traumatised by what the two of you did.

52In passing sentence upon you, the sentence imposed must act as a deterrent to others who may be likeminded.  Deterrence of you, Mr Stojanovic, from further offending, is of considerable moment in the sentencing process.  In the ordinary course of events those who commit this offence of attempted armed robbery must expect to receive an immediate custodial sentence.  Denunciation, just punishment, general deterrence - that is, deterring others from doing like offending, all have their role to play and in particular in relation to you, Mr Stojanovic, deterring you from any further reoffending.

53Balancing all the competing matters that I must take into account I have determined the following sentences.  Please stand.

54John Stojanovic, you are sentenced to be imprisoned for a period of 20 months'.  I set a minimum non-parole period of 11 months'.  In relation to the summary offence of unlicensed driving, I sentence you to be imprisoned for a period of one month.  That one month will be served concurrently with the 20 months' by operation of provisions of the Sentencing Act 1991. I do not intend to affect your license, or capacity to apply for a license. Pursuant to section 6AAA of the Sentencing Act 1991 the sentence I would have imposed but for your pleas of guilty would have been a sentence of 30 months', with a minimum of 20 months'.  I declare that there is 204 days pre-sentence detention.  You may be seated, Mr Stojanovic.

55Anne Homer, I intend to release you on a community corrections order which will last for 18 months'.  Conditions of that order will be that you perform over that period of 18 months' 150 hours unpaid community service work and that you receive assessment and treatment for drug and alcohol as directed.  Given your past history and your desire to work again, I will not impose a conviction in this matter.

56Now Ms Homer, could you stand.  This is a community corrections order without conviction.  It will last for 18 months' until 6 August next year.  Conditions that you must attend Ringwood Community Corrections Services within two days, so Monday or Tuesday next week.  The mandatory terms are that you must not commit any other offence for which you could be imprisoned.  You must comply with requirements of regulation 17 of the Sentencing Act regulations.

57You must report and receive visits from the secretary or his delegate.  You must advise your community corrections officer within two days of change of address or job.  You must not leave Victoria without permission and you must obey all lawful directions.  In terms of unpaid community work, you must perform 150 hours' of unpaid community work over a period of 18 months' as directed and you must, in relation to treatment and rehabilitation, undergo assessment and treatment including testing for drug abuse and dependency as directed.

58Now, if you consent to me making that order, I will make that order.  Do you consent to that order?

59OFFENDER:  Yes, Your Honour.

60HIS HONOUR:  Yes.  Well if you would be good enough to get your client to sign that order, and I will then countersign it.  Thank you.

61MR GWYNN:  Thank you.

62HIS HONOUR:  All right, Ms Homer.  That will conclude these matters, subject to you complying with those conditions.  You have engaged in some foolish behaviour.  I wish you well for the future and you may now, once a copy has been given, leave the court.  Thank you Mr Gwynn, for your attendance.

63MR GWYNN:  As Your Honour pleases.

64OFFENDER:  Thank you, Your Honour.

65HIS HONOUR:  I will stand down temporarily while the court reassembles for the plea.

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