Director of Public Prosecutions v Ioannou
[2012] VCC 1993
•7 December 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 12-01997
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER IOANNOU |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November 2012 | |
DATE OF SENTENCE: | 7 December 2012 | |
CASE MAY BE CITED AS: | DPP v Ioannou | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1993 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Attempted armed robbery – Early plea of guilty – Offences committed whilst on bail – Ice addiction – Gambling habit - Prior criminal record – Significant depression – Prospects of rehabilitation fair – Family support
Legislation Cited: Crimes Act 1958
Cases Cited: R v Verdins (2007) 16 VR 269
Sentence: Total Effective Sentence 3 years’ imprisonment with non-parole period of 22 months’ imprisonment – s.6AAA Sentencing Act 1991 declaration – Forensic sample retention order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms B. Goding | Solicitor for Office Public Prosecutions |
| For the Accused | Mr S. Parker | Theo Magazis & Associates |
HER HONOUR:
1 Christopher Ioannou, you have pleaded guilty to one charge of attempted armed robbery which carries a maximum penalty of 20 years' imprisonment. As the maximum penalty reflects, the offence is regarded by Parliament as most serious.
2 Your offending was opened by learned prosecutor as follows:
3 I was told that you are 29 years old, and were born on 12 September 1983. At the time that you committed the offence you were aged 28.
History of Proceedings
4 You were arrested and charged on 29 August 2012. At a committal mention on 1 November 2012, the matter proceeded by way of straight hand-up brief, with you indicating an intention to plead guilty to one charge of attempted armed robbery.
Offending
5 The offending itself was opened as follows. On Tuesday 24 July 2012 at a time between 3:00 am and 3:30 am you attended the Royal Oak Hotel at 1375 Nepean Highway in Cheltenham. Present at the time was the hotel security guard, Varinder Chahal, who was aged 23, and he is the victim in relation to the offence.
6 At about 4:50 am, the victim finished taking all the money from the pokie machines and put it in the safe. The hotel’s supervisor, Dorothy Paxton, was in the safe counting the money.
7 The victim opened a door between the safe and gaming room. You came through the door. You were wearing a black balaclava and were carrying a square metal rod that was dark silver in colour and about two or three feet long.
8 You said: "Give me the money, give me the money, don’t move or I’ll hit you”.
9 The victim responded: "I’m just a security guard, I don’t have any money”.
10 The victim told you to come with him and that his supervisor had the money.
11 You tried to open the door to the safe. The hotel supervisor, Dorothy Paxton, was inside. The door was locked and you could not open it. You said: "Open the door, open the door”.
12 You raised the metal rod over the victim’s head in such a way as to cause the victim to fear that he would be hit. The victim put his arm up to block it.
13 The victim told you that he thought his supervisor was in another room. The victim and you went into another office that had a lock in the door. You yelled: "Where is the money, where is the money?”
14 The victim told you that his supervisor may be in yet another room. You stepped out of the room that the victim was in, and the victim then shut the door and held it shut.
15 You left the Hotel. The police were contacted and arrived shortly thereafter. The metal rod was not recovered.
16 The offending was captured on CCTV footage which was provided to police.
17 On Wednesday, 29 August 2012, you were arrested and interviewed at St Kilda Police Station in relation to the offending. You made admissions that:
·you were “on ice” at the time of the offending (Q16);
·you attended the Royal Oak Hotel to play the pokies and lost all the money that you had (Q 31);
·upon arriving at the hotel, you spent about 20 minutes to half an hour there before leaving (Q 35);
·after leaving, you went round to the back of the hotel building and entered a cleaning room (Q 59-61);
·you said that in the cleaning room you found a hammer (Q 74) and an iron bar (Q 89);
·you gained entry to the hotel through an external toilet door (Q 65-66) by using a hammer (Q 74) to “[rip] the skin off” the door, as you put it. (Q 78);
·you “had no money” and were “trying to get some money and get out of there” (Q 81);
·you placed “a beanie of some sort” over your head (Q 98), having previously cut eyes out of it with a pair of scissors you found in the cleaning room (Q 186);
·you do not recall saying to the victim, “Give me money, give me money. Don’t move or I’ll hit you” (Q 208);
·you yelled out, “Open the door” (Q 115) but did not bang on the door (Q 116);
·you said you told the victim to “give [you] some money” (Q 117) but you did not threaten the victim (Q 117) and you told him, “I’m not here to hurt you … I just – I just want some money. That’s all I want” (Q 118);
·when shown CCTV footage of you raising the iron bar toward the victim, you said you were “not sure” why you had the bar raised (Q 172) and did not hit the victim or attempt to hit him (Q 181-182, 215 and 230);
·you [said that you} were ‘probably trying to scare” him, (Q 232) and you were sorry for putting the victim in fear (Q 275-276); and
·You also told police that you “chucked everything”, including the beanie and jacket you were wearing at the time of the incident (Q 102-103, 134 and 260).
18 At that time you were charged and remanded in custody.
19 Although I accept that your offending was not pre-meditated, in that you did not attend the venue in order to attempt to rob it, there was a degree of planning, albeit somewhat ad hoc, as your counsel submitted. The prosecution accepts and I sentence you on the basis that you did not attend the premises with a plan to rob it. You found the weapon at the premises and you apparently converted a beanie to a balaclava using scissors which you also found there. Nonetheless, your offending is serious in circumstances where you persisted in your bid to obtain moneys, at one stage raising the iron bar in a threatening manner toward the victim. Although there are no Victim Impact Statements filed, I have little difficulty in finding that your actions would have caused great fear to those whom you accosted that evening.
20 It is an aggravating feature of the offence for which I now sentence you that you committed this while on bail for other offences. Further, your prospects of rehabilitation must be assessed in light of the fact that you have had the benefit of psychological intervention and yet you have committed the offence which I now sentence you. It was only two months between the CISP program being completed and this offending.
21 I was told that at the time you committed the offence, you were affected by ice, a substance to which you have been addicted for some time. I was told that when you use ice, you often resort to gambling which was the situation on the occasion in question. Having attended a number of venues, you went to the hotel in Cheltenham, gambling there for about an hour. I was told that you had run out of money and were trying to hitchhike home outside the hotel for about an hour. You then decided to commit the attempted armed robbery, accessing a back room of the hotel in order to obtain a weapon and fashion a balaclava. The Crown submitted that it was an aggravating feature of your offending that those whom you offended against were soft targets. I am not convinced that the people at the hotel were soft targets as such, nonetheless, offending in the dead of night and threatening the victims with the rod raised above your head are matters which go to the seriousness of your offending.
22 In sentencing you, I must impose a sentence which serves to justly punish you in all the circumstances and which gives strong weight to general deterrence in a bid to deter other people in the community from being temped to behave as you have. Your conduct must also be denounced.
23 You entered a plea of guilty at an early stage. You also gave a frank record of interview which revealed some genuine remorse at that stage. You also expressed remorse to Ms Lechner, psychologist. In all of the circumstances, I accept that you are genuinely remorseful for your actions, which I will factor in when assessing your prospects of rehabilitation, and the weight I need give to specific deterrence and the need to protect the community. In pleading guilty at such an early stage, you are entitled to a substantial discount in the sentence you would otherwise receive. You have saved the witnesses, especially the victim, the time and trauma of giving evidence and you have saved the community the time and expense that comes with contested proceedings.
24 I take into account your background which is set out in Carla Lechner’s report and which was referred to by your counsel at the plea hearing. You were born in Cyprus, arriving in Australia with your family when you were an infant. You attended school here until Year 2, then you and your family returned to Cyprus, living there for several years. In that time, you formed some close associations, especially with one of your cousins. While in Cyprus, however, your younger sister was sexually abused which caused your family to return to Australia when you were 13 years old. You attended school here until the end of Year 11, when you left to join the workforce.
25 In September 2002, you were involved in a serious motor vehicle accident which resulted in serious injuries to you. Amongst others, you received facial injuries, and amongst these was an injury to your tongue. Your speech has been affected by the injuries from the car accident, and you have other scars as I understand the position.
26 You have a number of prior convictions, some of which are for dishonesty offences and driving offences. However, on 26 April 2004, you were convicted of recklessly causing injury and unlawful assault amongst other offences and you were sentenced to a 12 month community-based order at the Dandenong Magistrates’ Court. On 4 August 2009, in the Melbourne County Court, you were sentenced in relation to one charge of recklessly causing serious injury. His Honour Judge Bourke sentenced you to two years' imprisonment, 18 months of which was suspended for two years, with a declaration that 42 days had already been served by way of pre-sentence detention. I have received a copy of his Honour’s sentencing remarks to which I have regard in relation to that prior matter.
27 In respect of the 2002 matter, you complied with a community-based order which included an anger management program which you successfully completed.
28 As your counsel pointed out, it appears you are someone who has committed offences from time to time but can then remain offence free for a number of years. I was told that between offences, you have been able to work and be a productive member of the community.
29 In 2004, after the tragic death of your cousin, it appears you spiralled into significant depression, experiencing suicidal ideation. You then resorted to drug use and ultimately offending, although this did not commence until some time after your cousin’s death. Of course, some of your offending preceded this but for the most part it occurred after this time.
30 In relation to the 2006 prior matter, this occurred at a night club where you, in company with others, assaulted another patron after perceiving that something disparaging had been said about your female friend. I was told that you delivered one punch in the assault which led to the victim’s jaw being broken. In that case, there was a three year delay between the offence being committed and sentence being imposed. Although you committed dishonesty offences toward the end of that three year period, you showed that you were able to stay out of trouble for the main part during that time.
31 It appears that you returned to drug use and criminal offending when faced with pressures in your life, which is something you must learn to control if you do not wish to spend a good deal of your life in gaol.
32 Shortly after your release from gaol, after you served the immediate component of the partially suspended sentence in 2009, you married your girlfriend who was expecting your first child. Your first child was then born in April 2010. However, your partner suffered from post-natal depression with which you found very difficult to deal. From late 2010, you had an on-again off-again relationship with her. You lived with your partner on occasions and sometimes with your parents, whilst on other occasions you lived in your car. It was in this context that you turned to drug use. You were working as a labourer and were able to maintain a job until mid 2012. However, your work attendance was becoming increasingly erratic and I was told that your life was falling apart.
33 You were before the courts in respect of other offending which led you to become involved in the CISP program. This other offending involved dishonesty offences which is before the Melbourne Magistrates’ Court. You successfully completed the CISP program and overall, the report from that program speaks favourably of you. Unfortunately, you committed the offence for which I now sentence you notwithstanding the help you received from the program. I was told that the program facilitated you seeing a psychologist on a number of occasions. However, unfortunately, that psychologist left and was replaced by someone new with whom you found it difficult to build a rapport. That may be so Mr Ioannou, but you must realise that not everything is done for you and that you are and were at an age and stage at that time where you ought be have been more pro-active in gaining the help that you needed.
34 In any event you successfully completed the program but you committed the offence for which I now sentence you a short time later.
35 I was told that the matters before the Melbourne Magistrates’ Court are yet to be dealt with. They are in the nature of dishonesty offences and the next date in relation to these is 18 December of this year. As these matters are yet to be resolved, I do not factor them in in any way in sentencing you.
36 I was told that your relationship with your wife is still ongoing and that she has given birth to your second child on 15 September 2012. Unfortunately, this was at a time while you were on remand, having been in that position for the last three months or so.
37 You have found your time on remand a positive experience in many respects as it has been something of a “circuit breaker” as your counsel put it in terms of your drug abuse, gambling and offending.
38 Whilst on remand, you have completed an alcohol and drug program. You have also completed a number of other courses which were all documented by certificates tendered on the plea hearing.
39 You receive regular visits from you wife and family. Your father and younger sister were in court at the plea hearing and it appears that you have solid support to look to upon your release.
40 I take into account that you have and will continue to miss your family, in particular, your wife and children, which will make time in custody harder than it would otherwise be. I do so, although I do bear in mind that your wife was pregnant with your second child at the time when you committed the offence for which I now sentence you. Therefore, you took a decision to offend and risk incarceration at a time when you knew your wife was pregnant.
41 Ms Lechner has the view that you suffer from very significant depression. However, it was not put that this condition is linked to your offending in any way which would attract what is termed a Verdins discount, save for the sixth aspect of this. I take into account in a general way that at the time of the offending, and presently, you suffer from significant depression. I make some allowance for the fact that suffering from this condition will make time in custody harder than for someone not suffering from it. As against this, I note that you told Ms Lechner that you were feeling “a million times better” since being in custody and withdrawing from drug use. You said that you had important support from your brother, a sense of being reconnected with your religion and the birth of your son had “all contributed to [your] improved sense of self”.
42 In light of your prior convictions, your substance abuse and gambling problems, but having regard to your remorse, early plea of guilty, family support and wish to be a supportive father to your children, I assess your prospects of rehabilitation as being fair. Your ability to remain offence free will very much depend on your ability to cope with situations of adversity in the future, without the need to resort to substance abuse or gambling.
43 I put you on notice that if you decide to abuse substances in the future and commit further offences while so affected, your decision to abuse drugs may well be treated by a sentencing judge as an aggravating feature.
44 The Crown submitted that an appropriate sentencing range in your case was between three and a half and four and a half years’ imprisonment by way of head sentence with a non-parole period of one and a half to two years’ imprisonment.
45 When I asked the Crown whether the sentencing range was based on current sentencing practice, the learned prosecutor indicated that the head sentence aspect of the range was slightly higher than current sentencing practice. She said that because of the nature of the offending, such a higher range was warranted. I have also considered your counsel’s submissions in response and his submissions concerning a lengthy parole period. In all of the circumstances, I have imposed a slightly shorter non-parole period than what might otherwise be imposed in a situation such as yours.
46 Although your offending is serious, I do not accept that it justifies a departure from current sentencing practice which is one of the matters to which I must have regard in sentencing you.
47 So I have had regard to current sentencing practice and the sentencing snapshot in helping me to determine the position in this respect. Of course, all cases are different and I must sentence in accordance with the matters which pertain to your case. I must also place some weight on the need to protect the community, and the need to place some weight on specific deterrence in your case in light of your criminal history and your resort to drug abuse and gambling, which has led to you committing offences.
48 Would you please stand up, Mr Ioannou.
Ancillary Orders
49 I make an order pursuant to s464ZFB of the Crimes Act 1958 for the retention of a forensic sample previously taken. I do so because of the seriousness of offending, your prior convictions, the order is by consent and I consider that it is in the public interest to make the order.
Disposition
50 On the charge of attempted armed robbery, you are convicted and sentenced to three years' imprisonment and I order that you serve twenty-two months’ imprisonment before becoming eligible for parole. I declare that you have already served 100 days in custody.
51 If not for your plea of guilty, I would have sentenced you to three years ten months’ imprisonment with a non-parole period of two years eight months’ imprisonment.
52 Take a seat for a moment please. Is there anything further counsel?
53 MS GODING: Those are the matters Your Honour.
54 MR PARKER: No Your Honour.
55 HIS HONOUR: All right, thank you, would you please remove the prisoner. We'll adjourn.
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