Director of Public Prosecutions v Irwin

[2023] VCC 1766

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-01059

CR 23-01649

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACK IRWIN

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2023
DATE OF SENTENCE:	25 September 2023
CASE MAY BE CITED AS:	DPP v Irwin
MEDIUM NEUTRAL CITATION:	[2023] VCC 1766

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence

Catchwords:  Theft – armed robbery – cultivation of a narcotic plant – possession of a drug of dependence – non-prohibited person use an imitation firearm – possession of ammunition – possess a controlled weapon without lawful excuse – use an unregistered motor vehicle – handle stolen goods

Legislation Cited:  Criminal Procedure Act 2009; s145, s242

Cases Cited:Boulton v The Queen [2014] VSCA 342; Worboyes v Crown [2021] VSCA 169

Sentence:Convicted and sentenced to three years and one month imprisonment with a non-parole period of 20 months imprisonment before being eligible for parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Tamburro	The Director of the Office of Public Prosecutions
For the Accused	Mr R.B. Hammill	Schembri & Co Lawyers

HIS HONOUR:

1Jack Irwin, on 12 September 2023 at the County Court of Victoria here at Melbourne you pleaded guilty to the following charges on Indictment No. P10687134:   

Charges 1, 2, 4, 5, 8 and 9 were charges of theft.  Each of these charges has a maximum penalty of 10 years' imprisonment.

Charge 3 was armed robbery.  This charge has a maximum penalty of
25 years' imprisonment.

Charge 6, cultivation of a narcotic plant, Cannabis L, this charge has a maximum penalty of one year imprisonment in your case; and

Charge 7, possession of a drug of dependence, Cannabis L, this has a maximum penalty of five penalty units.

2You had also consented to, on that day, two sets of related summary offences, being heard at your plea, and the charges had been transferred from the court pursuant to ss145 and 242 of the Criminal Procedure Act. 

3You pleaded guilty to the following: 

Charge 9, being a non-prohibited person use an imitation firearm, which is a maximum penalty of two years' imprisonment; and

Charge 10, possession of ammunition whilst unlicensed, and that has a maximum penalty of 40 penalty units.

4You also consented to a further six related summary charges committed on
5 March 2023 being heard on 12 September 2023. 

5You pleaded guilty to the following related Summary Charges: 

Charge 1, possess a controlled weapon without lawful excuse.  This charge has a maximum penalty of one year's imprisonment.

Charge 2, a non-prohibited person in possession of an imitation firearm.   This charge has a maximum penalty of two year's imprisonment.

Charge 3, did possess cartridge ammunition without a licence.  This charge has a maximum penalty of 4 penalty units.

Charge 4, possess bolt cutters, balaclava and gloves for the use in a burglary.  That is my description of it.  This charge has a maximum penalty of two years' imprisonment.

Charge 5, use an unregistered motor vehicle.  This charge has a maximum penalty of 25 penalty units; and

Charge 10, use a motor vehicle without number plates.  This charge has a maximum penalty of 10 penalty units.

6On 25 September 2023, that is today, the return of the plea hearing from
12 September 2023, you pleaded guilty to the following charges on Indictment No. P10684337: 

Charge 1, was handling stolen goods.  This charge has a maximum penalty of 15 years' imprisonment.

Charge 2, possession of a drug of dependence, which was Xanax alprazolam.  This charge has a maximum penalty of, as I understand it, $500 or five penalty units; and

Charge 3, possession of a drug of dependence, cannabis.  This charge has a maximum penalty of five penalty units.

7On a previous occasion you admitted one relevant prior criminal conviction of armed robbery.  On 5 August 2020 you were sentenced for that offence at the County Court of Melbourne to six months' imprisonment.  The circumstances of that offence were similar to the offending in Charge 3 on the first indictment here.  You were also placed on a two year community corrections order for that offence.  The offending for Charge 1 occurred on the final day of that CCO.  Specific deterrence is a very relevant factor in this sentencing process.

8You have served on my calculations as at today a total of 179 days of
pre-sentence detention.

The circumstances of your offending on Indictment P10687134

9The prosecutor tendered an Amended Summary of Prosecution Opening for Plea dated 8 September 2023.  It was Exhibit “A”.  It was read into the record of the court, and I will read from it in part. 

10On 3 February 2023 at around seven in the morning you attended a Coles Express service station located on the Melton Highway in a blue BMW and you were wearing a yellow hi-vis vest.  You parked the vehicle next to a fuel pump at the front of the Coles Express and transferred a total of 82.16 litres of diesel fuel into a jerry can.  It was valued at $175.76.  You then entered the service station and carried out some shopping.  You told the attendant you would bring the fuel can or card from your car.  However, you returned to the vehicle and just drove off.  That is Charge 1, theft.

11On 4 February the next day at the United Petroleum site at Hillside at 2 am in the morning on that day, again on the Melton Highway in a blue BMW, you were accompanied by another person.  You were wearing a grey hoodie and yellow hi-vis vest on that occasion.  You both got out of the car and filled jerry cans, on this occasion filling up 139.81 litres of premium fuel valued at $257.95.  You drove off without paying for it. That is the second charge of theft. 

12You have then entered the United service station.  You filled up a shopping basket with the following items:  there was toilet paper, ice-creams; dog food; energy drinks; and a plastic fuel can.  You then approached the counter.  You placed the basket on the floor.  You there pulled out a small imitation firearm.  It was about a foot or a bit longer than that.  You then held the gun in front of the attendant behind the counter and said that you were robbing him.  The attendant was unsure whether the gun was real but was scared that it might have been.  The attendant was afraid that you would jump the counter and attack him.  You have then asked the attendant for cash.  The attendant told you he only had $60 because the manager had cleaned out the cash for the evening.  You then said, 'Give me your smokes', and he handed you three packets of Winfield Blues cigarettes which were a total of $140 or thereabouts.  That was the charge of armed robbery.  You then left the scene with your
co-accused.  The incident was reported to police.

13On the same morning of 4 February 2023, you have then gone to the Coles Express again at Taylors Lakes.  You were then in the blue BMW but with different registration plates, wearing a grey hoodie jumper.  You filled up a jerry can again with 56 litres of fuel valued at approximately $109 and drove away without paying.  That is Charge 4. 

14On 4 March 2023 you went to the BP at Rockbank inbound, that is inbound to Melbourne. On that day at six in the morning, you were in a gold coloured jeep, with the registered plates of TJG-T49.  On that occasion you were in the orange hi-vis jumper.  You filled up a jerry can again and with a total of 106 litres of diesel fuel valued at approximately $200 and drove away without paying.  That was Charge 5.

15The police made enquiries into other offending alleged against you that are not part of this plea hearing.  As a result of those enquiries and a Crime Stoppers campaign, which resulted in your name being identified as a possible offender for those charges.  They then identified that you were the registered owner of a 2007 BMW sedan and the police investigated your phone which indicated that you were in the areas of the alleged offending and then you were interviewed by police in relation to another unrelated matter. 

16Following those investigations, on 30 March Victoria Police executed a warrant at your home in Taylors Lakes.  You were located at the premises.  You were asleep and you were placed under arrest.

17After arresting you the police conducted a search of the premises and relevantly found:  two 9-millimetre firearm rounds.  That is Summary Charge 10, which is possession of ammunition; one 12-gauge shotgun ammunition, which is possession of cartridge ammunition, Charge 10; a Ziploc bag containing cannabis, which is possession of the drug of dependence, Charge 7;
seven cannabis plants out the back, this is Charge 6, that is cultivation of a narcotic plant; the jerry can which was said to be used in the thefts; and the
hi-vis clothing matching the CCTV footage of the above thefts and the armed robbery.

18The police also located a 2016 Ford Ranger out the front of your property which was without registration plates.  They conducted the necessary enquiries in relation to the ownership of the vehicle and it was not yours.  It was a stolen vehicle.  That is Charge 8, theft of a motor vehicle.  And in the backyard at your place police also located a barbecue trailer with the identification plates removed.  Later you identified the trailer had been stolen.

19On that day, 30 March 2023, you took part in a record of interview and you made the following statements to the police, and I will go through them because they are relevant in your case: 

·You had been on drugs pretty hard in respect of your memory of 4 February was pretty hazy. 

·You had just been doing the usual, 'bloody shit on drugs', getting stoned, high. 

·You suggested that whoever the co-conspirator was that they needed the money to get more stuff.

·You never really intended to hurt anyone.

·You found someone who needed petrol, so that you went and got the petrol. 

·You arrived at the service station in which was your car.

·You did show the attendant at United service station an imitation firearm. 

·You describe the firearm as being a homemade shotgun, that the firing pin had been snapped off and it was not functioning at that time. 

·You had asked the attendant for the cash and smokes and that you had apologised to him for doing it. 

·You set out how you were getting the petrol for another person to sell it. 

·On one occasion you could not remember stealing the petrol, but you identified yourself in the CCTV footage. 

·You agree you were doing the fake tradie look and admitted when you entered the service station that is what you were doing.

·You said that you stole the barbecue trailer, from nearby Bunnings, using a jeep. 

·You stole it because you thought someone would pay you $150 for it. 

·You did say to the police that you hoped the United service station attendant was all right.

·You admitted that the Ford Ranger at your property was stolen, that you had bought it for, 'a thousand bucks', about a week and a half ago. 

·You apologised to the police for what you had done.

20You have been in custody since your record of interview. 

The Circumstances of Your Offending on Indictment P10684337

21A summary of your offending in respect of 5 March 2023 is as follows.  This is the second indictment as I call it.  The police had found a gold jeep at the BP Rockbank service station.  The registration plates were different on the vehicle, front and back, and that you were sitting in the driver's seat.  They checked the registration plates and identified that the front plate had been altered.  That is the driving without number plates fixed. The police conducted a search on the VicRoads database, and it showed that the registration plate was stolen.  That is Charge 1 of handling stolen goods.

22Police have then asked you for your driver's licence to confirm your identity and asked you to empty your pockets, and when they did so they found some Xanax, which is Charge 2 on the indictment, possession of a drug of dependence.  Police have then asked if there is anything else in the vehicle and you stated that there was an imitation firearm next to the driver's seat and they checked there and found a black gel blaster, which is Charge 3, possession of an imitation firearm.  Police have then placed you under arrest and once checking the vehicle that you had been driving, was an unregistered vehicle.

23The police then searched the vehicle and found 12-gauge shotgun pellets.  That is Charge 3 as I have said.  They found a tin containing 2.7 grams of cannabis.  That is the small possession of dependence, a hunting knife, which was possession of a controlled weapon, and a black balaclava and the bolt cutters, which is Summary Charge 4, going equipped to steal.  You made full admissions about those offences to the police.

Personal circumstances

24You were 27 years old at the time of your offending.  You have recently turned 28.  Your parents separated when you were young.  You lived with your mother and your father as you were growing up.  Your father was an alcoholic and set no boundaries for you when you were growing up.  You have a total of six siblings.  Two of those children died when you were young.  Your education ceased at the beginning of Year 10.  You can read and write.

25You assumed the role of a carer for your father in his declining years and your father died on 20 January 2022.  You have stated you loved the old man despite his shortcomings.  After you left school, you had a fairly consistent work history, mainly working as a baker.  You have an offer of employment as a baker upon release from custody. 

26You report to Ms Cidoni that you have used all of the known drugs of dependence, commencing with alcohol when you were 11 years of age and most recently using methamphetamine since 2020.  You also told Ms Cidoni you had problematic gambling behaviours, predominantly at the pokies and sports betting.  Ms Cidoni in her report dated 7 September 2023 states:

'Mr Irwin's results indicate a complex psychological profile.  There is persistent emotional distress, including feelings of sadness and hopelessness, immaturity and dependency, with a significant need for external reassurance and a struggle with decision making independence.  The result also hints at eccentric beliefs and behaviours, difficulties in emotional regulation and unstable relationships.  He tends to self-isolate.  High anxiety and mood fluctuating between hyper-mania and depressed states were evident along with an ongoing vulnerability to substance use'.

27Ms Cidoni went on to make the following diagnosis in respect of you:  substance use disorder, major depressive disorder, generalised anxiety disorder and a provisional diagnosis of bipolar disorder Type 2.  She noted your substance use exacerbated your clinical diagnosis.

28You have strong support from your mother, siblings and godparents.  You have had counselling sessions with Carmel Nielsen to help regulate your unstable mood swings but the use of methylamphetamine has brought you to this criminal justice system.

Sentencing Considerations

29The basic purpose for which a court may impose a sentence are just punishment; deterrence, both specific and general, rehabilitation and denunciation of your actions, and the protection of the community.  In sentencing you I must have regard to a range of factors such as the seriousness of your offending and your culpability for it and your personal circumstances.

30I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society. 

31I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences. I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another.  Current sentencing practices, of course, is just one of the considerations I have to take into account. 

32I am mindful of the provisions of the Sentencing Act and, in particular, s5(4C), which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which the sentence is to be imposed. 

33I have reviewed the case of Boulton in considering if a Community Corrections order would be appropriate in your case and, as you know, I have had you assessed for a community corrections order.  You were assessed as being suitable.  That is not the end of the matter.

34You have also been assessed by Forensicare Mental Health Advice and Response Service.  The report says you are requiring assessment and treatment by a psychiatrist to clarify the diagnoses made by Ms Cidoni of substance abuse disorder, major depressive disorder, generalised anxiety disorder and, in particular, bipolar affective disorder.  The report confirms you need drug rehabilitation and counselling to support your drug abstinence.

35You have pleaded guilty to these charges.  Your plea of guilty was indicated at a relatively early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your overall offending.  Your pleas also allow for the preservation of the court and police resources to deal with other matters.  Your plea vindicates the public confidence in the legal process set out to protect the community and your plea also obviates the need for any witnesses to give evidence against you, in particular, the service station attendant that you robbed.

36Your plea is a clear acknowledgment by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community, and I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your behalf.  In fact, you expressed that remorse to the police during the course of your interview with them.

37Your pleas of guilty are entered at a time when the courts are still labouring under a significant delay due to the COVID-19 pandemic.  You are to receive the benefit of your plea as set out in Worboyes case, now described as the Worboyes discount.

38Your offending is objectively serious.  The maximum penalty set down by parliament for the theft and armed robbery charges clearly denotes the seriousness of these offences.  In respect of the theft charges, that is
Charges 1, 2, 4 and 5, the petrol thefts, you have committed these offences over a two-day period on soft targets for small financial gain to yourself.  The total value of those thefts was, on my calculation, approximately $750.

39Charge 3, the armed robbery, is the most serious of your offending.  The indicators of the seriousness are: 

(1)  You used a home-made imitation firearm, the shotgun;

(2)  You pointed it at the victim or showed it to the victim and said that you were robbing him;

(3)  Your victim was not sure whether or not the gun was real or not;

(4)  Your disguise was of hi-vis clothing in the sense of the fake tradie attempt to disguise yourself;

(5)  You took cigarettes and other items basically of small total value. 

(6)  Your get-away vehicle had false registration plates on it; and

(7)  there was some degree of planning for this crime.

40In relation to the cultivating cannabis charge it is a low level, unsophisticated process of growing for effectively your own use, as it is not alleged to be trafficking. 

41The most significant matter in this sentencing process is that you have a prior conviction for armed robbery.  I was told your previous offence which was dealt with in the courts on 5 August 2020 was for using an imitation firearm on a soft target, which was described as a 7-Eleven store.  Specific Deterrence has a significant part to play in your sentencing process.  Further, your overall offending commenced on the last day of the CCO, which is also imposed on that same day.

42I take into account your personal history and your mental health diagnosis as set out in Ms Cidoni's report.  You have ongoing problems with drug dependency which has led you back to this criminal offending.  You have also had attempts at counselling with Ms Neilsen.  I have no doubt your hopes of a combination sentence of imprisonment followed by a CCO were raised when you received a suitable assessment.  You have previously 'completed' a CCO but for the final day.  You have ongoing drug dependency issues in the sense that you need treatment for it.

43I assess your prospects of rehabilitation as guarded due to the combination of your drug and mental health issues or problems.  The positive factors in your life are that you have strong family support.  Your mother has been supportive of you here today.  She was here the earlier date and you have been visited in prison by her.  When you are released from prison you should positively engage with your family.  They all want you to live a better life.

44I find that the combination of a number of offences and, in particular, the offence of armed robbery, in the context of your prior conviction for that same offence leads this court to the conclusion that the only appropriate sentence is a term of imprisonment with a fixed non-parole period. 

45The sentencing considerations of specific deterrence, general deterrence, the protection of the community, just punishment and your rehabilitation are best served by such a sentence.  Would you stand, please?

46In respect of Indictment No. P10687134 I sentence you as follows.  Just for counsel, I will do the cumulations at the end.

47MR HAMMILL:  Yes, Your Honour.

48HIS HONOUR:  Yes, thank you:

(a)  Charge 1, you are convicted and sentenced to one month's imprisonment;

(b)  Charge 2, you are convicted and sentenced to one month's imprisonment;

(c)  Charge 3, you are convicted and sentenced to two years' imprisonment.  That is the base sentence;

(d)  Charge 4, you are convicted and sentenced to one month's imprisonment;

(e)  Charge 5, you are convicted and sentenced to one month's imprisonment;

(f)   Charge 6, you are convicted and sentenced to two months' imprisonment;

(g)  Charge 7, you are convicted and fined $500;

(h)  Charge 8, you are convicted and sentenced to six months' imprisonment;

(i)    Charge 9, you are convicted and sentenced to three months' imprisonment;

(j)    Summary Charge 9, which is related to this indictment, you are convicted and sentenced to six months' imprisonment; and

(k)  Charge 10, related to this indictment, you are convicted and fined $400.

49The cumulations on that indictment and those summary charges are as follows. 

50The base sentence is Charge 3. 

51In respect of Charge 1 accumulating the following:  seven days for Charge 1; seven days for Charge 2; seven days for Charge 4; seven days for Charge 5; one month for Charge 6; three months for Charge 8; and one month for
Charge 9. 

52The other matters are dealt with by a fine.  In effect for that indictment and those related summary charges is two years, six months and $500.

53In respect of the other indictment, which is P10684337, I sentence you as follows.  This is on the indictment charges:

(a)  Charge 1, convicted and sentenced to three months' imprisonment;

(b)  Charge 2, convicted and fined $100;

(c)  Charge 3, convicted and fined $100;

54In respect to the related summary charges:

(a)  Charge 1, you are convicted and sentenced to three months;

(b)  Charge 2, convicted and sentenced to six months;

(c)  Charge 3, convicted and fined $400;

(d)  Charge 4, convicted and sentenced to four months' imprisonment;

(e)  Charge 5, convicted and fined $200; and

(f)   Charge 10, convicted and fined $100.

55The cumulation on those, on Indictment 10684337 now I am talking about the cumulation there is, Charge 1, one month.  These cumulations are to be cumulated with the other indictment. 

56So is that clear as mud in a beer bottle?  So I am cumulating these onto the other two years and six months.

57MR HAMMILL:  Yes, Your Honour.

58HIS HONOUR:  Thanks.  So Charge 1, one month, related Summary
Charge 1, one month; related Summary Charge 2, three months; and related Summary Charge 4, two months.  That is a total effective sentence overall of them over both indictments and both sets of related summary charges of three years and one month.  I fix a non-parole period of 20 months.

59I declare you have served 179 days in respect of all of those sentences.

60But for your plea in respect of both of them I have fixed an overall period, under s6AAA, so that is the plea, of four years and six months with a two year,
nine months' minimum.

61And the total of the fines, I think, is 1400.  I have signed the disposal orders and the forfeiture orders sought and on Summary Charge 8 on Indictment P10687134, that is theft of the motor vehicle, I cancel all licences for a period of 12 months commencing 25 September 2023.

62MR HAMMILL:  Yes, Your Honour.

63MR TAMBURRO:  If the court pleases.  Thank you, Your Honour.

64HIS HONOUR:  Does that cover - - -

65MR HAMMILL:  Yes, it does, Your Honour.

66MR TAMBURRO:  It does, Your Honour, thank you very much.

67HIS HONOUR:  Do you agree with my arithmetic?

68MR HAMMILL:  Yes, I do.

69HIS HONOUR:  Yes.  Mr Irwin, I have sentenced you to a total of three years and one month and a non-parole period of 20 months and you have got effectively six months of it done.  So when you get out I mean it about taking up the support from your family.  Stay away from the drugs.  No drugs, you will not be going back, all right.  You have got a good life in front of you as a baker or whatever you choose to do.  Thanks.

70MR HAMMILL:  If the court pleases, thank you, Your Honour.

71MR TAMBURRO:  Thank you, Your Honour.

72HIS HONOUR:  Thank you.  Just remove the prisoner, thanks.  Thanks, counsel, for your assistance.

73MR HAMMILL:  Thank you, Your Honour.

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