Director of Public Prosecutions v Irwin
[2020] VCC 1183
•5 August 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-00672
Indictment No. L10447001
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACK IRWIN |
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JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 August 2020 |
DATE OF SENTENCE: | 5 August 2020 |
CASE MAY BE CITED AS: | DPP v Irwin |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1183 |
REASONS FOR SENTENCE
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Subject: armed robbery ; 24 year old first offender; Soft target (7/11); 4.00 AM. imitation handgun. Some planning including gloves and disguise. Mental health issues in lead up; Verdins 5th limb and very decent efforts since offending.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J McCarthy | Office of Public Prosecutions |
For the Accused | Ms A Wong | VLA |
HIS HONOUR:
1Jack Irwin, you pleaded guilty on Monday of this week to a single charge of armed robbery. That offence carries a 25 year maximum term of imprisonment. In addition, you pleaded guilty to a single related summary offence of possession of a controlled weapon, being a hunting knife. That offence has a one year maximum prison term and is the least of your worries.
2The offending occurred in February of this year. You were then, and still are, a young man of 24 years of age. You have no history at all before the Courts and nothing pending. You were born on 16 August 1995, so will be 25 years old in a couple of weeks.
3The matter was opened to me on Monday by the prosecutor, Mr McCarthy, in accordance with a written summary dated 6 July 2020. Your counsel, Ms Wong, told me it was an agreed summary and that document was marked as Exhibit A. I sentence in accordance with it and for that reason, see no need to set out in any great detail the facts of your offending. There is also some CCTV footage which I was invited to view. That is part of that same exhibit.
4Very briefly stated, that summary discloses that you committed a soft target armed robbery upon a lone attendant at a 7/11 store/service station in the early hours of the morning on 20 February of this year. It didn’t just happen. You drove to the vicinity of the service station and disguised yourself with a baseball cap, hooded jumper and neck warmer. The footage shows you pulling up the neck warmer to disguise your face. You were wearing gloves and carrying a green bag and had with you an imitation handgun. The attendant let you in but asked you to remove the hoody before serving you. You removed the gun from your pocket once inside the store and placed the gun on the counter, opened the bag and demanded the cigarettes and cash. The attendant was shocked. He complied. He thought the gun was real. It was a realistic imitation. He pressed the duress alarm but gave you just over $300 cash. You walked out. This was at 4.10am. You were arrested at 4.48am in the vicinity of another such outlet in nearby Niddrie. That is just part of the context. You are not charged with an attempt or any offence in relation to that later attendance. You had driven there and left your vehicle in a nearby street. The cash was found in your car, so too the knife which founds the summary offence. The interview was deferred as you were clearly affected by some substance. It was conducted after 1:00pm. You said you could not remember much and said that you had been taking Xanax and struggling with drug addiction for a couple of years. You spent that day and night in custody and were bailed on 21 February and it must be said, you have been doing well on bail since. You pleaded guilty at the earliest opportunity.
Victim impact
5There is no victim impact statement in this matter though your counsel concedes this was a frightening offence. I do not doubt that.
. In Mitigation
6Ms Wong conducted the impressive plea on your behalf. She really could not have said more on your behalf and had assembled a large range of materials. No doubt she was ably assisted by her instructing solicitor. It strikes me that you have been very well served by the efforts made by your legal team. Some people are not.
7Ms Wong had prepared written submissions on the plea dated 29 July 2020 and I am not going to slavishly work my way through that long document at this point. I take into account the various matters which have been raised and many of those matters are blindingly obvious, amongst them the early stage of the plea, your efforts on bail, your genuine remorse and the existence of strong family support. There are a number of matters in mitigation. If only you had not debuted before the Courts with such a serious offence. But you have. It is an armed robbery upon a totally innocent and vulnerable cashier. They are sitting ducks for this sort of offence. Alone and working in the early hours and they cannot be separated totally from members of the public. That is just impossible. They are, as a result, extremely vulnerable, known to be so, and in the main, are just eking out a pretty marginal existence. It is not as though they are paid danger money. Far too frequently they then find themselves confronted by a man with a gun (or some other weapon) in the early hours, confronted in their workplace. Soft target armed robberies are no minor offence. They are a serious and prevalent crime and must be roundly denounced. General deterrence is an important sentencing purpose as well.
8As I said on the plea, sentencing in this sort of case, where there are decent rehabilitative prospects for a youngish first offender would be simplicity itself if all I had to do was to take into account the offender’s prospects of rehabilitation. No court takes any joy in locking up a young first offender who has decent prospects, but we have to do it often enough. That is owing to the other purposes of sentencing which come into play and the weight to be given to them when dealing with a serious crime such as this one. I will come back to some of these matters a little later, but my task is a much more complex one than just looking at your needs, as I am sure you and your family must appreciate.
9Your counsel conceded the seriousness of the offence and placed before me, as I have said, an impressive range of written materials. Some of those materials related to your response since being bailed, some detailing issues in your life in the lead up to the offending. So I had a letter co-signed by a Psychiatric registrar, Dr Twomey, a letter from Stuart Edwards, an alcohol and drug clinician, a letter from Tarascon Health and one from the Sunshine Hospital emergency department pertaining to an attendance on 4 December 2019. There was a letter from your father’s GP as well as a record of his medicine. There was a report from Dr Zimmerman, a consultant psychiatrist. In addition, I had very strong letters from your mother and stepfather as well as your letter of apology. Finally, confirmation of your offer of a place at Victoria University. Your mother attended the hearing and is back here again today of course and she gave impressive evidence on Monday.
10I am not going to work my way chapter and verse though all of this material in my reasons. There is no point. I do take it all into account. It demonstrates the struggles you had in your life, the deterioration in your life in 2019, the efforts you were taking prior to this offence and the steps you have taken since.
Ms Wong made submissions as to the gravity of the offence, the presence of some aggravating features but also the absence of some others. She made submissions as to your prospects of rehabilitation.11She relied mainly upon the following matters in mitigation;
·The early guilty plea;
·The presence of remorse;
·Your youth;
·The absence of any prior criminal history and your relatively favourable prospects of rehabilitation;
·An increased burden in custody arising from:
i.the response to the COVID-19 virus,
ii.your understanding of your father’s precarious position,
iii.as well as the 5th limb from the case of Verdins
·On that mental health issue, she argued that three limbs from the case of Verdins applied, being the 2nd, 5th and 6th limbs;
12Whilst accepting, as she had to, that this was serious offending with some level of planning, she argued that a stand-alone community corrections order was open here or failing that a term of imprisonment in combination with your release sometime down the track onto a suitably conditioned community corrections order.
Prosecution
13The prosecutor, Mr McCarthy, had prepared quite detailed sentencing submissions which were quite uncontroversial. They were also marked as part of Exhibit A. They dealt with the various matters raised by your counsel in mitigation and some of the matters that the Court must have regard to including the relevant purposes of sentencing and current sentencing practices. I was taken to some examples of other sentences imposed for this crime in cases which were at least broadly similar.
14It is fair to say though that not much was in dispute here other than the application of two of the limbs from Verdins and the ultimate disposition. There was no issue taken with the 5th limb having some role.
15The prosecutor on behalf of the DPP challenged the availability of a standalone community corrections order here. The Director of Public Prosecutions submitted that a prison term was required but submitted that it would be open to deal with you by way of a combination type order.
16Whilst of course I have regard to all submissions placed before me, I am not bound by that submission, no more than I am bound by any of your own counsel’s submissions as to penalty. I have to exercise my sentencing discretion. That is my job as a judge.
Background
17I turn to your background. Your personal history is detailed in the written submissions. It is set out in a range of the other written materials placed before me. Ms Wong took me to aspects of your background and personal circumstances. I see no need to set it all out in my reasons. You had a decent enough background and it certainly does not explain this offending. There is probably no such thing as a perfect background and we see many far worse backgrounds than the one you had. It is true, your parents separated when you were very young and no doubt that caused issues in your life. It always does. You mainly lived with your mother. Both of your parents re-partnered and had other children. You get on very well with your mother’s partner, Michael Govan, and he has written a very strong letter in support. You have a number of step siblings and get on much better with them now than perhaps you did in the past.
18Though you mainly lived with your mother, you maintained contact with your father but he had sizeable issues with alcohol. It was not a smooth relationship for you and you have yearned for some real connection with him.
19You were very close to one of your stepsiblings, a sister, and have never really dealt with the tragedy of her death in an overseas jet ski accident when she was but 13.
20You were bullied at school in primary and secondary levels but had no issues educationally. Your stepfather says you are an intelligent young man but perhaps lacked in your application at school. You left school in Year 10. You worked in a range of jobs before taking on an apprenticeship as a baker in 2015 which you completed in 2017. You excelled. You were working at Rustica in Fitzroy and were doing well enough to be promoted. You had won a number of baking competitions. So your life seemed to be on a very decent trajectory.
21Your father has a raft of serious health issues and you became his carer in May of last year. He has end stage renal failure as well as a range of other serious health issues. You were his formal carer but were awaiting payment of the carer allowance. You stopped work in mid-2019 due to a progressive back injury and things have really started to then further unravel. You were terminated. You had some earlier mental health issues including a couple of suicide attempts when much younger. That history is described in paragraph 18 of Ms Wong’s submissions and fleshed out in some of the other written materials placed before me including Dr Zimmerman’s report. You had issues with drugs from an early age. So problems with a variety of drugs including cannabis, ice, ecstasy, cocaine and benzodiazepines. Also alcohol. Drugs have been a sizeable problem. Things started to mount up last year. No work, no pay, and the rigours of life as a carer for an invalid and failing parent. That is a pretty confronting emotional responsibility for a 23 year old to take on. You were hoping though to develop some decent relationship with your father and in a way make up for lost time in that regard, but that is not how it really played out. Your drug use was on the rise. One of your friends attempted suicide. It was not a good year and you were not in great shape and unlike many, you actually recognised that fact. You had the sense to seek help from your mother. You went to a private rehabilitation facility (Tarascon Health) for a month in August 2019 and there is a letter as to your efforts there. Beyond your departure from that facility you continued to volunteer there. The treatment and counselling at Tarascon was of some use to you. Your mother regrets not having supports in place upon your departure from that in-patient treatment and blames herself but really should not. You appeared to be doing well. However there were some relapses.
22You also engaged with a youth mental health service (PACE) in January of this year. That followed on from your attendance late last year at Sunshine hospital with suicidal thoughts. In February of this year, before this offending, you began seeing an alcohol and drug clinician at Western Health Drug health services. Now those last two services had been seeing you before the crime but your efforts have then continued once bailed. Since being bailed you have continued on with counselling. Both those authors are impressed with your effort and engagement. You have done volunteer work with an animal shelter and have enrolled in a bachelor of outdoor education and environmental science at Victoria University Footscray Campus. Your mother’s letter, and evidence, and the letter from your stepfather, all speak of your continued great efforts since being bailed, as well as the way in which your life took the turn for the worse last year. You have come a long way since, but drugs have still from time to time intruded with a number of relapses. That is probably to be expected. This criminal conduct stands in stark contrast to the person you have always been. Those who know you best were startled by this crime. You have never displayed any violence at all. You are described as respectful, quiet, kind and sensitive. Your mother spoke of being shocked to receive the call from the police. She thought there must have been some mistake.
23Being bailed earlier this year may have been problematic if for instance you had run off the rails and continued to offend. That has not occurred, and you have used your time well. Owing to the swiftness of your entry into bail, I am not sentencing someone who has already served a period in custody, a period which could be taken into account when passing sentence. Being bailed for an offence as serious as this always carried with it the sizeable risk that you would be sent back to prison when brought to court.
24Of course though, I pay regard to your efforts since being bailed. They are impressive, but as I say being bailed was never operating as a guarantee against being imprisoned when the matter was brought before this Court.
25I am required to pass an appropriate sentence here. As I said earlier, I cannot just focus on your rehabilitation to the exclusion of the various other sentencing purposes.
26You are a first offender with no history at all before the Courts. You call in aid your past good character. This conduct is plainly totally out of character.
27Had you not been bailed, much of the material placed before me would not have existed. It would not have been possible to have the views expressed by many including your mother and stepfather as to the steps you have taken in a non-custodial setting. Maybe there would have been a handful of certificates of completion of the minimal style of in-prison courses available. But I have much more than that of course. I have your genuine efforts. I also have what I often don’t have, recognition by you of some serious issues in your life prior to the commission of the crime with steps taken by you to deal with those issues. Steps which were not taken with a view to impressing a court. There was no Court to impress, as there had been no offence. So there is undoubtedly evidence of insight and real motivation. I do have Dr Zimmerman’s report. She is a consultant psychiatrist, and whilst of course I take into account her report, I am far more impressed by the steps you had taken prior to the crime being committed and the steps you have continued to take since being bailed rather than anything I see in that report. I would have preferred to see a long unbroken chain of clean urine analysis frankly, but that does not exist here and I have been told the reasons for that.
28You mother and stepfather comment on the great change they have seen. Their son is back. The armed robbery is totally out of character. You have in the past been a hard worker. You have a good employment record and it is plain enough that things were unravelling in a variety of areas in 2019 for you. Work, income, home life, mental health, drug use. That is the setting where you have acted so out of character. Your apology is genuine, so too your remorse, in my view.
29Your mother is understandably anxious as to your being sent to prison and the interruptions which that would pose to your treatment and counselling. She says you had become more self-aware when you went to Tarascon. You spent $16,000 of your money to do so. You have spoken to her of relapses. You reached out on occasions to her, for instance at the time of the mental health issues when you had the suicidal thoughts in December 2019. She attended hospital with you. She says you were moving in the right direction with the treatment you were having when you committed this offence. She does joint sessions with Ms Hancock. Your mother says you have made good progress but of course there is more work to be done and she recognises that, as do you. She says you are very well engaged with your treatment team and keen and determined to do well and make something of yourself in the future. She does not know where you will end up if the treatment is interrupted by a prison term.
30I believe you have relatively favourable prospects of rehabilitation. If that seems a bit guarded it is only because of the input of your addiction and some of the mental health issues spoken of. Addiction always makes it a bit difficult to assess a person’s future prospects. You would never have dreamt that you would be sitting in the dock charged with an armed robbery and yet you are. So much will depend on your efforts and your resolve in the future. However, subject to obtaining appropriate mental health treatment and abstaining from illegal drugs completely, you are likely to prosper in the future. Indeed, if you can remain totally abstinent there is no reason to think you will have anything other than very good prospects into the future and a low risk of re-offence. Those prospects plainly will decrease if you use illegal drugs. Currently though, I am relatively optimistic.
31I turn then to some of the other matters that have been raised in mitigation.
Guilty plea
32You have pleaded guilty at the earliest stage. You have admitted your guilt and in doing so you have taken responsibility for your crime. You have by pleading guilty facilitated the course of justice. You have done that in the midst of the disruption of the Court business brought about by the global pandemic, which is itself worthy of some recognition. The community has been saved the time, cost and effort associated with a committal hearing or a trial. Witnesses have been spared the experience of giving evidence altogether and at least your victim does not have to relive the trauma whilst giving evidence. I take into account your early guilty plea in mitigation in the ways contemplated by the case law in this area.
Remorse
33I do not need to spend long dealing with the issue of remorse. Your own letter is, I am sure, genuine. You describe your shame. I have no doubt you are actually genuinely remorseful. That is not just drawing an inference from your plea and implying remorse from that plea. You are actually remorseful and your letter and some of the other materials convinces me of that fact. I take into account your remorse. It is important. You deeply regret the offence and its impact upon your unlucky victim. That is relevant in a number of ways. Surely it renders you unlikely to ever commit such a crime as this again.
Increased burden – COVID-19
34I turn now then to the aspects of increased burden that was relied upon here. Firstly, the COVID-19 ramifications. I accept that the COVID-19 virus and the response to it by those running the prisons does increase the burden upon prisoners. It causes stress. If sending you to prison, it will increase your burden to some extent. It is almost impossible to know precisely how it would impact upon you. There are some lockdowns in place in some prisons, but they do not exist across the board. Visits have been suspended and so too some courses and programs. New prisoners have a period of 14 days isolation which is a very tough initiation. We have been up and down in the community in terms of this virus and we are now not in great shape with a state of disaster declared recently. In the current climate, it is hard to see any prospect of prison returning to a pre-COVID-19 setting any time soon. Prisoners will therefore likely spend less time out of cells and of course there is the worry of catching it in such a confined setting with no real autonomy or ability to socially distance. In person visits will not take place. There was some discussion in the course of the plea as to the impact of the virus, how it was relied upon in this case, as well as the possibility of emergency management days being declared. Your counsel submitted that I should not have regard to that potential. I have considered that submission and I agree, I will not.
35Having considered the issue of COVID-19, I accept your counsel’s submissions in paragraphs [40]-[41] of her written submissions as to an increased custodial burden in this case and I take that into account.
Father’s predicament
36I also accept that you will be worried about your father’s predicament as you serve out any sentence. You will not be able to care for him and will be concerned for him and that will increase the burden of imprisonment in the way argued by your counsel in paragraph [39]. I cannot take into account third party hardship. So, the impact upon him is not something I can consider. But you, knowing of his position and that increasing your prison burden is something I can and do take into account.
Verdins – 5th and 6th Limbs
37Whilst on the topic of increased prison burden, I accept that the mental health conditions spoken of in the material including in Dr Zimmerman’s report (Exhibit 7) and the PACE report (Exhibit 5) will make the service of any prison term more onerous for you than for others. You have a generalised anxiety disorder and a social anxiety disorder and whilst the former may be in part remission, you are still not in a great shape. Your anxiety is described as disabling by the authors at PACE. Prison is a stressful place at the best of times. The conditions spoken of will increase your custodial burden. The evidence does not rise to the level of enlivening the 6th limb from that case. I am not satisfied on the materials placed before me that there is likely to be a serious risk of prison having a significant adverse effect upon your mental health. There are potentials which are raised but they fall shy of engaging the 6th limb in my view but of course I have regard to those aspects when giving such weight as I do to the 5th limb of that case. Going to prison is a major stressor.
Verdins – 2nd Limb
38What then of the 2nd limb? I am not saying that I would choose whatever treatment is or may be open to you in custody over the treatment available to you presently in the community. Of course I would not. Your anxiety condition and the treatment you are undergoing and have been for some months now causes me to reflect very deeply and with some real anxiety as to whether I must imprison you. Also the desirability of maintaining that treatment. So to that extent, in a way I am giving weight to the second limb of that case. I have thought long and hard as to whether your present treatment must be interrupted. I have said already, I accept that your condition will increase your burden of imprisonment. It is not apparent that your condition cannot be managed and/or treated in prison. I accept it would be better for you to have some continuity with your current team but that is not to say you cannot be adequately treated in custody. Ultimately then, I do take into account these conditions. They do have a bearing on the nature of the sentence and the duration of it.
39Your mental health issues are not in any way directly linked to the offence. You were a drug addict. Drug addicts routinely commit soft target armed robberies and it is of no mitigatory value that you were under the influence of drugs and/ or seeking to obtain funds for drugs. At best, it distinguishes you from someone who is offending to prop up some flamboyant or extravagant lifestyle. That sort of crime might have a higher level of culpability than yours. But your disinhibited state brought about by voluntary drug use is not mitigatory. Going into custody will not be easy for you owing to the anxiety conditions spoken of and as I say, I take that into account in mitigation.
Youth
40I have your relative youth, Mr Irwin. You were 24 years old at the date of offence and still are. Evidently then not some silly teenager but still pretty young and very importantly, a first offender and one doing well in the community and with the relatively favourable prospects I have spoken of. Your counsel reminds me of the principles dealing with youth. I need no reminding of them. The law treats youth as a matter of real importance. Young people are more prone to make mistakes or to act without thinking through the consequences. They are generally speaking, less culpable and the benchmark for sending a youthful first offender to prison is a high one indeed. So generally speaking, more weight is devoted to rehabilitation and less weight, if not far less weight, is given to punishment and deterrence. The law also recognises the potential corruption of a youthful offender which may take place in a prison setting. The law recognises the fact that young or youthful offenders are more able and likely to be rehabilitated as they are less set in their ways. The community has a stake in rehabilitation of any offender whether they know it or not. With rehabilitation of a youthful first offender comes protection of the community from that person forever. Of course, I am anxious as to interrupting your efforts at rehabilitation. There is always anxiety in sentencing any youngish first offender.
41The Sentencing Advisory Council (SAC) released a lengthy paper late last year dealing with the complexities of sentencing young adult offenders. See ‘Rethinking Sentencing for Young Adult Offenders’ (SAC, December 2019). It was an impressive paper touching upon the sentencing principles in this area and the reasons that the law has developed in this way.
42You are a youthful first offender and of course that is a matter of significance, but your counsel correctly reminds the Court that the weight to be given to youth and rehabilitation will vary from case to case. It is not just automatically applied the same way in every case. Generally speaking, the more serious an offence the less weight will be given to youth and rehabilitation. That is because more weight is devoted to some of the other purposes of sentencing. I apply to my task the principles from cases such as Mills[1] and Azzopardi [2] sensibly adapted to one of your age. As I say, you were not some silly 18 or 19 year old. You were 24.
[1] [1998] 4 VR 235
[2] [2011] VSCA 372
43Your relative youth is still of importance. I do not lose sight of it but regrettably, as a youthful first offender, you have chosen to commit a serious crime indeed.
The Offence
44It is conceded by your counsel that this was a serious example of the crime of armed robbery. See paragraph 3. Armed robbery is itself an inherently serious offence. Your offence was not anywhere near the lowest level of offence seriousness. Having said that though, it falls nowhere near the most serious examples of armed robbery. There was obviously some planning here as is conceded. It is a bit hard to accept at face value your account of lack of recollection though I note what Dr Zimmerman says on that score. You seemed to be able to correct the police that it was a replica firearm and one with no firing pin and then chose to no comment as to the source of the weapon as was your right. See questions 235, 250. These are not matters of aggravation by the way. You probably did not and do not want to remember what you did.
45The fact is though, that you left your home. You were able to drive and to work out where you wanted to drive to and why. You took the neck warmer and the hoody, gloves, cap, bag and gun. You drove to the vicinity of the 7/11 outlet and left your car, intending to commit an armed robbery. We see you on the footage standing outside the store with your back to the door and the fateful moment that you decide to pull up the neck warmer and take the plunge into this serious crime. Your counsel spells out some of the aggravating features absent here, and she is right, they are absent, but as she correctly states, that is not a matter in mitigation. It was a serious looking weapon. A vulnerable target and a completed offence here. Soft target armed robberies usually are swift events. It was not a sophisticated offence but mostly they are not. You took more care than those many who enter premises without any semblance of disguise. That is not what you did at all. You knew what you were doing. You were thinking it through. No doubt you were under the influence of drugs but that is not mitigatory. At least you did not compound the offence by any extravagant language or use of the imitation firearm. You were not issuing verbal threats or anything like that and the gun was placed on display and no more than that.
Purposes
46I have to consider a number of purposes of sentencing. I must pay regard to your prospects of rehabilitation. As I have said I view them favourably.
47I am required to punish you for your crimes. I must do that justly and proportionately. I must also denounce your conduct. It is a serious and frightening crime to enter someone’s workplace in the way that you did, armed and making the demand that you made. In your apology, you recognise the depths to which you had sunk. That recognition can only be a good thing.
48I must pay appropriate weight to specific deterrence. That purpose relates to the need to deter you from offending in the future. I believe that this purpose can be moderated in your case owing to the efforts that you have made already and my relatively favourable views as to your future prospects. You have no history before the courts. You are a decent young man who has committed a serious crime, but one which is deeply regretted.
49I believe you are unlikely to offend in this way again, if you remain drug free. Whilst I cannot ignore this sentencing purpose, I give it far less weight than I would give it in a different case, for instance the case of an older accused with past relevant criminal history and worse prospects into the future. For the same reasons, the weight given to community protection can also be moderated here. I cannot ignore it, but I have in your case reached these relatively favourable views. It just stands to reason then that community protection has a reduced role to play in your case than in for instance that case of someone with a long criminal history before the courts, or someone who has breached countless court orders. There would be in that sort of case far less favourable prospects of rehabilitation and hence a greater need to deter specifically. That sort of person is more likely to re-offend and the community needs to be protected from them. The community has never needed protection from you in the past and I believe you present a low risk of reoffending into the future subject to abstaining from drug use.
50General deterrence is however a highly relevant purpose of sentencing in this sort of case, as your counsel well recognises. This Court must send a very clear message to others in the community who may think it worth considering soft target armed robbery. It is a prevalent offence. Again that is conceded. These vulnerable people who man these outlets which are so often selected are often enough working alone in the wee small hours. They must be protected by the Courts. The message must be sent by the Courts to likeminded future potential offenders in an endeavour to deter them from doing what you did.
51The Courts must convey the message loud and clear through the sentences imposed that armed robbers will be dealt with seriously when brought to Court. It is a serious offence as the maximum penalty surely makes plain.
52Again though, in your case, I think there can be some moderation of this purpose. Your efforts on bail must be recognised. Those efforts to date and your age, first offender status and mental health issues lead me to give more weight to rehabilitation and hence less weight to some of the other sentencing purposes. General deterrence is still though an important purpose of sentencing here.
53I must have regard to the maximum penalty and to the impact of your crime.
54I am required to take into account the principle of totality of sentence though here the summary offence hardly rates another mention. The armed robbery is the major offence here.
55I also have to pay regard to current sentencing practices. That is not a single controlling factor. I have looked at the relevant Sentencing Snapshot for armed robbery (No. 236 of 2020) as well as overviews of cases from the new Judicial College of Victoria sentencing manual (6.2.1.1). I have also looked at the cases referred to by the prosecutor. Those cases are not truly comparable. They are examples of other sentences in other cases by other judges. There are some parallels but a host of differences. The fact that they received the dispositions they did says nothing at all about what I must do in this case, your case. I am exercising a sentencing discretion in your case, not theirs. I am sentencing you for your crime and no amount of looking at other cases or statistics will provide the answer to me. Other cases are not precedents and statistics have inherent limitations. Nor is there such a thing as one correct sentence. Another judge in each of those other cases might have quite permissibly imposed a higher or for that matter, a lower penalty.
56I have been a judge for over 10 years now and have sentenced scores of people for the offence of armed robbery so well understand the sentencing practices for this crime.
57I take into account all of the submissions that have been made by your counsel and by the prosecutor. I take into account all of the many written materials placed before me.
58Ms Wong argued that it was open to place you onto a stand-alone community corrections order, that you did not need to be returned to prison. The Crown challenged the availability of such an outcome. As I have said earlier, I am not bound by those sentencing submissions made to me by either side but must exercise my own sentencing discretion. I have had you assessed for your suitability for a community corrections order and you are judged to be suitable. I am not at all surprised by that. You are judged to be a medium risk of reoffending. I should mark the assessment report I think as an exhibit and I will mark it as Exhibit B even though it is not a prosecution exhibit. I should have satisfied myself you have seen that report, Ms Wong?
59MS WONG: Yes.
60HIS HONOUR: There is nothing you need to say about that?
61MS WONG: I am not sure I need to, Your Honour. I had planned to briefly address Your Honour about the community work but the point I was about to make seemed relatively earliest.
62HIS HONOUR: I would not be deterred from imposing an order with community work just by virtue of the current climate, thank you.
63MS WONG: Thank you.
64HIS HONOUR: I told you that you should take no comfort at all from the fact of the assessment being undertaken or my extending your bail and I was not just saying that for fun. I meant what I said.
65I wanted to re-read all of the materials and to consider if I could actually release you immediately onto such an order. I made it as plain as I could really that my calling for the report did not signify that I would necessarily release you on such an order and that being sent back to prison was a significant risk here, either with a non-parole period or with release onto a community corrections order down the track.
66I have very anxiously considered the materials before me. Can I tell you I am not just saying that, I really have. I have read them more than once since the date of the plea. I reread all of the written materials. I have re-read my note of your mother’s evidence.
67As a judge, I must not confine any person unless the purposes for which sentence is imposed cannot be achieved by a lesser disposition, one not involving confinement. That is the law. See s.5(4C) of the Sentencing Act.
68Sending any person to prison is a matter of last resort for any court. Sending a youngish first offender to prison, one who has evident family support and one who has already taken some more than decent steps along the path to rehabilitation, is never a step taken lightly or without a sense of regret. These are big decisions with significant ramifications and they are not taken lightly.
69This sort of case is a hard one for any judge and I do not pretend that this is an easy task. It is not.
70Ms Wong referred me to the case of Boulton & Ors v The Queen [2014] VSCA 342 (“Boulton”). The Court of Appeal spoke in that decision of the dramatic change in the sentencing landscape brought about by the availability of a community corrections order either on its own or as it was at that time of that decision, such an order in combination with a prison term of up to two years. That has now been reduced to one year and the duration of the term of an available order has also been cut back significantly.
71Sometimes such a disposition will be open. Sometimes it will not be open.
72There are some cases where only an immediate term of imprisonment will suffice even if in conjunction with a community corrections order.
73The Court of Appeal said on later occasions that the community corrections order disposition is not some ‘get out of gaol free card’ to be employed for every crime before every Court for every offender.
74That decision of Boulton counselled and challenged judges to reconsider and to revisit our conventional wisdom as to when it is appropriate and necessary to actually gaol an individual. The Court of Appeal stated that the sentencing landscape had changed dramatically by reason of that (as it was then) new disposition. They indicated that sometimes it will be open to place a person on such an order even for offending that previously might have been visited with a substantial (medium) term of imprisonment.
75The precondition to such an outcome though was if it was appropriate in the particular circumstances of the particular case.
76It is obvious that not every offender for every crime can be admitted to such an order. There are some crimes where the purposes of sentencing cannot be given adequate weight by use of such an order.
77So in this case, as in so many cases coming before the Court, there are some obvious tensions that exist as between the various purposes of sentencing. That is why sentencing is not actually easy. You are a youngish first offender with some impressive material placed before me. There is the issue of your rehabilitation. You have done well so far. Your mother has anxieties as to what will happen if you are imprisoned. I have them myself. I am understandably anxious about interrupting your forward progress, anxious about the corrupting influences which exist in prison, concerned as to how you will cope in such a place and how you might emerge from such an experience.
78Undoubtedly though, this was a serious offence. There is a need to adequately reflect denunciation, punishment and general deterrence. Community protection and specific deterrence can be moderated to a degree for the reasons I earlier announced.
79Now the case law makes it plain that a community corrections order can provide substantial general deterrent effect. It can also be very punitive.
80Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement unless the Court concludes that the purposes of sentence cannot be achieved by a community corrections order to which specified conditions are attached.
81As a result, I need to pay careful attention to the purposes for which sentence is to be imposed in this case and whether they can actually be achieved by a stand-alone community corrections order.
82The Court of Appeal suggested in that case of Boulton that Judges in my position ask the following question:
"Given that a community corrections order could be imposed for a period of years with conditions attached, which would be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment with all its disadvantages is the only option?"
83Unfortunately, I believe that I must answer that question in the positive in this case. I do not believe that it falls within my sentencing discretion to place you onto a standalone community corrections order for this offending. I regret to say that this offending demands that you serve a term of actual imprisonment. It is in my view simply unavoidable. I wish it was not, but it just is.
84I do not believe that such a disposition on its own can meet all the relevant sentencing purposes. I have only two days of pre-sentence detention to work with. General deterrence, denunciation and punishment are significant purposes here and would not be adequately reflected by such an outcome as is mooted by your counsel, especially general deterrence for a crime such as this.
85I believe there is no alternative at all other than to impose a term of actual imprisonment upon you. Very commonly for a crime as serious as this, I would be fixing a head sentence and a non-parole period.
86You heard me mention the Sentencing Statistics earlier which disclose that the most common range of imprisonment when prison was selected was between 3 and 4 years. As I say, very commonly for a crime such as serious as this, there would be a head sentence and a non-parole period.
87I believe though, that owing to the various matters raised in mitigation, it is open to admit you to a suitably conditioned community corrections order, which will take effect upon your ultimate release from prison. In that way, I will provide for your guaranteed release. That may not seem much as you sit there now reeling from the news that you are being sent to prison but you will soon enough appreciate the advantage conferred by this style of order. This will give you some certainty in your life. It gives you and your family and your support team a precise release date to work to. That sort of guarantee does not exist when a Court fixes a non-parole period. Most often for this style of offending, there is a head sentence and a non-parole period, with the head sentence measured in years not months, and likewise also the non-parole period, and with no ability for the offender to know if he will be released on parole or not. That decision rests entirely with the Adult Parole Board and there is never any certainty as to whether there will be release on parole. That will not be an issue here for you. You will be released from prison at the end of the prison sentence that I am shortly to pronounce. You will know within days what your precise release date will be.
88In proceeding in the way that I propose to, I can significantly limit your exposure to prison. Prison will not be easy for you at all. It is not a good time to be sending any person to prison, much less a first offender and one with the anxiety issues referred to. I can shorten that exposure to prison whilst providing for your treatment, rehabilitation and ongoing punishment in a far less punitive setting upon your ultimate release in the not too distant future. This will have you serve, at least relatively speaking for this sort of crime, a reasonably short prison sentence, before being released onto a lengthier community corrections order.
89I do not accept that a community corrections order on its own can pay sufficient weight to the need to punish you, deter others and to denounce your conduct. I believe that the term of imprisonment that I propose in conjunction with the suitably conditioned community corrections order can achieve these various ends.
90There are some ancillary orders that I am asked to sign here and they are not opposed so I am going to pronounce those in an abbreviated fashion. I have signed the formal orders.
Forfeiture
91The first of those is a forfeiture order for the hunting knife, the subject of the related summary offence. I am satisfied that it is appropriate to make an order forfeiting that item to the Crown and it is to be dealt with and handled in the manner contemplated by that order which has been signed.
Disposal
92The second is an application under s.78 of the Confiscations Act for the forfeiture of the bits and pieces, the accoutrements of the armed robbery, the handgun, the neck warmer, the gloves and the bag. Again there is no opposition to that order being made under the provisions of s.78 of the Act.
93I order that the property referred to in the schedule be forfeited to the State and be handled in the manner contemplated by the signed order.
94I will have you stand up now if I could, thank you, Mr Irwin?
Sentence
95On Charge 1 on the indictment, which is the charge of armed robbery, you are convicted and sentenced to 6 months' imprisonment.
96In addition, on that charge, I am going to convict and admit you to a community corrections order for a period of two years. That order will commence upon your release from custody in approximately six months from today. I say approximately as it is possible of course that there may be some allowances made for the disruptions brought about by the COVID-19 virus. As I said earlier, I cannot and do not take that into account but only mention it now to make clear that this community corrections order will take effect at the time of your release from prison, whenever that is. I am imposing a six month term but if you were to be given any sort of allowance under the regime I spoke of it might even be shorter.
97I will explain the community corrections order in one moment as you must consent to this order. I need to know that you are consenting to it and that you understand the form of the order. Before I do that though I have got to pass sentence in relation to the related summary offence.
Summary offence
98On that related summary offence, I do not believe it even warrants a prison term or for that matter a community corrections order. I do not believe either of those outcomes would be proportionate. On that related summary offence I will convict and fine you the sum of $400. I think I will have you have a seat then for the moment and I will just explain this order to you and ask then if you are consenting.
COMMUNITY CORRECTIONS ORDER
99Let me just explain this order. It will take a little bit of time and you can speak to Ms Wong at the end of all this just to make sure that you understand. So it is on the single charge of armed robbery. As I have said, I am imposing a six month term of imprisonment, but in conjunction with a community corrections order.
100It is an order for two years and it commences upon completion of your term of imprisonment. As I say, I cannot put into that document a precise date, there is no point in me doing that but upon your release what you then need to do is you need to report to - I am told the Sunshine Community Correction Services in Foundry Road, Sunshine.
101You will get a copy of this document and at the moment I do not know how things are being done or how they will be done in six months from now or thereabouts. If you were leaving custody today you would not be attending in person. There is a phone number on the document and that may well still be the position in six months, I just do not know.
102But what I do know is that you need to ring the number and they will give you further directions. So when you are released from custody within two clear working days you have got to report. So ring them up and ask them what they are wanting you to do. So that is the first thing. These orders have mandatory terms. They apply to everyone who gets one. You are getting one so they will apply to you and I note from the assessment that you understand these things but I still need to explain it to you.
103I do not want anyone breaching one of these orders and saying, 'I did not know what could happen if I breached it', and you will know because I am going to be telling you. The mandatory terms, the first of those is you must not commit another offence for which you could be imprisoned in that two year order. These days virtually every offence is punishable by a term of imprisonment. If you commit an offence in the currency of the order, in the two years of the order, you will find yourself in breach of this order.
104That is even if you are not locked up for an offence. If, for instance, you were using a drug and you have got to possess a drug to use it, possession of a drug is itself punishable by a term of imprisonment. I do not think there is a magistrate in their right mind who is going to sentence someone to prison for possession of a tiny amount of drug for personal use but maybe I am wrong about that, but even if you got a fine or something like that it is an offence that in theory can be punished by a term of imprisonment so you breach the order.
105In other words, stay out of trouble for the next two years upon your release. It should not be a problem because you have stayed out of trouble your whole life. The only real danger of course is posed by drug use for you. So that is the first of the mandatory terms.
106You have got to comply with your obligations under the Sentencing Regulations. That means you have got to turn up totally unaffected by alcohol or drugs and on time and ready to do whatever you are being asked to do under the order.
107You have to report to and receive visits from the community corrections officer. As I have said, you have got to report within two clear working days of the order starting but you would start by using the phone number on the document. You have got to let them know within two clear working days of changing an address or a job. So you do not just get up and leave, you let them know.
108You must not leave Victoria without first getting permission to do so from your community corrections officer. I am not saying they would not give you permission, maybe they would if there is a good reason to travel. It might be a holiday or something like that and you are doing well on the order, they would probably grant you leave, grant you permission.
109But if you just do what so many people do and just get up and leave you would breach the order. You have also got to obey all their lawful instructions. So they are the mandatory terms. If you breach any of those you breach the order.
110Then there are the conditions that I can tailor to the particular needs of the case before the court, both in terms of your needs but also the needs of punishment and the other sentencing purposes because these orders are punitive. Even if they do not have unpaid work you are on this order for the next two years upon your release from custody.
111I have considered whether I should lumber you with some unpaid work upon your release. Unpaid work is unmistakably punitive, there is no doubt about that and it strikes me that the term of imprisonment that I am imposing has obviously a higher punitive value to it. It is unmistakably punitive and I think it is better that you serve that and get released onto this order without unpaid work, without some of the vices that arise from unpaid work, including for instance connecting up with other people who might have issues with drugs or people with criminal history.
112So I am not going to impose any unpaid work at all which is an unusual feature of this order actually given the nature of the crime. You are going to be under the supervision of Corrections for the full period of the order, two years. So when they tell you to turn up you turn up and it is very simple.
113Then there are treatment and rehabilitation conditions. They are designed and focussed on your rehabilitation. You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the Regional Manager and you must undergo any medical health assessment and treatment as directed. It is a longer condition than that but you will see it on the document.
114So unmistakably they are designed for your treatment needs and the Corrections crowd are aware of the people that you were accessing. It may well be, and I hope it is, as simple as them giving you directions to return to that counselling and treatment which regrettably I am interrupting. I have no choice but to interrupt it of course. If I had a choice, I would not.
115So they are the conditions that I am tailoring. As I say no unpaid work. So we have the mandatory terms, we have the conditions. If you breach any of them you breach the order. If you comply with all of them and you stay out of trouble for two years and you comply with those conditions, that is the end of the matter. It does not come back to court.
116But if you breach any of them, it does. You have not had one of these orders before and you have never been before a court before so let me give you some advice. You will do far better on this order as I expect you will by forming a decent relationship with the community corrections officer. If you have got a particular reason not to be able to do an attendance under the order get on the phone and speak to them there and then in advance.
117No doubt they will see that that is a reasonable thing and they will reschedule. But do not do what so many people do and that is just bury their head in the sand and not turn up and then try and construct a reason for not turning up weeks down the track. It will never pass muster. It will always lead to a breach.
118So do not muck around with the community corrections officer. I would not expect that you would so. If there is a particular problem with one of the attendances, it might clash with something, they are not going to want to cut across you if you have got paid employment, they are not going to want to jeopardise that. If you are heading back to uni - I know you will not be heading back to uni this year - but the duration of this sentence gives you the ability to really start a new leaf in the new year.
119So they are not going to want to cut across course work or lectures or anything like that but do not just not turn up, get on the phone and ring them and reschedule and I am sure they will be very reasonable about that. I do not know what they will have in mind in terms of the assessment and treatment for the drug abuse, but as I say it might be as simple as referring you back to the crowd you have been seeing until now.
120Likewise in terms of the mental health assessment and treatment. It may be no more than saying, 'Get back to doing what you were doing because you were doing it pretty well'. So they are the full suite of mandatory terms and conditions. I have not told you what happens if you breach this order and I need to. Again I do not want you to be under any misapprehension. This case is not finished.
121It is not finishing in the way you would have hoped it would. No doubt you were hoping that you would leave court under your own steam. You will not be and you have a prison term ahead of you and it will not be pleasant, I know that. I have been anxious about passing sentence in this case for a variety of reasons. But the case is not over.
122You will serve the six months. You will then be released. It is not a matter of the Adult Parole Board having to sit. They do not get involved. Unlike prisoners that you will see who will not know whether they are going to be released on parole or not, you will know exactly when you are going to be released. Out you will come onto the order, reporting within the two clear working days and then complying.
123If you comply that is very straightforward, you will never see me again. We will never see each other and that is the way I would like to keep it.
Breach
124If you breach it by offending by breaching any of the mandatory terms or the conditions then that itself is an offence of breaching a community corrections order. That is a criminal offence punishable by a term of imprisonment. That is not the sting. The sting is this; if you come back in breach of this order you come back to this court. It does not go to the Magistrates' Court, it does not go to another judge in this building, it comes back to me. We deal with our own breaches.
125I need to tell you that there is a very limited range of options open to a judge dealing with a person who has breached an order such as this and the most commonly used option for a person breaching a community corrections order is to cancel the order and if a court cancels the order the court takes into account the extent of the compliance with the order and then re-sentences.
126So you would be back in the dock facing a re-sentencing exercise in relation to the crime of armed robbery. You do not want to put yourself in that position. If you put yourself in that position you are putting yourself in the position of facing a head sentence measured in years with a non-parole period being fixed, which is not what I am imposing today.
127I cannot tell you exactly what I would do if you breach this order. It is impossible for me to do that because my obligation would be to come onto the Bench and to act judicially and to listen to what was said and to make an assessment of the efforts that you had made and the nature of the breach.
128But as I say, you are best to work on the theory that if you breach this order and you come back before me in breach, the order will be cancelled and then I will then resentence you in relation to the crime of armed robbery. It is not a minor example of that crime as I have tried to stress in the course of my reasons. Let me just see, Ms Wong, are you satisfied that I will be getting informed consent from your client?
129MS WONG: Yes, I am not sure if Your Honour was coming to this but I think there needs to be a s.6AAA declaration.
130HIS HONOUR: I am not up to that yet. I have got that down the track, yes.
131MS WONG: Thank you, Your Honour.
132HIS HONOUR: I need to ask you directly - as I say I cannot put you on one of these orders unless you consent to it, but can I ask you, Mr Irwin, just remain seated - do you consent to entry onto this community corrections order upon your release from prison?
133OFFENDER: Certainly, Your Honour.
134HIS HONOUR: Ms Wong, if you would take that down to your client if you would, thank you?
135MS WONG: Yes.
136HIS HONOUR: I will just keep you seated there, Mr Irwin, and I will just ask you just for the purposes of the record do you confirm then that you have signed the community corrections order?
137OFFENDER: Yes, Your Honour.
138HIS HONOUR: You have signed it under the words “I understand the effect and the conditions of this order and consent to it being made”. We will have a copy provided to you.
Section 18 pre-sentence detention
139You have already served two days of this sentence by way of pre-sentence detention, and that declaration is to be entered into the records of the court.
Section 6AAA
140I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of this offence, there would have been no question of a combination type order in that setting, it just would not have been open. I would have convicted and sentenced you to four years' imprisonment. I would have fixed a non-parole period of two and a half years in that setting.
141Let me just see if there are there any other matters that I need to deal with. Any other matters from you, Ms Wong, at all?
142MS WONG: No, Your Honour.
143HIS HONOUR: From you, Ms Edwards?
144MS EDWARDS: No, Your Honour.
145MS WONG: Sorry, Your Honour, I should just ask whether my client's mother can just briefly go over to the dock before he goes down? I should ask whether my client's mother can speak to him at the dock before he goes down?
146HIS HONOUR: Yes, let me just see. He has come here on bail and he is going to need to be searched and all that downstairs. There is no reason why the mother cannot bid her son farewell? We will do that in a second.
147MS WONG: Thank you, Your Honour.
148HIS HONOUR: Any custody management issues you want me to mention?
149MS WONG: Only those noted in the psych report already that he does suffer from anxiety and he already has his medication with him and that is not used daily, it is on an as needs basis.
150HIS HONOUR: You tell me what you want me to put on the document then. I will send them the report if you want.
151MS WONG: Perhaps that would be easiest.
152HIS HONOUR: But I better alert - if you want me to alert them you tell me what you want me to say.
153MS WONG: I would put down he suffers from anxiety disorder and has had a history of suicide attempts/ideation and that he is also prescribed medication.
154HIS HONOUR: I will add to it that it is his first time in custody, he suffers from an anxiety disorder and has some history of suicide attempts or ideation and has prescribed medication. I will say please see the report. Let me just see which reports. Let us just look at it.
155MS WONG: It is dated 26 June.
156HIS HONOUR: I think in a way I will give them Zimmerman but I will give them Twomey and Polaris as well I think. I think that probably speaks of the extent of his anxiety - are you happy for me to do that or not?
157MS WONG: Yes, thank you, Your Honour.
158HIS HONOUR: Please see the reports of Dr Ralph Twomey and Dr Zimmerman and please take all care. I have signed that order. No other matters from either of you?
159MS WONG: No.
160
HIS HONOUR: I am sorry to have taken so long getting to the end of that.
Ms Wong, the family will have not the slightest idea about how to be liaising with prisons and the like and it could not be a worse time to be doing it at the moment. Do you sort of walk them through any of those sort of steps?
161MS WONG: I give them a general spiel however I find that it often depends on which prison they actually end up in so I will do my best.
162HIS HONOUR: And getting on phone lists and that sort of thing and that would be pretty important. I mean he is going to be - as I have said, it’s not a good time to be going to prison, there is a level of isolation in his early phase and then also he does not have the benefit, and none of them do, in terms of visits and for him it is pretty important so if he can be linked into video calls and that sort of thing it would be of at least some use.
163MS WONG: I understand that it just part of the induction that they do.
164HIS HONOUR: Yes, that completes the matter then so I will have Mr Irwin removed in a moment but his mother can have a quick chat. I will stay on the Bench though.
165MS WONG: I appreciate that, thank you, Your Honour.
166HIS HONOUR: Yes, you can go down.
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