Director of Public Prosecutions v James

[2015] VCC 1685

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00445

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK JAMES

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JUDGE:	JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 6 November 2015
DATE OF SENTENCE:	23 November 2015
CASE MAY BE CITED AS:	DPP v James
MEDIUM NEUTRAL CITATION:	[2015] VCC 1685

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Hoare	Office of Public Prosecutions
For the Accused	Mr J. Lavery	Chester Metcalfe & Co.

HIS HONOUR: 

1Mr James, you have pleaded guilty to one count of robbery.  You have heard the learned prosecutor Mr Hoare, the gentleman sitting here, tell this court that the maximum sentence that can be imposed for this offence is that of 15 years' imprisonment.  For having pleaded guilty, I will impose a lesser sentence than I otherwise would have imposed.  In other words, you receive a discounted sentence for having pleaded guilty.

2On the weekend of 22 and 23 February of 2014, you were staying with a friend - he is no friend - but you were staying with a fellow called Omar Mustafa.  You had known each other for a few years from when you both lived in the Mill Park area.

3Some time on Sunday 23 February 2014, you and Mustafa left the house in Mustafa's mother's car, a blue-coloured Holden Commodore bearing the registration YUK 253.  Mustafa was driving.  I do not know; I have not been told, but I would not mind betting he was one of the tearaways that you were living with in Mill Park when you got on the drugs some time, ago.

4At approximately 9 pm, you told Mustafa, "Stop the car and wait".  You got out of the car and attended at the Pizza Plus Restaurant at 66 High Street Broadford.  At the time of entering that store you were wearing a grey-coloured hoodie with the hood on the back of your head, black-coloured pants and medium black-coloured gloves.

5The owner, Satish Ravalkole, was inside the store closing up.  He told you the store was closed.  You hit the cash register with your hand, signalling for the owner to open it.  The owner thought that if he did not open the register, then you were going to hit him.  Mr Ravalkole opened the cash register.  You then said, "Where's the cash".  Ravalkole told you, "That's the cash I have."

6You picked up the cash register tray, which contained approximately $250.  You picked up the owner of the premises, that is Ravalkole's, black-coloured iPhone and a STIHL cordless Uniden brand phone.  You took the tray of money and phones, and left the store, turning to the left out of the store and left again into a vacant block.  You returned to the vehicle with the till drawer and cash, the iPhone and the other phone, and told Mustafa, "I've just done over the pizza place".  You showed Mustafa the iPhone and some cash.

7The two of you then drove to the Epping area and to a drug dealer's house, where according to you, you purchased $650 worth of ice, which you and Mustafa shared.

8On 4 April 2014, a search warrant was executed and conducted at Mustafa's house in Broadford.  He was arrested and police located items of evidentiary value, including the red gloves consistent with those described by Mr Ravalkole.  One of those gloves was later examined and found to contain your DNA.

9Whilst en route to the Seymour police station for interview, Mustafa nominated his co-offender as a friend by the name of Mark James, and gave police officers directions to where you lived.  Mustafa pointed at a house in 21 Andrew Avenue Waterford Park, where at that time you lived.

10Mustafa made a statement to police about the matter, and gave an undertaking to give evidence.  Mustafa pleaded guilty to robbery at the Shepparton Magistrates' Court on 26 May, and received a seven month community corrections order, to serve 100 hours of unpaid community work.

11On Thursday 26 June 2014, you were arrested at your address in Mill Park and conveyed to the Mill Park police station for interview.  During the interview, you exercised your right to make a no comment to the questions asked about the robbery.  However, you did say that you were aware of the incident; "Yep, pretty sure I know it".  You also said when told of the allegation of you going back to Mustafa's house after the incident, you said, "We didn't go back to Omar's house, but anyway".  Later you stated that you were at Mustafa's house earlier in the day, and that you went down to Epping.

12You did say that you went to Omar's house because each of you were going to get the drugs and score in Epping, and that each of you went to Epping at about ten that night.  You said that you bought an 8-ball of ice from your dealer in Epping for $650.  You said that you were with Mustafa when you went to see this dealer.  You stated you smoked ice from a pipe that night at the dealer's house in Mill Park.  You said an 8-ball was 3-and-a-half grams of ice, and ice of course was methamphetamine.

13You stayed at the dealer's house all night and for another two weeks afterwards, because you did not want to go home to an empty house.  You stated that earlier in the night you had left Mustafa's house, and you went to an associate of Mustafa's house in Broadford, around the corner from the pizza shop at about 9 o'clock.  Whilst there, you purchased marijuana and smoked it.

14You were shown photographs of the red and black-coloured gloves located and seized from Mustafa's house.  You said you had never seen the gloves before, and denied wearing them.

15For this type of offence, Mr James, as is all too often the case, you come from a dysfunctional and unhappy home life.  It is almost trite to say, your experience as a young fellow inevitably has led you to the position you now find yourself in.

16I have just been speaking to another young man before you came in.  Same background, same antisocial behaviour coming from the parents or the adults in the home.  It is a recipe for disaster.  He has been in a lot more trouble than you.  He has been institutionalised he has been in gaol that often.  Mum and Dad were drunks, Mum and Dad were drug addicts, and all the drunks and drug addicts and thieves came to his home, so he was just let loose from the age of about six or seven, and he has finished up spending most of his life in prison.

17I keep saying it, day after day after day.  The people who should be sitting there in the dock are the adults that did not do the right thing by you as a young fellow.  Now you are going to wrestle for the rest of your life to get it right.

18Your partner, Chloe, has given evidence on your behalf.  You are indeed lucky to have this young woman in your life.  Chloe is endeavouring to assist you to stabilise your drug addiction and provide you with support so that you can continue in your endeavour to rehabilitate yourself.

19Mr Lavery and Chloe have given a short history of your unfortunate start to life.  Mr James, you were born on 18 May 1987 and are now aged 28.  Your mother and stepfather separated when you were aged eight.  It was at this time that you learned the man who you had believed to be your father was in fact a stepfather.  I have no doubt that that caused to you at least confusion, and no doubt distress.  As a young eight-year-old, you find out Dad's not Dad at all.  I do not know how you handled that.  I did not have to handle it, and most of us in this room did not.

20Both your mother and stepfather re-partnered.  This was yet another disaster, as at this time you then went into the care of the Department of Human Services.  I have heard it said, and I have said it, sometimes said to be the Department of Inhuman Services, but they are not here to defend themselves.

21From the age of eight to age of 16, all that can be said is, you bounced around from various residential care facilities, interspersed with returning to live with your mother.  Unhappily living with your mother failed, hence the return to residential care.

22Now, I am not here to condemn your mother and say bad things about her, but I have got no doubt that she has got her own difficulties, and you know what that is about.  I do not.  But I do not think she has behaved as a mother should.  But I do not know enough, so I must not say too much.

23Mr James, you completed year ten at Richmond, then started year eleven but left school to live with your sister in Wallan.  At this time, you were working as a welder.  By the time you reached 18 years of age, you had moved back to live with your mother.  Again misfortune revisited you.  You suffered a broken back, at which time you returned to live with your sister.  I suspect the sister is the one that we have talked about this morning.  If she is not ‑ ‑ ‑

24OFFENDER:  No.  No, Your Honour, that's my other sister.

25HIS HONOUR:  Another one.  Once you recovered from your broken back, you then moved into a share house in Roxburgh Park with a number of other young men.  This move was disastrous.  Your life descended into drug abuse and criminal misbehaviour, and you know more about that than me, and I think Mustafa may have been one of them, but I am only guessing.

26You have numerous prior convictions, many dating from this time.  That is, the time when you went into that - I will call it drug house.  You have had six court appearances, three at Broadmeadows, a couple at Sunshine, and a couple at Heidelberg.  In fairness to you, some of those court appearances of course are sort of doubling up in the sense you are being taken back for breach.  But still, you have lots of court appearances.  Nowhere near as many as the young fellow that was there sitting where you were a bit earlier this morning.  But still, his background was similar to yours.

27You have got six or seven convictions for theft.  You have got handling charges.  You have got driving while disqualified by seven.  You have got a manner dangerous.  Theft of a motorcar two or three times, and a number of traffic offences.

28Your partner, Chloe Delaney, has attended court on each of the occasions that you have appeared, demonstrating her support for you, I think twice in Shepparton.  And she is here again today.  Chloe brought two young children into your relationship, as I understand it.  I hope my writing is legible.  But I believe them to be Deegan and Seth.  You are a father figure to these children, and Chloe and yourself have a young daughter, Tiara, aged 13 months.  Maybe 14 months now.

29Your relationship commenced in 2012, at which time you commenced living with your mother in Colbinane.  I will not go into the detail there.  I did not pursue Chloe about it, but Chloe described living there in Colbinane with your mother as "horrible".  It does not paint a happy picture.

30You moved to another house in Broadford, at which time things were not good between you and Chloe.  You then moved to Mill Park.  You were living with mates, all of whom, including yourself, were well and truly into the drug seen.  When this moving was happening, Chloe had moved home to Heidelberg to live with her mum.  At that time, Chloe found herself to be expecting a child, and ultimately Tiara, the one I mentioned earlier, was then born.  Your daughter.

31Your counsel Mr Lavery, in his address to this court said that you have got your act together.  You heard him saying you are trying your hardest to get out of the scene that you have been trapped in because of your young life.

32You have sought counselling; you heard Mr Lavery again this morning say through your solicitor, Mr Lavery's instructing solicitor, that they have endeavoured to get the reports from your counsellor, but unhappily that individual does not return to work until Wednesday or Thursday of this week.  But you are apparently attending, and Chloe endorses that you are attending.

33Further, since 2014 you have obtained a position and are now working as a powder coater.  Chloe and your children, with your changed lifestyle, have now obtained your own rental home in Thomastown.  All down to you cleaning up your act.  That is, you were going to counselling, you have got a job, and you are at least trying to do the right thing.

34I am informed by Mr Lavery that you have no involvement with your immediate family.  I did not persist in asking why, but I infer such contact is negative in more ways than one, and there has been indications of that very activity occurring over the time where you honestly revealed to the Community Corrections Officer that you relapsed while all those tearaways were in your house.  Do yourself a favour and lock the door.  Take the kids, but throw the adults out.  Adults have not been kind to you at all, apart from this woman here.

35Mr James, you must understand that robbery is a serious offence.  Such behaviour must be denounced in the strongest of terms.  The victim in this matter, Mr Ravalkole, has filed a victim impact statement.  It would appear that he is a stoic man, because he does not have all that much to say about what happened to him.  But he does say he is attending a psychologist through stress that is arising from his experience of the robbery that you committed.

36Ravalkole also says in his victim impact statement that he no longer feels safe in his shop after 8 o'clock, so he now tries to close up his business earlier than previously.  His past custom was to shut at nine; he now shuts earlier because he wants to get out of there.

37You have heard both the prosecutor and your counsel discuss the principles of parity in sentencing.  You are aware that Mustafa received a seven month community corrections order for his role in this offence.  Apparently, like you, he is on a previously imposed community corrections order.  That is why it was the unusual length of time of seven months.

38Now, in sentencing, I am bound to take into account that others have been sentenced for the same offence.  Parity of sentencing is said to be, and I do not expect you to understand the full principles of it, but your barrister certainly does, and if you need any further explanation, pester him and he will tell you.

39Mr James, I assure you that I have taken into account all that has been said on your behalf by your counsel Mr Lavery.  I further take into account your plea of guilty, and your prospect of rehabilitation.  You have the continuing support of Chloe.  You have attended for counselling.  You are honest enough to say you had a relapse.  Others usually tell a whole lot of untruths and would deny it, when in fact the only person they were fooling was themselves.

40I further take into account that principles of parity, as I have just said to you, it must be observed that your prior convictions, as I am told by Mr Lavery and Mr Hoare, that Mustafa certainly had prior convictions, but not to the extent that you did.

41I again repeat, this type of offending is serious, and within the drug scene is prevalent.  It is prevalent I say because, all too often, people who are desperate for their drugs, the addiction is such that they have got to fund it, so they commit crime to be able to pursue their wretched addiction.

42I am told by others time and time and time again recently that the drug ice is extremely addictive, and extremely hard to give up.  I have often said this, and I may have said it to you at the court in Shepparton, that there was a judge in the Court of Appeal - he is still with us, I believe, Mr Justice Tadgell - who described heroin as "pernicious".  I would love to hear his adjective for methamphetamine.

43What I say about methamphetamine, heroin is extremely dangerous and is pernicious.  Well, you have got to multiply pernicious by a thousand or more, to get anywhere near to how dangerous methamphetamine is.

44You have also heard, and I am not going to repeat it, the drug people in the drug world will not let you go.  So you have just got to find the way to resist their temptation.  If people are coming into your life, be it family or otherwise, you have got to reject them.  Do not reject the children, but you can reject the children and tell them, like I said, to put it bluntly, to "Leave me alone".

45In sentencing you, I must take into account the provisions of the Sentencing Act, in particular s.5, wherein it is set out what the purposes of sentencing are.  I will use the words that are in the act.  It says this:  "The purpose of sentencing is to punish the offender to an extent and in a manner that is just in all of the circumstances."

46Now, that is qualified here, because I have to wrestle with the fact Mustafa is a tearaway similar to yourself; Mustafa is a drug addict similar to yourself.  He has been dealt with, and got a very soft sentence.  So somehow or another, I have got to balance it and keep it in perspective.  And as you know - and I have said it, and I am not going to keep repeating myself - your prior history is more active than his.  That is the only difference.

47The next subsection in the Sentencing Act says words to this effect.  It directs courts to general and specific deterrence.  That means, general deterrence, so those out there can see by what is happening, if they do this, this is what will happen to me.  Specific deterrence relates to your personally.  You are to be deterred from doing what you are doing, and to deter others from coming and following the same course.

48The next subsection speaks of establishing a proper rehabilitation program or scenario, and further to manifest the denunciation by the court on behalf of the community of the type of conduct you have engaged in.  As you know, and I have said it a couple of times, it is very, very serious and unpleasant behaviour, and it has effects on members of the community, such as it has had beyond the gentleman that was running this pizza shop.

49Now, I have told you before and I will tell you again now, Corrections do not want you because you keep breaching the orders.  But things have changed.  They have changed, and to this extent:  This woman has taken you back.  Chloe has taken you back.  You have got responsibility for a daughter.

50You have a responsibility to two other young fellows who see you as their dad.  I am sure they are not going to find out what you found out in the form that you found out, but if you keep taking drugs, you are a dreadful example to them, and they will follow their father's example.  So start thinking about them as well as yourself, much less than thinking about Chloe who is prepared to help you.  I infer her mother is, because her mother's not interfering with her staying with you.

51You will be convicted and released on a community corrections order for a period of 18 months.  That starts from today, and will run concurrently with any other community corrections sentence that he is now undergoing.

52Of course you are to undergo assessment and treatment, and I will put it for both alcohol and drugs, and for medical assessment and treatment if required.  I will tell you why in a minute.

53Why you have got to have medical treatment, or assessment and treatment is this:  Methamphetamine has psychotic effects on one's brain that is much more substantial then heroin and those other drugs.  Marijuana has significant effects on one's brain.  And it may well be that you are struggling with some sort of psychosis that you do not know, do not understand, or do not even think you have got it.

54They will do an assessment, and if you are clear that is the end of it.  But if you need treatment as a result of the assessment, you must have it.  Do you understand that?

55OFFENDER:  Yes, Your Honour.

56HIS HONOUR:  Taking into account you have got work to be performed on the other corrections orders, I do not see any point in again loading you up with more for a number of reasons.  That is, you are already doing it, or supposed to be.  Secondly, you have got a job, and I do not want any work commitment for Community Corrections to interfere with your prospect of work, because you have got to support your children.

57I am concerned to know that you have still got your job, because it was revealed, I think if I remember correctly, they did not know you were in court last time.

58I have not made any other further orders because you have got the corrections order in place, and if you get loaded up with too much, you just will not be able to comply.

59The next thing I am going to say is - it is not an idle threat, it is an observation; I am not here to threaten you or anybody - but with your background, if you make a mess of it, you will be going to prison.  And if you go to prison, I know as well as all of those that go to prison, for some reason drugs are available in prison as they are out of prison. 

60But you are, I would say, on your last chance, because corrections are not going to tolerate any nonsense from you.  Do you understand that?

61OFFENDER:  Yes, Your Honour.

62HIS HONOUR:  I am not going to say anymore.  It is a forfeiture order for a knife, red-handled Ninja Flex gloves, left-hand and red and black Ninja glove, and a right-handed red and black Ninja glove.

(Community-based order signed and acknowledged.)

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