Director of Public Prosecutions v Jones

[2019] VCC 1908

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

AT MILDURA
CRIMINAL JURISDICTION

CR 19-00541

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN JONES

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Mildura
DATE OF HEARING:	18 November 2019
DATE OF SENTENCE:	19 November 2019
CASE MAY BE CITED AS:	DPP v Jones
MEDIUM NEUTRAL CITATION:	[2019] VCC 1908

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:   Criminal Law – Sentencing – Attempted Armed Robbery - Verdins not made out – term of imprisonment imposed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	John Cain, Solicitor for the Director of Public Prosecution
For the Accused	Mr G. Tellefson	Martin Irwin & Richards Lawyers

HER HONOUR: 

1John Jones you have pleaded guilty before me to one charge of attempted armed robbery.

2The charge is serious and that is in part reflected in the maximum penalty that is prescribed by the law.  In respect to attempted armed robbery it is 20 years' imprisonment.

3You also admitted your prior criminal history.  I noted that you have had court appearances in Victoria and South Australia spanning the period from
30 January 2006 to 30 October 2015.

4You have convictions recorded for driving offences, disorderly conduct, dishonesty offending, breach of bail conditions, breach of community service orders, with some convictions for offences of violence against the person, there is an unlawful assault in 2003 in Victoria and common assault in South Australia in 2013.

5I will now proceed to sentence you on the basis of the opening that was read to the court by the prosecutor Mr O’Doherty.

6Charge 1, the attempted armed robbery, relates to an occasion on 11 July 2018.

7At 4.40pm you were observed looking in the window of Cappy’s Corner Store, a post office/ convenience store, located at the intersection of Thirteenth Street and San Mateo Avenue, Mildura.  You walked around the corner and then returned one minute later.  You took another look inside before returning to your car that was parked nearby.  You returned to the shop at approximately
5.05 pm and entered the store on this occasion you were carrying a butcher’s knife in a plastic bag and you were wearing a white glove on your left hand.

8There were two store attendants in the store who were working.  Ms Irving, an older person, was kneeling on the floor behind the counter filling up the SIM card draw and Ms Thomson, a young attendant was standing at a cupboard passing the SIM cards to Ms Irving.

9You took the knife out of the bag and placed the knife on the counter and whilst pointing the knife at Ms Irving demanded that she 'put the money in the bag'.

10Ms Thomson had taken a few steps to the right so as to move from your line of sight.

11Ms Irving refused your request.  She observed that you were unable to stand still and were moving left to right moving the knife around.  When pressed again to put the money in the bag, Ms Irving told you 'I don’t think so'. You repeated your demand and she said 'Oh, honey, it’s not worth it. You’re not going to get away with it. It’s just not worth it'.

12You then grabbed the bag and turned around and left the shop.

13CCTV footage depicts you leaving the store and running across San Marco Avenue towards Ward Lane where you entered your vehicle and left the area.

14Ms Irving activated the duress alarm and consoled Ms Thomson who was crying.

15Following police investigations you were eventually located and arrested in Morphett Vale, South Australia and extradited back to Victoria.  You were formally interviewed but made no admissions.  You were remanded in custody and have remained in custody since.  

16Whilst in custody, there were recordings made of some telephone calls to a Britanee Warner on 10 December 2018, during which you made admissions in relation to the offending. 

17You were further implicated in this offending and forensic testing of a glove found by police near the scene had a positive DNA match to you.  The vehicle that you used on this occasion belonged to your brother, Matthew Jones.

18The context for this offending was that you had been a long term carer of your mother who was severely disabled.  She died on 1 March 2018.  You suffered a grief reaction and as a consequence of her death you had to vacate the public housing where you were living with your mother.

19In April 2018, you came to Mildura to live with your brother, Matthew, his partner and child. You were not working, were depressed and had relapsed into using drugs and alcohol heavily.  You were on Newstart Allowance and all your money was wasted on drugs and alcohol.  You state that you cannot remember having any motivation to do anything.

20Whilst providing a context to this offending, that in no way excuses your behaviour and your offending must be condemned.  Through your actions, you disrupted the life of Ms Irving, one of the attendants and have had an impact on the other victim as well.  She has not provided a victim impact statement but it is clear from the opening that Ms Thomson was very upset as a consequence of your actions.

21The victim, Susan Irving, read her victim impact statement and it is clear from the contents of her statement that those actions on your part have changed her life dramatically.  She states that she is now more wary and untrusting of others, questions herself about motivations of others and she still has to skip a mental moment whenever she sees somebody that fits the description of the perpetrator.  She has had to have psychological counselling as well as treatment from her general practitioner for anxiety.  She has been diagnosed with Post-Traumatic Stress Disorder that has had a profound impact upon her daily life and she is unsure how long that will continue.  She is unsure as to when she will feel safe again.  She had a period of time when she was unable to leave her home due to her fears and that directly impacted upon her life. She was more reliant on her partner to take care of the tasks that she was otherwise able to do such as shopping and paying bills.

22She was not able to return to her employment for some time due to the impact of the offending and that has had a dramatic effect on her financial stability.  She has not been able to go back into the shop and she avoids the intersection because of what happened on this occasion.  Not only has she lost her job but she has also lost her social contacts.  She says she lost good friends who worked in the shop and also she lost the friendship of her boss whom she regarded as family.  The shop was more than a place of work to her. The impact of your offending has been profound.

23I have had regard to your history and background.  You are now 41.  You are the fourth of six children.  You did have a difficult early family life.  Your parents separated when you were 10 or 12.  You moved about Australia a lot as a child.  Your father eventually settled and undertook some demolition work in South Australia for many years between 1980 to 1999.

24As a consequence of constantly moving your schooling was disrupted. You left school at the end of Year 9 and started to work.  You had a good work history with a range of semi-skilled labouring type jobs.

25You have three adult children who live in South Australia with whom you have contact.  They have good relationships with you but they have roundly and seriously criticised you for your behaviour on this occasion.

26Both your parents are now deceased and you have had some difficulties coping following your mother's death to which I have earlier referred.

27You are a person who has long-term dependency on drugs and alcohol and that use increased dramatically following your mother's death.

28Prior to being incarcerated, you had never had any treatment from a psychologist or a psychiatrist.  You were assessed by Dr Susette Sowden, consultant psychologist, on 18 October 2019. I have had regard to the contents of her report dated 20 October 2019.  There are no independent records to verify the information upon which she made her assessment of your condition.  She provides 'forensic impressions' and states that it appears that you have a mild antisocial personality disorder and severe polysubstance use disorder.  She also states that it appears that you have suffered a major depressive disorder, recurrent over many years.  You have been very vulnerable to severe depressive episodes with some suicidal ideation.

29She weighs the possibility of a brain injury following a physical assault in 2011.  She also acknowledged at the time of the offending, you were affected by illicit substances.  She opined that you suffered a mental impairment at the time of the offending and there was a connection between that and the offending. 

30I reject her expressed opinion.  This offending was purposeful.  You had prepared yourself to enter the store by arming yourself with a knife, which presumably meant that the offending was to be committed for monetary gain, and you were wearing a glove and you had also previously cased the store.

31Given the purposeful nature of your offending and lack of any psychiatric evidence showing a causal link between the offending and any mental condition, I am not satisfied that the Verdins principles are enlivened and I consider your moral culpability to be high. 

32I do not consider any other limbs of Verdins are enlivened as well having regard to the fact that I consider that this offending occurred in the context of your heavy alcohol and drug use, rather than as a consequence of any mental health condition. 

33Furthermore, I have taken into account your situation since you have been in custody.  You have been medicated for depression, prescribed by a doctor at the MRC, and it is apparent that you have coped well in prison. 

34There is no evidence that prison has had a significant adverse effect on your mental health.  To the contrary, you have been able to use your time productively in prison, undertaking various programs, including importantly a six hour alcohol and drug and loss program, Adapt Program and Take Stock programs.

35I consider that this is a serious example of an attempted armed robbery and there is a real need to emphasise general and specific deterrence and denunciation in the sentence to be imposed.  Attacks against vulnerable shop attendants are prevalent unfortunately in our community and in particular, this community.  Shop attendants perform a valuable service and are often targeted for robberies and would be offenders need to understand that such offending will be met with stern punishment.

36You have used your time productively in prison and now express real hopes for the future.  You have arranged through a friend in South Australia to live with her upon you eventual release and there is a real prospect of some work in the demolition area.  You say you want a meaningful life with your children and you are wanting to leave Victoria and relocate to South Australia, where you have strong family connections.

37I have taken into account all the matters put on your behalf in mitigation by Mr Tellefson.  I have had regard to your early plea of guilty.  Your plea of guilty were entered at an early stage at committal mention on 19 March 2019.  I accept there is real utility in your plea.  You have spared the cost and inconvenience of a trial but also you have spared the victims the further trauma of having to come to court to give evidence and being cross-examined.  I accept that facilitated the course of justice and therefore your sentence will be discounted accordingly.  

38I accept your plea is reflective of genuine remorse on your part and that is also reflected in what you said to Dr Sowden notwithstanding that you only mentioned the older attendant. 

39I accept that you now take responsibility for your actions.

40I am satisfied having regard the reports that I have received of negative drug screen results that you have remained drug free whilst in prison.  You have expressed a desire to remain drug free life upon your eventual release.

41That together with the completion of the drug and alcohol course demonstrates that you have commenced to take to take tentative, positive steps to address your underlying offending behaviour.  I accept that you do have reasonable prospects for rehabilitation for the future, but those prospects are inextricably linked to you making good your commitments and remaining drug-free, having stable accommodation and pursuing your goals of employment upon your eventual release.

42Mr Tellefson accepted that this is serious offending that warrants a gaol term. He sought a disposition equivalent to time served.

43Mr O’Doherty, the prosecutor, submitted that a period of imprisonment with a non-parole period was appropriate.

44In formulating what is just punishment I have had regard to the gravity of your offending. I consider that this is a serious example of attempted armed robbery involving some pre-planning on your behalf and the fact that you armed yourself with a butcher’s knife and checked out the store prior to entry and confronting the attendants.  Your behaviour in the store was aggressive and threatening to both Ms Irving's and Ms Thomson's safety.

45The sentence needs to reflect denunciation, deterrence and protection of the community.

46I have had regard to Dr Sowden's expressed opinion in a general sense insofar as she described your history, diagnoses and treatment plans.  I would recommend to the authorities that her treatment plan be given consideration so that you are adequately supported upon your eventual release to maximise your chances of rehabilitation and also to importantly ensure the protection of the community.

47On the one charge of attempted armed robbery you will be convicted and sentenced to two years six months and I fix a non-parole period of 18 months.

48I make a declaration of pre-sentence detention.  I declare that you have served 362 days of the sentence imposed this day and I direct that that be entered into the record of the courts. 

49I make the disposal order sought.

50Finally, I make a s.6AAA declaration, but for your plea of guilty I would have imposed a term of imprisonment of three years and six months, to serve two years and six months imprisonment.

51That concludes my sentencing remarks.  That covers everything?

52MR O'DOHERTY:  Yes, Your Honour.

53MR TELLEFON:  Yes, Your Honour.

54HER HONOUR:  All right, and I have signed the disposal orders, if they could be provided.  Mr Jones can be taken away.

(Prisoner removed.)

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