Director of Public Prosecutions v Kerans
[2022] VCC 1090
•8 July 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-22-00090
Indictment No. M12207067
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH KERANS |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 July 2022 | |
DATE OF SENTENCE: | 8 July 2022 | |
CASE MAY BE CITED AS: | DPP v Kerans | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1090 | |
REASONS FOR SENTENCE
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Catchwords: Armed robbery - Soft target armed robbery on 7/11 - Summary offence: commit indictable offence on bail - 37 years old - Early Plea - Lengthy criminal history - Worboyes v The Queen [2021] VSCA 169 - COVID-19.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Liantzakis | Office of Public Prosecutions |
| For the Accused | Mr T. Marsh | Victoria Legal Aid |
HIS HONOUR:
1 Joseph Kerans, you have pleaded guilty to one charge of armed robbery and one summary offence of committing that indictable offence whilst on bail.
2 You are 38 years of age and have a lengthy and relevant criminal history.
3 You have been in custody since your arrest back on 22 October of last year. Armed robbery has a 25-year maximum prison term. The summary offence has a three-month maximum term.
Facts
4 There was a short agreed summary dated 2 May 2022 in this matter. It was read aloud by the prosecutor on the plea and marked as Exhibit A. I see no need to set out the full sentencing facts in these my reasons. I will sentence pursuant to that agreed summary.
5 By way of only a very brief summary, in the early hours of 22 October of last year you entered a 7-Eleven store down in Geelong. You had a hoodie pulled over your head and were wearing sunglasses and a facemask. You asked for a pack of cigarettes. The unfortunate store attendant turned to get them. You tried to grab the cigarettes as he turned back towards you, and you then demanded them saying, 'Give me this'. You pulled out a silver knife and held it out towards him. The victim screamed and reached for a broken mop handle. You took a handful of chocolate bars from the counter and then four pairs of safety glasses elsewhere in the store and you then left. Your victim phoned the police.
6 You attended back at the same location a couple of hours later and tried to force your way back into the store. The victim locked himself in the staffroom. You were arrested a short time later and were not interviewed due to your state. You were on bail at the time. That bail was entered only four days before this event and that was for a charge of theft. As I have said, you have been in custody since. So much then for what iss only a brief summary of the summary. I will sentence pursuant to the more detailed agreed statement which is marked as Exhibit A on the plea.
Impact
7 There is no impact statement in this case. It is not then open for me to infer any long-term impact here. One thing though is for sure, this was a frightening event for the unfortunate store attendant who was on duty. That much is very clear. He will never forget your frightening incursion into his workplace. This crime had an immediate impact and that is conceded by your counsel.
In Mitigation
8 Your counsel, Mr Marsh, relied upon some excellent written plea submissions that were dated 23 June 2022 and a long report from the neuropsychologist Ms McLaren. Either by way of the written submissions or his oral presentation on the plea, or for that matter in the expert report, the court was informed of your family background, as well as your educational and employment history. Mr Marsh took me to some of your past offending as well. He made submissions about the relative objective gravity of the major offence to which you have pleaded guilty, being the armed robbery, as well as the relevant sentencing purposes in play in this case. He made some submissions about your prospects of rehabilitation.
9 He conducted an excellent plea on your behalf. It was sensibly and realistically pitched which adds to its force actually. I have seen him often enough to recognise that this is pretty much his norm. He relied upon the following matters in mitigation:
· your early guilty plea in the midst of the global pandemic;
· the presence of some remorse or regret;
· the impacts of COVID-19 upon your custodial experience; and
· the engagement of the first limb from the case of Verdins[1] owing to the acquired brain injury spoken of in that report of Ms McLaren.
[1]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (“Verdins”)
10 He conceded that a term of imprisonment was required here and one of a dimension requiring the fixing of a non-parole period.
Prosecution
11 The prosecutor had little need to make any detailed oral submissions. That is the common position after an excellent and realistic plea has been conducted as it was here. There were some comprehensive prosecution written submissions marked as Exhibit B. They were quite uncontroversial. The transcript will reflect that the prosecution withdrew any concession that limbs 3, 4 and 5 of Verdins had any application in this case. Your own counsel was explicit in not relying on any of those limbs and explained the reasons why he was not.
Background
12 I will deal with the various submissions in one moment. I will turn firstly to your background. I am going to do that briefly, as I have no reason not to accept what I have been told as to your background. I see no point in just restating it. Much of it is set out the very lengthy neuropsychologist's report.
13 You were born in Australia in April 1984. You are now 38 years of age. Your parents separated when you were young, but it was otherwise an unremarkable background. You had an older brother and a younger sister and had mostly good memories of your childhood up in New South Wales or Alice Springs. You had a serious motorbike accident when you were 14 and there was an acquired brain injury as a result of that event. It has marred your life. You were educated to Year 10 and have had a very limited employment record since.
14 You had issues with drugs for many years, though for whatever reason you were far from candid about that drug history in discussions with the expert.
15 You still have family support from your mother, your brother and an aunt. I note that your mother joined the hearing remotely the other day and, in fact, she is joining it again today.
16 You have a very lengthy and worrying criminal history with many relevant appearances. Your counsel in paragraph 11 of his written submissions summarised some of the matters in that history. You have prior appearances, including recent ones, for armed robbery and attempted armed robbery. There are violence offences, including intentionally causing serious injury, and also an attempted rape and aggravated burglaries for that matter. You have breached a number of court orders.
17 You have frequently been brought before the court for breach of a supervision order which was ordered under the serious offender regime.
18 Not even being sent to prison impedes your offending. There seem to be a number of examples of offending whilst in custody. You had only been released for a relatively short time from a five‑year prison term imposed in this court in May of 2018 at the time that you committed the offence that I am dealing with. Parole had been refused. You served out the entire sentence which lapsed on 20 June of 2021. That was for similar style offending. Indeed, so was the much earlier armed robbery that was dealt with back in 2002.
19 As I have said you were on bail at the time of this offending that I am dealing with. Of course, I must pass proportionate sentences here and I want you to understand that you do not fall to be sentenced a second time for any of that past offending. That history does not aggravate the offending I am dealing with. You received those other sentences and served them. Those matters do, however, have real relevance to my task and that is because I have to make judgments about your risk of re-offence and your prospects of rehabilitation.
20 I have to make judgments about the need to deter you from future offending, as well as the need to protect the community from you. You just continue to offend. That is despite still finding prison a most unpleasant place and despite understanding the impacts of crimes such as the one that you committed on this occasion. It is obvious that I must deter you and equally clear that I must protect the community from you.
Guilty Plea
21 I turn then to consider the other matters that have been raised on your behalf by your counsel. The first of those matters is your guilty plea. You pleaded guilty at the earliest opportunity. As a result the time, the cost and the effort of a committal hearing in the lower court, or a trial up in this court before a jury, has all been avoided. Witnesses have not been required to give evidence at either a committal or a trial. You have spared your victim that experience altogether. You have then in these various ways facilitated the course of justice.
22 Your guilty plea is worthy of extra weight for the many reasons set out in the Court of Appeal decision of Worboyes[2]. A large backlog of cases has developed in the course of the global pandemic. It has just been unavoidable. Your case was never one of them. It was very swiftly settled. So I take these various matters into account in mitigation.
[2] Worboyes v The Queen [2021] VSCA 169
Remorse
23 As to remorse, I have your guilty plea but really not much besides. It is true that in discussions with the neuropsychologist that you referred to the victim and your regret that you had scared him and I do not ignore that fact. At the same time though, you were strangely flippant with the expert and expressing concern about what you were missing out on, on the outside. You were blaming others, to some extent, for your predicament. There was at least some recognition of the fear that you would have caused the victim.
24 I am not satisfied on the balance of probabilities that you harbour particularly strong remorse for your crime. I am prepared to treat your guilty plea as indicative of some limited remorse. I am prepared to find that for a variety of reasons, you regret the offending. Many of those reasons though bear no relationship to true remorse and are more connected up with self-interest and your own predicament, but there is at least a component connecting up with a feeling of regret for what you put the victim through. I take the existence of this limited remorse into account in your favour.
Rehabilitation
25 I turn now then to your prospects of rehabilitation. Your counsel submitted that it was difficult to argue that they were anything better than guarded. That would, I am afraid, be a highly optimistic view. He went on to submit that those prospects are not entirely closed and that submission I think is closer to the mark. You have a lengthy and relevant criminal history. You have been sent to prison often enough and you just continue to offend. For whatever reason you have little or no regard for the rights of others or the law or the orders imposed by the courts. You had served a lengthy prison term for similar offending, but you were out and about on bail, committing this offence within months. As I have indicated, you even offend whilst in custody.
26 You have had long-term issues with various drugs and that casts something of a cloud over your future prospects. Importantly, you have the acquired brain injury which is static. It has a variety of impacts upon you and none of them is good. Mr Marsh points to cases where with increasing age and maturity there is a slowing down of offending (see paragraph 24 of the written submissions). Well, there is no sign of that here and, regrettably, you march on in life with the acquired brain injury which feeds into aspects of impulsivity.
27 I have no reason to have any great optimism that you will change the trajectory of your life. I wish that you could for your sake and for the sake of your mother, and also for the community's sake, but it strikes me as being quite unlikely. You were not some silly teenager committing a serious offence for the first time. You are now 38 years of age and a seasoned offender. The courts have tried to lead you away from crime, or at least deter you from it, for the better part of 20 years. You just keep offending and seriously at that. I must try again to deter you.
28 I do accept it is a positive that you still have family support and it is also a positive that you are not comfortable in a prison setting and that you wish to change, but I view your prospects of rehabilitation as poor and your risk of re‑offence as high. I do, however, accept that those prospects are not extinguished.
COVID-19
29 I turn then to the issue of COVID-19 and its impact upon you. I accept that the COVID-19 virus, and the response to it by those who run the prisons, has increased your prison burden. Prison has undoubtedly been a more stressful environment in the time you have been there since October of last year. No doubt there has been worry about catching the virus in such a setting where, unlike someone out in the community, there really is no level of autonomy or control. There have been some lockdowns and you would have also experienced the increased burden of quarantine or lockdown on occasions.
30 There undoubtedly would have been some limitations to visiting and the full range of courses and programs in at least some of the period in which you have been held. Mr Marsh spoke of the difficulties in even conferring with you as you were so often in lockdown. It has certainly not been a good time to be locked up. Things have looked up in recent times, both in the community and in a prison setting. Personal visits resumed from about March of this year.
31 As to what lies ahead in the future on the pandemic front, well, of course, that is impossible for me to determine. I am not free to speculate about that. Those whose jobs it is to run the prisons will be able to actually reflect on the impact of any past and ongoing limitations on a case by case basis. They will have the power to address any increased burden in your case by way of conferring emergency management days in relation to the sentence that I am shortly to impose.
32 I cannot know if that will take place or not and I do not proceed on the assumption that it will. To take it into account would be to contemplate future executive action, which is prohibited. Case numbers are still quite high in the community. It is not that unreasonable for me to think that prisoners may yet have some issues thrown up by COVID-19 in the coming months. The prisons have tended to lag a bit behind the community in terms of restrictions being lifted. They also tend to bring them back in more rapidly, and for good reason, and it is pretty plain to me that we are nowhere near out of the woods in terms of COVID-19 and its ramifications, both in the general community and in terms of the impact felt by prisoners.
33 I note for instance there has been a recent outbreak at Marngoneet Prison that has had a large number of people locked down.
34 So I take into account the increased burden posed by the response to COVID-19 in the manner that I have described.
Ms McLaren’s report
35 I move to Ms McLaren's overlong report. It would be very strange indeed for me in light of that report, and the various conclusions within it, to spend a very lengthy period within these reasons citing portions of that report in sentencing a person with the deficits spoken of within that report. It would make no sense to you at all, and for that reason I will abbreviate my remarks. But let me make it plain, I have studied the entire report and the excellent submissions made as to that report at paragraphs 16 to 21 of the written submissions.
36 It is hard to know what to make of any account that you have given to Ms McLaren. You adopted a very strange attitude in the course of the assessment with her. You were neither candid nor serious in your engagement, so it is a bit hard to put much store in anything you have told her. She, however, unlike some experts, had the very good sense to refer to some objective materials. It is beyond question, there is no doubt about this, you have an acquired brain injury. I am confident that that has had a large impact on the trajectory of your life. However, there were worrying signs even before the acquired brain injury, with some suggestions of oppositional defiance disorder.
37 Despite your acquired brain injury, you still function at a decent enough level and undoubtedly you know the difference between right and wrong. There is no question about that. The acquired brain injury cannot give rise to any large reduction in your moral culpability, but there are certainly aspects of impulsiveness connected up to that condition which are deserving of some recognition. It is hard to say that the acquired brain injury has played any direct role at all in the offending. Your counsel recognises the limited overall weight or value of any Verdins-type submissions in paragraph 21 of his submissions and cites that which is so often forgotten; that the condition bringing about moderation can at the same time increase risk and heighten the need for community protection. It plainly does here.
38 You are impulsive and Mr Marsh's description of the lead into the offending depicts that pretty clearly. Until you were locked out of your accommodation on the night in question, you no doubt had no plan at all to commit any serious crime. None. You had been mistakenly locked out. You then kicked at the door. The police were called and you were out on the street and you needed money and the rest is history. At each step of the way there was impulsivity. You are impulsive. I accept the submissions made by your counsel as to the impact of the acquired brain injury at paragraph 16 through to 21 of his written submissions.
General
39 I turn now then to some general matters. i am required to take into account a large range of matters, including the maximum penalties and the nature and the gravity as well as the impact of any crimes committed by you. It is conceded by your counsel that this was a serious enough offence. I am speaking of the armed robbery of course. It was after all a completed armed robbery and armed robbery, as you know, is itself an inherently serious offence. It was committed whilst on bail from a few days before and only months after your release from a lengthy sentence imposed for similar offending.
40 Your offence falls nowhere near the most serious examples of armed robbery, but it is a fair way removed from the very lowest levels which might include, for instance, a chance meeting on the street with barely a moment of thought. There was obviously some limited planning here, as is conceded by your counsel. You had a mask, a hoodie and sunglasses on in the early hours. I suppose hoodies can be worn not as a disguise and the mask related to a time when there were pandemic health directions, not that you were too concerned about them on the night in question for what it is worth. But the sunglasses are an extravagant and unusual item to be wearing past midnight in combination.
41 I have no doubt at all that you were trying to some extent to disguise your appearance. I am satisfied of that beyond reasonable doubt. It was a pretty feeble attempt actually. You plainly had planned this crime to some very limited degree and that is accepted by Mr Marsh (see paragraph 8). Mind you, it was an unsophisticated offence and the fact that you were returning to the very same venue later on the same morning, wearing the same clothes, says a fair bit about your complete lack of professionalism and insight and, of course, your impulsivity.
42 Your target was a soft one in the sense that he was vulnerable and working one‑up in the early hours. That is generally the way with soft target armed robberies. You know that as you have committed a number of them; on a video store, a service station and we can now add to that list a convenience store.
43 There are a number of aggravating features absent here of course, but that is not a matter in mitigation. You had a knife and a serious enough looking one at that and you produced it. It was a swift enough event, but was still frightening. Soft target armed robberies usually are swift and unsophisticated events. You obviously knew what you were doing. You were thinking it through to some extent.
44 At least you did not compound the offence by any extravagant foul or threatening language, or use of the knife, or escalation of the offence brought about by vaulting or attempting to vault the counter. As your counsel says, and I accept, it was a commonplace and unremarkable offence and, of course, as I have mentioned, there is some reduced culpability in play here.
Purposes
45 I am required to consider a number of purposes of sentencing I must pay regard to your prospects of rehabilitation. As I say, I believe they are poor. They must surrender significant ground to the other purposes of sentencing and that is conceded. I am required to punish you for your crimes justly and proportionately. Your prior history does not aggravate the actual offence. It does not remove the need for me to impose a proportionate sentence for this crime.
46 I must also denounce your conduct. It is a serious and frightening crime to enter another person's workplace in the way that you did, armed as you were and conducting yourself as you did. You know that and knew it and yet you did it yet again.
47 I must pay appropriate weight to specific deterrence. That purpose relates to the need to deter you from offending into the future. It is a significant purpose of sentencing obviously enough in this case. This court tried to deter you in 2002, and again in 2018, from very similar offending. There have been many other occasions, of course, where the court has tried to deter you. You must be deterred and I am told that you still can be.
48 General deterrence is also a highly relevant purpose of sentencing in this sort of case as your counsel correctly conceded. This court must send a very clear message to others in the community who may think it worth considering committing a soft target armed robbery. Enough do. It is a prevalent offence which is also conceded. These vulnerable people such as your victim in this case who man these outlets, which are so often selected as targets, are often enough working alone in the small hours of the morning. They are vulnerable to conduct such as yours. They must be protected by the courts.
49 A message must be sent by the courts to like-minded future potential offenders in an endeavour to deter them from doing what you did. The courts must convey the message loud and clear through the sentences imposed that those who commit armed robbery will be dealt with seriously when brought before the court. It is an inherently serious offence as the maximum penalty makes plain.
50 Community protection is a powerful factor in this case. You seemingly have little or no regard for other people's property. You seemingly have little or no regard for the courts or for the law. You have a high level of impulsivity brought about by your acquired brain injury which leads to some reduction in your moral culpability, but which at the same time, plainly heightens your risk of reoffending. That was conceded to be so by Mr Marsh in his very sensibly conducted plea (see paragraph 21).
51 I must protect the community from you. It is an important sentencing purpose in this case.
52 I must have regard to the maximum penalty and to the impact of your crime. I 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. 261 of 2021, as well as overviews of cases from the Judicial College of Victoria Sentencing Manual. I have focused on the section dealing with sentences of less than five years. I looked also at the more up-to-date online statistics.
53 I am sentencing you for your crime and no amount of looking at other cases or statistics will provide the answer to the court. Other cases are not precedents and statistics have inherent limitations. Nor is there such a thing as one correct sentence in this case or any other.
Totality
54 I am required to take into account the principle of totality of sentence. I have taken a last look at the effect of the sentences imposed by the court to ensure it is commensurate with your overall criminality. I will run the sentences concurrently as I pay regard to the fact that you are on bail, as a matter of aggravation, for the armed robbery.
55 I take into account all of the submissions that have been made by your counsel, and by the prosecutor for that matter, and I have taken into account all of the written materials that have been placed before me.
Forfeiture
56 There is application for a forfeiture order made under the provisions of s9 of the Control of Weapons Act in relation to the knife that was used and ultimately which was seized by the police. There is no issue taken with the making of that order and I will have my signature attached to that order. I pronounce it in an abbreviated form. I order pursuant to s9 of the Control of Weapons Act that the property referred to in the schedule, being that knife, be forfeited to the Minister.
57 Let me then pass sentence. On the only charge on the indictment, so Charge 1 on the indictment, the charge of armed robbery, I convict and sentence you to three years and nine months' imprisonment. That will be the base sentence. On the summary offence I will impose a sentence of 14 days' imprisonment.
58 As I indicated I am going to run that sentence concurrently upon the base sentence for, as I have mentioned a short time ago, I have taken the view that it is an aggravating feature that you are on bail and I do not want to then doubly punish you in relation to that matter. So to that extent I otherwise direct under the provisions of s16(3C) of the Sentencing Act.
Total Effective Sentence
59 The base sentence is therefore three years, nine months on Charge 1 and as there is no cumulation that is the total effective sentence of course.
Non-parole Period
60 I am required to fix a non-parole period. I can make no assumptions as to whether you will or will not be released on parole. In fact I am prohibited from even speculating about that. It will be entirely in the hands of the Adult Parole Board. I fix a period of two years and nine months during which you will not be eligible for release on parole. You have been in custody already for a period of 259 days and that s18 declaration is entered into the records of the court.
61 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury I would have sent you to prison for five and a half years. I would have fixed a non-parole period of four and a half years. That declaration made under the provisions of s6AAA of the Sentencing Act is also to be entered into the records of the court.
62 Let me see if there are any other matters. Any other matters from your perspective, Ms Liantzakis?
63 MS LIANTZAKIS: No, Your Honour, there are no further matters from the prosecution.
64 HIS HONOUR: Mr Marsh, any other matters from your perspective?
65 MR MARSH: No, Your Honour, that's clear.
66 HIS HONOUR: All right. Look, I will revise these remarks in due course. It will take a little bit of time. I'm home on leave at the moment and not back really on deck until late July, but there can be some unrevised version placed into your hands if needs be. We've probably got this link - Ms Todisco, how long have we got this link for?
67 ASSOCIATE: It's booked until 11 am.
68 HIS HONOUR: All right. Mr Marsh, I'm not sure if you've got other matters on or not. Are you wanting to use the link to have a bit of a chat to your client about his rights in relation to the sentence I've just imposed or will you tee up a separate conference?
69 MR MARSH: I might do a little from column A and a little from column B. If I can have a quick chat with him after this in order to set up another time to do that. My preference is not to have extensive discussions over the court link.
70 HIS HONOUR: Well, it's entirely up to you, but you would be hosting it in a room on your own in any event.
71 MR MARSH: I appreciate that, Your Honour, yes.
72 If Your Honour is in a position to publish written reasons at some stage soon that will be of some great assistance.
73 HIS HONOUR: Look, as I say, I'm - - -
74 MR MARSH: Yes, there's no hurry, Your Honour. I'm just making the point.
75 HIS HONOUR: I'm home with COVID at the moment - - -
76 MR MARSH: Sorry to hear that.
77 HIS HONOUR: I've fallen at last.
78 MR MARSH: Yes, all right.
79 HIS HONOUR: And I'm starting some leave at the end of the week hopefully so I won't be back in harness until the 25th. At the very latest I'll be revising it when I get back on the 25th. But, anyway, look - - -
80 MR MARSH: Thank you.
81 HIS HONOUR: So, Mr Kerans, you remain where you are. You can have a conference with Mr Marsh and he will be teeing up another conference with you to discuss what's occurred here today and your rights in relation to it. All right. But otherwise I think that completes the matter then.
82 MR MARSH: If it please the court.
83 MS LIANTZAKIS: If it pleases the court.
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