Director of Public Prosecutions v King

[2015] VCC 1575

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00723

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALLEN KING

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	10 November 2015
CASE MAY BE CITED AS:	DPP v King
MEDIUM NEUTRAL CITATION:	[2015] VCC 1575

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. M. Roper	Office of Public Prosecutions
For the Accused	Ms. E. Clark

HIS HONOUR:

1Allen King, you have pleaded guilty to one charge of robbery and one charge of armed robbery.  I now come to sentence you on those offences.  The prosecution opening was tendered and exhibited at the plea and will be retained on the court file. 

2For purposes of this sentence, it suffices to say that in early December 2014 at 11.30 pm, you went to a Woolworths Supermarket at Werribee Plaza in Hoppers Crossing.  There you spoke to a young staff member who was performing duties at the check-out desk.  You asked for packets of tobacco.  You were wearing dark clothes with a hoodie over your head.  At one point the CCTV footage shows you covering your face with it.  You asked for $600 cash out.  When you were told that there was only a hundred in the register, and that he would have to retrieve the cash from the self-serve machine, you said to him:  "Just get me the hundred out, then I can go."

3The attendant asked you if you were trying to rob him and you said: "Yes, don't make this difficult."

4You were then handed tobacco and $100 in cash.  You told him not to call the police for 15 minutes.  You then ran from the store to a nearby reserve where you removed the clothing you wore and dumped it, and this was the robbery, the subject of Charge 1.

5In early January 2015, you went to a BWS Liquor Store at the Werribee Plaza.  You rode a bicycle there.  You walked up to the counter near the cash register.  You told the attendant:  I need $250 out. How much do you have in the till?" 

6You were told there were no cash-out facility and you then said:  "I'm getting $250 cash out.  Give me 250.  I don't want to hurt you." 

7While speaking to the staff member, you held the butt of an imitation pistol tucked into the waist band of your track suit pants.  You were given $250 in cash.  You arrived to the same reserve at the first occasion, and removed your clothing and dumped them with the imitation pistol, down a storm-water drain, together with your helmet.

8A few days after the Woolworth's robbery, police located the clothing which you had dumped.  The following day to the armed robbery, police found the clothes you dumped after the BWS events. 

9On January 30, you went to the Sunshine Police Station with a Mental Health Worker from Mercy Health.  You confessed to the armed robbery on the BWS in January.  You were interviewed in the presence of a third person from the Office of the Public Advocate and you admitted to the Woolworths robbery as well as the BWS armed robbery.

10You told police you were a recovering heroin and ice addict, and that you had spent the bulk of the money on drugs and food.  You admitted having an imitation gun, bought from the Two-Dollar shop.  I saw a photograph of that imitation gun, and to anyone looking at it quickly in a panic, it would have appeared real.  You admitted discarding the clothes.  I should say, as I think I will mention later, that the imitation gun was not actually taken out by you.  You were just holding it at the back of your pants. 

11You told the police that you had lost the money taken from the BWS and you were charged on 30 January 2015 and guilty pleas were entered in April, the earliest time available.

12There are no victim impact statements filed, but clearly the events would have been traumatic for the people you confronted and I can draw reasonable conclusions from the circumstances.  Often, in these situations, the effect on these victims matures with times into traumatic memories and the shock and fear translates into broader effects upon all aspects of their lives. 

13Armed robbery, as well as robbery, are serious criminal offences.  In these particular circumstances, the victims were vulnerable, relatively isolated, easy targets confronted in the evenings or at night by a nervous, jittering, aggressive man making demands and threats, and apparently armed on one occasion, although I repeat, it should be noted that the imitation gun was not actually seen by the victim.

14The maximum for armed robbery is 25 years imprisonment and it reflects this gravity.  Robbery carries 15 years.  Robberies, particularly armed robberies, are serious criminal offences against the security and safety of the community.  It often targets innocent victims, as here, and puts them in fear of their bodily safety.  These offences threaten the community by aggressive conduct.  Those engaging in such prevalent conduct must be deterred and a deterrent message conveyed to others who would engage in such behaviour, must be a primary objective of the sentence by way of clear punishment. 

15The community rightly looks to the court to denounce such behaviour by way of punishment and deterrence from predatory offences, destructive of security and confidence. 

16Your prior criminal history indicates that specific deterrence must also be of importance in your case.  You have one prior for armed robbery in 2007.  Her Honour Judge Hampel placed you on a Community Based Order for two years on that occasion.  You were released on a bond under the supervision of a drug rehabilitation service and I have read Her Honour's sentence and some aspects are worth noting.

17The offences were upon service stations at night, where you were agitated, angry and threatened the attendant for money.  You told your parents of the offending and they arranged for the solicitor to surrender yourself to police. 

18Her Honour noted you were 21 years of age at that time and suffered from a mental illness, paranoid schizophrenia, first diagnosed when you were 17, a disease which it is said impaired mental functioning.

19Applying the rules in Verdins, Her Honour concluded that all six aspects outlined there, were relevant to the sentencing that was her task.  At that time you had no previous convictions and Her Honour conceded that in combination with the drug use, your moral culpability was reduced, moderating specific and general deterrence, while finding your prospects of rehabilitation were good if you continued along the road you had embarked on, at the Hader Treatment Program which you had undertaken.

20Having been afforded that opportunity, in 2010, you were again before this court for armed robbery.  His Honour Judge Parsons sentenced you to 30 months imprisonment with a 9 month non-parole period.  On that occasion, you drove to a Werribee petrol station with a blood-filled syringe, you took cash and drove to a river where you discarded your weapon and your clothing.  A couple of days later you contacted police.  You had just completed the two year Community Based Order of the previous sentence.  You were then 24 and you demonstrated significant remorse.

21The police officer who gave evidence on your behalf, said you were one of the few prisoners deserving of assistance, and His Honour gave weight to your confession and disclosure of guilt in the absence of evidence and once the Community Based Order concluded, you had relapsed into amphetamine use and the local mental health service had discharged you. 

22Once again, His Honour relied on a report which envisaged an increasingly positive prognosis to manage substance abuse and avoid offending.  This, he reflected, in the longer than usual parole period which he imposed.  He found your chances of re-offending, based on the material before him, as: "A diminishing concern."  He was mistaken.

23I was provided with the 2010 report upon which His Honour relied, and that of Dr Patel, a Consultant Psychiatrist, as well as the 2010 report of Patrick Newton, a clinical psychologist.  I take into account the contents of those reports to provide relevant background.  I take into account a clinical summary provided by Mercy Health in May of this year, outlining your long involvement with public mental health services since 2001, with details of admissions and treatment orders.

24The letter notes that you have been a voluntary patient, and have been accepting of treatment.  Your most recent case management with Wyndham Community Mental Health team commenced in October 2012, leading to your remand in January 2015. 

25At the time of remand, you were receiving treatment at the prevention and recovery centre facility following the decision to commence Clozapine, a medication used in psychotic illness management, where other anti-psychotic medications have been unsuccessful.  However, your use of cannabis and ice led significantly to complications with this management.  It is noted that you had periods of abstinence, followed by complicating substance abuse. 

26Before returning to the report of Dr Ong, I will outline briefly, your personal circumstances, which I take into account.  You are the youngest of three children, you are single and usually reside with your parents.  From an early age, you experienced learning and behavioural difficulties.  You commenced cannabis use when very young, and amphetamine use at about 15.  You also used heroin.  You last worked about 18 months ago, having had some work with Coles as well as general labouring. 

27In 2001, after an attempted overdose of Temazepam, you were diagnosed with schizophreniform psychosis; in 2003, paranoid schizophrenia was diagnosed.

28You have supportive parents and family, a matter which has persisted throughout your life, and has been noted in other sentences.  Your father wrote a letter in which he outlined your family history and your expression of regret and remorse.  It would be difficult to encompass the hurt and suffering that your parents must be suffering through these years.

29While in custody, it is said that you have been able to continue on Clozapine and you've engaged with medical and psychiatric staff.  You have also availed yourself of some employment opportunities.  Your father attests to what he described as your current excellent state of mind and physical condition.  I take into account not just the significant familial support which you enjoy, but I accept you are remorseful for your actions. 

30I have, of course, take into account, your early plea of guilty and also your cooperation and admissions to police, as well as your compliance with treatment whilst in custody.  I accept that, because of your mental health, specific and general deterrence are to be moderated.  However, this moderation must be balanced with your criminal history and what appears to be a recurring pattern of offending.  I take each of the Verdin's matters into account in reaching an appropriate disposition. 

31The report of Dr Ong was based on an assessment made at the Melbourne Assessment Prison on 2 September of this year, as well as on information referred to.  He wrote of your personal history which I have noted under your psychiatric history.

32I note your claim that relapse into substance use stems from inadequate control of the psychotic symptoms.  As a matter of policy, when a person experienced in the use of drugs, who knows their affects upon him in the context and background of your known mental health, can only call in aid the moderating effect of Verdins in relation to reduce the moral culpability only to some extent. 

33I do accept that given your history of mental illness, you are likely to find a term of reclusion more onerous, compared to a person without such difficulties. 

34I find your prospects of rehabilitation must be limited, however given the existence of the mental health factors, it may be that ongoing engagement and compliance with mental health services, may see the reduction of the risk of re-offending.

35Would you please stand, Mr King.

36On the Charge of robbery, you are convicted and sentenced to 12 months imprisonment. 

37On the Charge of armed robbery, you are convicted and sentenced to 20 months imprisonment. 

38I order three months on Charge 1, be cumulative on Charge 2.  That makes a total of 23 months imprisonment.  In addition, at the conclusion of your term of imprisonment, you will commence a 12 months' Community Correction Order in the terms outlined in the assessment report involving drug, mental health, and programs to reduce re-offending, as well as supervision.

39I note that you have served 284 days by way of pre-sentence detention.  I have signed the disposal orders and I declare that but for your plea, your total effective sentence would have been four years with a non-parole period of two and a half years.

40Are there any other orders Mr Roper?

41MR ROPER:  No, Your Honour.

42HIS HONOUR:  Thanks.  Take a seat Mr King.  My associate will prepare the Community Corrections Order and I will sign it when it is ready.  Mr Anderson, I will just wait outside.

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