Director of Public Prosecutions v Kingsland

[2012] VCC 1204

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-01129

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID KINGSLAND

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2012
DATE OF SENTENCE:	24 August 2012
CASE MAY BE CITED AS:	DPP v Kingsland
MEDIUM NEUTRAL CITATION:	[2012] VCC 1204

REASONS FOR SENTENCE

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Catchwords: Criminal law – Sentencing -  Series of armed robberies  and attempted armed robberies.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms N Warda	Craig Hyland, Solicitor for Public Prosecutions
For the Accused	T Strong	Revill and Pappa

HER HONOUR:

1       David Kingsland you have pleaded guilty before me to one Charge of attempted armed robbery and five Charges of armed robbery.

2       These offences are serious and that is reflected in the maximum penalty that is prescribed by Parliament, namely, 20 years’ imprisonment for attempted armed robbery and 25 years’ imprisonment for armed robbery.

3       The offending involves a crime spree that occurred in the early hours of 15 September 2011. 

4       I shall proceed to sentence you now on the basis of the prosecution opening, there being no objection taken to that at the plea hearing.

5       Briefly, in the early hours of that day, you were collected from your parents’ home by two men, Youssef Allawi and Bernard Icho.  You had abused Mr Icho’s credit card and he was angry with you and demanded that you repay the debt.  He put a number of options to you to recover the money, including getting the money from your parents, stealing the money from your friends, or making you commit armed robberies.  You elected to commit the armed robberies. 

6       The prosecution accept that Icho was the main instigator and that he placed significant pressure on you and was violent towards you prior to the offending occurring however, the circumstances surrounding the commission of this offending falls short of duress.

7       The offending involved a series of armed robberies and an attempted armed robbery on various service stations and convenience stores in the suburbs of Somerton, Fawkner, Coburg, Alphington, Lower Templestowe and Niddrie. 

8       The first Charge relates to attempted armed robbery at the BP station in Somerton.  You asked the victim for money and he challenged you whereupon you then fled the store empty-handed. 

9       Thereafter you committed a series of armed robberies on the Coles Express service station in Sydney Road, Fawkner, the Lucky Seven convenience store in Sydney Road, Coburg, the Seven Eleven store in Heidelberg Road, Alphington, the BP service station in Lower Templestowe and the Seven Eleven Store at the corner of Keilor Road and Hoffman’s Road, Niddrie. 

10      Over the period of the time that you were executing these offences, your behaviour escalated.  On each occasion you were disguised using a black coloured cloth or such around your face and you threatened your victims with a knife.

11      The prosecution opening sets out in full detail the circumstances of your offending and I incorporate that opening that was marked Exhibit 1 into these sentencing remarks.

12      For each of the men who were present at the time you executed these armed robberies, it would have been a terrifying experience.  They have been asked to provide Victim Impact Statements but they have each declined.  I have read their statements contained in the depositional material.  It is obvious from what they state that each of them were scared and were compliant with your requests because of their fear of what you would do with the knife. 

13      You are the first of the three men who has been charged in relation to these offences to be dealt with by the courts.  Your co-accused, Youssef Allawi, was self-represented at the committal and was committed for trial in this Court.  His matter has been adjourned until 25 October 2012 for a directions hearing.  He has co-operated with the Crown and signed a statement dated 14 August 2012 that details his involvement, your involvement and Mr Icho’s involvement in relation to this series of offending.

14      You are a relatively young man.  You are currently aged 26 and you were aged 25 at the time of the commission of these offences.  At that time you had no prior criminal history.  None of the co-accused have a prior criminal history. 

15      Since these offences were committed you have been charged with further offences in relation to obtaining property by deception.  You were bailed in respect to those offences and then you committed further offences for which you were arrested and remanded.  You have been held in custody since 15 May 2012.  This is your first experience of imprisonment.

16      At committal mention on 4 July 2012 your bail in respect to these matters was revoked.  The parties agree that there are 52 days pre-sentence detention to be declared.  You were first taken into custody on 15 May 2012 and I have taken into account the time from that date until the date of the committal mention in a general sense.

17      At the plea hearing your parents were present and they remain very supportive of you.  You have always resided with your parents and an older brother in Bundoora.  Your parents are gainfully employed and have had no dealings with the law in the past.  It is evident that you have had ongoing stable and supportive relationships with your parents.  Your brother has had difficulties with drugs over the years and has come into conflict with your parents as a consequence. 

18      This offending occurred in the context of a very significant addiction to the drug “ice”.  The Court was assisted with a report from Mr Robert J Cock, consultant forensic psychologist, dated 16 August 2012.  He interviewed you on 13 July 2012 and undertook an assessment.  He noted your family history, education and background.

19      You stated to Mr Cock that your parents were aware of your addiction but you have never asked them for any money and have tried not to involve them as you did not want any conflict.  They were aware of your drug use but were not cognisant of the extent of your ice use and were shocked and very upset when they learned of the level of your addiction and your related offending.  They have continued to regularly visit you on weekends whilst you have been in custody.

20      Insofar as your schooling is concerned, you did not perform very well at school and left having completed Year 10 VCAL at TAFE in Preston in 2002. 

21      Following school you had work as a semi-skilled labourer with Duct Supplies Thomastown, for 2 years, and then Polyaire for about three years.  You have not worked since leaving that employment in 2009 and have subsisted living off savings of $25,000.00.  You remained unemployed without any structure in your life and heavily indulging in ice, such that you rapidly depleted all your savings.  You became involved in credit card fraud in October 2011 to support your severe addiction.  You have been on New Start Allowance since November 2009.

22      Mr Cock describes your drug and alcohol history.  You have a history of alcohol consumption and binge drinking from about the age of 15.  You have a history of heavy cannabis use from about age 16 and an ice use from 17, in combination with cannabis.  You stopped using cannabis at age 19.  You rapidly developed an ice habit with strong dependency, and from about 19 years on it has been your drug of choice.  Furthermore, you were also prescribed Xanax for elevated anxiety and panic attacks.  You became addicted to Xanax and typically used it in conjunction with ice.  You were affected by substances at the time of your offending.

23      On ice you became agitated and more anxious and could not sleep.  You used Xanax to counteract that effect.  Your GP, Dr Alexander, in late April 2012, refused a request for Xanax medication as she became aware of your dependency and abuse of that medication.

24      As a result of the subsequent offending, you were placed on a CREDIT bail support program where you engaged in some counselling and treatment in respect to your condition.  Counselling with Caraniche was your first encounter with the treatment process in a history of chronic use and severe dependency.  It was said that you gained some insight into your patterns of use, triggers and consequences and you expressed the desire to reduce your substance use.

25      However, you totally relapsed in early May 2012, resulting in further offending, and being remanded.

26      Mr Cock states that you continued to be motivated to change and you are responsive to develop preventive strategies.

27      In his opinion he states that there was a diagnosis of anxiety and panic attacks commencing from about 15 to 16 years, and a diagnosis of depression.  He says as a young man you received outpatient treatment for about 12 months under a psychiatrist at the Austin hospital and that you had been prescribed anti-depressant medication and anti-anxiety medication. 

28      Mr Cock recommends treatment that is intensive and ongoing, and critically, your mental health issues that have significantly contributed to your relapse, must be reduced. He considers that you have personality functioning inadequacies creating a vulnerability and inter-personal functioning difficulties.   

29      Following your remand you experienced severe withdrawal.  Currently you are not experiencing high anxiety and you are without panic attacks.  You are on no prescribed medication, significantly, Xanax. 

30      Mr Cock considered that your anxiety and stress levels were in the upper normal low mild range and this reflects your improved mental status and supports your self-report at interview of generally feeling better and more stable emotionally.  You attributed that to being off ice and Xanax after detox on remand without any pharmalogical assistance.

31      Mr Cock considers your personality profile as most relevant to the offending, particularly in the area of interpersonal functioning and confidence.  You lack confidence in social situations and become anxious.  You avoid interpersonal conflict.  Conflict causes you to become very anxious and characteristically you behave in a submissive manner.  You find it difficult to make decisions to act independently and that makes you anxious and wishing to conform with others.

32      You were easily intimidated by Mr Icho and became anxious when physically assaulted and by his confronting manner.

33      At interview with Mr Cock you expressed your strong desire to maintain abstinence and you were determined not to allow drugs to ruin your life again.  You are ashamed of having committed these offences viewing yourself as a moral person.

34      He states that you are highly motivated to do intense drug and alcohol counselling to prevent relapse and further undergo treatment for your mental health issues that contribute to drug use.  He recommends that you receive treatment from a clinical psychologist and mental health support.

35      I have taken into account the matters put in mitigation.  I accept that your plea of guilty was entered at the earliest opportunity at committal mention.  By your plea you have saved the State the expense of a trial and witnesses the trauma of having to give evidence on your trial and you have thereby facilitated justice.  I also accept that it is reflective of genuine remorse on your behalf and an acceptance of your understanding that what you did on the early hours of that evening were wrong.

36      I accept that the offending did occur in the context of pressure and undue influence by the co-accused.  I accept that it would have been difficult for you to extricate yourself from the situation having regard to your pre-existing mental state and vulnerable personality, but you did elect to do the armed robberies and over the course of the early hours of that morning your behaviour in those armed robberies did escalate and you became a very threatening and aggressive offender.  I consider that your moral culpability is high but I have moderated it to an extent to reflect your pre-existing conditions.

37      I have taken into account you do not have any prior criminal history.  I have also taken into account the references provided.

38      Your GP,  Dr Alexander, in her report dated 25 March 2012 states that she has known you since 2006.  She knows your family and says that you come from a good home.  She considers you are a quiet, decent and polite young man.  She is aware of your long history of anxiety and a prior history of marijuana use but was not aware of your recent drug use.

39      Susannah Kingsland has known you since you were born and she describes you as being a gentle, kind person.  Your parents are deeply committed to assisting you.

40      Jennifer Kirby, mathematics teacher, has known you all your life and she is aware of the fraud and deception charges.  She makes no reference to any armed robbery offences.  She notes that your life has been very disrupted due to your deep involvement with drugs.  She recommends that you be involved in a rehabilitation program. 

41      You come from a loving and supportive family.  I consider you have good prospects of rehabilitation having regard to the fact that you have now have real insight into your addictive personality and the need for you to totally abstain from indulging in alcohol or drugs.  Further, you are committed to undertaking intensive counselling to address those underlying conditions so that you do not re-offend in the future.

42      You did express some relief when arrested and questioned by the police.  You now accept your fate and understand that the Court must impose a gaol term to reflect the seriousness of your offending. 

43      I am satisfied that you are committed to usefully using your time spent in custody, and that therefore your prospects of rehabilitation are good and the likelihood of re-offending in like nature with the relevant assistance is thereby reduced.

44      You are still relatively young.  You are only 26 years of age and it is important to establish a sentencing regime that will provide you with encouragement for the future. 

45      I propose to sentence you to a term of imprisonment and I will allow a longer than usual non-parole period to enable your supported release into the community. 

46      In sentencing you I have had regard to the fact that you were very cooperative with the police to the extent of what you remembered.  However, it is the case you did not disclose any details about the other offenders.  I accept that you are genuinely in fear in respect to repercussions that may flow in the event that your co-accused, Mr Icho, were to be sentenced and have to undergo a sentence with you.  You remain very fearful of what he may do to you.

47      There are a number of aggravating features of your offending, however, that I must take into account prior to sentence.  This crime spree occurred over a matter of hours and involved multiple offences and multiple victims.  You disguised yourself and armed yourself with a knife and used that knife in the course of these robberies against convenience stores and the like, which are perceived to be soft targets.  These sorts of crimes instil real fear into the victims and into the community generally.  Sadly, they are all too prevalent and it is important for the Court to formally denounce your behaviour and also in sentencing you to emphasise both general and specific deterrence.

48      Ms Warda on behalf of the Crown put a range for the head sentence of 2-4 years and a non-parole period of between 12-24 months.  Mr Strong accepted that the range was open and submitted that a longer than normal parole period be fixed to enable your supported release back into the community.

49      I will now proceed to sentence you, Mr Kingsland.

50      The formal Court orders are:

51      In relation to Charge 1, attempted armed robbery, convicted and sentenced to 12 months’ imprisonment.

52      Charge 2, armed robbery, convicted and sentenced to two years’ imprisonment.

53      Charge 3, armed robbery, convicted and sentenced to two years’ imprisonment.

54      Charge 4, armed robbery, convicted and sentenced to two years’ imprisonment.

55      Charge 5, armed robbery, convicted and sentenced to two years’ imprisonment.

56      Charge 6, armed robbery, convicted and sentenced to two years’ imprisonment.

57      Charge 2 will be the head sentence.

58      I make the following Orders for cumulation.  One month of Charge 1, three months of Charges 3,4,5, and 6 are cumulative upon each other and on Charge 2. 

59      This makes a total effective sentence of 3 years and 1 month. 

60      I propose to allow a shorter than usual non parole period to enable your supported release back into the community under supervision to assist you in your resolve to remain drug free and to develop your occupational skills. It is in your interests and the communities interest that you be given this opportunity so that you can once again be a contributing member to your community.

61      I fix a non-parole period of 12 months.

62      Application has been made pursuant to s464ZF for the taking of forensic sample.  I note that such order is not opposed and I consider it is in the community interest to grant such order and I do so.

63 I make the following declaration pursuant to s.6AAA of the Sentencing Act. But for your plea of guilty I would have imposed a sentence of four years, to serve two years six months' imprisonment, and I make a declaration that you have already served 52 days pre-sentence and I direct that that be recorded in the records of the court.

64      I make the declaration that you have already served 52 days’ pre-sentence and I direct that that be recorded in the records of the Court.