Director of Public Prosecutions v Kopa
[2017] VCC 300
•29 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-01221
CR-16-01874
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STORMY KOPA |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 March 2017 | |
DATE OF SENTENCE: | 29 March 2017 | |
CASE MAY BE CITED AS: | DPP v Kopa | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 300 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – sentencing – armed robbery – common law assault – relevant prior criminal history – term of imprisonment imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Hayley Bate | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr A Pyne | Victoria Legal Aid |
HER HONOUR:
1 Stormy Kopa, you have pleaded guilty before me to one charge of armed robbery and one charge of common law assault.
2 The charges are serious and that is reflected in the maximum penalty that is prescribed by law and that is twenty-five years’ imprisonment for armed robbery and five years’ imprisonment for common law assault.
3
You also admitted your extensive criminal record that spans the period from
23 November 2001 to 20 May 2015. There have been numerous convictions recorded over the years in respect to dishonesty offences, drug-related offending and driving offences. In the past, courts have imposed a variety of dispositions, including, without conviction adjournments, fines, community-based orders, Youth Training Centre orders, partially suspended sentences and you have also had a number of gaol terms imposed.
4 You are thirty-two. You are a man who has a diagnosed psychiatric illness, namely, Chronic Paranoid Schizophrenia. In addition, you have a long-term history of poly-substance abuse which together, with your background history and your psychiatric illness, goes a lot of the way to explaining your prior criminal history.
5 I shall proceed to sentence you on the basis of the prosecution opening that was read at the plea hearing and is an exhibit.
6 In brief, you approached a couple, Yvonne Bailey and her husband, Noel Bailey, whilst they were walking along Fenwick Street, Carlton. You walked past the couple and stopped, blocking their progress. You then spun around and confronted them. Ms Bailey asked you what were you doing, and upon being confronted, you reached into your coat and pulled out a knife. That knife was approximately 12 inches (30 centimetres) long, and had a black handle. You began waving the knife towards the Baileys whilst speaking, and demanding money. You pointed the knife very close to Mr Bailey’s chest. Mr Bailey told you that he would give you the money from his wallet. He then held up his wallet, opened it and showed you that he had taken out all the cash notes. He gave those notes to you. In total, there was about $40 to $60 in the wallet.
7 You then took the money and waved the knife close to Mr Bailey’s chest again, saying “Give me everything”. He replied to you that he had given you all the money that he had. You then put the knife back into your pocket and told the Baileys not to chase you or identify you. You said “Fuck you, don’t you do anything”. During the course of the armed robbery, both Mr and Mrs Bailey feared for their safety and believed that you may have stabbed them and those facts constitute Charge 1, the armed robbery. (Charge 1, armed robbery).
8 The Baileys continued walking along the street and were approached by a group of four men who had just left the Drummond Street Mosque. The Baileys told the men that they had just been robbed and warned them that you had a knife. One of the men asked Mr Bailey if he called the police. He then dialled 000 on his mobile phone and Mr Bailey spoke to Emergency Services.
9 You were then observed crossing Lygon Street walking towards the cemetery. Mrs Bailey pointed you out to the four men and one of those men, Nor Aden, chased you and eventually caught up with you. He asked you to return the wallet to which you replied, “Get away from me, you’ve got nothing to do with this”. You then pulled out the knife and continued running along Lygon Street, with Mr Aden in pursuit. He continually requested that you drop the wallet, but you refused to do so.
10 Two police officers eventually turned up at the scene and you were apprehended. Prior to your apprehension, you stopped running and Mr Aden got within about 1.5 metres of you, at which time, you pulled out the knife again and swung it in his direction, which caused him to be both nervous and scared and that constitutes the facts of Charge 2, common law assault. (Charge 2, common law assault).
11 Police arrested you and you were taken to the Richmond Police Station, where you were interviewed and denied any involvement in the armed robbery. You were then remanded in custody.
12 Following an assessment by Dr Lester Walton, psychiatrist, on 2 May 2016, you were transferred to Thomas Embling Hospital, where you were treated. You were discharged from there on 22 June 2016.
13 Thereafter, you have been kept in custody and there were issues concerning your fitness to plead.
14 On 8 August 2016, Dr Walton assessed you and found you fit to plead. Investigations were undertaken in respect to whether the defence of mental impairment was open, and your matter was the subject to further hearings and discussions.
15 Ultimately, through negotiations, the matter resolved and you were arraigned before her Honour Judge Hannan on 6 October 2016 at which time you pleaded guilty to the two charges.
16
By reason of your conviction in respect to these two charges, you have breached a Community Correction Order, so this court will also be dealing with the breach of that Community Correction Order. I note that both the breach and the contents of the breach report have been admitted by your counsel,
Mr Pyne.
17 On 15 May 2015, at the County Court Melbourne, you were placed on a Community Correction Order for twelve months in respect to one charge of attempted armed robbery. There were special conditions that you undergo assessment and treatment in respect to drug and alcohol abuse and any psychiatric treatment that was deemed necessary.
18 It is apparent from a reading of the Correctional Services report, that there was substantial compliance with that order. You attended the service for supervision on thirty-one occasions and there were only four occasions where you failed to attend.
19 The report notes that there was a decrease in compliance with reporting about two months prior to the current offending. At that time, you were experiencing unstable housing and you had a diminution in your mental health condition. There were issues about whether or not you were being compliant with your treatment. Your treatment was being administered through the Waratah Clinic, Inner West Area Mental Health Service and generally, you were observed to be not coping with life. You had difficulties engaging with drug and alcohol assessment and treatment and there were reports concerning your substance use and non-compliance with medication.
20 The twelve-month Community Correction Order expired on 14 May 2016.
21 The breach report is a positive one in terms of your level of engagement and the fact that you did have mental health treatment for a considerable part of the order. You attended two drug and alcohol counselling sessions before a psychiatric review was requested. That broke down because of your non-compliance with your medication.
22 The circumstances of the offending of the Community Correction Order were that on Friday 25 July 2014, you entered a 7-Eleven store about 3.00am, carrying a small kitchen knife wrapped in tissue paper in your overcoat pocket. You were not disguised. After being in the store for a few minutes, you walked up to the attendant, pulled out the knife from your pocket and said to the attendant “Do you know what this is?” and “Give me $50”.
23 The attendant merely told you “I did the safe job before so there’s no money here. I can’t give you $50”, to which you replied, “Oh, fuck” and you left the store.
24 You were a regular attendee at that store and readily recognised. A few days later, on 28 July 2014, you were arrested. You made full admissions in relation to the attempted armed robbery.
25 At that time, you told police you were short on cash, and that you undertook the attempted armed robbery because you needed money.
26 You pleaded guilty at the earliest opportunity. When you were placed on the Community Correction Order, you had spent a total of 288 days in pre-sentence detention. That pre-sentence detention has not been formally declared.
27 Having regard to your substantial compliance with the order, that is the Community Correction Order, I propose to find the breach proven and make no further order.
28 I note that the Community Correction Order has now lapsed. In resentencing you in respect to the one charge of attempted armed robbery, you will be convicted and sentenced to time served, and I make a declaration of pre-sentence detention of 288 days and direct that that declaration be entered into the records of the court.
29 Moving back to the current indictment, I have had regard to what was said by Mr Pyne on your behalf. He conceded that this is serious offending and that the experience would have been terrifying for both victims.
30 Mr and Mrs Bailey have not provided victim impact statements, but I have had regard to the circumstances and have read their statements in the depositional material and agree, that this event would have been terrifying for them.
31 A further concession was made by Mr Pyne that deterrence, denunciation and just punishment are important sentencing considerations in crimes of this nature. It is also accepted, the fact that you were on a community corrections order at the time of the offending, is also an aggravating factor.
32 I accept that in terms of the gravity of the offending, there are a number of features of your offending that mean that I consider the offending to be at the lower level of seriousness, in terms of this serious offence. You did not injure anyone physically, in either the robbery or the assault. The armed robbery was of relatively short duration. It was opportunistic and as soon as you given the money, you walked away. You were not disguised. You were readily identified by the fact that you remained in the vicinity of the armed robbery. Your offending occurred in the context of chronic homelessness, a long-term serious mental illness for which you were not being treated and your general desperation.
33 To your credit, you entered a plea of guilty, and I accept that it was at the earliest opportunity, once the issue of your fitness to plead and/or the issue of mental impairment was resolved. There is real utility in your plea; you have spared the community and State the expense and inconvenience of a trial, and spared the witnesses, particularly the Baileys, the further trauma for having to come to court to give evidence at your trial. You facilitated justice and your sentence will be discounted accordingly.
34 I also accept that the plea of guilty is an expression of remorse.
35 In addition, I accept that your mental health condition is now stable, that you now understand what you did was wrong and you also understand the factors that led to your involvement with this offending. You now accept that you have a serious psychiatric illness, for which you need to take your medication and you need to take direction from your doctors, so as to prevent further deterioration in your condition. You now have insight between the connection with your non-compliance with your medication, use of illicit drugs, and mental illness.
36
You have been diagnosed with Chronic Paranoid Schizophrenia for a decade and it is only recently, that your symptoms have been properly assessed and treated, and that your condition has stabilised. I have had regard to what was set out in the various reports from the psychiatrists, Dr Lester Walton,
Dr Leon Turnball.
37 Your counsel did not seek to invoke the Verdins principles, insofar as the offending was concerned, however, I have taken your general decline in your mental health into account in a general sense. It is accepted that your illness did not cause the offending, but understanding your illness, is crucial to understanding the circumstances leading to the commission of your offending.
38 I do accept that a person like you, who suffers a major psychotic illness, even in remission, will endure imprisonment as more onerous than others and I have taken that into account.
39 There is no doubt, Mr Kopa, that you had a very difficult, dysfunctional and disadvantaged childhood and background. Your parents separated when you were but an infant child. They both had a history of drug and alcohol dependence. Sadly, your mother died of a heart attack when you were only aged ten and after that, you were sent to live with your maternal grandparents. When you were fourteen or fifteen, you were taken with two of your siblings to live with your father, who is described as a physically abusive man.
40 Ultimately, you were kicked out of home at age sixteen, became itinerant and homeless. Occasionally you would live with your siblings, your stepmother and sometimes your maternal grandparents, but there was no consistency.
41 I have taken into account your profound childhood deprivation. Courts long have recognised that the impact of such social disadvantage during formative years does not diminish over time and it goes a long way to explaining your criminal behaviour.[1] There is a need in the circumstances for me to take into account and I have moderated the need to emphasise general deterrence and I have also accepted to a limited extent, diminished moral culpability.
[1]Bugmy v The Queen [2013] HCA 37.
42 That, however, in no way excuses your behaviour and there is still a need for the court to say, on behalf of the community, that this offending is not acceptable.
43 I must impose just punishment and also provide for the protection of the community. There is still a need in my view, for specific deterrence to be emphasised.
44 I noted that you do have some limited work history. You have worked in McDonalds in the past and also in the meat industry.
45 You have been on the disability support pension going back to when you were first diagnosed in the early teens and your financial affairs have been managed by State Trustees. You have never lived in independent or unsupported accommodation and sadly, you have been in and out of gaol throughout your late teenage years to the present time. There is a real risk that you are a person who is becoming institutionalised.
46 You have a longstanding history of mental illness and have been involuntary detained on numerous occasions because of your deteriorating mental health. You are very much a person who lives on the margins in society and I accept, because of the complex nature of your situation, it is difficult for you to transition from gaol back into the community.
47 Notwithstanding all of that, I consider, given your present situation, that is your expressed remorse, the fact that you are doing very well with complying with medication and that you now have insight into your situation, means that I consider that there is still some cause for optimism in terms of your rehabilitation. Providing you maintain your stability, I do consider that you are a person who does have reasonable prospects for rehabilitation in the future.
48 It is evident that, in order to assist you, to remain in the community drug free, alcohol free and in good mental health, that you do need a structured transition from prison back into the community. It is absolutely essential that you are housed in secure accommodation, and supported in your desire to take up employment in the future. It is only then that your prospects for rehabilitation will be enhanced and the opportunity to enable you to be a more law-abiding citizen can be achieved. Otherwise, if you are released and left to your own devices, there is a real prospect that the vicious cycle of crime and prison will continue, with the very real risk that you will become a person who is institutionalised. The protection of the community is best achieved through your supported release back into the community.
49 In sentencing you, I must impose just punishment. I have had regard to the principles of totality. I have noted that you have already undertaken 288 days in respect to the attempted armed robbery charge and I have taken that into account overall, in assessing the most appropriate sentence in respect to this present offending.
50 In all the circumstances I consider the sentence of imprisonment is the only appropriate disposition and I make the following formal orders:
51 Mr Kopa, with respect to the charge of armed robbery, you will be convicted and sentenced to three years’ imprisonment. With respect to common law assault, you will be convicted and sentenced to six months’ imprisonment.
52 I make the following order for cumulation: I direct that three months’ of the sentence imposed on Charge 2 be cumulative on Charge 1 and that makes a total effective sentence of three years and three months and I fix a non-parole period of 21 months.
53 I make the following declaration of pre-sentence detention: I declare that you have spent 422 days on remand and I direct that that be entered into the records of the court.
54 I make the following s.6AAA declaration, but for your plea of guilty, I would have imposed a term of imprisonment of five years, to serve three years.
55 I make the disposal orders sought. I have signed that order and I will provide that back to the prosecutor please, that completes my sentence.
56 MR MARTIN: As Your Honour pleases.
57 MR PYNE: As the court pleases.
58 HER HONOUR: All right, do you want to just spend some time with Mr Kopa now or - - -
59 MR PYNE: I'll see him downstairs.
60 HER HONOUR: You'll see him downstairs.
61 MR PYNE: Yes.
62 HER HONOUR: All right, so Mr Kopa, Mr Pyne will come down shortly and chat with you just to confirm what I've just said, all right?
63 OFFENDER: Thank you, Your Honour.
64 HER HONOUR: But do you understand that I imposed a gaol term of three years and three months?
65 OFFENDER: Yep.
66 HER HONOUR: To serve 21 months and you've already served 422 days. All right, it is my practise to send my sentencing remarks to the Adult Parole Board, so I'll do that in this case.
67 MR PYNE: Thank you, Your Honour.
68 HER HONOUR: All right thank you, we can adjourn.
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