Director of Public Prosecutions v Kopa

[2015] VCC 590

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01874

DIRECTOR OF PUBLIC PROSECUTIONS

v

STORMY KOPA

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 May 2015
CASE MAY BE CITED AS:	DPP v Kopa
MEDIUM NEUTRAL CITATION:	[2015] VCC 590

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Askov
For the Accused	Mr A. Pyne

HIS HONOUR: 

1You have pleaded guilty to one count of attempted armed robbery.  You have heard the learned prosecutor tell this court that the maximum sentence that can be imposed for this offence is 20 years' imprisonment.

2You also heard your counsel, Mr Pyne, concede that this is a serious offence and that the experience of this attempted armed robbery would, no doubt, have been very frightening for the fellow that was in the convenience store.

3Having pleaded guilty I will impose a lesser sentence than I otherwise would have imposed.  In other words, you receive a discounted sentence for having pleaded guilty.

4I quote, virtually directly, from the prosecution opening, where it was said that at approximately 3 am on Friday 25 July of last year, you walked into a 7-Eleven store, situated at 83 Errol Street, North Melbourne.

5You were carrying a small kitchen knife wrapped in tissue paper in your overcoat pocket.  You had no disguise on.

6After walking around the store for a few minutes, you walked up to the counter and pulled a knife out of your pocket.  You said to the attendant, "Do you know what this is?"  You then said, "Give me $50."  The attendant replied, "I just did a safe job before so there's no money here.  I can't give you $50."  You then said, "Oh fuck," and left the store.  The incident was captured on CCTV.

7The shop attendant then later stated that you appeared worried and nervous and spoke in a quiet voice.  This shop assistant did not call the police but sent a message to his boss to report the incident.  At the end of his shift in that shop, the attendant then told the relieving attendant, who had come in to relieve him, what had happened.  Each of them then watched the CCTV footage.  The relieving man, who has just come to release the victim, recognised you as a regular customer and each of them then reported the matter to the police.

8Then, at approximately 11 o'clock on Monday 28 July, two or three days later, a police officer observed you sitting on a chair outside The Salvation Army store at 19 Errol Street, North Melbourne.  That policeman recognised you as the suspect who was wanted for the Errol Street 7-Eleven attempted armed robbery.

9You were wearing the same clothing that you had been wearing when the offence was committed.  You were arrested and conveyed to the Melbourne West Police Station where you were interviewed in the presence of an independent third person and you made admissions to the attempted armed robbery, stating that you were short of cash, that you did not hurt anyone.

10I make this comment, it is evident that the victim chose not to report the matter to the police.  He only did this when his relief colleague attended, much later.

11One inference I draw is, he was not frightened as badly as some are because he recognised that this is a bit different to what usually happens when these sort of events occur.

12As was stated by the victim, the kitchen knife was wrapped in tissue paper.  You further told the investigating policeman that you were kind of polite to the victim.  That is all consistent with the way the victim tells it.

13When those investigating police officers attended at your room, at Flagstaff Accommodation Centre, they found this knife wrapped in a paper towel, in a plastic tub, which was in your room, that is the room you used at the Flagstaff Centre.  I think that is up there where the old school used to be.  The Centre has been built on the school grounds.

14Your record of interview reflects your poor mental health at the time of the commission of this offence. 

15You did indicate at a very early stage of the proceedings that you were going to plead guilty to this offence and it is conceded that this attempted armed robbery if very much at the lower end of this type of offending.

16The victim observed you to be worried, nervous and speaking in a quiet voice, as I just mentioned.  Having been told that there was no money, you then simply walked out of the convenience store.  You did not in any way, attempt to disguise yourself.  You were easily recognised as a previous customer of the store.

17As I mentioned, a few moments ago, in the record of interview, the record of interview demonstrates your health problem in terms of the erratic answers.  You were clearly suffering from some mental illness or problem at the time the policeman was speaking to you.

18The psychiatrist, Dr Arnold's, has prepared two reports for the court.  This psychiatrist records your lengthy and chronic schizophrenia and this doctor records;

"It is likely that at the time in July 2014 that there was a relapse in psychotic symptoms, mainly auditory hallucinations that impaired your ability to exercise appropriate judgment to make calm and rational choices and to think clearly."

19Your counsel, Mr Pyne, very properly quotes an authority that says, or demonstrates how courts such as this must act in these circumstances.  The name of that case is; Verdins. It is a very well-known case and for the record, that is to be found in (2007) 16 VR 269. I suspect the typists know that quotation better than I do. In that case, Nettle J said;

"What matters in any given case is not the label to be applied to the psychiatric condition but whether and to what extent the condition can be shown to have affected the offender's mental capacity at the time of the offence or at the time of the sentence."

20That applies to both the time of the sentence and the time of the offence.  Your circumstances fall in both categories.  I have no difficulty applying the principles of Verdins, having consumed Dr Arnold's report.

21Your significant mental health problems reduce the moral culpability of your offending conduct on this occasion.  This affects the punishment that is just in all of the circumstances, as observed in Verdins.

22Denunciation is less likely to be a relevant consideration when individuals are so unwell as you were at that time.

23I say, as to point three from Verdins, that the nature and severity of the symptoms exhibited by you are indeed severe thus general deterrence should be moderated.  This observation relates both to your mental capacity at the time of the offending and also at this time, being today, when you are being sentenced.  These same observations related to specific deterrence being moderated.

24I also have no difficulty finding that you, Mr Kopa, classically fit within the principles as enunciated in para five of Verdins, where it says, "The existence of the condition at the date of the sentencing may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health."  That obviously applies to you.

25Mr Kopa, you are now aged 31.  Having being born on 27 April 1984.

26Your parents separated when you were very young and then when you were aged approximately ten years your mother passed away which event devastated you.  At this time, you had been living in Carlton.  You lived, for a short time, with your grandmother, before then being sent to Moe to live with your father.

27Your young life brought significant distress and devastation upon you.  The loss of your mother and then when residing with your father, unfortunately you were apparently subjected to at least emotional, if not physical abuse, or both.  You were thrown out and onto the streets when in your mid-teens, and not surprisingly, you then encountered the drug and alcohol abuse commonly experienced by those living on the streets in similar circumstances to yourself.

28Apart from the two positions, in terms of employment, that you have followed, one of which, you worked at McDonald's, no doubt as a younger person and secondly, at the later time, you worked in the abattoirs.  You had no other work experience and as at this time you are on a disability pension.

29I infer from the prison records, that State Trustees are the administrators of your estate, pursuant for the provisions of the Guardianship Board legislation.  You have confirmed that to me this morning.

30Your counsel, Mr Pyne, says at this time, you have no contact with your brother.  Your sister now lives interstate and as I understand it, your father has returned to New Zealand.

31Mr Kopa, I assure you, I have taken into account everything that was said by Mr Pyne, on your behalf.  I have taken into account your plea of guilty.  I have taken into account the nature of the offending, which is at the very lowest end and I also take into account, as best I can, your prospect for rehabilitation.  It is unusual in your circumstance, because you are battling poor health and what the end result is, that we are all trying to do, in this place, is to ensure you can return to good health because in good health I have a belief that you will not be involved in the criminal justice system.

32You have been assessed by the Office of Corrections as you well know.  Whilst they recognise all sorts of reasons for why you should not go on a community corrections order, I believe that their opinion and view is because of the various failures that you have encountered on community corrections or parole orders in the past.  They relate to your health problem.

33They also recognise, by way of inference, at least, that you do need help.  They are going to do the best they can because I am going to give you back to them despite them saying that you are not a suitable candidate, so that they can assist you to, I hope, return to good health.

34You will be convicted and released on the community corrections order for a period of 12 months.

35The special conditions, that are part and parcel of that community corrections order, are that you are to seek assessment and treatment if required for drug abuse.  Assessment and treatment if required for alcohol abuse.  Medical assessment and treatment if required.  Mental health assessment and treatment if required.  I do not believe there is any other recommendations to be made so I am not going to make any more because it will difficult enough for him to comply as it is, Mr Pyne.

36You have got to report, on or before 18 May, to the Office of Corrections at Carlton.  Their address is, and we will give you this address so that it is in your possession, Mr Pyne can discuss it with you, is 444 Swanston street, Carlton.  I assume you know your way around Carlton, if your gran lives in Carlton.  You must report to them at least by Monday of next week.  Do you understand that?

37OFFENDER:  Yes.

38HIS HONOUR:  You have to sign the form.  I do not think there is a need for me to make any other order.  I will make an order, it is almost a falsehood but s.6(AAA) requires for me to make some sort of comment.

39I think I would have imposed a term of imprisonment but it would have had to have been a very modest term.  Probably 18 months at the absolute tops, with a minimum of 12 months, taking into account his prior convictions and the fact that it is a repeat type offence.

40It is very difficult, in the circumstances, to be realistic in these pursuits but is there any other orders sought?

41MS ASKOV:  Yes, Your Honour.  We sought an order for disposal of the knife and also a forensic sample order.

42HIS HONOUR:  Yes.  You are seeking a 464, are you?

43MS ASKOV:  Yes, Your Honour.  I think the draft orders were handed up on the last date.

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