Director of Public Prosecutions v Lange
[2013] VCC 1128
•19 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00319
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICHOLAS OWEN LANGE |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 May 2013, 5 August 2013 | |
DATE OF SENTENCE: | 19 August 2013 | |
CASE MAY BE CITED AS: | DPP v Lange | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1128 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – armed robbery, theft and attempted burglary
Legislation Cited: Crimes Act 1958; Sentencing Act 1991;
Sentence: Four and a half years imprisonment with minimum period of three years
Imprisonment to be served before becoming eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Plea) (Sentence) | Mr N Goodfellow Ms R. Marques | Solicitor for Office Public Prosecutions |
| For the Accused | Mr C McLennan | Chris McLennan & Co |
HIS HONOUR:
1 Nicholas Owen Lange, you have pleaded guilty to the following charges:
(a)Charge 1 – that you at Preston in Victoria on 28 September 2012, robbed Paul Taylor of $500 being the property of BWS Bottle Shop and at the time had with you an offensive weapon, namely a knife;
(b)Charge 2 – that you at Preston in Victoria on 15 September 2012, stole six bottles of Johnnie Walker, the property belonging to BWS Bottle Shop;
(c)Charge 3 – that you at Preston in Victoria on 21 October 2012, stole cosmetic products being property belonging to Kmart Northland;
(d)Charge 4 – that you at Preston in Victoria on 29 October 2012, attempted to enter as a trespasser a building or part of a building, namely Dimitri’s Fresh Poultry, located at The Centreway (Preston Market) with intent to steal therein.
2 Charge 1, relating to armed robbery, is contrary to s75A of the Crimes Act 1958 and carries a maximum penalty of 25 years' imprisonment.
3 Charges 2 and 3, relating to theft, are contrary to s74(1) of the Crimes Act 1958 and carry a maximum penalty of 10 years' imprisonment in relation to each charge.
4 Charge 4, relating to attempted burglary, is contrary to s321M and s76 of the Crimes Act 1958 and carries a maximum penalty of 5 years' imprisonment.
5 The prosecution has prepared a written summary of the circumstances surrounding the offending. Such summary has been marked an as exhibit and has been accepted by you and your counsel as an appropriate representation of the offending. In particular, it is agreed:
(a)On 15 September 2012 at around 3.30 pm, you entered the “BWS Bottle Shop” located in Preston, where a Mr Matthew Bouwman was working. You placed six bottles of Johnnie Walker whisky into your bag and walked out of the store. As you were leaving, Mr Bouwman said “Are you seriously just going to take those?” and you replied “Yep”.
You then left the store and drove away in a car. The value of the items stolen was $313 and they were not recovered. (Charge 2)
(b)On 28 September 2012 at about 1.00 pm, you entered the same BWS Bottle Shop with a hood pulled over your head and your collar pulled up to make it difficult to see your face. You were also wearing gloves.
You approached the manager of the store, Mr Paul Taylor, who was working behind the counter, and threw open a black bag onto the floor and said “Open it and give me all you got”.
Mr Taylor saw that you were holding a knife which he believed to be a “Quality chef’s knife”. Mr Taylor opened the till, saying “That’s all I've got”. You took $500 from the till and walked out of the store. (Charge 1)
(c)On 21 October 2012 at around 5.30 pm, you entered a Kmart store located in the Northland Shopping Centre in Preston. You approached the cosmetics section of the store and placed a number of items in your bag. When walking out of the store, you were approached by the store manager and when he requested to inspect your bag, you refused and continued to walk out of the store.
Security guards from the store then approached you and asked to inspect the bag and you continued to refuse those requests and became aggressive towards the security guards. You then pulled out three cosmetic products from the bag and handed them to the security guards although the staff were confident that such items were not the only items you had stolen from the store. As a result of your aggressive behaviour, the staff decided to allow you to leave and you then left in a taxi.
The cosmetic items that were stolen and returned by you were valued at $104.25 and a number of other items were stolen and not returned. The value of these items is unknown. (Charge 3)
(d)On 29 October 2012 at between 5.00 pm and 6.00 pm, you entered the Preston Market and approached “Dimitri’s Fresh Poultry” store located within the market. The store was closed and secured with shutters that covered the front of the store.
You, in the company of two other males, attempted to break into “Dimitri’s Fresh Poultry” store with a tool that they had brought to the site. You were unsuccessful in your attempt to enter the store (Charge 4)
(e)You voluntarily attended the Preston Police Station on 12 November 2012 and were placed under arrest. A record of interview was conducted in which you made full admissions regarding the armed robbery (Charge 1) and two counts of theft (Charges 2 and 3). At that time, you were bailed to appear on 15 November 2012 but failed to appear and as a result a warrant for your arrest was issued.
(f)You again voluntarily attended the Preston Police Station on 28 November 2012 following contact by the police and a further record of interview was undertaken in which you answered “No comment” to questions regarding the attempted burglary (Charge 4).
(g)You indicated an intention to plead guilty to the various charges at a committal mention on 21 February 2013.
6 The prosecutor also tendered a document setting out your criminal record which you accepted was an accurate record of your past offending. I note that you first came to the attention of the Courts on 2 December 1992 (at the age of 20 years old) when you were charged with criminal damage and failing to answer bail, at which time you were fined without conviction being entered. On 7 October 1993, you were convicted of burglary and theft and over the years there has been some near 50 court appearances predominantly involving theft, although no offences involving armed robbery prior to this offending.
7 Furthermore, you have been sentenced in the past to many terms of imprisonment, including suspended sentences and also various community-based orders or community corrections orders which have been breached on numerous occasions.
8 The prosecutor also tendered a Victim Impact Statement declared by Paul Leslie Taylor on 5 May 2013. Mr Taylor was the manager of the BWS Bottle Shop and present at the time that you committed the armed robbery on 28 September 2012. Mr Taylor describes, as a result of the armed robbery, he has difficulty working alone and finds himself looking over his shoulders more, all of which he believes has contributed to a poor work performance. Furthermore, he believes that he has changed from what he describes as an easygoing attitude to people to a situation where he becomes “very short with people” and not wanting to engage in conversation with people.
9 When this matter was initially listed in this Court on 8 May 2013, your counsel tendered a report from the psychologist, Dr Aaron Cunningham, dated 7 May 2013. Dr Cunningham assessed you at the Metropolitan Remand Centre on 16 April 2013 and also had a telephone interview with your stepdaughter, Jasmine De Angelo on 6 May 2013.
10 Dr Cunningham obtained a history from you in the following areas:
(a) Background
11 You were raised by your mother as an only child after your mother ended a violent relationship with your father, some three months after your birth. You have had no relationship with your biological father.
12 You mother entered into a relationship with your “stepfather” who you described as “an emotionally abusive alcoholic” and involved in “pot smoking”. You witnessed various instances of violence involving your stepfather and mother and also seeing your stepfather attack other people. In particular, you were in constant fear of your stepfather and you were worried that he would seriously injure your mother. Because of that relationship, you have three older half brothers and one older step sister and one younger step brother.
13 At the age of twelve your family “did a runner” to Darwin in order to escape from your stepfather but your mother later reunited with him. When you were fifteen, your mother finally left your stepfather and at the age of eighteen you left home to live with your then girlfriend. That relationship ended because you stated you “fell into a wrong crowd” and commenced using heroin which also involved living with acquaintances and living a nomadic existence.
14 Since early 2000, you have been in a relationship with a Ms Dianne Williams who has a daughter named Jasmine who you view as your own child. Jasmine has given birth to her child, Sebastian. You describe Ms Williams as the “most stable thing in your life” and you have been visited by her frequently when in prison.
(b) Education and vocational history
15 You attended Pascoe Value Primary School and thereafter Coburg Technical School before leaving some three months into Year 7. You then attended Lynall Hall Community School to the age of fifteen when you gained an apprenticeship as a butcher, which was completed over three years.
16 You were then unemployed before gaining employment at Linden’s Fresh Meat and Poultry in 2009 where you remained in employment for about sixteen months but was requested to leave work after arriving with a black eye. You have been employed for short periods in carpet laying, assisting one of your brothers, and have found it difficult to obtain butchering employment without having a driver’s licence.
(c) Medical history
17 In 2010 you experienced a home invasion where you were beaten and also you were assaulted by store security fourteen months ago (prior to the report in May 2013) when your head was slammed into a steel cage, causing you to be partially scalped after hitting your head. In particular, you informed Dr Cunningham that you have traumatic memories of such event and have experienced difficulty with vocabulary, speech and concentration since that injury.
(d) Drug and alcohol history
18 You commenced to use cannabis at the age of fourteen with peers at the Lynall Hall Community School. Such use continued from your mid-teens to the age of twenty and also there was intermittent use of amphetamines from the age of eighteen. At the age of nineteen, you commenced to use heroin and progressed to intravenous use of heroin. You have continued to use heroin intermittently, although at the time of the report you were receiving 60 milligrams of Methadone per day.
19 You informed Dr Cunningham that you had experienced anxiety for most of your adult life and experienced nightmares and vivid dreams of blood and gore. In particular, you witnessed a man sliced open in a knife attack in Barwon Prison. You also informed Dr Cunningham that you do not trust anyone and distanced yourself from other people and felt emotionally flat and numb.
20 Dr Cunningham diagnosed a Post Traumatic Stress Disorder (“PTSD”) resulting from the distressing recollection of the stabbing you witnessed in prison and the partial scalping event. Furthermore, Dr Cunningham was of the opinion that you suffer from substance use disorder with a dependence on opiates.
21 Dr Cunningham recommended that you be assessed by a neuropsychologist as you may have suffered an acquired brain injury as a result of the “scalping” episode.
22 In particular, Dr Cunningham noted that the offences in question were motivated to gain funds for your “family” and heroin use. According to Dr Cunningham, “his offence behaviour occurred in the context of his substance use disorder.” And furthermore, Dr Cunningham notes that you have insight into the need for your drug and alcohol support and have motivation to care for Ms Williams, Jasmine and her child. In particular, Dr Cunningham was of the opinion that a period of imprisonment would weigh more heavily on you compared to an individual without Post Traumatic Stress Disorder and further, there was a “serious risk” that imprisonment would have a significant adverse effect on your mental health.
23 At the request of your counsel and with the agreement of the prosecutor, the matter was adjourned to 5 August 2013 in order for a report to be obtained from a neuropsychologist primarily to determine whether you do suffer from acquired brain injury as tentatively suggested by Dr Cunningham.
24 On 5 August 2013, your counsel tendered a report from a clinical neuropsychologist, Dr R O’Meara, dated 9 July 2013. Dr O’Meara reports that the neuropsychological assessment was held over approximately 3.5 hours at the Metropolitan Remand Centre on 8 July 2013. Dr O’Meara reports that your background history had been obtained by Dr Cunningham and set out in his report and that accordingly, only pertinent information would be recorded by Dr O’Meara.
25 The following matters are noted:
(a)You reported to Dr O’Meara that in terms of rehabilitation of your drug habit, you had attended one inpatient detoxification program through Moreland Hall and outpatient drug and alcohol counselling on a weekly basis over three months through Moreland Hall in 2009. You indicated that you had found this beneficial and would be interested in returning to counselling with the goal to maintain your abstinence from drugs and in particular heroin after you release from prison. You informed Dr O’Meara you wanted to establish stability in your life in order to provide support for your partner, your stepdaughter and your stepdaughter’s three month old son.
(b)Your medical history does include Hepatitis C which is apparently stable without treatment and you have been prescribed Avanza for psychological symptoms and Methadone in relation to your heroin use.
(c)You denied that you were substance affected at the time of the subject offending and asserted that such offences had been committed due to “financial hardship”. In particular, Dr O’Meara reports that you informed him that you considered your offending was “impulsive, childish and stupid”. Furthermore, you informed Dr O’Meara that such activity caused you not to be present when your stepdaughter gave birth to her son and that you were “determined” not to reoffend and identified employment as a key factor that would assist you to refrain from reoffending in the future.
(d)After neuropsychological testing, Dr O’Meara considered that you had a cognitive profile characterised by largely intact performances across the majority of cognitive domains, with mild sustained attention and self monitoring difficulties which were not indicative of an acquired brain injury. Dr O’Meara considered that any subtle cognitive difficulties are more likely related to psychological factors. Dr O’Meara considered you may have symptoms indicative of an Obsessive Compulsive Disorder which in conjunction with your PTSD and ongoing Methadone treatment could fully account for the mild difficulties evident on testing.
Dr O’Meara was of the opinion that the testing would suggest that you had the ability to exercise appropriate judgment, to make calm rational choices, to think clearly and to inhibit impulses. In particular, Dr O’Meara stated:
“His mild difficulties are not of a sufficient severity to obscure his intent to commit the offence or to appreciate the wrongfulness of his conduct. Furthermore, there is no evidence to suggest that these mild difficulties … contribute causally to the offending. It is, however, likely that his substance dependent disorder contributed to the offending, given that he reported that he committed most his previous offending in order to fund his heroin habit and that he committed the current offending due to ‘financial hardship’”
26 Furthermore, given his findings of intact cognitive functioning across most domains, Dr O’Meara considered that a prison sentence would not weigh more heavily on you from your cognitive perspective, “although his psychological issues may mean he will struggle with certain aspects of the prison environment.”
27 Dr O’Meara highlighted what he considered two protective factors against reoffending was a source of stable accommodation and employment, together with your good insight into the association between periods of unemployment, your heroin use and criminal offending.
28 Your counsel, during the course of your plea in relation to sentence, advised the Court that you were presently on Avanza for depression and, although had been a heroin addict, had been on Methadone for some four months and had had clean urine samples when in prison. Furthermore, consistent with your training as a butcher, you have been working in the prison kitchen.
29 In particular, your counsel stressed that you wished to get out of the cycle of drugs and criminal behaviour as you had a relationship to return to and the potential to resume employment as a butcher. In particular, I was directed to your initial record of interview (which I have read) which makes plain that you consider your actions in relation to the offending to be foolhardy.
30 Your counsel, although conceding that the only appropriate sentencing disposition was a period of imprisonment, submitted that an appropriate non-parole period of imprisonment should be in the order of 18 months to 24 months with a lengthy parole period.
31 I was also informed by your counsel that a breach of a community corrections order is to be heard at the Magistrates’ Court on 20 August 2013. The offences relevant to the breach of such order occurred in 2011 and such offences were substance-induced.
32 Counsel for the prosecution also submitted that the only appropriate sentencing disposition was a period of imprisonment and he was instructed that an appropriate range for the offending was a period of imprisonment of four to five years with a non-parole period of two to three years. In particular, counsel for the prosecution made the following submissions:
(a)You had been remanded in relation to the matters pertaining to the breach of the community corrections order from December 2012 to February 2013. However, on indicating that you would plead guilty to the subject offences on 12 February 2013, you were remanded on those matters and you have served 179 days, to date, pre-sentence detention in relation to the subject offences – such detention being from 12 February 2013 to today’s date.
(b)That you have a lengthy record with many offences relating to theft. He emphasised that although the subject offences were not sophisticated in their planning or execution, the offences extended over approximately a six week period and the armed robbery involving the use of the knife did demonstrate some escalation in the type of offending which you have been involved in.
(c)Counsel for the prosecution accepted that you are entitled to the benefit of an early plea of guilty in relation to the offences and furthermore, he accepted that you made appropriate admissions in your first interview, cooperated with police and expressed a certain degree of remorse as set out in the record of interview.
(d)Counsel for the prosecution also accepted that it is appropriate that the diagnosed PTSD is relevant and should be taken into account when sentencing in that your time in prison will be “harder” because of such mental condition compared to someone who suffers no such condition.
Conclusion
33 Both your counsel and counsel for the prosecution have submitted that the nature of the offending and in particular, the armed robbery described in Charge 1, warrants a custodial sentence. Given your record and the nature of your offence, I am satisfied that no sentence other than one of imprisonment is appropriate.
34 Consistent with your own admissions, I accept that you were not drug-induced at the time of the offending but rather, such offences took place to help support your de facto partner and your stepdaughter, in circumstances where the stepdaughter was pregnant. However, I also consider that part of the reason for such offending was to finance your then heroin habit.
35 I accept that although the planning and execution of the offences which did take place over a six week period was not sophisticated, the armed robbery is an escalation in the type of offending that you have committed over many years. The armed robbery was on a so called “soft target” and the consequences of that particular offending have been significant to Paul Taylor as set out in his Victim Impact Statement.
36 I also note that various past sentences involving periods of imprisonment, and various community corrections orders have had little or no effect in deterring you from pursuing theft-related offences.
37 Accordingly, I have formed the view that in determining an appropriate sentence, denunciation of the offending – in particular, the armed robbery – is important, together with factors involving general and specific deterrence in relation to such offences.
38 However, I do accept that you entered pleas of guilty to each of the offences at the earliest time and furthermore, have shown some degree of remorse in relation to your actions. Both of these factors have been taken into account in determining an appropriate sentence for your offending. Furthermore, I accept that consistent with the submissions of your Counsel and those of the Prosecutor, the time spent in prison will be harder for you as a result of you suffering from PTSD. I take this into account when considering your sentence.
39 I am also mindful that on your release from prison it is to be hoped that you will be able to return to a solid domestic environment consisting of your long term de facto partner, your stepdaughter and her new baby. Furthermore, I consider it of some importance that you have completed an apprenticeship in butchering and have the potential to return to some type of meaningful employment. I accept that you have seemingly commenced to accept that a good domestic environment and being employed plays a big factor in attempting to avoid reoffending. In this sense I accept that there is a prospect of rehabilitation.
40 Accordingly:
(a)In relation to Charge 1 relating to armed robbery, you are convicted and sentenced to four and a half years' imprisonment.
(b)In relation to Charge 2, relating to theft, you are convicted and sentenced to six months' imprisonment to be served concurrently with the sentence relating to Charge 1.
(c)In relation to Charge 3, relating to theft, you will be convicted and sentenced to six months' imprisonment to be served concurrently with the sentence relating to Charge 1.
(d)In relation to Charge 4, involving attempted burglary, you will be convicted and sentenced to six months' imprisonment to be served concurrently with the sentence in relation to Charge 1.
(e)The total sentence imposed is four and a half years' imprisonment and I order that you serve three years' imprisonment before becoming eligible for parole.
(f)I declare that you have served pre-sentence detention in relation to these offences of 179 days.
(g)I further order that a compensation order be made against you in relation to the sum of $813.65 in relation to Charges 1 and 2.
(h)Pursuant to s6AAA of the Sentencing Act, I declare that I would have imposed a sentence of six years' imprisonment with a minimum of four years to serve before becoming eligible for parole if you had not pleaded guilty to the offences.
41 Mr Lange, you may consider the sentence harsh. You come before this court with an incredibly bad record going back for many years involving theft-related offences. The community will not tolerate offences like that and in particular the armed robbery. You perhaps have the chance, better than some, that when you are released from prison hopefully you will have a good relationship to go back to and the prospect of getting work.
42 You have shown some indications that your thinking is getting around to that point. I’ve noted that you have been in the defacto relationship for some time and the offending has continued. When you are in prison give thought to these things. If you come out of prison and re-offend for any type of offence again or similar offences it will be a far, far harsher sentence. The ball is in your court to some degree. You are showing signs that you are trying to do the right thing. Keep off the drugs. Get yourself trained up as a butcher because they are the sort of things when you come out of prison, relationships and employment, will be good things to try and keep you on the straight track. But to this point, with your record and with the type of offending in question. I believe I had, unfortunately, little alternative other than to sentence you as I have.
43 Yes, thank you.
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