Director of Public Prosecutions v Lazzaro
[2019] VCC 884
•14 June 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-19-00079
Indictment No. J12752115
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENDAN LEE LAZZARO |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 June 2019 |
| DATE OF SENTENCE: | 14 June 2019 |
| CASE MAY BE CITED AS: | DPP v Lazzaro |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 884 |
REASONS FOR SENTENCE
---Subject: Attempted armed robbery, criminal damage, theft x 2 ,possession of drug, assault emergency worker. Related summary offences of assault, possess controlled weapon and offending whilst on bail.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Serratore | Office of Public Prosecutions |
| For Accused | Ms Skaburskis | Doogue O’Brien George |
HIS HONOUR:
1Brendan Lee Lazzaro, on Monday, 3 June of this year, you pleaded guilty to attempted armed robbery, criminal damage, two charges of theft, possession of cannabis and assault an emergency worker. Those six charges are laid on the indictment. There are also related summary offences of assault, possess controlled weapons and committing an indictable offence whilst on bail. The maximum penalties are correctly set out in the agreed prosecution summary.
2You are 42 years of age, born in July 1976. You have admitted a criminal history of some relevance to my task.
3The matter was opened to me the other day by Mr Serratore, who appeared on behalf of the Director of Public Prosecutions of this State. He opened in accordance with a written opening dated 11 May 2019. That document was marked as Exhibit A. Your counsel, Ms Skaburskis, told me that this was an agreed factual statement. There were also some photographs and some CCTV footage that I have viewed since the plea. The footage was marked as
Exhibit C.4I see no need to set out the full factual basis of sentencing in my reasons, as they are agreed and I will not stray beyond the agreed facts.
5The most serious offence is obviously the attempted armed robbery upon a woman, that is Ms Rhonda Strathdee. It was in the early hours of the morning at about 5.20 am as she arrived to open up the Bunning’s outlet where she worked. I will come back to that event shortly. Prior to that event, on security footage, you are seen in the vicinity of a Domino’s outlet carrying a star picket with a white sign attached. You disappeared from view down a laneway and emerged without the star picket. You then approached a car, a car that had a connection to the Domino’s outlet and you actually entered that vehicle. Once back outside of the car, you have them removed the number plate using a screwdriver obtained from your bag. At your much later arrest it became apparent you had stolen some items from that Domino’s vehicle in addition to the registration plate, hence Charge 1. The footage then shows you stealing some newspapers from a nearby petrol station. That is the subject of Charge 2.
6At 5.20, as I have said, Ms Strathdee arrived and parked her car. She was a lone female, sitting in her car in a quiet deserted area. It was still dark. You approached Ms Strathdee as she sat in her car. She declined your initial requests for the use of her car cigarette lighter or to use her phone. Those requests were hardly politely framed as you swore at her saying you just wanted your ‘fucking cigarette lit’ or ‘her fucking phone’ so you could call someone. Unsurprisingly she was scared but you seemingly accepted her response and you left her. You emerged a minute or so later out of an alleyway and you emerged with the metal star picket and made your way then back to her car and made your demand shouting, 'Just give me your fucking phone'. You twisted the driver’s side mirror towards the bonnet and shouted that you were going to 'smash her fucking car' and that you knew where she worked and her name. You then swung the star picket at the car just missing the windscreen.
Mr Strathdee was scared and she accelerated away and called police in a distressed state from a nearby McDonalds car park. It was about 5.24 am.7You then returned to the car that you had previously rummaged through, but this time you smashed the picket onto the roof nine times causing substantial damage before driving that stake through the rear window. You then left the scene. Police responded to the 000 call but could not, at that stage, detect you.
8Whilst conducting a later patrol of the area at around 6.20 am, they saw you, chased you and arrested you. You fell in the course of that pursuit. Back at the police station you complained of a potentially serious injury to your shoulder, an ambulance was called and you were then taken off to the Northern Hospital under guard. Some of your property, including some bags had been searched and the search disclosed some of the stolen items from the Dominos' car as well as the two weapons that are embraced by the related summary offence before me.
9Your behaviour was then pretty terrible at the hospital, there is no other way of describing it really. You were rude, you were abusive to the police and baiting them for some reason, and due to that behaviour you were handcuffed to a bed by one arm. You requested a drink, a female nurse got you one and you rewarded her with some choice language and then by throwing the cup of water in her general direction. She took evasive action to avoid actually being struck by the cup, and she was successful in that respect, but she was struck by the water. Hence the summary assault from that event.
10You then chose to assault one of the police members who responded to that unpleasant scene, and attempted to bite him on two occasions. You were then subdued and then medicated. You had not sustained any serious injury and you were taken back to the police station. The decision, a sensible one if I may say so, was made not to interview you as you were still acting aggressively. Cannabis was found during a strip search at the Custody centre.
11You were on bail at the time of these events, bail entered three days earlier for theft. As you know, you were also on two community corrections orders at the time, each which are going back before the lower court by way of breach. What a catalogue of unpleasant behaviour that you unleashed on all and sundry on this morning. Not just unpleasant of course but criminal.
12You pleaded guilty at the earliest opportunity.
13I have only very briefly summarised the factual statement. I will sentence in accordance with the full agreed factual statement.
Impact.
14Ms Strathdee has now completed a victim impact statement, which I have marked a moment ago as Exhibit D on the plea, and it was read a short time ago by the prosecutor. It was obvious even before that was filed that this was a frightening event for her. The written police statement of the victim deals with her immediate feelings of fear. Her victim impact statement discloses that she felt threatened and vulnerable more so than she had ever felt previously. She now sometimes does not feel safe in some settings and has an understandable anxiety when in car parks and alone. She has flashbacks to this event and she no longer feels safe in the way she used to feel.
15So I take into account the impact of your frightening crime upon her.
In Mitigation
16Your counsel, Ms Skaburskis, prepared some written submissions on the plea and they were marked as Exhibit 1.
17She conducted an excellent plea on your behalf and in doing so she took me to your background and tendered a report from Ms Lechner. She placed before me a letter from your uncle as well as some course certificates, including an addition to that this morning. Also she placed before me a breach report in relation to the two community corrections orders that you were on at the time of this offending. She made submissions as to the objective seriousness of your crimes.
18In addition she relied upon:
·Your early guilty plea;
·The presence of some remorse;
·Your disadvantaged background
·She argued that you had reasonable prospects of rehabilitation;
19She also argued that the case of Verdins had some engagement in this case with some reduction in your moral culpability, some reduction in the need to give weight to general deterrence and some increased burden and risk of deterioration in custody. So limbs one, three, five and six of those principles.
20Ms Skaburskis was arguing for the imposition of a combination type sentence. That is a term of imprisonment with release onto a community corrections order. She was not suggesting that your release from custody would necessarily be immediate but did argue that you should be on a community corrections order and hopefully in a setting where you are released prior to the date at which you are at risk of losing your house.
Prosecution
21The Director of Public Prosecutions conceded that a combination disposition would be open to the court, after all, your release could take effect within
12 months, so there was still a sizable prison term available to combine with a CCO. Whilst of course I pay regard to the submissions as to the availability of a combination order, those submissions made by either party do not bind me to a particular course. That is because I have to exercise my own discretion.22The prosecutor focussed his submission mainly on the attempted armed robbery. Obviously enough the first two charges of theft were of no great level of seriousness he said. He argued that the attempted armed robbery was in a different position, it was serious offending and at a higher level of objective seriousness than contended by your counsel. It was not at the lowest level but more in the mid-range, he argued. It had you leave the car, go down the lane and retrieve the weapon and then wield it in the way that you did, so there was obviously some consideration of what you were then doing. It was not purely spontaneous. You had a sizeable criminal history, he argued, and you were on bail and also on two community corrections orders, so given those matters and the serious nature of the offence, specific deterrence would loom large and weight must be given to general deterrence and denunciation. Those were the submissions of the prosecutor.
23The prosecutor did not accept that any or the principles from the case of Verdins were enlivened here, there being no impairment or condition bringing the principles into play, no realistic connection in any event, even if there was a condition and that is so given the obvious drug use engaged in. He argued that there was no cogent evidence touching upon any increased burden or risk of deterioration.
Background
24I turn then briefly to your background. Your background is set out in the written outline to some degree but also in the report of Ms Lechner. I accept that personal background but I just see no use in restating it all now to you. And that is because I accept the submission made at paragraph 10 of your counsel's written submissions that it was an environment of extreme dysfunction.
Ms Lechner speaks of that as well. There is also the excellent and thoughtful reference from your uncle, Wayne Lazzaro, who speaks of some of the sizeable difficulties in your life, many of them thrown up when you were only a child. Things that did not really adequately prepare you for life ahead.25I have considered the submissions made as to your background and as I say, I accept them. No-one in their right mind would choose such a background as the one that you had, and of course you did not choose it. You had no say in that at all. You were, as so many are, at least many that I see in court, dealt a very poor hand indeed, with some very poor role models and little stability or proper guidance in your formative years. Obviously those sorts of deficits are not just easily shrugged off. They mark a person and can have a sizeable role in the way that their life pans out. I take that background into account as far as I am able to in mitigation of sentence. See Marrah and also Bugmy.
26So I am really only going to set out very briefly a summary of your personal history, that is all it is. You are 42 years of age, born in July 1976. Your parents separated when you were four, but they tried to reconcile some years later. Your father as well as one of your mother’s later partners were both violent to your mother. There were far too many moves as a child with much time spent in domestic violence refuges. Many schools but violence was on display to you from your early years. One of your stepfathers was particularly violent to you as well as to your mother. You were schooled to about year 10 but had already to that point been working part time for a couple of years. Since leaving school you have had a very decent employment record which is something you are justifiably proud of. You have five children from one relationship, that relationship failed many years ago and whilst there had been organised regular contact with the children in the lead up to your remand, there has been no contact whilst you have been in custody. I do not really know why. Drugs and alcohol have been massively problematic for you for many years. You started using drugs at a ridiculously young age and progressed through a variety of different substances. You began using ice about three and a half years ago. You are functioning at a reasonably low level.
27You have a criminal history of some length but it also has some large gaps and only the one prison term disclosed within it. You have however breached a number of court orders. I am not going to spend much of my time conducting some survey now in my reasons of your criminal history, it is undoubtedly relevant to my task. You have been in custody now for over 235 days, that clearly represents the longest time that you have spent to date in a prison, and you have been making some real efforts as the large number of course certificates makes plain. However I cannot ignore the fact that you were on bail and on two community corrections orders at the time of this offending. Those community corrections orders had already been breached on one occasion as had an earlier one, in fact. That chronology of breaching once and now being breached again is disturbing enough. There is a pretty miserable breach report marked as Exhibit 5 which can inspire no confidence at all in your abilities to comply with an order. The breach proceeding waits in the wings in the Magistrates' Court or so it did the other day. I should have enquired of you of, Ms Skaburskis, it was listed I think on 11 June or something like that. What happened at the breach proceeding?
28MS SKABURSKIS: It's been adjourned, following the conclusion of these proceedings, Your Honour.
29HIS HONOUR: All right, thank you. Well I am right in saying then, as I have said, that the breach proceeding does wait in the wings in the
Magistrates' Court. No doubt they are waiting to understand what sentence is imposed in this court, which is a sensible approach.Ms Lechner
30I have read and I take into account the report of Ms Lechner. Your counsel argues that some of the principles from the case of Verdins that you heard discussed are engaged here. That is principles one, three, five and six. That decision of Verdins that you heard discussed deals with the way in which a variety of mental impairments, existing either at the time of the offence, or sentence, or both, can be taken into account by a court. That is a very broad and simplistic description of that case by the way but it will suffice for these purposes.
31Before going to Ms Lechner’s report let me report, again, my dismay that she regards it as appropriate to conduct an assessment by way of video link.
32The Court of Appeal has often enough commented on the most unsatisfactory nature of some of the psychological reports being provided to the courts. It seems to me that we have reached a new low with the use of video link. It seems incredible to me that any psychologist would approach their task in this way and not even get into the same room as the person they are assessing but they now do this routinely. It simply demonstrates how much standards have slipped and perhaps we, the courts, have to take a stand and arrest these slipping standards. Whilst these reports are being placed before the courts we have other psychologists such as Mr David Ball give evidence, questioning the reliability and validity of any report prepared by way of video-link and I can tell you he is no lone voice on that topic. I wonder what the Court of Appeal will make of this new trend. What they should do is stamp it out and stamp it out swiftly and arrest these sliding standards. I live in hope.
33It is however not your fault that this occurred, Mr Lazzaro, so what I will do is put aside my strong general criticism of this style of assessment process and turn, rather, to what Ms Lechner says in your case.
34Your counsel relies upon what is said to be the complex developmental trauma and your instability in times of stress and when your substance use escalates. You experience periods of depression.
35You have a raft of issues flowing from your disadvantaged background, no question about that, and I have already said that I take them into account in a Bugmy fashion. The condition relied upon, the mental impairment or condition said to enliven Verdins are the issues connected to complex developmental trauma. It is not even clear from her report if Ms Lechner is suggesting that is an actual impairment. Verdins is reserved for those cases where an offender suffered an impairment of his or her functioning. See DPP v O’Neill [2015] VSCA 325. As far as I can discern from the report, it is not a true Verdins factor at all but as I have said already, there is undoubtedly the reduction in culpability that I do take into account flowing from those developmental issues that I have already dealt with in my reasons to date.
36Even if I am wrong as to the way I view the developmental trauma, on the day of these crimes you were significantly affected by drugs. What role did they play in these crimes? It is pretty obvious that drugs had a disinhibiting effect. Might it be possible that the so called Verdins impairment had no realistic connection at all to this offending? That seems easily possible on the materials placed before me. Many people who are disinhibited by alcohol or drugs make very poor decisions or do things that they normally would not do. It seems to me then that it is pure speculation to consider the adverse impacts on your perception, judgement and reasoning ability flowing from the so called condition spoken of in the report. There are other non-Verdins type factors at play including significant disinhibition and disorder brought about by drug use.
37So firstly, then, I do not believe that there is an impairment as required to enliven these principles. But secondly, even if I am wrong in that conclusion, I do not accept on the balance of probabilities that there is any realistic connection here at all. It follows that there is no Verdins reduction in culpability here, nor any reduction in the weight to give to general or specific deterrence. You are seemingly reporting some level of depression and anxiety. Those are in part reactive to your current situation being the pending court case and the understandable concern that you have as to the prospect of losing your stable accommodation.
38The depression and anxiety are reported on self-report inventories, either the Beck depression or the anxiety scale and only determine the extent of those issues in the preceding fortnight. They say nothing about any period before then and nothing about any future impact. I am sympathetic indeed to the housing issues. I can understand why that is playing on your mind but it is not a Verdins issue and I cannot tailor my sentence according to your housing needs. What I have got to do is pass an appropriate sentence. There is nothing in the report enlivening the fifth or sixth limbs of Verdins. I therefore do not accept that Verdins is enlivened here at all.
Guilty Plea
39I turn then to some of the other matters raised in mitigation. The first of those is your guilty plea. You have pleaded guilty. You have done that at the earliest stage. You have facilitated the course of justice. You have taken responsibility for your crimes. The victims in this case, in particular the victim of the attempted armed robbery has been spared the experience of giving evidence and the community has been saved the time, cost and effort associated with a contested hearing. There is a utilitarian benefit in pleading guilty and I take those various matters into account in mitigation.
Remorse
40A guilty plea is often indicative of some level of remorse but that is not always the position. Your guilty plea was entered at the earliest stage. I also have some expressions of insight into the position of your victims in your discussions with Ms Lechner as well as in your uncle’s excellent reference. So in those documents there is mention made of your remorse and the way you are feeling about what you have done. However, plainly, you are still to some extent, for some reason, I do not know which, downplaying your criminality in discussions with Ms Lechner, suggesting that the victim has mistaken your intentions. See paragraph 5. It is a bit hard to know what to make of that. You cannot traverse the plea. You have admitted attempted armed robbery by your plea and yet you suggest to Ms Lechner that your victim took it all the wrong way. Well she did not. I am prepared to find that you do have some level of remorse for these crimes and I take that into account in mitigation.
Rehabilitation
41I turn then to your prospects of rehabilitation. How then do I rate those prospects? It is never an easy question to answer and I am not finding it easy to answer in this case. Your counsel argues that you have reasonable prospects of rehabilitation. Whilst it is true that you have a lengthy enough prior criminal history, the past offending has been less serious and this is your first appearance in the County Court. There is not much suggestion of violence in the past but it is not entirely free from your record. There have been appearances for assault, for assault and resist police as well as for a charge of recklessly causing injury.
42There have been some large enough gaps in offending as well and there has been off to the side your decent employment record. This has certainly been the longest period in custody that you ever served and you have being doing such courses and programs as are available to you. You are also working in custody. These are sensible decisions to do these things. The attempted armed robbery represents a sizeable escalation in your offending, though I note that at the time you were on a community corrections order for sexual assault.
43All of the offending occurred within days of your being bailed and you have not taken the chances offered in the past having breached a number of community corrections order. The breach report, marked as Exhibit 5, is far from encouraging. Your counsel argues that your time in custody has had you reflect on your life, that there is in a way a sense of some awakening as to your obligations on those sorts of orders. You have some support in the community and have expressed a desire to go into residential rehabilitation. You have told your uncle you want to make a fresh start and to try to get your old job back. You uncle will support you in any way that he can and that is of course a positive. As I have said, I am very impressed by his letter. You have also to some extent, I am sure, been deterred by already spending the time that you have in prison.
44You have had serious issues with drugs over many years. You have not engaged in treatment in the past other than some treatment on one of the earlier community corrections orders that ultimately was breached. Though you say that this will all change in the future, who knows if it will. It is easy to say that where you sit at the moment but the test will come upon your release. I am confident disinhibition brought about by drug use has a very large role to play in this offending but of course that is not mitigatory. You have pleaded guilty and I find that you harbour at least some remorse. Leaving drugs behind you has been difficult for you over the past decades so it is hard not to be guarded in my views as to your future prospects. I am prepared to find that you do have reasonable prospects of rehabilitation but they will be conditional upon you abstaining from illegal drug use.
General Remarks
45I take into account all of the submissions made before me. I also take into account all the written exhibits which were filed on the plea. Your uncle’s letter, which I have mentioned a number of times, is very impressive and actually pretty succinctly demonstrates the way in which one’s early disadvantaged background can impede well into later life.
46I turn now then to consider some of the general principles at play here. So firstly some general remarks about your offending. I must have regard to the gravity of the offences before the court. By far the most serious offence is the attempted armed robbery. Your counsel concedes that that is serious enough offending. It was a soft target attempted armed robbery upon a lone female in the early hours of the morning as she arrived for work and sat in her car. You retrieved and then wielded the star picket and shouted demands at her as she sat in the car. It was obviously a frightening event. How could it not be? The Court of Appeal in this State has said that it is often not particularly useful trying to apply a descriptor to an offence in terms of high, mid or low level offending. They say it is better really to examine what the offender did rather than spend time considering which particular band or bracket the conduct falls into. See the case of Weybury.
47I do though have to consider the nature and the gravity of the offending. What did you do? What you did was serious enough as your counsel concedes. She submits that the objective gravity of the attempt was low and that is because no one was hurt, the armed robbery was incomplete and the offending was unplanned, unsophisticated and that you were not in company. She argued that it was impulsive and carried out in a disturbed setting and that the signpost was not used directly against the victim. You should not misunderstand those submissions as implying that the offending was not serious. Ms Skaburskis was not saying that at all, but she was rather speaking of the absence of some factors that often enough exist. For instance high degrees of planning and physical force, actual violence and even injury.
48I accept that there was very little planning or sophistication on display here. There was an aspect of disorder at play but the offending was not entirely without planning. You left Ms Strathdee’s car, walked away from it, it was quite some distance, went in to the alleyway and then emerged with the star picket which you had left there and took back to her car and wielded in that frightening fashion. You also earlier had been quite systematically searching through Domino’s vehicle and using a screwdriver to remove a number plate. This was not senseless automatic offending. I am not really sure how it connects up with the suggestion made on the plea that you left your own home in a panic for the reasons advanced. You were carrying objects and used one of them at least being the screwdriver in this quite deliberate fashion.
49Having said all that though, there was obviously not much planning here. The later offending in relation to the damage to the Domino's vehicle was quite odd and senseless.
50You were not in a good state, I am prepared to conclude that. Happily, there was no actual physical force employed on your female victim. So I do accept that as these things go, it was a relatively low level example of attempted armed robbery. That is to say a relatively low level example of a serious offence because attempted armed robbery is an inherently serious offence. It was still serious offending and was obviously a deeply frightening event for her, one which has impacted upon her and which she will never forget. It would not feel like a low level offence to her as she had you shouting at her and swinging the star picket in the direction of her car.
51The absence of aggravating features is not actually a matter in mitigation. It does not alter the actual facts that I have to sentence upon, what you actually did. This attempted armed robbery was still a serious criminal act. Often enough there is little distinction in terms of the conduct between an attempt and a completed offence. Very often a demand is made, as it was here, but it is then complied with. It is common enough either for attempts or for completed armed robbery offences for there to be no direct physical force. I do not and will not lose sight of the fact that here I am dealing with an attempt. There is the lesser maximum penalty at play because this was an attempt. Plainly the thefts and possession of cannabis are far less serious.
52The criminal damage was as I have said a senseless act but a serious enough one and it caused sizeable damage to the car of a totally innocent victim. The assault upon the police member and the nurse no doubt are a product of your disinhibited state but again that is no excuse. Each of those people are, when you think about it, in occupations that really are quite difficult enough without them being subjected to violence in the workplace. Imagine behaving like that to a nurse who is trying to assist you. To a female nurse who has responded to your request for a drink and is complying with that request. Disgraceful conduct really and if that was not bad enough, you then endeavouring to bite a police member who is just trying to protect you, in a way, from yourself, but also protect others from you in a hospital setting. You really should be ashamed of yourself for that conduct and I think actually you are in relation to that conduct. You also had the weapons in your belongings and should not have and all of this occurred whilst you were on bail from a few days earlier and whilst you were on two serious court orders.
Current Sentencing Practice and Offence Gravity
53I take into account current sentencing practices as I am required to.
54I have considered the SACStat online data for attempted armed robbery which is far more current than the very old sentencing snapshot, No.36, from the Sentencing Advisory council which is very dated. The most common sentence where imprisonment was selected was between one and two years but with a very sizeable band falling between two and three years for the crime of attempted armed robbery on the online data.
55I have also considered the Judicial College of Victoria sentencing manual that has an overview of sentences imposed for the crime of attempted armed robbery.
56Now this sort of statistical material that I have looked at has obvious and inherent limitations, and other cases likewise have limitations. They are not precedents. What I have got to do is to pass an appropriate sentence in your case and the answer is never provided by looking at statistics or other cases.
57This was serious enough offending. Attempted armed robbery is a serious criminal offence. It is punishable by a sizable maximum term of 20 years imprisonment. Your attempt was a serious criminal act even though it falls at a relatively low level of objective seriousness. It was committed by a man who was on bail and on two community corrections orders at the time. So committed by a person who has not taken the chances afforded to him by the courts in recent times in relation to other serious enough offending.
58The criminal damage charge, though obviously far less serious than the attempted armed robbery, was serious enough and the assault upon the police officer as well as the nurse must be very roundly denounced by this court.
59Sentencing is never particularly easy. Any who say it is an easy task has never done it or they have long since ceased doing it. It always involves a balancing of a number of sentencing purposes. Rehabilitation is one of the purposes of sentencing. It is not unimportant here. I do not ignore your prospects and I regard them as being quite reasonable, subject to desisting from drug use. But there are other purposes at play as well. I have to pay regard to the maximum penalties here as well as to the impact of your crimes. The attempted armed robbery has had significant impact.
60I have to punish you justly and proportionately. I must also denounce your conduct. I have already done that in the course of these reasons.
61I must consider the need to give weight to specific and general deterrence. Specific deterrence relates to the need to deter or dissuade you from committing crimes in the future. Well it must be given some weight here. I must deter you from ever committing crimes such as these in the future.
62I must also give appropriate weight to community protection. If you had a far more serious criminal history and lesser rehabilitative prospects, I would no doubt be giving more weight to the need to deter you and the need to protect the community from you. But that is not the position. Indeed I sense that specific deterrence has in part at least already been achieved by the time you have already spent in custody. I believe there can be some moderation then of these two purposes, that is community protection and specific deterrence.
63But not so general deterrence. That is an important sentencing purpose mainly in relation to the attempted armed robbery. We must seek to deter other people from engaging in conduct such as yours.
64Like-minded potential offenders must understand that serious conduct such as yours will be met with stern punishment.
65Now prison is always a disposition of last resort. Your counsel is conceding the inevitability of a prison term. She argued, as at the date of the plea, that you had already served over 225 days and that that was either enough or near enough if combined with a suitably conditioned community corrections order. She argued that your release onto a community corrections order should occur immediately or in the not too distant future. She submitted that your housing issues were critical to you and to your rehabilitation and hence also applied reduce your future risk to the community. The cut-off date to re-occupy your house assumed real importance on the plea, probably more than it should have actually and that is because it is not the only thing I must consider, not by a long shot.
66Now I do not underestimate the importance of stable housing for any person. It is a matter of real importance to most people and is very important for someone in your setting being released as you ultimately will be from custody at some stage. However of course you had that house at the time you embarked upon these crimes. It is no part of my job to tailor and select the sentence to meet your housing needs. I weigh that factor into the mix along with so many other considerations. I have to pass an appropriate sentence.
67Your counsel argued that a combination disposition would achieve all the purposes of sentencing. The prosecution agree that such an outcome, that is a combined prison term with your eventual release onto a community corrections order at least fall within my available sentencing discretion. I do not ignore either of those submissions but of course as I said earlier I am not bound by them. I have considered them and I do not accept them.
68I do not believe that such an outcome is open to me in the sound exercise of my discretion in this case. The attempted armed robbery was serious conduct. You have demonstrated the complete inability over the last few years to comply with any community corrections order. You have had three such orders since April 2016 and you have breached them all. You got second chances on each one of them and breached two of them again by overwhelming non-compliance. You also of course committed these offences for which I must pass sentence whilst on two such orders and within days of being bailed. Having considered the chronology of offending and the breach report and the efforts that you made and did not make on those orders I can have no confidence at all that you can or would comply with such an order. Nor do I believe that a combination type disposition would achieve all the purposes of sentencing, including the need to punish and to deter you as well as deterring others. Such orders have evidently not deterred you in the past.
69I believe the only appropriate disposition is a term of imprisonment. I will order some quite modest levels of cumulation here.
70I will be fixing a non-parole period. Whether or not you are released on parole is not something I can consider. I work on the theory and the assumption that you will serve every day of the head sentence that I will pronounce. It will be entirely up to the Adult Parole Board and you as to whether you will be released prior to the end of the head sentence. It has nothing at all to do with me.
Totality
71I have taken into account the principle of totality of sentence. I have looked at the sentences and the effect of the sentences that I am about to impose and that is to guard against imposing a crushing outcome and also to ensure that the sentences I am imposing are appropriate and commensurate with the overall gravity of your crimes. There will be, as I have said, real moderation of cumulation here owing to this being a single episode of behaviour that spawned these various offences. As you will see, I will in fact fix a non-parole period that may give you some possibility of release in the not too distant future. But as I say that will be entirely in the hands of the Adult Parole Board.
Ancillary Orders
72Let me then deal with the - it is a single ancillary order I believe. It is just a disposal order, is that so?
73MS GILLIS: That's correct.
74HIS HONOUR: Yes.
75There is an application for a disposal order in relation to the various items attached to the schedule, including of course the star picket and other bits and pieces and the box cutter and the knife as well. There is no opposition to this order being made and I am satisfied that it is appropriate to make the order, that the various items have the relevant connection to the crimes as required. I order pursuant to s.78 of the Confiscations Act the forfeiture to the State of the property referred to in the schedule. I direct it be placed into the custody of the Chief Commissioner of Police and be held by him in the manner contemplated by the signed order.
76I am sorry to have taken so long working my way through these matters,
Mr Lazzaro but you and others need to know why I am doing what I am doing. If you could stand up now briefly and I will pass sentence upon you.Sentence
77On Charge 1, that is the charge of theft from the Domino's vehicle, you are convicted and sentenced to seven days' imprisonment.
78On Charge 2 that is the theft of the newspapers, I convict and fine you $100 in relation to that matter.
79Charge 3 is the attempted armed robbery, obviously the most serious of the charges before me. You are convicted and sentenced to 21 months' imprisonment.
80On Charge 4, a charge of criminal damage in relation to the vehicle, you are convicted and sentenced to 3 months' imprisonment.
81Charge 5 is the possession of cannabis. I convict and fine you the sum of $150.
82Charge 6 is the assault of an emergency worker, being the police member involved in that event. I convict and sentence you to 21 days' imprisonment.
Summary Offence
83On the summary offence of possession of controlled weapons, I convict and sentence you to seven days' imprisonment.
84On the summary offence of assaulting the nurse, you are convicted and sentenced to 10 days' imprisonment
85On the summary offence of committing an indictable offence whilst on bail, I convict and sentence you to seven days' imprisonment.
Base
86The sentence imposed on Charge 3, that is the 21 month imprisonment is obviously the base sentence here.
87All of these offences occurred whilst on bail. Section 16(3C) of the
Sentencing Act has little work here as you are not undergoing any other sentences and I am going to mark out the extent of the concurrency and as you will see it will be very sizable here.Cumulation
88I direct then that one month of the sentence imposed on Charge 4, that is the criminal damage to the car; seven days of the sentence imposed on Charge 6, so that is seven days of the sentence imposed for the assault of the police member, and seven days of the sentence imposed on the summary assault upon the nurse, those periods are to be served cumulatively upon the base sentence and each other. The other sentences will all be served concurrently. You will not be processing, necessarily, what that all amounts to. Let me then tell you.
Total Effective Sentence
89Those orders produce a total effective sentence then of 22 months and 14 days' imprisonment.
Non-Parole Period
90I am going to fix a quite modest non-parole period. As I say whether you are released or not will be entirely in the hands of the Adult Parole Board. In the event that they look favourably on your application, it might even permit a consideration of releasing you in such time as to not lose your house, though whether that is done by them will be for them to consider. I fix a period of
11 months during which you will not be eligible for release on parole.Section 18 Pre-Sentence Detention
91You have already served 236 days of these sentences by way of pre-sentence detention and that declaration will be entered into the records of the court.
Section 6AAA
92I have taken into account your guilty plea and I have discounted the sentence owing to that fact. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have convicted you and sent you to prison for three and a half years. In those circumstances I would have fixed a non-parole period of two years. So that statement is also to be entered into the records of the court.
93Just grab a seat for a moment I will see if there is anything else I need to attend to. Are there any other orders I need to pronounce?
94MS GILLIS: No, Your Honour.
95HIS HONOUR: No. Ms Skaburskis?
96MS SKABURSKIS: No, Your Honour.
97HIS HONOUR: All right. Well in this day and age I think the prisoners actually have to make application for parole, do they not?
98MS SKABURSKIS: Yes, Your Honour.
99HIS HONOUR: So he better getting cracking with that and as I say it is a
non-parole period of 11 months. So he is a fair way into that period already, really, when you think about it. So yes, I will sign that formal order. Yes, all right, look I have signed that formal order then. Ms Skaburskis, you will have the chance to go down and see your client downstairs, will you?100MS SKABURSKIS: Yes, I will.
101HIS HONOUR: Yes, all right, thanks very much.
102MS SKABURSKIS: Thank you, Your Honour.
103HIS HONOUR: All right, that completes the matter then, Mr Lazzaro.
Ms Skaburskis will come down and have a chat to you downstairs about what has just happened. All right, so yes, Mr Lazzaro can be removed, thank you.104MS SKABURSKIS: As Your Honour pleases.
105MS GILLIS: As Your Honour pleases.
106HIS HONOUR: Yes, all right. Look I have got another matter at 11 o'clock, I will leave the Bench and come back at 11. Yes, I will stand down, thank you.
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