Director of Public Prosecutions v Lehmann, Lee

[2013] VCC 488

1

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION Revised
(Not) Restricted
Suitable for Publication

Case No. CR-12-02161

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEE LEHMANN

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2013
DATE OF SENTENCE:	12 April 2013
CASE MAY BE CITED AS:	DPP v Lehmann, Lee
MEDIUM NEUTRAL CITATION:	[2013] VCC 488

REASONS FOR SENTENCE
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Subject:  Armed Robbery
Catchwords:             
Legislation Cited:    
Cases Cited:            
Sentence:                 

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C. Foot	Office of Public Prosecutions
For the Accused	Mr M. Gleeson

HIS HONOUR:

1       Lee David Lehmann, you have pleaded guilty to one charge of armed robbery which occurred on 29 August 2012. At the time that you pleaded guilty to the charge you also admitted a lengthy criminal history.

2       In passing sentence upon you I must have regard to the maximum sentence prescribed by the Parliament for the offence that you have pleaded guilty to. The maximum sentence for armed robbery is 25 years imprisonment.

3 When you committed the offence that you have pleaded guilty to, you were on parole release from earlier offending. Not only does that form an aggravating factor in your offending but absent exceptional circumstances any sentence I impose must be served cumulatively upon the sentence that you are presently serving. (see s.16(3B) of the Sentencing Act 1991 ('the Act')). In arriving at a sentence in such circumstances, I must also have regard to the principle of totality in sentencing (see CA v. The Queen [2012] VSCA 199, Hunter v. R (2006) 14 VR 336 at 341.

4       Mr Gleeson, who appeared as counsel on your behalf, conceded on the plea that exceptional circumstances do not exist here.

5       

You had been re-released on parole on 19 July 2012 (about six weeks prior to this offending) from a sentence imposed by Duggan J in this court on

20 March 2007

for four armed robberies. I say 're-released' because you had been granted parole earlier on 6 September 2010 but that earlier release was cancelled after you had re-offended whilst on parole.

6       This offending resulted in your parole again being cancelled and you are not eligible for reconsideration for parole for the armed robbery offences, for which Duggan J has sentenced you, until 6 November 2013.

7 However, on 7 February 2013 you were sentenced in the Melbourne Magistrates’ Court for offending in the nature of burglary and theft which occurred on 8 August 2012 (three weeks prior to this offending for which I sentence you). That offending also occurred whilst you were on parole. The sentencing magistrate imposed a total effective sentence of 9 months imprisonment which by operation of s.16(3B) of the Act means that as things presently stand you are not presently eligible for release until 31 October 2014.

8 The sentence I impose on you will cumulate upon the sentence you are presently serving because your parole on armed robbery charges has been cancelled and will expire on 6 November 2013 and, unless I otherwise direct, will be served in part concurrently with the sentence imposed by the Magistrates’ Court on 7 February 2013 (see s.16(1) of the Act).

9       The circumstances of your offending are summarised in a prosecution opening which was tendered and marked as Exhibit A. It was read in open court by the learned prosecutor, Ms Sedgwick, and accepted by your counsel as forming a proper basis upon which I can proceed to sentence you for this offending. It is not necessary that I repeat that which is contained in the prosecution opening except in summary form.

10      You are a long term drug addict. On 29 August 2012, you loitered near a pharmacy in the Queen Victoria Terrace building in Lonsdale Street armed with a fruit knife, described as being approximately 18 centimetres in length, which you displayed.  You entered the pharmacy and demanded the unarmed attendant give you access to the till. You stole about $200. You were not disguised. You did not threaten violence but displayed the fact you were armed. Your offending was captured on CCTV and you made no attempt to avoid being seen. Although you loitered near the pharmacy for some time before entering, no doubt summing up the situation, your offending was otherwise unsophisticated and unplanned. You committed the offence to obtain money to purchase heroin which you later told police you did shortly after leaving the Queen Victoria building. Your offending was opportunistic.

11      Offending of this kind is prevalent and serious. The threat of violence, to those such as shop assistants who are unarmed and soft targets, is real and although you made no specific threat to the shop assistant you confronted she nonetheless felt shocked by what you did. It is for these reasons that, in sentencing for offending of this kind, a sentencing court must have regard to general deterrence and denunciation of the offending. A court must also have due regard to protection of the public from the likes of you. In your case, having regard to your extensive criminal history, in arriving at an appropriate sentence I must have regard to proper application of the principle of specific deterrence. In short, the sentence I impose must deter you and others against offending in this way.

12      You are now 43 years of age and have an extensive criminal history, much of it explained but not excused by your drug addiction. You are what might be properly described as 'an institutionalised offender’. Over the last 13 years you have spent all but 200 days in gaol.

13      On my calculations, you have made 33 separate court appearances up until the time of this offending commencing on 30 September 1987 when you were aged 17. Typically, your prior convictions are for offences of dishonesty however, as I said earlier, you were sentenced in this court on four counts of armed robbery by Duggan J on 20 March 2007. I have read His Honour’s sentencing remarks. Much of what His Honour said at that time has remained unchanged. You have been sentenced to a term of imprisonment on some 17 or 18 prior occasions.

14      You pleaded guilty to this charge at committal mention and at the earliest opportunity. You cooperated with the police and made relevant admissions. In passing sentence I have taken this all into account as I must. Your plea has saved the time and cost of a committal and trial and in my opinion evidences real remorse on your part for your offending. I have therefore reduced the sentence I would have otherwise imposed had you fallen to be sentenced after a trial.

15      After you were re-paroled on 19 July 2012, accommodation was found for you at an accommodation house in Elizabeth Street in the city. I was told, and accept, you were there housed with other persons who had mental health and drug issues. Although you were drug free when released from prison, the prevalence and the availability of drugs meant you soon returned to drug taking. Duggan J adverted to a similar occurrence that had resulted in your offending for which he sentenced you at paragraphs 17 and 18 of his sentencing remarks. You no doubt appreciate that only you can change your life around but you do need help. What a pity the Parole Board did not heed the matters carefully attended to by Duggan J at paragraphs 17 to 19 of his sentencing remarks. I can only hope that the next time you are released you are not accommodated within reach of drugs.

16      Your life I think can be best described as tragic. Your parents separated when you were aged eight. Your father was murdered on Christmas Day 1983 when you were aged 13. You have siblings whom you have not seen for more than 20 years. You have no contact with your mother. You were effectively an abandoned child.

17      The consequence was you grew up as a street kid. For all intents and purposes you are illiterate and have only very limited education at a special school until Year 7.

18      You have worked as a labourer when you could.

19      You commenced on drugs down an all too familiar path at aged 16 when you used cannabis. Like so many others, you moved on to using and becoming addicted to heroin and amphetamines.

20      You have had a previous relationship with another drug addict which produced two children, now aged 19 and 17. You have had little involvement in their lives, both children they having both been raised by their maternal grandparents.

21      In recent times a ray of hope has emerged in your life when a chance meeting with the maternal grandfather of the children connected you with your daughter Jessie, now aged 19. She gave evidence before me which was both brave and impressive, and I accept it. She greatly values having you now in her life and she visits you regularly in prison. Importantly, she told me she will be there for you when you are released. That is something you have not had previously when released.

22      You also gave evidence before me. You told me of your attempts to rid yourself of drugs. You told me, and I accept, you have for the first time commenced on the methadone program and whilst in prison you are undertaking courses which might assist you gaining employment after release. I admitted into evidence a bundle of certificates for such courses. You told me, and I accept, you are tested for drug presence regularly in prison and you have never tested positive.

23      These are positive steps and I can only hope that you continue to make yourself drug free such that you can start to live a normal life after your release. Time will tell. Having regard to your previous history of re-offending however, I must regard your prospects for rehabilitation as poor. I hope you can prove me wrong. Whether or not you do so is entirely up to you.

24      

I admitted into evidence a psychological report from Mr Watson-Munro who opined you suffer from substance abuse disorder. That is clearly the case. He also opined you suffer from depression, anxiety and features of post traumatic stress disorder referable to your father’s death by murder. You have had little or no treatment for your depression which you clearly need and I intend to have this fact brought to the attention of the relevant Corrections Authority.

Mr Gleeson expressly did not submit that principles expressed in Verdins have application in sentencing you.

25      Whilst in prison you have been subjected to bullying and because of that have been held in protection. This no doubt makes your time in custody more difficult and I have taken this into account in arriving at an appropriate sentence.

26      Having regard to the seriousness of your offending and your prior convictions and the fact your offending occurred whilst on parole, there is no sentence other than a term of imprisonment that can properly be imposed here and it has not been suggested otherwise. In passing sentence. I have had full regard to the mitigating factors urged by your counsel on your plea. Ms Sedgwick submitted an appropriate sentencing range was a head sentence of 5 to 7 years with a non-parole period of 3 to 5 years. Mr Gleeson did not necessarily disagree with the range submitted by the prosecution but urged that any sentence be moderated by the factors in mitigation and proper application of the totality principle. In passing sentence I have had regard to these matters.

27      Would you please stand, Mr Lehmann.

28      On the charge of armed robbery; you are convicted and sentenced to a term of imprisonment of 5 years.

29 Pursuant to s.16(3B) of the Act, I direct that the sentence I have imposed this day be served cumulatively upon any sentence of imprisonment which you may presently be serving upon cancellation of any parole order. That sentence will have been served on 6 November 2013.

30      I direct that you serve a minimum term of 3 years' imprisonment before being eligible for release on parole.

31 For the purposes of sub-s.18(4) of the Act, I declare there have been 5 days pre-sentence detention and that 5 days be reckoned as having already been served of the sentence imposed this day and be entered in the records of the court and deducted administratively.

32 For the purposes of s.6AAA of the Act, I state I have imposed a sentence being a term of imprisonment in respect of the charge in the Indictment and I have reduced the sentence I would have imposed but for your plea of guilty. Had it not been for your plea of guilty to the charge, I would have imposed an effective term of imprisonment of seven years and I would have directed that you serve at least five years of that sentence before being eligible for release on parole.

33      I have signed a restitution order and a compensation order sought by the prosecution which were not opposed at the hearing of the plea.

34      MR GLEESON:  Thank you, Your Honour.

35      HIS HONOUR:  Any matters arising out of that?

36      MS FOOT: No, Your Honour.

37      MR GLEESON:  No, Your Honour.

38      HIS HONOUR:  Very well, thank you. Would you take Mr Lehmann into custody please.

39      (PRISONER REMOVED).

40      HIS HONOUR:  Thank you, Mr Gleeson.

41      MR GLEESON:  Thank you.

42      HIS HONOUR:  Thank you, Ms Foot.

43      MS FOOT:  As Your Honour pleases.

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