Director of Public Prosecutions v Liels
[2021] VCC 568
•11 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00773
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHAYNE LIELS |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 April 2021 | |
DATE OF SENTENCE: | 11 May 2021 | |
CASE MAY BE CITED AS: | DPP v Liels | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 568 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Road Safety Act 1986
Cases Cited:Grant Berry v The Queen [2019] VSCA 291
Sentence: 3 years 8 months, non-parole period 2 years 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Mandie | Director of Public Prosecutions |
| For the Accused | Mr M. Page | Leanne Warren & Associates |
HER HONOUR:
1Shayne Liels, you have pleaded guilty to an indictment containing one charge of attempted armed robbery, which carries a maximum penalty of 20 years’ imprisonment; and one charge of intentionally cause injury, Charge 2, which carries a maximum penalty of 10 years’ imprisonment.
2A related summary charge of fraudulently use a licence authorised or required by or under the Road Safety Act1986 was uplifted into the hearing of the plea in mitigation of penalty, and you pleaded guilty to this charge, which carries a maximum penalty of 10 penalty units or two months’ imprisonment.
3The circumstances in which you came to commit those offences are set out in the prosecution opening for plea dated 19 April 2021 (Exhibit A). The prosecution also relied on submissions on plea dated 20 April 2021 (Exhibit B), and a victim impact statement of Li Quin LIN dated 19 April 2021 (Exhibit C).
4I have had careful regard to those exhibited documents, as well as the matters addressed in the oral plea.
Circumstances of the offending
5On Monday, 7 November 2016, the victim, Li Quin Lin, was shopping at Chadstone. At approximately 7.21pm in the evening, Ms Lin headed to her grey BMW XE SUV, which she had parked at the car park near Kmart. This car park is one level down from the ground level.
6Ms Lin placed her shopping on the ground while she retrieved her car keys from her bag. She opened the rear driver’s side door of the car and placed her shopping on the back seat. She closed the rear door and moved to the driver’s side door, then she heard a male voice say, “Give me the key.”
7Ms Lin turned to her right and looked at you. You were holding a knife, and you held it towards Ms Lin and demanded the keys. You were standing very close to her, and she shouted, “No, no.” You repeated your demand for the keys. Ms Lin was trying to get into the car to drive away, and was halfway into the seat whilst you crowded her, trying to get into the car. This is the offending referable to Charge 1 on the indictment, attempted armed robbery, which particularises the property the subject of attempted theft as being the BMW XE motor vehicle, and a handbag, to which I will return briefly, and at the time that you carried out this armed robbery you had a knife with you.
8Whilst you had most of the top half of your body in the car, you punched Ms Lin to the mouth and then tried to cover her mouth with your hand. Ms Lin spat blood on the ground of the car park. You caused a small cut to the victim’s lip, and soreness to her tooth. The tooth will need to be monitored for months to years. This is the offending referable to Charge 2 on the indictment, intentionally causing injury.
9Ms Lin shouted, “Police, police” and beeped her horn. You tried to reach across her to grab her handbag which was hanging on her left shoulder, and attempted to grab that bag at least four times. You still had the knife with you in your right hand, and it appeared to have touched Ms Lin’s neck accidentally in the course of the struggle. This is the handbag referable to Charge 1 on the indictment as I have described.
10At this point, you stopped fighting with Ms Lin and ran up towards the ramp. Another person ran towards Ms Lin and asked if she was okay, and called security and remained with her until police arrived.
11Your offending was observed by a number of Chadstone patrons, one of whom pursued you after you ran away from the immediate scene.
Investigation, arrests, interviews
12The incident was reported to police, and the victim and others who had observed the incident provided physical descriptions. Police then attended at the Chadstone security control room and obtained and reviewed CCTV footage showing your path through the shopping centre.
13That CCTV footage showed you, all in dark clothing and at times a cap, walking into the undergrown carpark and towards the Kmart entrance, coming down the escalator, where you look across at the victim, and then walking out the exit doors to the relevant carpark. The footage then shows Ms Lin with her shopping exiting the same doors into the carpark and walking alone through that carpark. Some minutes later and after the incident, as the footage shows, you existed after the incident via the ramp, and you re-entered the centre through the Coles entrance in company with a female. There is no CCTV footage of the incident itself. You were last seen on CCTV with a female existing the inside of the centre by the Target carpark at about 7:30pm.
14Police requested subscriber information for a mobile phone associated with you, which was held in the name of Glenn Gleeson of an address in O’Donnell Street, Viewbank. On 7 November 2016 at 5:08pm, that phone was utilised for almost a minute in the Glen Iris and then Malvern East areas, and I note that Chadstone is in Malvern East.
15You were arrested on 20 November 2017, and were searched by police, and police located a Victorian driver’s licence in the name of Glenn Gleeson in your wallet.
16You were first interviewed by police on that date, and admitted to possessing the licence. This is the offending referable to your related summary offence of fraudulently use a licence that is authorised or required under the Road Safety Act.
17In the course of the interview, you accepted that whilst the photo on the licence was yours, you had never used the name Glenn Gleeson, and had never lived at the address on the licence, and nor was the date of birth correct.
18Glenn Gleeson told police that on 22 May 2015, his vehicle was broken into outside his house, and a wallet containing a driver’s licence was stolen. I understand that the prosecution allege that the false identification in the name of Glenn Gleeson with your photograph links you to the mobile telephone number registered in that false name, used in Malvern East at the time of the offending on the relevant date.
19A photo board containing your image was shown to the victim, Ms Lin, who identified you. On 20 November 2017, you were again interviewed in relation to this offending, and told police that the CCTV images did not look like you, and nonetheless that the CCTV image was “just someone who looks like me.” Here I interpolate that the CCTV image looks like you. As to your location at the time of offending, you told police that you had, “no idea.” You told police that you were not sure where you were at the end of 2016, but had moved to New South Wales somewhere around then. You falsely told police that at the time of the offending you were in New South Wales, and that your mother and sister could verify your being there.
Plea of guilty and timing, remorse
20You were charged and remanded on 20 November 2017, and on 13 April 2018 you were granted bail after the conclusion of a contested committal hearing. You failed to attend this Court on 6 May 2019 for the pre-recording of a witness’s evidence, and you also did not attend this Court on 20 May 2019 for your trial listing. The trial did not proceed due to your absence.
21On 7 August 2019, you were extradited from New South Wales, for a relisted trial date of 19 October 2020.
22On 20 November 2019, you offered to resolve the matter upon a plea of guilty to charges of a more modest nature than those to which you now accept responsibility. A further plea offer ensued on 29 November 2019, also of a more modest basis than that of the offending that you now accept.
23The relisted trial date of 19 October 2020 needed to be vacated due to the effects of the COVID‑19 virus on trial listings in our system, and you later made an application for trial by Judge alone.
24The trial by Judge alone was due to start before me on 19 April 2021 and you were arraigned and entered a plea of guilty before me at the door of the Court.
25This is a late plea of guilty. However, I accept your counsel’s submissions that by your plea you saved the community the time and cost of a full trial, and saved the victim and other relevant witnesses the inconvenience and potential trauma of needing to attend for cross-examination in this Court which would be for a second time having regard to the committal. I take into account in mitigation of penalty this late plea and the stage at which it was entered. I was told by your counsel, and through the written references that are also accompanied by some remorse, to which I also have regard in mitigation of penalty.
26Your counsel submitted that I ought take the delay in resolution of the matter into account also in mitigation of penalty. As I indicated to him in the course of oral argument, I consider that the responsibility for the delay in resolution of the matter rests nearly universally upon you as a result of your actions in absconding whilst on bail instead of appearing at your trial as listed. However, you demonstrated whilst you were in flight that you were capable of living a law-abiding lifestyle during the short time before you were remanded back into custody, which is a matter to which I have attached weight in my evaluation of your prospects for rehabilitation, a topic to which I will return.
Effect on the victim
27Ms Lin provided a victim impact statement in this matter, which was read aloud by the learned prosecutor.
28I was told that due to the injuries inflicted on her face and her teeth and the ongoing fear of her safety, she has suffered feelings of anxiety, fear, hurt and frustration. This has severely damaged any feelings of wellbeing and her enjoyment of life in general. She told me that your crimes have affected her relationships with her husband and children, and she could not sleep well for at least three years. Your crimes also affected her ability to work and learn, which in turn had a negative impact upon her capacity to earn a living, and keep up with her daily household tasks. As a result of the impact of the punch, she is understandably now easily anxious and fearful, and needs ongoing treatment to her health.
29She finds it difficult to relate to people due to the impact of your crimes, and has had to incur expenses to meet with police officers and attend to appear in Court, as well as pay money for treatment for her physical and mental health.
Personal circumstances
30At the time of your offending you were 38 years of age and you are now forty-two.
31You were born in Frankston to parents who separated when you were three. You have an older brother and a younger sister.
32After your parents separated, you lived with your father whilst your siblings lived with your mother. You lived in Springvale, Ferntree Gully and Hampton until you were 15, and in the meantime your mother had moved with your brother and sister to New South Wales. Your mother then asked you to come and live with her, and as at that time you were enduring a difficult relationship with your father as a result of his drinking and his verbal and physical abuse of you, you moved to Byron Bay.
33You attended high school in Byron Bay until Year 11, and then began work at a kite and juggling shop, which continued for approximately five years. At 23 years of age, you became a trapeze artist for Club Med.
34At this time, you met Katrina Heath, your long term partner. At the age of 27, you stopped working as a trapeze artist, and moved on to work at a pizza shop, and in signwriting, and then you moved to Jindabyne at the age of 32 to ski, and you did odd jobs.
35You and Katrina have a daughter who is currently 13 and a son, who is currently seven.
36At about this time, you started using methamphetamine recreationally, and your use escalated. You separated from Katrina, and she took the children to Melbourne where she had family, and you followed. Your children were removed from your care, and the two of you lived a relatively transitory lifestyle in Melbourne. At the time of your offending, I understand you were living in a shed at the back of a house in Ballarat.
37After you were bailed on this offending, I am told that you returned to New South Wales and started to rebuild your life with the purpose of gaining access to your children, to whom I understand you are devoted.
38During your period on bail for these offences which led to your failure to appear, you lived with your family, all of whom support you, and you worked on rehabilitating yourself from your addiction. I was told that you did not commit offences after absconding.
39Before me, you admitted a prior history of approximately 10 appearances before the Local Courts in New South Wales, an appearance in Queensland, and before the Heidelberg Magistrates’ Court. Your prior offending commenced in 2000, and your first four appearances involved possession of explosives, and driving offences, all of which resulted in a fine or a bond. In September 2005, you appeared before the Byron Bay Local Court for a charge of assault occasioning actually bodily harm, and were placed on a further bond. Drug, property, and driving offence appearances followed in 2008, 2010, and 2014, all of which resulted in a fine.
40In October 2016, you pleaded guilty in the Heidelberg Magistrates’ Court to offences including driving charges, shop steal, three charges of criminal damage, and unlawful assault, possession of methylamphetamine, go equipped to steal and further charges theft, threats to kill, criminal damage, burglary, unlawful assault, commit indictable offences whilst on bail, and contravene family violence intervention order. Those convictions led to your first sentence of imprisonment of 141 days, and a 12 month Community Correction Order.
41Your counsel submitted that you had a limited prior history, and I find that generally to be the case but I am exceptionally troubled by the fact that only some five weeks prior to committing these offences, you had been sentenced to the combination sentence that I have just described. There was clearly a sharp escalation in the gravity of your offending in late 2016, which I understand related to the intensification of your use of methamphetamine.
42Your time in custody has been reasonably productive, and I note that you have gained a Certificate II in Engineering, and have completed other courses relating to parenting, and improving your prospects for a positive lifestyle.
43In the reference material, your mother, Judy, described your remorse and shame, and good work history, as well as your toxic personal relationship. Your older brother, Leigh, described you as a great father, teacher, a kind and passionate creative person, as well as being a solid rock for the whole family, and a community minded person. He describes your grief at the loss of your children. He notes that you also feel ashamed of the choices that you have made.
44Your close friend, Saras Perkons, also told me that you are a good person who is kind and compassionate, and a fantastic father to your children.
45Your younger sister, Jaz, describes your family as close knit, and tells me that you are the linchpin of your family who is dearly missed, every day. She tells me that you are remorseful for your actions, and have expressed acceptance of guilt and regret. She also tells me that one of your many passions is mentoring youths, and you have been involved in community and youth work, coaching flying trapeze and circus skills for over 20 years. Whilst on remand, Jaz tells me, you have been turning your life around and you want to move forward from the mistakes that you have made.
46I understand that you intend to return to your family in New South Wales once you are eventually released from custody.
Prospects for rehabilitation
47I note and take into account that there are some factors in your case that may be seen to support your prospects for rehabilitation, including the fact that whilst you have a relevant criminal history, that this represents an escalation of previous offending, your family support and stable residence once you are eventually released, and the fact that I understand that once you were bailed on these offences and eventually absconded from your bail, you apparently lived a law abiding life and managed to abstain from the use of methamphetamine. I also take into account that you have completing useful courses whilst in custody.
48I agree with your defence counsel’s concession in the course of the plea, that ultimately I need to be wary of your prospects, and I accept the prosecution characterisation that you have guarded prospects for rehabilitation, given your criminal history, and the fact that in my evaluation your chances for living a law abiding life will depend directly on your own ability to abstain from the drug methamphetamine.
Objective seriousness of the offending; moral culpability
49Mr Liels, your offending has caused me significant concern.
50Your attempted armed robbery was carried out in circumstances which are considered to be grave and serious. This is a premeditated offence, in that the CCTV showed you looking at your potential victim prior to the offending. You used a bladed weapon to confront a woman alone shopping in a public shopping centre at night. You attempted to take her valuable car and handbag, and whilst I consider her to be vulnerable in that she was alone, she was confronted without warning, and was deprived of her liberty, she managed to fight you off and retain her items of property.
51In relation to charge of intentionally cause injury, I consider this to be an unplanned act of frustration that your victim was not conceding the property that you desired, but it was also a gratuitous act of violence. It needs to be seen in the context of a terrifying ordeal that you had subjected her to. By your commission of this offence, you caused her physical injury, in addition to the terror and trauma that you caused in relation to your Charge 1.
52I understand that you committed your offences whilst using methamphetamine to excess, and that your motivation was greed and convenience so as to obtain a vehicle and money to enable your return to your place in Ballarat.
53I interpolate that I have taken care in my evaluation of the attempted armed robbery charge to confine my assessment of its gravity to the fear caused by your presentation of the knife, and I intend to impose an entirely separate sentence for the offence of intentionally causing injury involving your application of force. Naturally, I have taken care to avoid double punishment and I have had careful regard to the totality principle of sentencing in ensuring that those offences are kept entirely separate and referrable to those offences.
Relevant sentencing principles, sentencing submissions
54I take into account the purposes for which sentence must be imposed and the need for deterrence, both general and specific. I accept that the gravity and prevalence of each of the indictable offences that you have committed require conclusion that general deterrence is the primary sentencing purpose. I also consider that some specific deterrence is needed in your case, given your prior criminal history.
55The sentences that I will impose will punish you and denounce our behaviour, whilst allowing and emphasising your continued efforts at rehabilitation.
56It was submitted by your counsel, and endorsed by the prosecution, that a sentence involving a head sentence and parole eligibility was the appropriate sentence having regard to all of the circumstances of your case. The prosecution counsel drew to my attention the authority of Grant Berry v The Queen [2019] VSCA 291 as one of the many cases which can form my understanding of current sentencing practices. I have read and considered that case carefully as well as being cognisance of relevant sentencing principles.
Sentence
57I now impose the following sentences.
58On Charge 1 of attempted armed robbery, you are convicted and sentenced to three years’ imprisonment; this is your base sentence.
59On Charge 2, of intentionally causing injury, you are convicted and sentenced to 18 months’ imprisonment, eight months of which is to be served cumulatively upon the base.
60On your related summary offence, you are convicted and sentenced to 14 days’ imprisonment, to be served wholly concurrently.
61This is a total effective sentence of three years and eight months’ imprisonment, and I order that you serve a minimum of two years and six months before parole eligibility.
62I declare the period that you have been in custody in respect of these offences namely 788 days, be reckoned as a period of imprisonment already served under this sentence, which is to be deducted administratively.
s6AAA declaration
63Pursuant to s6AAA of the Sentencing Act 1991 (Vic), I declare that had you pleaded not guilty to these charges and been found guilty of them, the total effective sentence that I would have imposed would have been four years imprisonment, with a non‑parole period of three years’ imprisonment.
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