Director of Public Prosecutions v Lim

[2018] VCC 740

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02556
CR-18-00487

DIRECTOR OF PUBLIC PROSECUTIONS

v

ELVIS LIM
ANTHONY TZIVANIDIS

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2018
DATE OF SENTENCE:	23 May 2018
CASE MAY BE CITED AS:	DPP v Lim & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 740

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Armed robbery; robbery; obtain property by deception; opportunistic offending; specific deterrence; general deterrence; reasonable prospects for rehabilitation; pre-sentence detention

Legislation Cited:                   Sentencing Act 1991 (Vic);

Cases Cited:R v Renzella [1997] 2 VR 88; Hancock v The Queen [2013] VSCA 199; Younger v The Queen [2017] VSCA 199,

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APPEARANCES:	Counsel	Solicitors
For Accused Lim	Ms A Ramsay	Doogue & George
For Accused Tzivanidis	Ms H Bate	Pica Criminal Lawyers
For the Director of Public Prosecutions	Mr M Cookson	Office of Public Prosecutions

HIS HONOUR:

1Elvis Lim, on 17 May 2018, you pleaded guilty in this court to one charge of armed robbery (charge 1), one charge of attempting to obtain property by deception (charge 3), and two charges of obtaining property by deception (charges 4 and 5).

2Anthony Tzivanidis, on 17 May 2018, you pleaded guilty in this court to one charge of robbery (charge 2), one charge of attempting to obtain property by deception (charge 3), and two charges of obtaining property by deception (charges 4 and 5).

3The circumstances of that offending is as follows.  On the afternoon of Saturday 1 April 2017, Khoi Nguyen and Truong Li drove to an industrial site in Ravenhall to take photographs that they intended to post on Instagram.  Whilst at the site, Mr Li noticed both of you standing about 100 metres away.  You were staring in their direction, and the victims packed up their belongings and returned to Mr Nguyen's car.

4Whilst they were seated in the car you both approached, and you, Elvis Lim, opened the passenger side door and pointed a kitchen knife towards Mr Li.  The knife was described as having a clear handle with a five to six centimetre blade.

5You angrily demanded that Mr Li and Mr Nguyen get out of the car, and you then grabbed Mr Li by the jumper and pulled him out.  As you did this, Mr Nguyen, thinking that you wanted money, reached over to obtain his wallet from his bag.  As he did so, you tried to pull that bag out of his hand.

6At the same time, Anthony Tzivanidis, approached the driver's door and attempted to open it.  You could not do so because it was locked.  You then moved towards the front of the car, and Mr Nguyen got out and moved towards the back.

7You, Elvis Lim, got inside the car and demanded that the victims hand over the keys.  Both Mr Li and Mr Nguyen then ran towards a nearby restaurant and they were chased by you, Elvis Lim, for approximately 30 metres before you stopped.

8Police were called and attended the scene.  They discovered that Mr Li's black iPhone 7, his wallet containing personal cards, approximately $80.00 in cash and a camera had been stolen.  Mr Nguyen's wallet, containing $100.00 in cash together with personal cards, was also stolen.

9The conduct I have just described constitutes the first charge of armed robbery for you, Elvis Lim, and the second charge of robbery for you, Anthony Tzivanidis.  The Crown accept that it could not be proved that you, Anthony Tzivanidis, were aware of the weapon being carried by your co-offender or that it was visible to you at the time Mr Li was threatened with it. I will return to this issue shortly.

10Later that same afternoon, you both attended the Watergardens shopping centre.  You were both wearing dark hoodies, with the hoods were pulled up over your heads.  You went into TSG Watergardens and there attempted to make a purchase of items to the value of $871.00 using a Commonwealth Bank card belonging to Mr Li.  The transaction was declined, and that conduct constitutes Charge 3, attempting to obtain property by deception.

11Soon afterwards, you went to Gloria Jeans' coffee outlet and again, using Mr Li's Commonwealth Bank card, you purchased items to the value of $25.50, and this conduct constitutes Charge 4, obtaining property by deception.

12You then purchased cigarettes from Woolworths using that card again, this time to the value of $82.50, and this constitutes Charge 5, obtaining property by deception.

13Investigating police obtained CCTV footage from the shopping centre, and a circular was compiled with your images which was disseminated to police throughout the north-west metropolitan division by the informant.

14You were both quickly identified, and on 13 April 2017, you, Mr Lim, were arrested at your residential arrested.  The clothes that you were wearing, as depicted in the CCTV footage, were located and seized.

15During your interview with investigators, you denied being at the industrial site at Ravenhall, although you agreed that you were one of the persons depicted in the CCTV footage.  You otherwise gave a "no comment" record of interview.

16You, Mr Tzivanidis, were arrested on 15 April 2017 and at the time of your arrest you were wearing the same shoes and hat as depicted in the CCTV footage.  The T-shirt you were wearing on that day was also located at your home address, and was seized.  When interviewed by police, you made no comment.

17I note that call charge records obtained by investigators show that both of you were in regular phone contact with each other in the hours leading up to the offending.

18You, Elvis Lim, have also pleaded guilty to an unrelated summary offence; that being a failure to answer bail, in that you did not attend Sunshine Magistrates' Court on 7 April 2017 in accordance with an undertaking of bail of 14 February 2017.

19I must now turn to the victim impact statements.  Both victims have suffered significant harm as a result of what you did to them.  In his victim impact statement, Truong Li stated:

"Even though time has passed and I have adjusted to life, I still have moments of intense fear which make me stop my entire life and take me back to the car where I thought I was going to die."

20Mr Li, a year after these events, still feels fearful and has not yet recovered from his ordeal.

21In his victim impact statement, Khoi Nguyen stated:

"I know I am no longer the same person I was before the crime."

22He speaks of the anxiety and panic attacks he suffered from the incident, and how it affected his academic performance at university.  He says he has not yet been able to move on.

23The procedural history in this matter is important in determining the weight that should be given to your pleas of guilty.  In the Magistrates' Court, the matter proceeded to contested committal.  On 21 December 2017, the date the contested hearing was to proceed, your matter, Elvis Lim, resolved and you pleaded guilty to the offences now before this court.

24In doing so, you waived your right to cross-examine witnesses and the matter proceeded by way of straight hand-up brief.  You have maintained those pleas in this court.  I note also that in the lead-up to committal, there had been a change of legal practitioner.  In those circumstances, I am prepared to treat your plea of guilty and the timing of that plea as meriting significant weight.

25On 21 December 2017, your matter, Anthony Tzivanidis, was adjourned because through no fault of your own you were not brought to court.  Your contested committal proceeded on 6 March 2018.  Before 7 July 2017, you had offered to plead guilty to robbery.  However, that plea was not accepted at that time.

26In the days after the contested committal, once the evidence that had been given was assessed and considered by the prosecution, your initial offer to plead guilty to robbery was accepted.  In those circumstances, your offer to plead guilty was effectively made at a very early stage of proceedings and thus merits substantial weight.

27I will turn now to the personal matters relevant to you, Elvis Lim.  You were born on 3 October 1989.  You are now 28 years of age, 27 at the time of the offending.  You are of Chinese/East Timorese heritage, and settled in this country with your parents as refugees in the wake of the violent unrest that broke out in East Timor in 1999.

28At that time, you were about 11 years of age and it is evident that you found it difficult to adjust.  Your parents worked in labouring jobs, but ultimately, their marriage broke down.  You found schooling difficult and did not complete Year 10.  You started a boiler making apprenticeship in Sydney, but did not complete it.  You then returned to Melbourne, where you worked variously in warehouses, factories and a bakery.

29You abused drugs in your youth, but at or around the age of 20 that abuse escalated and you developed an addiction to amphetamine, and more specifically, methamphetamine.  It is clear that the abuse took its toll on your mental health, and in many respects, explains your substantial prior criminal history.

30Since first coming before the courts at the age of 21 in 2011, you had been given a number of community-based dispositions such as suspended sentences and community correction orders, for matters involving violence, dishonesty, and a variety of other offending.

31In particular, I note that you were before this court in November 2014 for armed robbery and theft, and sentenced to a total effective sentence of two years and one month with a non-parole period of 15 months.

32In the lead-up to that appearance you were assessed by a consultant psychiatrist, Dr Lester Walton, who noted that the probability was that you were then suffering from a drug-induced psychosis.  Whilst there remains some possibility that you actually suffered from schizophrenia, it is not now suggested that you suffer from that illness.

33Clearly, however, the extent of your methamphetamine abuse has had a debilitating and damaging effect on your well-being over the long term.  I am told that you did not seek parole and served the length of the head sentence imposed in November 2014.  Upon release, you were not subject to any supervision and, in the wake of further methamphetamine abuse, became alienated from your family.

34You were charged with some family violence offences which were ultimately the subject of an appeal from the Magistrates' Court to this court on 4 October 2017.  You were sentenced on that occasion to a total effective sentence of five months' imprisonment.  I note that the time served in respect of those matters is time that was also referrable to this matter.

35Ms Ballard, who appeared on your behalf, frankly and appropriately acknowledged that a term of imprisonment must inevitably be imposed for such serious offending.  That was particularly so, she accepted, having regard to your prior criminal history.

36However, she emphasised that significant weight should be attached to your plea, not only in that it facilitates the course of justice and marks an acceptance by you of responsibility for your offending, but in combination with the work that you have done in custody, she argued your plea was indicative of a measure of remorse.

37As to the offending, it was submitted that it was not the most serious example of armed robbery.  It was submitted that it was opportunistic, involved little planning, and was of relatively short duration.

38Whilst in custody, you have completed a number of offending behaviour programs including a "managing emotions program" and a "Level 3 drug and alcohol treatment program", together with some certificates in further education relating to cleaning, warehouse operations and workplace safety.

39You have been keeping fit, and instructed your counsel that you have been free of illicit drugs.  You have not shown any signs of compromised mental health.  You are still relatively young, and your prospects are by no means hopeless, if only you could deal with your drug problem effectively.

40You instructed your counsel that you now recognise that you could benefit from a sort of supervision and support that the Office of Corrections can offer.  Unlike the past, you would accept and seek to take advantage of conditional release through parole if that opportunity became available to you in the future.

41Ms Ballard submitted that totality had an important role to play in the formulation of your sentence, particularly given that if you had been sentenced for the summary matters for which you received five months' imprisonment at the same time as these matters, you would likely have achieved a greater measure of concurrency.

42Ms Goding, who appeared on behalf of the Director of Public Prosecutions, pointed to the inherent seriousness of the offence of armed robbery, its maximum penalty, your prior criminal history, and the lasting impact on the victims as important matters to take into account.

43She pointed out that by virtue of the operation of s.16(3C) of the Sentencing Act, the sentences imposed here must be served cumulatively unless otherwise ordered, because these offences had been committed whilst on bail.

44Elvis Lim, in formulating a sentence to be imposed, I must emphasise deterrence, both general and specific, and the protection of the community.  Wielding a knife, as you did, caused your victims to fear for their lives and the impact of what you did is still being felt.  I accept, however, that your plea and your acceptance of the need for supervision and support suggests that your prospects for rehabilitation are by no means hopeless, and the sentence to be imposed should be tailored, as best that can be done, to encourage you along that path.  It will be up to you to persuade the Parole Board that you will comply with conditional release and take advantage of the opportunities it should offer.

45Having regard to Ms Ballard's submissions concerning the summary matters dealt with on 4 October 2017, I will impose a lesser sentence than would otherwise be the case, and that reduction in the length of the sentences to be imposed is consistent with the principle in R v Renzella [1997] 2 VR 88 and the application of the totality principle.

46Elvis Lim, would you please stand.  You will be sentenced as follows.

47On Charge 1, armed robbery, you are to be sentenced to be imprisoned for a period of two years and nine months.

48On Charge 3, attempt to obtain property by deception, you are to be sentenced to two months' imprisonment.

49On Charge 4, obtain property by deception, you will be sentenced to three months' imprisonment.

50On Charge 5, obtain property by deception, you are to be sentenced to three months' imprisonment.

51On the summary offence of failing to appear on bail, you will be sentenced to one month imprisonment.

52I will order that 14 days, on the sentence imposed on Charge 3, one month of the sentence imposed on Charge 4, one month of the sentence imposed on Charge 5, and 14 days of the sentence imposed on the offence of failing to appear on bail, should be served cumulatively upon the sentence imposed in respect of Charge 1, making a total effective sentence of three years' imprisonment.

53I will fix a non-parole period of 18 months.

54It is declared that the period of 252 days, not including this day, is to be reckoned as already served under the sentence, and it is ordered that it be noted in the records of the court the fact that that declaration was made and its details.

55It is further declared that pursuant to s.6AAA of the Sentencing Act, that but for your plea of guilty, a total effective sentence of four years and six months with a non-parole period of three years would have been imposed.

56Mr Lim, you may now be seated, please.

57I will turn now to the personal circumstances concerning Anthony Tzivanidis.  You were born on 5 February 1987 and are now 31 years of age, you were 30 at the time of your offending.

58You grew up in West Sunshine and your parents still reside in that area.  They have worked hard all of their lives to support both you and your younger sister - your father, working as a delivery driver, and your mother, until her retirement, in the ANZ bank.  Your younger sister still resides with your parents, and works as a hospital administrator.

59No-one else in your family has ever had difficulties with the police, and it is evident that you come from a loving and caring family which lacks the dysfunction which features in the background of so many offenders who come before this court.

60You attended St John's College in Braybrook and left school during Year 10 to take up an apprenticeship as a chef.  You did that work for around 18 months, and thereafter you worked with Shell Logistics, and whilst you were working there, you were involved in a motor vehicle accident and sustained very serious injuries.

61I am told that in the course of your recovery, you became dependant on steroids.  In that setting, you committed an aggravated burglary, where a firearm was used to attempt to break a window to gain entry to a veterinary clinic.  You were sentenced to a nine month term of imprisonment.  Seven and a half months of that sentence was suspended.

62When released, you worked on behalf of an electricity company selling door-to-door, and eventually established your own quite successful business contracting electricity sales.  It seems, however, you continued to use methamphetamine sporadically.

63In December 2012, you were assaulted and stabbed a number of times.  You were seriously injured and hospitalised for some time.  Thereafter, your drug use escalated, ultimately spiralling out of control.  In that setting, you continued to offend through the commission of drug, dishonesty and driving offences.

64Your parents and younger sister attended the sentencing hearing, and are clearly supportive of you despite the anxiety that you have put them through over a number of years.  In a letter of 14 May 2018, which was tendered on the plea, they confirmed that they have been visiting you at the remand centre every week for the past 13 months.  They also confirm that you have apologised to them for putting them through such a difficult time over the years, and have told them that you are genuinely sorry for frightening the victims, as you did.

65They describe you as being a "totally different person" as a result of undertaking the treatment that you have in custody.  I want to now turn to the nature of that treatment.

66A discharge summary from the mobile forensic mental health service of 14 March 2018 was tendered on your behalf.  In that document, Dr Delene Brookstein confirms that you attended 24 individual psychology sessions between 26 July 2017 and 14 March 2018.

67All of these sessions were held at the Metropolitan Remand Centre, and Dr Brookstein states:

"You engaged well with our service and hopefully it has provided you with a good foundation for further therapy work in the community."

68She goes on to say:

"I know you have had much time for personal reflection over the past few months, and built motivation to pursue a better life on release."

69In an earlier summary, dated 13 February 2018, Dr Brookstein outlined the type of therapy in which you have engaged.  She described it as a blend of acceptance and commitment therapy, cognitive behaviour therapy, and schema therapy.

70It is clear that you have gained a great deal from the psychological treatment that you have received.  I am also told that Dr Brookstein arranged for you to be prescribed the anti-depressant Sertraline.  This is the first time that you have utilised medication of this kind, and it has assisted you in stabilising your mood such that you are now regarded as a model prisoner in custody.

71So far as drug treatment is concerned, the available urine analysis confirms that you were drug-free at the time of testing in July 2017.  Between May 7 2018 and 18 May 2018, you attended a 24-hour ice addiction program.  The program completion report of 16 May 2018 confirms that you demonstrated a commitment to the program and gained considerable insight into the impact your substance abuse has had on your life and on the lives of those close to you.

72The author of the report, Mr Neil DiLorenzo, appears to have been impressed that you engaged in the program appropriately and urged that you build upon the work that you have done by continuing in individual therapy immediately after your release.

73Another problem you have experienced in the past relating to gambling.  Whilst in custody, you have completed a gambler's help education program and engaged in further therapeutic counselling to address this issue.  Your counsellor, Ms Julie Jensen, in a report of 24 April 2018 described you as being engaged and motivated in that program.

74I think it is appropriate to make the observation that until now, treatment of the nature and quality provided to you by Dr Brookstein and Ms Jensen, in my experience at least, has not generally been available to prisoners on remand.  It is encouraging to see that this sort of treatment is now becoming available, and it is very much to your credit that you have taken advantage of it.

75I have also been provided with a reference from Chris Theodoulou of 14 May 2018, who owns a delivery business and has indicated that he would be prepared to employ you in delivering furniture upon your release.

76You were assessed by Mr Jeffery Cummins, forensic psychologist, for the purposes of your plea and in a report of 14 May 2018, Mr Cummins reviewed your previous psychological assessments and the treatment and rehabilitative work you have undertaken in custody over the last year or so, and he states:

"I diagnosed Mr Tzivanidis with PTSD, and as most probably also suffering from a major depressive disorder which is of mild/moderate severity and recurrent in type."

77Mr Cummins opined that it was probable that you were self-medicating with illicit drugs and used those drugs to manage, suppress and control symptoms of PTSD and related symptoms of depression and anxiety.  He believes that you benefit from the treatment that you have received in custody, and that as far as he could ascertain, your prospects for long-term rehabilitation are now "reasonably favourable."

78Ms Bate, who put a thorough and well-prepared plea on your behalf, sought to distinguish your circumstances from those of your co-accused by reference to the following matters:

I.The fact that you had been indicted on robbery, rather than armed robbery. 

II.Your role in the offending, which was less active. 

III.You were not on bail at the time of these offences. 

IV.Your prior convictions, though serious, were not as extensive as your co-accused. 

V.You entered an earlier plea of guilty.

VI.The treatment that you have received in custody is an additional factor, together with the fact that you, as it was submitted, had better prospects for rehabilitation which were all the more enhanced by strong family support, and that with the exception of a community-based order imposed in 2005, you have had little opportunity to benefit from community-based dispositions.

79Not all of these matters are persuasive, but I am satisfied that the lesser charge, the rehabilitative work that you have done in custody, and your better prospects for rehabilitation are at least sufficient to justify distinguishing in your favour.  As I understood Ms Goding's position on behalf of the Crown, that was accepted.

80Your matter has taken longer to resolve than should have been the case.  That was through no fault of yours, and I will take that delay into account in your favour.

81Ms Bate informed me that you were before the Sunshine Magistrates' Court on 16 April 2018 for dishonesty and driving matters that occurred around the same time as the offences before this court.  The magistrate hearing your matter ordered that you be assessed for a community correction order, and that you undergo an assessment through the mental health community corrections program.  The assessments were favourable, and that hearing was adjourned until 24 May 2018.

82Your counsel submitted that having regard to all the matters put in mitigation, and particularly, the significant progress that you have made over the last 400 or so days in custody, it was appropriate that you now be released under supervision through the mechanism of a community corrections order.

83On Tuesday 22 May 2018, you were assessed in custody as to your suitability for such an order.  The report that I have now received is favourable.

84I have also taken into account the decisions of the Court of Appeal in Hancock v The Queen [2013] VSCA 199, and Younger v The Queen [2017] VSCA 199, on the question of declaring pre-sentence detention in circumstances such as this.

85Ms Goding submitted that deterrence and protection of the community were still very relevant considerations, despite your different circumstances.  She acknowledged, however, that a combination sentence involving the imposition of a community correction order and a term of imprisonment that took into account all of the time you have served since 15 April 2017, was capable of appropriately reconciling the various competing purposes in imposing sentence on you.

86Mr Tzivanidis, would you please stand, please.  In those circumstances, you will be sentenced as follows.

87On Charge 2, you will be sentenced to 403 days imprisonment and upon release from custody, you consent to the court making a community correction order for a period of 12 months, the conditions of the community corrections order being that you report to the Sunshine Community Correction Service at 10 Foundry Road, Sunshine, within two days of this order being imposed, that you be subject to supervision from the Sunshine Community Correction Service, that you submit to drug assessment and treatment, that you submit to mental health treatment, that you undertake offending behaviour programs, and that you appear before me for the purposes of a Judicial Monitoring, pursuant to s.48K of the SentencingAct, at 9.30 am on 21 November 2018.

88On Charge 3, you will be released from custody upon consenting to the court making a community correction order for a period of 12 months, with the same conditions as that imposed in respect of Charge 2.

89On Charge 4, you will be released from custody upon consenting to the court making a community correction order for a period of 12 months, with the same conditions as that imposed in respect of Charge 2.

90On Charge 5, you will be released from custody upon consenting to the court making a community correction order for a period of 12 months with the same conditions as that imposed in respect of Charge 2.

91It is declared that the period of 403 days, not including this day, is to be reckoned as time already served under the sentence, and it is ordered that it be noted in the records of the court the fact that that declaration has been made and its details.

92It is further declared that pursuant to s.6AAA of the Sentencing Act, that but for your pleas of guilty, the court would have imposed a total effective sentence of three years and three months imprisonment, with a non-parole period of 21 months.

93It is very important, Mr Tzivanidis, that you understand the conditions of the order that is proposed and that you agree to abide by those conditions.  If you were to breach those conditions, you would be at risk of being brought back before me and charged with contravening the order.  The maximum penalty for that offence, that is, the contravention of the order, is three months' imprisonment.  However, in addition, you would be at risk of being re-sentenced in relation to the offences that I have just sentenced you for.  So the consequences of breaching the order can be very, very serious.  Do you understand the conditions of the order that is proposed?

94OFFENDER:  Yes, thank you, Your Honour.

95HIS HONOUR:  And do you consent to being placed on the order?

96OFFENDER:  Yes, thank you, Your Honour.

97HIS HONOUR:  Whilst I have framed the order in terms of your release, as I understand the position, Mr Tzivanidis, you will remain in custody because you need to attend the Magistrates' Court tomorrow in relation to those outstanding matters.  I will reserve liberty to apply should there be any concern or difficulties that arise once those matters are resolved.

98MS BATE:  Thank you, Your Honour.

99HIS HONOUR:  Mr Tzivanidis, you take a seat for a moment, please.

100OFFENDER:  As Your Honour pleases.  Thank you, Your Honour.

101HIS HONOUR:  Ms Bate, a document will now be provided to you.  Would you mind approaching your client?

102MS BATE:  Thank you, Your Honour.  I have explained the conditions.  They are understood by Mr Tzivanidis and he has consented and signed the order.

103HIS HONOUR:  Thank you, Ms Bate.  Are there any other matters arising?

104COUNSEL:  No, Your Honour.

105HIS HONOUR:  Mr Lim, Mr Tzivanidis, you may now go with the officers if you would, please.

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