Director of Public Prosecutions v Lindrea
[2021] VCC 1516
•4 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised (Not) Restricted Suitable for Publication |
Case No. CR 20-00968
Indictment No. L10818282.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN LINDREA |
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JUDGE: | HIS HONOUR JUDGE HOLDING | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 September 2021 | |
DATE OF SENTENCE: | 4 October 2021 | |
CASE MAY BE CITED AS: | DPP v Lindrea | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1516 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentencing.
Catchwords: Plea of Guilty; Possession of firearm; Armed robbery; False imprisonment; Prior criminal history; Covid-19 circumstances taken into account; Victim impact; Psychological trauma; Unfortunate personal circumstances; Deterrence; Serious offending.
Legislation Cited: Firearms Act 1996 (Vic) s 5(1) and s 151; Crimes Act 1958 (Vic) s 75A; Sentencing Act 1991 (Vic) s 5(2H), s 3(1)(da), s 5(1)(f), s 5(1)(e) and s 6AAA; Confiscation Act 1997 (Vic) s 32(1).
Cases Cited:R v John William Lindrea [1993] VSC 475; The Queen v John William Lindrea [1994] VSCA 432; Bugmy v The Queen (2013) 249 CLR 571; DPP v Terrick [2009] VSCA 220; Stewart v R [2015] VSCA 368; DPP v Worboyes [2021] VSCA 196; Binse v The Queen [2014] VSC 253; Lord v The Queen [2018] VSCA 52; Dalgliesh v The Queen (2017) 262 CLR 428; Lord v The Queen [2018] VSCA 52.
Sentence:11 years and 6 months imprisonment, with a non-parole period of 8 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Duckett | Solicitors for the Office of Public Prosecutions |
| For the Accused | Ms Stanley | Leanne Warren & Associates |
HIS HONOUR:
Introduction
1John Lindrea, you have pleaded guilty to the following three offences:
Charge 1: prohibited person in possession of a firearm contrary to s 5(1) of the Firearms Act1996 (Vic). The maximum penalty for this offence is imprisonment for a period of 10 years, or 12 penalty units.
Charge 2: armed robbery contrary to s 75A of the Crimes Act1958 (Vic). The maximum penalty for this offence is imprisonment for a period of 25 years.
Charge 3: false imprisonment contrary to common law. The maximum penalty for this offence is imprisonment for a period of 10 years.
Circumstances of the offences
2The circumstances of your offending are summarised in detail in the summary of prosecution opening that your counsel has indicated is not disputed.[1]
[1] Exhibit A on the Plea.
3On Monday, 2 March 2020, at approximately 3 am, you and an unknown co‑offender were dropped off by an unknown associate in the northern car park of the Westmeadows Tavern at 10 Ardlie Street, Westmeadows.
4Both you and the unknown co-offender were armed with loaded shotguns and embarked upon what was obviously a preconceived plan to break into the Westmeadows Tavern with a view to stealing a significant amount of money.
5You both managed to climb onto the roof of the tavern, remove a portion of the corrugated iron roof, and enter into the roof cavity of the building. You both subsequently broke through the plaster ceiling and entered the kitchen area of the premises.
6Although the Western Tavern had an alarm system installed, the method by which you gained entry, meant you managed to avoid detection by that security system.
7Both of you were still in the tavern when at approximately 4.45 am, Ms Jodie Flower, the tavern’s assistant manager, arrived to commence her day's work.
8Ms Flower entered the building and commenced her day’s duties by deactivating the alarm system and turning on the venue’s lights. She was totally unaware that you and your co-offender were present, armed with firearms, and were effectively waiting for a staff member to arrive.
9Ms Flower approached the main office door and was approached by the co‑offender who, like you, was wearing a balaclava, gloves, and holding a sawn‑off shot gun.
10The prosecution opening describes how the offenders screamed at Ms Flower to ‘Get on the ground’. They pointed their guns in her face and demanded her keys. They took Ms Flower’s rose gold Apple iWatch from her.
11Ms Flower was then forced at gunpoint to open an ATM machine in the gaming area. She was then taken to the main office where she was instructed by the co-offender to open the door, and then open three safes that contained a large amount of cash. During these events the offenders kept their firearms pointed at her. At times the co-offender was holding the shotgun 15 cm from her face.
12After opening the three safes, Ms Flower was escorted to a kitchen storeroom cupboard and told to sit on her knees in the cupboard, while the offenders placed money from the safes into a green-coloured canvas bag.
13Ms Flower was then escorted around the venue, by the co-offender and instructed to open additional ATMs and tills. Once Ms Flower had opened the tills, safes, and ATMs she was forced into the kitchen storage cupboard once more. The co-offender locked her in the cupboard by placing a metal knife sharpener through the door handles effectively locking the cupboard. It's the locking of this cupboard that constitutes Charge 3, being the charge of false imprisonment.
14On being forced into the cupboard Ms Flower noticed the co-offender was in possession of a UHF radio and she heard him using it to communicate with an unknown third party, ‘Come and get us. Where are you?’
15Shortly after 5 am, Alan Hermiz, a person employed as a cleaner at the tavern, arrived for work. He entered the tavern and fortunately spotted the co -offender, without the co-offender spotting him. The co-offender was at the time still holding the sawn-off shotgun, and Hermiz immediately retreated back outside the venue and contacted the police.
16A short time later police attended at the scene and established a cordon around the venue. Between 5:15 am and 5:40 am police members reported observing the offenders throughout the venue and on the roof of the premises attempting to escape.
17A search of the premises was eventually undertaken but you and the co-offender were not located and avoided apprehension.
18Subsequently security cameras from within the venue revealed that much of your conduct and the co-offender’s conduct inside the tavern was captured on CCTV footage.[2]
[2] Exhibit 1 on the Depositions.
19Among other incidents the footage depicted:
·You wearing a black-coloured balaclava, a grey Adidas hooded jumper, black-coloured gloves as well as clear latex gloves;
·You being in possession of a sawn-off shotgun during the offending;
·You removing the contents of the safes and ATMs and placing the cash into a green canvas bag;
·You on two occasions removing a drink from the fridge situated behind the bar;
·At one point you removed the balaclava from your head and the gloves from your hands and placed these items in a metal bin in the gaming area of the venue; and
·After you had removed the balaclava from your head you walked past the main office doorway and looked in the direction where a camera installed in the main office was able to capture an image of your face.
20An inspection of the Westmeadows Tavern by Crime Scene Officers located the following items:
·A black‑coloured glove with latex glove attached (located on the floor behind the bar area);
·A black-coloured balaclava (located in the metal bin near the TAB area);
·A fluro-coloured yellow and blue jumper (located on the till in the TAB area and apparently worn during the offending by the co-offender);
·A metal knife sharpening rod located on the floor in the storage cupboard, used to lock Ms Flower in the storage cupboard;
·A lid from a Jack Daniels bottle unscrewed by you during the commission of the offence (located in the hallway near the kitchen area);
·A blue-coloured jimmy bar used by you and the co-offender to gain access through the roof of the premises (located on the bench in the kitchen area);
·A grey and black Adidas branded shoe of the same make and description as that worn by you as depicted in the CCTV footage (located in the roof cavity of the premises);
·A UHF radio (located in the roof cavity near the Adidas shoe); and
·A green-coloured canvas bag (located on a bench in the kitchen).
21 The green canvas bag located in the kitchen, was a bag you and your co‑offender brought into the premises. Investigators found within the bag some items that were obviously intended for use in committing the crime. There were:
· Some red-handled tin snips to cut through the corrugated iron roof;
· A small monitor camera, that I was informed during the plea, could be used to help detect security systems, and;
· An amount of cash that had been removed from the safes, tills and ATM machines at the venue. The amount of cash was $176,820.00.
22 It is apparent from the fact that this bag was left behind, that at some point when you and your co-offender realised, that authorities were outside there was a period of panic and the bag with the cash inside it was left behind. Defence counsel confirmed during the plea that it was panic that caused the bag to be left behind. After the police counted the money, it was thankfully returned to the owners of the tavern.
23 Subsequent analysis of items that were seized from the crime scene resulted in DNA samples being obtained from the gloves, the balaclava, the bottle lid, the green canvas bag, and the UHF radio. A comparison of the DNA on a number of these items resulted in a likelihood ratio of 100 billion, providing extremely strong support for the proposition that it was your DNA on these items. This evidence was also consistent with the image of the offender’s face captured on the CCTV as you walked past the main office during the offence.
24 You were arrested on 1 April 2020 and interviewed on that day. In the main you made a ‘No comment’ interview. However, during the suspension of the formal interviewing procedure, and unbeknownst to you, police kept an audio recording going. You made a number of admissions that were ‘unofficially’ recorded.[3] You revealed that you and your co-offender remained hidden in the wall cavity of the Westmeadows Taven until about 7 pm on 2 March, when investigators and staff had left the tavern. You then kicked out a part of the external wall,[4] and jumped out and fled on foot. You were also recorded saying that police will never find the guns as they were ‘long gone’ and that you thought about $200,000.00 to $300,000.00 had been taken from the venue’s safe.
[3] These admissions were included in the Prosecution Opening which was not in dispute by the Defence.
[4] The photo at p 136 of the depositions shows the exit point where the wall was ‘kicked out’.
25 Some 9 months later, on 30 November 2020, police were notified that two firearms had been located by cleaners inside the exhaust fan ducts of the kitchen in the Westmeadows Tavern. Police retrieved these weapons and found them to be two 12-gauge shotguns fully loaded with cartridges.
26 Your co-offender has never been identified, nor has the associate who drove to the Tavern in the early hours of the morning on 2 March 2020.
Impact on the Victim
27 Ms Flower has made a victim impact statement which was read aloud by the Prosecutor in court. I have read this and carefully considered its contents. I have also had regard to a report written by Psychologist Kaylene Evers who has seen Ms Flower in regard to the psychological impact your offending had upon her.[5] Unfortunately, that impact appears to have been devastating. Part of her victim impact statement says,
[5] Exhibit B on the Plea (Victim Impact Statement and Psychological Report )
I walked into work, went to turn on the light and that’s when my whole world changed, my sense of safety was stripped away. I encountered a man standing there with a gun pointed directly at my face. I was in complete shock, thinking to myself this isn’t real, then another man jumped out from around the corner with another gun pointed directly toward me and screamed. My thoughts went from shock to the realization that they will shoot me, I was thinking I’m never going to see my family again, I’m going to die at work.
I had to go in and out of the cupboard, and get on my knees on the cement floor. They would tell me not to cry, asking do I have kids? I was already so petrified and you were making it even worse, making me think you would come for my family. I was shaking, crying and afraid. The level of fear was something I have never experienced before. The crying still happens and the sense of fear is still there not knowing what will happen. I’m constantly on edge due to this experience. I had to take a month off work and lost my full wage. Not getting my full wage has been difficult worrying about being able to pay for all of my bills and other financial commitments.
I don’t sleep well and when I do I have nightmares of that morning with your guns, balaclavas and your eyes. My life has changed so much. Sometimes I don’t know how to deal and get through my days, I was going to work, earning an honest living, minding my own business and you made a conscious decision to take that freedom away from me.
28 I was made aware during the plea that despite Ms Flower returning to work in the tavern for a time, the psychological impacts of the crime proved too much for her, and she had had to resign from this employment. Before the offending she had been doing this job successfully for 7 years.
Procedural History
29 You have remained in custody since your arrest on 1 April 2020. You had a contested committal on 7 August 2020. I have been told and accept that the committal was confined to cross-examination of the informant relating to the issue of the recorded admissions during the formal suspension of your interview. I am told that the DNA analysis that was a significant part of the Crown case was formally served upon you on 13 October 2020, after the committal and that on 12 December 2020 you offered to plead guilty to the current indictment.
30 Thereafter, you were arraigned on 7 April 2021. It was agreed between the prosecution and defence at your plea hearing that your plea was perhaps not at the earliest point in time but was nevertheless early in the sense it was made soon after the prosecution case was fully disclosed to you.
Personal History
31 You are now aged 59 and were aged 57 on the day you committed these offences.
32 Your personal circumstances are most unfortunate. Your counsel tendered a psychological report dated 27 August 2021 from Ms Gina Cidoni.[6]
[6] Exhibit 2 on the Plea.
33 Your history is one of institutionalisation. You were born in Box Hill but were placed in the care of Child Protection Services from the age of five due to family violence. Both your parents were alcoholic. You have eight older siblings and one younger sibling, however they were all apparently cared for by various aunts and it is not suggested that you had significant supportive relationships with any of them. Your mother died when you were aged 17 and your father died when you were in your twenties.
34 You were effectively raised in residential care homes, and youth detention. In your teenage years (approximately from ages 10 – 16), you were placed in the Baltara Reception Centre and the Turana Youth Training Centre, Parkville and Malmsbury Youth Justice precincts and Bayswater Boys' Home. You told Ms Cidoni you frequently escaped from these facilities.
35 Apparently, at that time, Baltara was a Reception Centre that accommodated both youths who had committed offences, as well as youths in need of protection.
36 You told the psychologist that you were sexually and physically abused while in state care and this had a major impact on your life. You have apparently been awarded $10,000.00 compensation as a result of making an application to the Royal Commission into Institutional Responses to Child Abuse.
37 Your education was extremely limited while you were in residential care and in detention.
38 You progressed from youth detention to an adult custodial setting in Pentridge Prison at 18 years of age. You spent time in H and K divisions and also spent time at Barwon Prison in the Acacia Unit. Your Counsel, in his written contentions, submits that you became ‘hardened’ in the environment of Pentridge.
39 In terms of your relationship history, Ms Cidoni noted that you have a 29‑year‑old daughter to an ex-partner Angela. Your daughter lives in Brisbane and you have contact with her from time to time.
40 You have had a relationship with a woman named Sally dating back to when you were granted parole for a time in May of 2012, until that parole was cancelled in September of 2013. In your most recent period of liberty you lived with her and her two adult children for a time in Greenvale before being taken back into custody for these offences and she remains in touch with you over the phone since April 2020.
41 You told Ms Cidoni that after many years of being a disruptive prisoner you had become a peer educator in the prison system for younger offenders.
42 As to your work history in the community you told her you have previously worked in fencing but your prior convictions restrict your employment opportunities and you have no recent employment history.
43 You detailed to Ms Cidoni a long history of drug use since your teenage years involving cannabis, amphetamines and heroin. You reported you consumed a lot of alcohol in your youth which made you aggressive, and that you now drink on and off, however, you had periods of daily drinking in your last period of freedom.
44 You have been diagnosed with non-Hodgkin’s lymphoma in mid-2010 and you have had a colonoscopy bag for the last two years. You have had three operations and have undergone chemotherapy for many months. You have had your spleen removed and part of your intestine. You are currently in remission. It was not suggested by your counsel that your medical problems would make your time in custody more difficult, as I infer it is probably the case that most of your treatment for these medical issues has been undertaken while you have been in custody.
Psychological Evidence
45 Ms Cidoni indicated that limitations in the assessment process (presumably as a result of the Covid restrictions) made it difficult to conduct full scale IQ testing, but she formed the view that you were of 'lower intellect'. There is evidence of borderline personality disorder with intense feelings of inadequacy. She opines that, ‘He appears to turn to drugs to fulfill a number of otherwise difficult to achieve psychological functions.’
46 She also expressed the following opinions:
He is a very reduced man. He experienced an unstable and traumatic childhood, and negative exposure by both parents and other trauma including sexual abuse while in care that no doubt affected his formation.
His IQ according to the subtests administered is in the impaired range. He struggles with very poor literacy skills.
He has the following clinical and personality diagnoses in line with the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5).
·Major Depressive Disorder
·Post – Traumatic Stress Disorder with anxiety
·Borderline Personality Disorder with dependent and antisocial traits
·Stimulant Use Disorder.
Invalidating early environments and sexual abuse are repeatedly implicated in development of BDP. In addition to marked deficits in emotional regulation resulting in intense episodes of anger depression, and anxiety, BDP, is characterized by intrinsic impulsivity.
Mr Lindrea shows symptoms of institutionalisation in keeping with his many years in custody. It seems to be that he was not coping in the community and self-medicating with high drug use.
The complex interplay of his symptomatology is described, as a significant contributing factor to his offending behaviour, along with heavy substance abuse occurring at the time that would have had a disinhibiting effect. It was inferred that substance dependency developed as an early maladaptive mechanism to cope with emotional distress stemming from his early experiences.
Assessment of risk will be high across any measure with his history of offending and psychological presentation.’[7]
[7] Exhibit 2 on the Plea.
47 Ms Cidoni opines in the concluding paragraphs of her report that while risk may be countered by substance abstinence and intensive psychotherapy, there is a risk that the your symptoms will worsen with the effect of an ongoing prison term. The final sentence of her report reads, 'He is already institutionalised and this impairs his coping in the community'.
48 Sensibly your counsel did not seek to rely on the principles set forth in the case of Verdins to argue that your mental condition mitigated your offending. This, no doubt, is due to the lack of any sufficient nexus between those conditions and your pre-meditated serious offending.
Prior Criminal History
49 Your criminal history reflects your trouble with the law from an early age. You were sentenced in the County Court in June 1978 (aged 16) to two years' detention in the Youth Training Centre in respect of three counts of burglary, and counts of theft, theft of motor vehicle, and escaping from lawful custody.
50 There are six court appearances from 1980 to 1985, when you were between the ages of 18 and 23. The offences are mostly dishonesty matters such as burglary and theft and you received a number of gaol sentences. You were not deterred, and in September 1985, when you would have been aged 23, you were sentenced in the County Court for amongst other charges, offences of burglary, handling stolen goods, theft of a motor vehicle and two counts of conspiracy to commit armed robbery. You received a total effective sentence of 8 years with a non-parole period of 5 years. Your counsel informed me during your plea, that the two conspiracy charges related to an armed bank robbery in Oakleigh in which you participated, and a planned armed bank robbery in Williamstown.
51 Your next significant court appearance was on 10 June 1993 when you were sentenced in the Magistrates’ court for escaping lawful custody to a sentence of 2 years' imprisonment. That sentence was reduced on appeal to this court on 25 June 1993 to a period of 18 months.
52 On 29th March 1992 you committed three offences of the utmost seriousness involving the use of a firearm. As a result of that offending, and after a trial you were sentenced in the Supreme Court in August 1993 to a total effective sentence of 25 years' imprisonment with a minimum to serve, before being eligible for parole of 20 years, in respect of two counts of murder and one count of intentionally causing serious injury.[8]
[8]R v John William Lindrea [1993] VSC 475 (unreported).
53 You appealed that sentence unsuccessfully and the details of your horrific offending on that occasion are set out at some length in the Court of Appeal judgement.[9] I have read that judgement and without reciting all the details it is apparent that after consuming alcohol in a hotel, you and a male associate, attended at a party uninvited. You and your associate were asked to leave, and you both did leave but then returned a short time later. When your associate was noticed, and again requested to leave, you intervened, produced a handgun, shot two people dead and shot another person who was seriously injured. It was not suggested you knew these people and the Court of Appeal found that there was in a sense, ‘Some degree of premeditation in which the applicant was seeking out trouble and prepared to follow it regardless of what its consequences may be.’[10]
[9]The Queen v John William Lindrea [1994] VSCA 432 (unreported).
[10] Ibid, 6.
54 So far as your prior criminal history is concerned it can be legitimately taken into account in assessing your moral culpability for the offences before me and may inform the weight to be given to considerations like specific deterrence and community protection. However, your prior criminal history cannot be given such weight as to lead to a disproportionate sentence for the offending before me as to do so would amount to imposing a fresh penalty for past offences.
55 Your prior convictions, and in particular the prior convictions for murder, intentionally causing serious injury, and for the two counts of conspiracy to commit armed robbery, are obviously very relevant to my consideration of what is the appropriate sentence in respect of the offences before me. However, I have been cautious, and mindful of the fact that I am not to punish you for the offending detailed in your criminal history. You have served your time in respect of those offences and must not be punished twice for the same offending.
56 You were granted parole in relation to the Supreme Court sentence on two occasions. Those periods of parole were subsequently cancelled as a result of non-compliance and you ultimately completed that sentence and were released in December, 2017. You were therefore in the community for a little over 2 years from when you completed serving the Supreme Court sentence and the commission of these offences.
Gravity of the offending and assessment of your moral culpability
57 It is not in dispute that armed robbery is a very serious offence. It has a maximum penalty of 25 years' imprisonment. It is defined in the Sentencing Act 1991 (Vic), as a category 2 offence if:
(1) The offender has with him or her a firearm at the time of the offence; or
(2) a victim of the offence has suffered injury as a direct result of the offence; or
(3) the offence was committed by the offender in company with one or more other persons.[11]
[11]Sentencing Act 1991 (Vic) s 3(1)(da).
58 Section 5(2H) of the Sentencing Act 1991 (Vic) requires the imposition of a custodial sentence for such an offence, unless circumstances set out in sub-paragraphs (a)-(e) of that section exist. The parties are agreed that no such circumstances exist.
59 In my view, this armed robbery is a serious example of what is a very serious offence. The following are circumstances of aggravation:
a) There was significant pre-meditation and planning. The plan involved equipment and access to the building avoiding the security system;
b) The plan involved use of two loaded shotguns, and you and your co‑offender were armed with these firearms during the robbery;
c) There were two offenders, being assisted by a third unknown associate;
d) The plan involved holding-up a staff member at gun point, who would then be threatened to open the various safes, tills, and ATM machines so that access to the cash could be obtained.[12] It was a plan that necessarily involved the subjugation of a staff member at gun point, for more than a transient period of time. The impact upon the victim has understandably been quite devastating; and
e) The purpose of the robbery was to steal a significant amount of money. You admitted that you believed that about $200,000.00 to $300,000.00 had been placed in the bag. In fact, the amount was $176,820.00 which was fortunately not removed from the premises. The fact that it was not removed, was as a result of you being interrupted in your planning by the presence of the police.
[12] It was acknowledged by Defence counsel during the plea that the planning did involve this exigency.
60 In terms of assessing your moral culpability for the crime, your counsel has stressed your most unfortunate background and placed reliance on what he refers to in his written submissions as, 'The application of Bugmy,’ in reference to the High Court case of that name. [13] In that case the High Court stated,
‘The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.’[14]
[13]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
[14]Bugmy, [40].
61 It is the case that when I examine the evidence relating to your background, I accept that in many ways you are a product of your upbringing. It appears you were removed from a violent environment involving alcohol abuse at the age of five and placed in State care. I accept that you were sexually abused, and at times placed in an environment with other youthful offenders. In my view, a lot of the unfortunate circumstances that were foisted upon you from a young age, provided you with little opportunity to become a productive member of society. I accept the opinion of Ms Cidoni that the complex interplay of your symptomatology is a significant contributing factor to your offending behavior.
62 I do take into account your deprived background in a general sense and moderate to some extent the principles of general and specific deterrence on the basis that you are less morally culpable than a person who did not have the deprived background that you had.
63 The prosecution did not take issue with the contention that you had an extremely deprived background and that in a general sense this impacted upon your culpability for the offending. However, that is not the end of the matter. The prosecution, emphasised that your history is one of repetitive serious offending and that,
'Even taking into account the application of Bugmy principles, the offender has not been able to demonstrate any form of rehabilitation to date and the protection of the Victorian community looms large in any sentencing task.’[15]
[15] Prosecution Summary of Sentencing Submissions, p 3.
64 In my view there is some force in this submission. The High Court, in Bugmy, gave some guidance in relation to this balancing exercise, stating:
‘Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving, full weight to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same mitigatory relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment, is what makes the exercise of the discretion so difficult. An offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse, may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.'[16]
[16]Bugmy, [44].
65 The High Court was reflecting in that case, on a pattern of offending involving more spontaneous reactions of violence than is the case before me. The fact that you embarked upon a venture involving threatening an innocent person at gun point, only a little over two years after completing a sentence for killing two people with a handgun and seriously injuring a third, does in my view, cause protection of the community to loom large in the purposes for which a sentence upon you must be imposed.[17]
[17]s 5(1)(f) of the Sentencing Act 1991 (Vic) specifically provides that protection of the community from the offender is one purposes for which a sentence may be imposed.
66 While I accept that I must to some extent moderate general and specific deterrence because of your background and reduced moral culpability, the premeditation involved in this offence, and the seriousness of the crime, in the context of your criminal history, does mean that specific and general deterrence and community protection require appropriate emphasis in your case.[18] I agree with your counsel’s submission that you are institutionalised, but unfortunately that leads me to the conclusion that your prospects of rehabilitation are bleak. While protection of the community is an important consideration, I must be mindful not to impose a sentence that is disproportionate to the offences actually committed.
[18] See DPP v Terrick [2009] VSCA 220; cited with approval in Stewart v R [2015] VSCA 368 at [27].
Plea of Guilty
67 You have pleaded guilty at an early stage of the proceedings, having regard to the forensic realities of your position. The prosecution take no issue with the fact that your case resolved soon after your lawyers were served with the relevant statement outlining the results of the DNA analysis.
68 I accept your counsel's submissions relating to the benefits of the plea of guilty. Your plea has considerable utilitarian value particularly in the current climate of the pandemic.[19] I accept that it clearly indicated a willingness to facilitate the course of justice, saved the community the time and cost of a trial, and relieved the victim from having to give evidence. Conditions of imprisonment are necessarily more onerous with the restrictions necessarily imposed to try and curb the impact of the COVID-19 pandemic. I am mindful that I must reflect these factors in mitigation on the sentence to be imposed upon you.
[19]DPP v Worboyes [2021] VSCA 196 at [38]; S5(1)(e) of the Sentencing Act 1991 (Vic).
69 In addition, your guilty plea evidences some remorse on your part.
Cumulation and Concurrency
70 There is an overlap between the three charges which you face. Given that your use of the firearm, was for the purpose of committing the armed robbery and its presence doubtless was an aspect of your conduct enabling you to falsely imprison Ms Flower, I will moderate the sentences and orders for cumulation appropriately on Charges 1 and 3 in recognition of this and in order not to doubly punish you.
71 Nonetheless, Charges 1 and 3 have differing elements to Charge 2, and it is appropriate to punish different aspects of your conduct. Some cumulation between the charges is warranted in my view to mark the differing elements of these crimes.
72 In relation to the issue of concurrency between the sentences imposed upon each of the three charges, I accept that there is a significant overlap in the criminality involved in each offence and the manner in which the offences were committed. Ms Flower’s detention in the cupboard was part of the force used upon her in committing the robbery. However, part of that action of placing her in the cupboard on her knees was particularly distressing and frightening. Defence counsel conceded during the plea that some cumulation upon the armed robbery charge was warranted.
73 In relation to the charge of being a prohibited person in possession of a firearm, your counsel submitted that this was, relatively speaking, the least serious of the three offences, and should result in the least amount of cumulation. As I understood the submission, Mr Page contends that the use of the shotgun was primarily a feature of the armed robbery. Therefore, the sentence that should be imposed for the armed robbery will substantially account for the criminality involved in being a prohibited person in possession of a firearm. There was some discussion during the plea of the relevance of your prior convictions involving the past use of firearms. Mr Page submitted that the prior convictions involving the use of firearms was relevant to sentencing considerations such as deterrence and community protection, but was not a factor to be taken into account in assessing the objective circumstances of the offence of being a prohibited person in possession of a firearm. He is correct, your prior convictions do not bear on the objective gravity of the offending before me.
74 I have adopted that approach in assessing the objective gravity of this offence, however to my mind the objective circumstance of this charge do reveal that it is a serious instance of being a prohibited person in possession of a firearm. You are a prohibited person because:
Not more than 15 years have expired since you finished serving a term of imprisonment of 5 years or more for an indictable offence.[20]
[20] Definition of ‘Prohibited Person’ Firearms Act 1996 (Vic) S 3(a)(iv).
75 You finished serving a sentence, of more than 5 years, in respect of the Supreme Court sentence, in December 2017 and these offences were committed on 2 March 2020. You had a long way to go before the required period of 15 years elapsed and your status would change to being no longer a ‘Prohibited person’. The other objective circumstance is that the definition of firearm encompasses many devices that would not be as objectively dangerous as a shotgun. The fact that it was loaded whilst in your possession is also to my mind a relevant aggravating feature although I accept that was also an aggravating feature of the armed robbery. There is an overlap in the criminality of this charge and that involved in the armed robbery, and you should not be punished twice for the same conduct. However, in my view if exactly the same conduct involved in the armed robbery was committed by a person who was not a prohibited person in the relevant sense, there would be an aspect of the criminality that would be missing from what is before me.
76 It is for that reason, that I intend to impose some cumulation for this charge on the sentences of imprisonment imposed on the other charges. I do regard your serious prior convictions involving the use of firearms as indicating a need for specific deterrence and protection of the community. I also regard general deterrence as a relevant factor, in the sense that those who commit serious crimes must be made aware that the law imposes an obligation that they not possess firearms during the period in which they are defined as prohibited persons. It must be clearly demonstrated that contravening that prohibition is a serious offence that is likely to be regarded as such by the courts.
Current Sentencing Practices
77 The prosecution has referred me to the cases of Binse[21] and Lord[22] as comparative cases. I have read those cases carefully, but find them to be of limited assistance, as there are particular features that distinguish those cases from this one. While comparable cases are not precedents and each case has its own features, I have examined the Judicial College case summaries relating to armed robbery in an effort to glean some broad sense of the sentencing range for the offence of armed robbery and more particularly the application of relevant sentencing principles.
[21]Binse v The Queen [2014] VSC 253.
[22]Lord v The Queen [2018] VSCA 52.
78 In undertaking that task I have been mindful that current sentencing practices is only one of a number of matters which must be taken into account in exercising the sentencing discretion.[23] I have also exercised a degree of circumspection in undertaking that task given the reservations expressed by Maxwell P and Beach JA in the case of Lord,[24] as to current sentencing practices, in respect of very serious offences such as armed robbery.
[23]Dalgliesh v The Queen (2017) 262 CLR 428.
[24]Lord v The Queen [2018] VSCA 52, [11].
Sentence
79 I must be mindful that in imposing sentence, I have to balance the competing sentencing considerations in this case and have regard to the principle of totality. I must avoid a sentence that is crushing upon you and I must impose a sentence which expresses the denunciation by the court of the serious criminal conduct involved in this offending and that is just in all the circumstances balancing all of the above considerations.
80 Having carefully considered all the matters in this case and weighed the various sentencing considerations, I sentence you, Mr Lindrea:
On Charge 1 of being a prohibited person in possession of a firearm, to a term of 3 years imprisonment.
On Charge 2 of armed robbery, I sentence you to a term of 9 years and 10 months imprisonment, and order that to be the base sentence.
On Charge 3 of false imprisonment, I sentence you to a term of 3 years imprisonment.
81 I order that 14 months of the sentence on Charge 1, and 6 months of the sentence on Charge 3 be served cumulatively upon the sentence imposed on Charge 2.
82 That makes a total effective sentence of 11 years and 6 months. I order that you serve a minimum of 8 years and 9 months before being eligible for parole.
83 I declare that 551 days have been served as pre-sentence detention and are to reckoned as already served as part of this sentence.
84 Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that had you not pleaded guilty I would have sentenced you to a total effective sentence of 14 years and 4 months with a period of 10 years and 9 months to be served before being eligible for parole.
85 Pursuant to s 32(1) of the Confiscation Act 1997 (Vic) I order the forfeiture of the 13 items as described in the Schedule to the Crown's application, namely:
1. Black glove;
2. Black balaclava;
3. Black glove;
4. Fluoro coloured yellow and blue jumper;
5. Sharpening rod;
6. Jack Daniels bottle lid;
7. Green canvas bag;
8. Jemmy bar;
9. Tin snips;
10. Green coloured monitor/camera;
11. Adidas runner;
12. UHF radio; and
13. Screwdriver.
86 Pursuant to s 151 of the Firearms Act 1996 (Vic), I order the forfeiture of the property referred to in the Schedule to the Crown's application for Forfeiture, namely:
1. A side-by-side double-barrel shotgun serial number T03-54-12;
2. An over and under double-barrel shotgun serial number 102TQ; and
3. 4 x 12-gauge shotgun cartridges.
87 HIS HONOUR: Can I confirm with the prosecutor and defence that you are able to record the details of that sentence and that there are no further orders that I need to make?
88 MS DUCKETT: Yes, Your Honour.
89 MS STANLEY: No issues from our end Your Honour.
90 HIS HONOUR: Thank you. We will adjourn the court.
91 MS DUCKETT: Court pleases.
92 HIS HONOUR: Can I thank counsel for their assistance.
93 MS STANLEY: As Your Honour pleases.
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