Director of Public Prosecutions v Lindsay

[2024] VCC 749

IN THE COUNTY COURT OF VICTORIA

AT WODONGA

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00166

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK LINDSAY

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Wodonga
DATE OF HEARING:	15 May 2024
DATE OF SENTENCE:	24 May 2024
CASE MAY BE CITED AS:	DPP v Lindsay
MEDIUM NEUTRAL CITATION:	[2024] VCC 749

REASONS FOR SENTENCE

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Subject:Criminal Law – Sentence upon plea of guilty.

Catchwords:              Armed robbery - early plea of guilty - absence of criminal history – unsophisticated plan – good prospects of rehabilitation.

Legislation Cited:      Sentencing Act 1991.

Cases Cited:

Sentence:Community correction order for 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	D. O’Doherty	OPP
For Offender	J. Taleb	Spoken Legal

HIS HONOUR:

1Mark Lindsay, you have pleaded guilty to armed robbery occurring on 15 November 2023.

2The agreed basis for your guilty plea is set out in the prosecution opening dated 13 March 2024.

3In summary, at about 7:30 pm on Wednesday 15 November 2023 you went to the Shell Express service station on Elgin Boulevard in Wodonga to steal money. You had a bag with you containing a kitchen knife and you wore a mask and sunglasses, effectively as a disguise.

4Haven taken a couple of bottles of soft drink to the counter and had them scanned, you put them in your bag and brought out the knife. You thrust it towards the store attendant, Ms Heriksson, twice, demanding money each time. She backed away from the knife, scared, but was not physically harmed. You remained on the customer side of the counter and did not attempt to approach her on her side of it.

5Ms Henriksson put $382 into your bag as directed and you hurried away.

6She provided victim impact statement dated 26 April 2024, Exhibit A. She stated that the biggest impact of your offending is the emotional damage it has caused. She said she will never work again in a cash-handling job, she was made anxious by your offending. Now, at work, she feels nausea whenever something made of metal catches the light nearby, reminding her of the knife you threatened her with. She has post-traumatic stress caused in part by your conduct and this affects her work and relationships with others. She was without work and therefore without an income for weeks following what you did.

7Ms Henriksson should not have had to go through any of this. I only hope that she gets some comfort from being told that you are not a repeat offender, that you readily gave yourself up, you have no interest in approaching her or placing her in any discomfort and that your offending had everything to do with getting money from the till, but nothing to do with her personally.

8Police were able to identify you through the CCTV footage from the service station. About a week after the robbery, on 21 November, they came to your house with a search warrant and arrested you.

9Commendably, you assisted them to find evidentiary items at your home and when they interviewed you, you admitted what you had done.

10The next day, after a magistrate granted you bail, you even returned to the police station to give them the cap you were wearing on the night as further evidence.

11You pleaded guilty at the first mention of the case in the Magistrates’ Court on 8 February 2024 and your plea hearing proceeded on the first date it was listed in this court.

12The assistance you gave police and your early guilty plea provide strong indications that you have accepted responsibility of your wrongdoing, you have facilitated the course of justice, you have avoided the need for a trial or any witness to give evidence in court and that you are sorry for what you have done.  This has particular significance in a case such as this where the victim, Ms Heriksson, suffers from anxiety, flashbacks and post-traumatic stress.  The course that you have taken in this matter must be encouraged in others.

13You are a long-term resident of Wodonga where you have worked solidly and contributed to the community and supported your family over the years.

14You have no criminal history whatsoever, reaching a mature age of 43 without having come to the attention of the courts.

15You have long supported your mother who lived with you, suffering with cancer until she died in June 2023, a few months before this offence. She had always been close to you and was a major support. I accept that this was a significant loss and that the grief over the passing of a close parent is likely to have had an effect on you, even one that you may not have been conscious of over those months that followed.

16During that time, you also had financial difficulties. I accept that sustaining a long distance relationship with your partner who lives in Thailand would have been costly.

17You have said that, on the night, your desperation to get money by way of the offending was in part due to a message your partner sent you saying she was in need of money to escape violence from an ex-partner. You said you checked your accounts and found that you could not help, so you came up with this unsophisticated plan to rob the petrol company. Your plan came readily unstuck.

18In support of this, your partner Sukanya Nilphai provided a reference (Exhibit 1). She stated that you told her about what happened, but she still supports you. She confirmed her situation of domestic violence with her ex-partner, but says she has never seen any kind of such behaviour in you.

19Further in support of your character, Chris Mammone provided a reference (Exhibit 2). He is your manager where you work at a major manufacturing company, locally. He confirms that you have disclosed your offending to him and the company, nevertheless, it has continued to employ you. You have been a reliable worker there since 2005 and he writes that you regret what you did and that it is out of character. You have returned to work there, making a contribution to the community through your employment throughout the period of your bail, now more than six months.

20Having admitted your problems, not only to your boss but more importantly to yourself, you have taken action to avoid the kind of stress that put you at risk. You have consolidated your debts, continued to work hard to make good and you have not offended since.

21You have also taken yourself to see a psychologist, Mark Jacka. He provided a report (Exhibit 3) that states you have commenced treatment with him and are engaged appropriately for the longer term. This is an important step and it is a step that provides significant reassurances to the community about your future conduct.

22The maximum penalty for armed robbery is 25 years in prison.

23The gravity of what you did in this case is to be determined by, amongst other things, the following factors:  the vulnerability of the victim of your attack, the consequences she has suffered, the extent of your effort on the night to threaten or injure her (which I find to be of short duration and to have been limited), the level of your planning in taking the knife and the mask with you (which I do not find to be extensive planning, but planning nevertheless), the brief duration of the incident and the lack of any ongoing threats against the victim and the small amount of money you obtained.

24Of course, you are wholly responsible for what happened.  I find, however, the seriousness of the incident in comparison to other armed robberies was relatively low.

25Attacking vulnerable targets such as Ms Heriksson must attract punishment that will deter others and provide public denunciation.

26The kind and degree of punishment I impose must also be proportionate to the seriousness of your conduct, bearing in mind the effect it had on the victim.

27The sentence must also reflect your prospects for rehabilitation and ensure as much as possible that the community is protected from any repeat offending.

28Given your lack of criminal history, your sincere and immediate co-operation with police and this court, and the material that has been put on your behalf, I find your prospects for rehabilitation to be very good.

29Your counsel submitted that a Community Correction Order alone can meet all of the sentencing requirements. The prosecutor submitted that a term of imprisonment was appropriate.

30I was concerned that due to the seriousness of the offence, only a term of imprisonment would suffice in sentencing. However, I have requested an assessment by Corrections so that I might understand your circumstances more fully. You co-operated with that assessment and Mr Pianta provided a report dated 21 May 2024 (Exhibit B).

31Importantly, and I accept these findings, Corrections find you to be at low risk of further offending, and importantly, that you have shown appropriate remorse for your conduct and empathy for Ms Henrikssen.

32Accordingly, I am now convinced that I should not proceed to impose the sentence of last resort, that is, imprisonment, at this stage.

33On the charge of armed robbery, I convict you and sentence you to a community correction order for 18 months, with conditions as follows:

(a)   You are to complete 150 hours of community work;

(b)   You are to engage in assessment and treatment for your mental health;

(c)   I direct that any hours, up to 25 hours of that treatment may be deducted from your community work hours;

(d)   I require you to undergo judicial monitoring, which means that you must return to Court, before me, at 2.15 pm on Wednesday 7 August 2024, and at that time I expect to hear that you have continued to engage with the psychologist, Mr Jacka, and that you have made a good start with your community work hours.

34In accordance with s6AAA of the Sentencing Act 1991, if you did not plead guilty I would have imposed a sentence of 2 years’ imprisonment with a non-parole period of 1 year.

35The prosecutor seeks a forfeiture order for the items, mainly clothing that they seized at the time of the offence.  You do not oppose it and I make that order.

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