Director of Public Prosecutions v Lopez
[2018] VCC 1934
•5 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00238
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN PAUL LOPEZ |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 September 2018 | |
DATE OF SENTENCE: | 5 November 2018 | |
CASE MAY BE CITED AS: | DPP v Lopez | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1934 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sentencing
Catchwords: Armed robbery and prohibited person in possession of a firearm – significant relevant prior criminal history – immediate term of imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Devlin | John Cain, Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr M Reardon | Victoria Legal Aid |
HER HONOUR:
1 John Paul Lopez, you have pleaded guilty to two charges of armed robbery and one charge of prohibited person possess a firearm.
2 Both offences are serious and that is reflected in the maximum penalty prescribed by Parliament, which is 25 years’ imprisonment or 3000 penalty units for armed robbery, and 10 years’ imprisonment or 1200 penalty units for prohibited person possess a firearm.
3 You have also admitted your prior criminal history which is of significant relevance. On 30 August 2002 His Honour Judge Duggan sentenced you in the County Court to 12 years’ imprisonment, to serve eight years in respect to 26 counts of armed robbery, two counts of theft, one count of intentionally causing injury and one count of recklessly causing injury. That sentence related to charges arising out of a spate of 26 armed robberies occurring within 78 days between 28 January 2001 and 10 April 2001.
4 All those robberies related to convenience stores or stores attached to service stations, full particulars and circumstances of which are set out in the sentencing remarks that were provided to the court.
5 I shall now proceed to sentence you in respect to these charges on the basis of the opening that was read out at the plea hearing sets out the facts the prosecution rely on and that is marked as Exhibit 1.
6
Just prior to your arrest on 9 November 2017 you turned 39. The present offending relates to the commission of two armed robberies on the same bottle shop, namely the Whitburn Cellars Bottle Shop, Clayton. The first armed robbery occurred on 10 September 2017 and the second, six days later, on
16 September 2017.
7 The victims were not known to you prior to the armed robbery.
8 The first armed robbery was committed at approximately 6 pm. You entered the bottle shop wearing a fluoro jacket, black pants and holding a blue cloth bag between your teeth, obscuring the lower half of your face. You approached the sole shop attendant, Mr Yan, who was standing behind the counter, walked straight up towards the till and pulled out a small knife, saying “Open the drawer”. Mr Yan unlocked the cash drawer. You then pushed him to one side and told him to face the other way and not to turn around. You then took approximately $700 cash from the till, a packet of cigarettes from the cigarette cabinet and a bottle of Johnnie Walker Black Label whisky, after which you left the store.
9 Six days later, you attended the same store, at which time the owner Mr Li was standing outside the store, smoking a cigarette. It was about 5pm. You walked into the store and the owner followed you in. On that occasion you were holding a green bag between your teeth which concealed the lower half of your face.
10 Mr Li soon realised that you were the person who committed the armed robbery on 10 September. You grabbed his jacket with your left hand and started pushing him, while holding a knife in your right hand. You asked him to open the till. Out of fear he did so, and then he stepped back.
11 On that occasion you took approximately $400 from the till and two packets of cigarettes before leaving the store.
12 Police attended and eventually following their investigations, you were arrested on 9 November 2017 at about 6am at your residence.
13 You were taken to Box Hill Police Station and a formal record of interview was conducted. Initially, you answered “No comment” to all questions and thereafter a further record of interview was conducted at your request, during which time you made full admissions to the two armed robberies.
14 During a search of your residence where you were living, a sawn-off shotgun was located in the garage. In addition, there were four shotgun shells bound together by yellow tape. That sets out the circumstances of the charges on the indictment.
15 It is acknowledged that you pleaded guilty at the earliest reasonable opportunity.
16 The offending is serious, having regard to the fact that you attended the store on both occasions armed with a knife and used it in the execution of the two armed robberies. There are no victim impacts statements filed but having regard to the circumstances of the armed robberies, I consider that it would have been a frightening experience for both the store attendants to have been approached by you in the manner that I have just described, wielding a knife and asking for cash.
17 I have been told a little about your background and history.
18 You are now 39 years of age. At the time of the offending, you had no real fixed place of address. You were remanded in custody on 9 November 2017. You have spent most of your time on remand at the Metropolitan Remand Centre. However, recently, in anticipation of the plea and due to a decline in your mental health state, you have been transferred to the Melbourne Assessment Prison. Previously you were settled at the Metropolitan Remand Centre and you had been working in the garden.
19 You are a person who is Chilean by background. You were born in Chile and migrated to Australia with your family at age six. You have an older sister, who works as a scientist. Your parents are alive and live in Melbourne. You do not have a very good relationship with your family, in particular your mother. Whilst there has been some phone contact with your mother during the most recent period whilst you have been on remand, recently she disconnected her phone so as to avoid any further contact so you are rather isolated in prison with there being no visitors.
20 You left home at age 16, and initially moved to live with a cousin in St Albans, but due to friction, left that place and thereafter you have been mainly living off the streets.
21 You do not have any children, nor are you in any long-term relationships.
22 Your work history is very patchy. Having left school after Year 10, you obtained some employment. You initially commenced an apprenticeship, but that only lasted six to eight months, and following that you tried working in a variety of other positions such as panel beating and labouring, but have never had any real long-term employment and there have been long periods of homelessness, as well as long periods of time spent in gaol undergoing the sentence that I earlier referred to that was imposed by His Honour Judge Duggan.
23 Following your release from gaol you were on a Disability Support Pension. You have a history of alcohol and drug abuse. You have a significant substance abuse history relating to heroin, which you started using while in your 20s. There was a brief period of abstinence, but there are periods of relapse.
24 The series of armed robberies that you committed and for which you were sentenced for in the past related to a need to fund your addiction to heroin.
25 You have dabbled in methamphetamines and amphetamines, and you have also been prescribed methadone.
26 In 2009, you were granted parole. Your compliance was initially good, but then you deteriorated, after relapsing into drug use. There was a Drug Treatment Order made in May 2016, but that eventually was cancelled due to non‑compliance.
27 There has never been any history of psychiatric treatment in the past.
28 Dr Zimmerman, consultant psychiatrist, assessed you on 1 August 2018 and postulated a possible diagnosis of schizophreniform disorder, but noted difficulties in making a firm diagnosis due to your drug history.
29 Dr Zimmerman observed you were coping reasonably well within prison, despite possible psychotic symptoms.
30 At the request of the Court, you were reviewed by Dr Victoria Jackson, psychiatrist, Forensicare. She compiled a report after she examined you. Her report dated 31 October 2018 has been furnished to the Court. In summary, she states that you ─
“…present with serious symptoms of psychosis which appear to have developed and intensified since previous assessments this year (2018) and give me reason to believe that he is likely to be suffering from a primary psychotic disorder, such as schizophrenia. Given his self-reported positive urine detection of methamphetamine a drug-induced psychosis is another possible differential diagnosis.”
31 It is unclear when that was (i.e. the urine test result) but I am told today by Mr Reardon, your counsel, that that may have been at the time of your reception, so that it may be that the primary psychotic disorder is what is impacting upon you currently.
32 Dr Jackson states that although 39 years of age is older than typical for a first episode of psychosis, it is quite possible, given your history of itinerancy, social isolation and drug abuse, and the fact that you had been experiencing persecutory delusions for some time prior to your remand which has been unreported or exacerbated by recent psycho-social stresses.
33 Dr Jackson indicated that a matter of great concern is your current refusal of treatment for your psychotic illness.
34 Dr Jackson states that she is of the opinion that you require urgent treatment, without which you are likely to deteriorate further in mental state, and that you require urgent assessment by mental health services. I will make available her report to correctional authorities for them to action.
35 She concludes, and it is not in dispute, that imprisonment is likely to weigh more heavily upon you than someone without mental illness through the detrimental effect on your mental health. Furthermore, it is established that a longer duration of untreated psychosis is associated with a poorer prognosis regarding resolution of psychotic symptoms and psycho-social recovery. It is therefore imperative that correctional authorities do take up her recommendations that you be assessed by a prison mental health service so as to provide you with appropriate care.
36 Dr Jackson recommends, in the event of a custodial sentence, that you should continue to be assessed by the prison mental health service with a view to accepting appropriate management of your acute psychosis and longitudinal care. She recommends that you should be assessed by a drug treatment service given that opioid dependence has been a significant feature of your offending history and appears to have been central to the psycho-social adversity you have experienced in the community.
37 Dr Jackson recommends that you be provided with such support, whether in prison or in the community, and that you should be encouraged to remain drug free. Upon your eventual release, you will benefit from assistance to have secure housing and also you require structure and purpose to reintegrate yourself into the community. She recommends that you be supported to re-enter the workforce which I also recommend.
38 Having regard to Dr Jackson’s expressed opinion, I am satisfied that limbs 5 and 6 of the principles of Verdins are enlivened and I have taken that into account in your favour in mitigation of punishment. I further have had regard to the fact that you pleaded guilty at the earliest opportunity and the plea is of real utility. You made fulsome admissions when you told the police about your involvement in these crimes and through your plea you have spared the cost and inconvenience of a trial and also spared the victims of having to come and give evidence. You have thereby facilitated justice and your sentence will be discounted accordingly.
39 Overall I remain very guarded about your prospects for rehabilitation absent proper treatment for your long-term drug addiction and mental health problems.
40 Mr Reardon, on your behalf, concluded a term of imprisonment with a non-parole period was the only appropriate sentence in all the circumstances.
41 In formulating the appropriate sentence, I have had regard to the principle of totality and the necessity for just punishment.
42 The two armed robberies were committed within a short timeframe at the same location. I consider that an aggregate term of imprisonment is appropriate for those two charges. Each of those offences were part of a course of conduct undertaken by you. That means one term of imprisonment will be imposed for the two armed robbery charges.
43 In so far as possession of being a prohibited person possess a firearm you have provided no explanation as to why it was that you had the sawn-off shotgun in your possession.
44 In sentencing you, there is a need to emphasise both general and specific deterrence, denunciation and to provide for the protection of the community. I must impose just punishment.
45 The formal Court Orders are:
In relation to the two charges of armed robbery, you will be convicted and sentenced to an aggregate term of three years’ imprisonment.
In respect to the one charge of being a prohibited person possessing a firearm, you will be convicted and sentenced to 12 months’ imprisonment.
I order that three months of the sentence imposed on Charge 3 be cumulative upon the aggregate sentence, making a total effective sentence of three years and three months, and I fix a non-parole period of two years.
46 I make the following s.6AAA declaration. But for your plea of guilty, I would have imposed a term of imprisonment of five years’ imprisonment, to serve three years.
47 I make a declaration of pre-sentence detention. I declare that you have spent 363 days in custody and direct that that be entered into the record of the Court.
48 I make the Disposal Orders sought and the Compensation Orders sought.
49 I order that you pay Whitburn Cellars Bottle Shop compensation in the sum of $1,250.
50 Finally, I will provide a copy of the reports received from Dr Victoria Jackson to the correctional authorities with the request that they be considered to assist them with your management whilst undergoing sentence and also upon your eventual release. I think that covers everything. Are you happy for Mr Lopez to be taken downstairs and you will see him downstairs? If could you remove Mr Lopez and Mr Reardon will come and see you downstairs. Thank you.
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