Director of Public Prosecutions v Lord

[2017] VCC 2038

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00655

DIRECTOR OF PUBLIC PROSECUTIONS

v

DWAYNE LORD

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2017
DATE OF SENTENCE:	6 March 2017
CASE MAY BE CITED AS:	DPP v Lord
MEDIUM NEUTRAL CITATION:	[2017] VCC 2038

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K.J. Doyle	Office of Public Prosecutions
For the Accused	Dr M. Marrich	Dr Martine Marich and Associates

HER HONOUR: 

1Dwayne Michael Lord, you have pleaded guilty to one count of armed robbery and one count of false imprisonment.  The maximum penalty for armed robbery is 25 years and for false imprisonment is ten years.

2As to the circumstances of your offending: On Sunday 7 October 2012 you, in company with Wayne Daniels, drove to the Central West Plaza car park near the Braybrook TAB.  You then waited for the TAB to shut and for Ms Sharon Allen, the only employee on the premises, to leave.  She ultimately left at about 9.50 pm, having both locked the doors and activated the alarm.

3You were both disguised, wearing dark blue overalls, black boots, black gloves and a black beanie with the same material covering your mouth and noses.

4When Ms Allen unlocked the door to her car, you accosted her and you had a gun.  You yelled at her to get in the front passenger seat.  She told you not to hurt her and that she suffered from panic attacks.  You told her to put her head down and to give you the keys and security code for the TAB.

5You then called Daniels over who got in the backseat of Ms Allen's car.  Daniels remained in the car with Ms Allen, whilst you went to the TAB to disable the alarm.  You came back about a minute later, accusing Ms Allen of giving you the wrong code.  You then directed her to go with you and Daniels into the TAB.  Ms Allen then disabled the alarm system.

6You told her to open the safe, which had a 15 minute time delay set.  After entering the code, which activated the timer, you told Ms Allen to sit down and you all waited for the 15 minutes.  You and Daniels commenced stealing various amounts of money from other areas in the TAB.  The time delay safe contained $76,000.

7Whilst waiting after request from you, Ms Allen told you that there was an alternative way out of the venue, through a fenced off courtyard at the back.

8Once the time had expired Ms Allen unlocked the safe and Daniels removed the cash and put it in garbage bags.  After Daniels had taken the money
Ms Allen was directed by you to the courtyard and told to sit and face inside the venue.  You went back inside where you obtained the CCTV recording hard drive.

9You told Allen to wait five minutes before calling police or you said you would tape her up.  You and Daniels then both jumped the fence and returned to a premises in Hallam, where you worked.

10At this location you burnt your clothes in a metal drum.  You also placed pieces of the CCTV hard drive and firearm in the drum.

11Sometime later Daniels drove you to an area in Hallam, where the charred and damaged items were thrown into dense shrub lands alongside the road.

12As to the police investigation: On 11 January 2013 you were arrested and interviewed by police and made a no comment interview.  A search warrant was executed at your home address and your phone was seized.  There was evidence of text messages between you and Daniels, arranging to meet on the day of this offence.

13On 21 November 2014 Daniels was interview by police and made a statement implicating you, and also provided details of the location of the dumped items used and stolen during the commission of the armed robbery.

14On 29 November 2014 police searched dense scrub lands described by Daniels, where pieces of the CCTV hard drive and damaged imitation firearm and charred clothing were located.

15Later investigations revealed call charge and CityLink records consistent with you involvement in these offences.

16You were charged in respect of these offences on 22 July 2015.

17As to the impact on the victim.  In an eloquent, emotional and brave manner
Ms Allen read her victim impact statement to the court and provided a compelling insight into the significant effect that your actions have had on her, and that still operate five years after the event.  She says,

"On Sunday 7 October my life changed forever.  The person I was died that night and I will never be the same.  It will be five years this year, but it is like yesterday to me.  I've been diagnosed with PTSD.  The mental anguish and depression this caused me is unfathomable."

18The effect, or impact, that your offending has had on all aspects of her life, including work, social life, mental wellbeing and family relations, cannot be overestimated.

19As to your personal circumstances, you are currently age 50.  You were born in New Zealand and came to Australia as a child.  Your mother died of leukaemia when you were very young, which impacted on your education and behaviour as a young adult.

20You completed Year 11 at school then undertook a four year motor mechanic apprenticeship.

21You were married in 1999 but separated five years later.  You have two children from that union.  You then commenced another relationship with a woman who had two of her own children and you lived as a family with them, although there were some periods of time that you were in custody.

22It is apparent from your criminal history that you have in the past had issues with drugs, though I understand that you have been drug free since you have been in custody, or since January 2013.

23You have a good work history with extended periods of employment in hotels, which you both owned and managed, following periods of imprisonment.

24I understand at the time of this offending you were attempting to set up your own automotive business in the Hallam area, and also continuing to deal with a longstanding gambling problem.  You were experiencing significant stress and financial difficulties.

25You have a relevant prior criminal history.  These date back to 1992 to 1993 when you were convicted of robbery and attempted armed robbery, the latter where a term of imprisonment was imposed.  On your release from custody for that attempted armed robbery, you gained employment in the hospitality industry.

26However, in 2006 you had a string of court appearances, where you were convicted of various sexual, drug and driving offences and you were returned to gaol.

27Most significantly, on 28 November 2006 you were convicted of armed robbery in this court and sentenced to a period of imprisonment of four years, nine months with a non-parole period of three years.

28In 2010, you were sentenced to an aggregate prison term of four months for drug and driving offences, cumulative on an uncompleted term owed to the Parole board, referrable to the 2006 robbery matter.

29Though not prior convictions, you were before His Honour Judge Gucciardo in this court, on a trial in relation to an armed robbery and false imprisonment at a TAB in Mentone, the offences occurring in June 2012, some four months before this offence.

30That offending took place in similar circumstances to that currently before me.  A jury found you guilty of those offences.  After that verdict, you pleaded guilty to a number of other offences, including trafficking methyl amphetamine between December 12 and January 2013, a burglary and theft on an acquaintance who had previously helped you with some work; committed with Daniels in December 2012, handling stolen goods, relating to property stolen from a property in Pakenham in December 2012, and burglary in January 2013, involving your ex-partner and children's home in the early hours of the morning; again committed with Daniels.

31In respect of all of this offending, on 19 December 2014 you were sentenced to a total effective sentence of seven and a half years, with a non-parole period of four and a half years.  Fifty-three days PSD was declared.

32I was informed that your earliest release date currently is in 2019. However, it will be necessary by virtue of s.14 of the Sentencing Act for me to set a new non-parole period.

33I take into account your plea of guilty.  Although it was not offered at the earliest opportunity, it has utilitarian value, saving the cost of a trial to the community and also sparing two particularly vulnerable witnesses the trauma of giving evidence.

34Your counsel submitted that your plea shows a willingness to facilitate the course of justice, that the witnesses who were required for cross-examination at the committal were limited, that there were legitimate challenges to the call charge record evidence, and to the coincidence argument relating to the evidence at the Mentone TAB.

35It was submitted that these matters were selective and appropriate and, once determined in the prosecution's favour, strengthened the Crown case.

36It was submitted that your acceptance of responsibility is also indicative of remorse.

37The case against you was strengthened once the Mentone TAB evidence was ruled inadmissible.  I accept that your conduct in relation to these proceedings has been such that you do accept responsibility for your offending.  I note that in court you apologised to Ms Allen for your conduct.  I accept that the evidence is indicative of some remorse.  Though as indicated in the course of argument, that needs to be viewed in the context of your record of interview, the contested committal and the manner in which these proceedings have been conducted.  The weight to be attributed to remorse is limited.

38At the completion of your term imprisonment you face the prospect of deportation.  You are a permanent resident in Australia, having migrated here when you were aged two and having lived here all your life.  All of your family, connections and friends are in this country and you have no ties or links with New Zealand.  I accept the prospect of your deportation, having established your life in this country, will render your incarceration more burdensome.

39There was no suggestion that the principles of parity applied in respect of your sentence to that imposed on Daniels for this and other similar offending, including the Mentone TAB.

40I note that he pleaded guilty before His Honour Judge Gucciardo to other offences and his involvement in the Braybrook TAB after he was convicted by a jury in respect of the Mentone TAB.

41On 5 February 2015, he was sentenced for the Mentone TAB offending to 42 months' imprisonment, to other offences to 30 months' imprisonment, and for the Braybrook TAB to three years.  In respect of all the offending, His Honour ordered a total effective sentence of 54 months, with a non-parole period of two years, three months.

42I was provided with material regarding steps taken by you when you have been in custody, demonstrative of your capacity to reform.  You have acted as the live-in disability mentor in a unit at Port Phillip Prison that accommodates cognitively impaired prisoners.  More recently, you have held the position as a peer educator in the Karenesh Program at Marngoneet prison.  These positions are reflective of you being considered by the prison authorities as a trusted mentor and that you have consistently displayed good and responsible behaviour whilst you have been in prison.

43You have continued your involvement in such programs since being sentenced by Judge Gucciardo.

44In the course of his sentencing remarks His Honour considered your rehabilitation prospects to be poor.  He notes,

"Even for a person who has resorted to previous serious crime for his own benefit and disregard of other people's rights, now for many years, I take into account that you have at least endeavoured, in your recent period of reclusion, to be of some service and usefulness in the prison environment and this may be a positive and an indicator to some prospects, poor as they may be, which should not be extinguished by this sentence."

45I adopt similar sentiments, as it is apparent that you have utilised your time in custody assisting others, and this is a positive sign which instils a little more confidence in your rehabilitation prospects, despite your very significant history of offending, which should not be extinguished by the sentence I impose for these matters.

46As previously indicated you have been in custody since January 2013.  You were sentenced by Judge Gucciardo on 19 December 2014 to a total effective sentence of seven and a half years, with a non-parole period of four and a half years.

47The Mentone TAB armed robbery was part of that sentence.  In accordance with Postiglioni, totality is relevant to the sentence I impose, particularly given the very similar nature of that offending with that currently before me.

48There were a number of aggravating features in relation to this offending.  It occurred in company with Daniels, an imitation firearm was used to intimidate Ms Allen.  Ms Allen was a vulnerable soft target, working alone at night at the TAB.  Your use of disguise as knowledge of the security, and actions after the armed robbery, illustrate a degree of planning for the offending.

49This offending was consistent with your other criminal activities and another example of your violent and terrifying behaviour.  It was a serious and nasty instance of armed robbery.  Additionally, you imprisoned Ms Allen against her will.  It was a frightening ordeal for her.

50The maximum penalty for armed robbery demonstrates the need to impose condign punishment and community denunciation.  General deterrence is also an important sentencing consideration.

51Given your very significant history, particularly that this is now your third armed robbery conviction, specific deterrence has a significant role to play.

52These sentencing considerations must be balanced with your personal circumstances, plea of guilty and principles of totality. 

53If you could stand up please Mr Lord.

54In respect of Charge 1, armed robbery, you are convicted and sentenced to a period of imprisonment of five years.  In respect of Charge 2, false imprisonment, you are convicted and sentenced to a period of imprisonment 18 months.  That makes a total effective sentence of five years. 

55I order that two and a half years of that sentence be cumulative on the sentence that you are currently undergoing.

56Pursuant to s.14, I am required to set a new non-parole period. I set a new non-parole period of six years and six months. From my understanding that would mean your earliest release dates will be about in April 2021.

57Pursuant to s.6AAA, if you had not pleaded guilty to this matter, I would have sentenced you to a period of imprisonment of seven years, with a non-parole period of five years.

58I made the compensation order and disposal order the other day.  Is there any other matters I need to say, Mr Doyle?  Do I need to declare that PSD of the 53 days?

59MR DOYLE:  Your Honour ‑ ‑ ‑

60HER HONOUR:  Is that referrable to that knew minimum?

61MR DOYLE:  Yes, Your Honour, look, there are two ways ‑ ‑ ‑

62HER HONOUR:  Of doing the new non-parole.

63MR DOYLE:  - - - of doing the new non-parole.  One is to set it from today.

64HER HONOUR:  Yes, I know.  I had a discussion with some of my colleagues about this.

65MR DOYLE:  I think the authorities indicate that's the preferred way, but it's not the only way.  That's my understanding of it.

66HER HONOUR:  Well what I'm going to do is, I'll declare that 53 days PSD, because that then is referrable to that new non-parole period.  My intention is to add another two years to the non-parole period.

67MR DOYLE:  Yes Your Honour.

68HER HONOUR:  Thank you.

69DR MARRICH:  As, Your Honour, pleases.

70HER HONOUR:  Thanks, I'll just stand down.

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