Director of Public Prosecutions v Lord

[2014] VCC 2236

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-01606
CR-14-01825

DIRECTOR OF PUBLIC PROSECUTIONS

v

DWAYNE LORD

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	05 December 2014
DATE OF SENTENCE:	19 December 2014
CASE MAY BE CITED AS:	DPP v LORD
MEDIUM NEUTRAL CITATION:	[2014] VCC 2236

REASONS FOR SENTENCE
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Subject: armed robbery, false imprisonment, trafficking in a drug of dependence, burglary,

theft, handle stolen goods

Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 7 years, 6 months imprisonment, with a non parole period of 4 years, 6 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D Gray	Office of Public Prosecutions
For the Accused	Mr D Barrese

HIS HONOUR:

1Dwayne Lord, you were found guilty by jury verdict of one count of armed robbery and one count of false imprisonment.  These offences were committed by you with Wayne Daniels, upon a TAB outlet in Mentone on 23 June 2012.  The idea to commit the armed robbery was yours and you planned and organised it and enlisted Daniels to accompany you as your accomplice.

2You were familiar with the TAB and had expectations that it would yield a large amount of cash.  You planned the details of the robbery and took with you gloves, a balaclava, duct tape and at least one small pick bar and mash hammer.

3At the time you ran a motor mechanics workshop in Hallam Road, South Hallam.  You drove to Mentone with Daniels, you parked your car near the agency and hid in the bushes for a short time.  The manager for that evening closed the TAB shortly before midnight and as she walked out of the glass sliding doors towards the car park while carrying a bundle of papers, she was set upon.  She had set the proper alarms and secured the safe in the office, and as she exited the agency, you and Daniels rushed up to her, manhandled her roughly and she dropped her papers at the entrance.

4You forced her back into the TAB, and after being assaulted at the front door, she was again assaulted inside the office where she was clearly intimidated into complying with your instructions.

5At the time, you were seen on CCTV footage to be carrying a hammer or pick of some kind.  The safe had a time delay mechanism arming the two safes, one of which was housed by the other.  To open the smaller safe containing the money, the manager had to turn a key.  When the first 15 minutes was up, you attempted to open the safe yourself, and instead you triggered the safety mechanism, which meant the manager had to again reset the delay and you had to wait another 15 minutes.

6On the footage of these events, you can be seen to be the leader of this criminal expedition, with Daniels obeying your instructions.  Throughout this delay, the manager was detained forcefully and forcibly to remain in the proximity of the safe.  You also rummaged through the various offices opening doors and draws, strewing debris and rubbish all over the offices in attempting to damage the TV instrumentation.

7More pointedly, you can be seen on the floor near the entrance, earnestly looking for the roll of duct tape while manhandling the manager.  The roll of tape had rolled fortunately to the darkest corner of the agency out of your sight.  Later it was found and it contained your DNA.

8Deprived of that tape, you threatened to tie up the manager with some scotch tape you probably found when you trawled through the offices.  She protested at that suggestion and you relented.  Eventually the safe was open and you took just under $70,000 in cash which you placed in a bag.  You then fled.  However, you both left the agency without the money.

9At first leaving it in a small table in the bag, and running out only to realise neither of you had grabbed the money.  You then smashed the front sliding doors to get back in and retrieve the loot and the bag.

10Wayne Daniels gave evidence at your trial, having been convicted himself upon his trial for armed robbery.  A trial during which he gave evidence on oath that he had not committed it.  Upon being found guilty of the offence, he made a full statement and gave evidence pursuant to it.

11Having committed the armed robbery, you drove back down to your workshop where you gave Daniels about $18,000 and kept the rest.  The crime of armed robbery is a very serious offence, which not only deprives institutions and businesses of property, but puts persons who get caught up in the execution in fear of their bodily integrity.

12The crime classically combines an offence against a person with elements of an offence against property, and this is exemplified in this case.  The manager was distrained and in effect imprisoned against her will after being roughly manhandled, and subjected to what would have been a terrifying experience.

13Irrespective of what was a brave and impressive conduct on her part, the threat of physical harm and fear for her safety were present throughout this ordeal.  This aggressive offence violates the community's values and rights of citizens to security and confidence, striking fear in the minds of those present and creating apprehension in those who will learn of its commission.  It is a violent crime.

14The maximum applicable to this offence demonstrate that these offences are to be treated as the most serious character, and are to be met with condign punishment and denunciation, and addressing sentences in which general deterrence must be a primary consideration.  In my view, this is the case here.

15False imprisonment equally carries a maximum of ten years.  This offence was part and parcel to the armed robbery and although I consider it is properly separated from the other count, it is so inherently tied to the events of the armed robbery that I will deal with it in recognition of its occurrence, but essentially concurrently with the penalty for the armed robbery.

16The victim impact statement was received from the TAB manager.  Her behaviour during the armed robbery was exemplary and is to her credit.  She should be congratulated on the way she managed to deal with you on the night.

17However it is must recognised that your criminal behaviour had an impact upon her.  Her injuries were minor, but injuries nevertheless.  Just as importantly, she reports having had to take a 30 per cent reduction in wages because she cannot work at night any longer due to her anxiety and fear of working alone at those hours.  She attests to suffering anxiety, having lost not only her sense of trust, but her confidence.  She has suffered insomnia and the symptoms of post-traumatic stress disorder.  This has impacted significantly on her social life, and diminished her ability to interact with family and friends.  I take her victim impact statement into account.

18Sometime after the armed robbery trial, you pleaded guilty to a second indictment.  The plea to these offences was entered after indication that these matters were to be criminal trials.  The plea was then offered, as the trials were about to commence, and after Daniels had made a further statement against you in relation to some counts.

19Nevertheless I take your plea into account in mitigation, which will attract the discount on your sentence in recognition of the utilitarian value of not having required resolution by a trial, or a series of criminal trials.

20The circumstances of the offences contained in the second indictment are those outlined in the prosecuting opening, tendered and exhibited.  I will briefly summarise these matters.

21Between December 2013 and January 2013, police had intercepted a number of phone calls and texts pursuant to a warrant.  These communications demonstrated that in that period you were trafficking MDMA and methylamphetamines.  A large number of conversations referred to sales and supply of drugs, and monetary values of the transactions which involved the use of coded language.  Some sale and exchanges are contained in the prosecution opening.  You were arrested in January 2013 at your home.

22There, police found cash, snap lock bags, digital scales and methylamphetamine which weighed 1.1 grams, 21 tablets and part of another in your bedroom weighing 4.9 grams containing ecstasy.  You were in the business of trafficking drugs.  There is no other motive or background to your offending than greed, and the extraction from this insidious trade, the maximum financial benefit to you.

23Drugs of dependence, particularly methylamphetamines are a blight on our community, and the community looks rightly to the court to denounce such trafficking as unacceptable criminal behaviour and to punish the offender justly and to seek to deter others who are like minded, for reasons of their own benefit, to trade in this dangerous, damaging and evil trade.

24Drug trafficking destroys the fabric of society, and damages families, individuals, often the very young, vulnerable, and the most disadvantaged and desperate.  The court must continue to send out a clear message that such behaviour will be punished in a stern fashion.

25Counts 2 and 3 concern with matters in December 2012 a home at Tate Avenue in the south eastern suburbs was broken into and property stolen.  You have pleaded guilty in relation to this burglary and theft.  The house belonged to a man who worked in the car repair industry, who had unfortunately met you the month before.

26He helped to fix a couple of cars for you.  On Boxing Day, you asked him to help you out with your own car.  You went to his home and he helped you.  He told you he was going away on holidays.  The next day you discussed robbing him with your partner. 

27On the 29th, you directed Wayne Daniels while both of you were in a car being monitored by police.  You directed him in the vicinity of Tate Avenue.  That night, that home was burgled and property was stolen, including a computer, cameras and camera equipment, an iPad and assorted jewellery.

28Later in the evening, you can be heard on an intercepted phone call discussing the property and its disposal.  A later search of Daniels' home revealed some other of the stolen property.  Daniels made a statement implicating the two of you in this burglary and theft.  Apart from the fact that the invasion of people's homes and the plundering of their property is a social evil which the court must denounce and punish.

29This was a particularly pernicious example of criminal malice and pre-meditation, taking advantage of knowledge and a confidence gained by the deceit of friendship.  Not only did you strike at the heart of the victim's domestic security and capacity to feel safe in his home, but you did it without a second thought to abuse the trust and repour, built with this person for your advantage, in my view an aggravation to your offending.  General deterrence must have a primary consideration in this sentence.

30Count 4.  On the next day to the previous burglary, another home was broken into in Pakenham.  On the following day, telephone intercepts include a call in which you have a discussion with another man while he is committing the burglary, and discuss the property he has just stolen.  You tell him to "just get back here", and you direct him to a meeting place at 3.45 am.

31Late that morning, you discussed the theft of the property with your partner including presents of a TV for children's room, and another Apple Mac computer.  On 11 January 2013, police arrested you and searched your home and a Samsung TV was found in your children's room.  This was stolen from the Pakenham address.

32Count 5 is a charge of handling stolen goods.  This charge is generally regarded as more serious than theft and this is because the ability and willingness to handle stolen goods, ensures the success of the stealing.  Here you directly encouraged the thieves, ensuring the success of their criminality.

33A few days later in January 2013, the occupiers of a house at (indistinct) were in bed asleep.  At 3 am, the woman was woken up when a person entered her bedroom wearing a balaclava and holding a torch.  A second person was behind the first.  She screamed and the two persons fled.  One ran to her son's bedroom.  A fly wire screen had been removed from the boy's bedroom, and the glass panel next to the front door had been damaged. 

34Earlier in the night, you can be heard on the phone giving another man directions to this address.  In a second call about ten minutes before the entry of the men into the house, you are heard to tell them "there's no one home, they've gone away".  Wayne Daniels committed this burglary.

35Shortly after running out of the house, he called you and can be heard telling you that there are people in the house.  Your concern is to make sure that Daniels has the right house, and no blood has been left at the premises.  You were part of the joint criminal enterprise to carry out this burglary, and in fact you provided the relevant information to the others.  The woman in the house was your ex-partner.  The children in there were your children.  This is an aggravating feature of this burglary.  The arranging, the carrying out of a burglary on those circumstances is a vile act.

36You may have believed that they were not present, but the fact that they were, and that they were exposed to a very traumatic event cannot be again said.  It is not hard to envisage of waking up, in your own bedroom, to two masked men in the middle of the night.  This crime is repulsive in its intent, and in its affect.

37Victim impact statements from your ex-partner and new partner were received by the court.  She has required psychological assistance as a result of the home invasion, and has to be medicated.  She became understandably terrified, hyper vigilant, and could not sleep.  She has difficulty sleeping still and suffers anxiety.  She needs often to have other adults present in the house for security.  Her 14 year old step-son still sleeps with the light on and spent two months in fear of men breaking through his room.  Your 16 year old son has trouble sleeping, affecting his academic progress. 

38They both now live with the knowledge it was their father who served up this terror to them.  Your 14 year old daughter will not stay home alone anymore and has trouble sleeping.  Both children are angry and disappointed naturally and fearful, that you could arrange for a criminal act, which has impacted their young lives so significantly, is an aggravating feature, and a feature which I take into account.

39Your crime also had a financial affect, outlined in the impact statement, that the psychological and emotional trauma will be long lasting no doubt.  I take your plea in relation to the second indictment into account.  Your plea in relation to those matters, which will attract a discount upon your sentence.  Your plea was not offered at an appropriate time and early in the process, and it was probably motivated in part by the late co-operation offered by your co-accused Daniels which not only was a significant catalyst in your conviction for the armed robbery, but would have probably seen you convicted on the burglary matters as well.   So to that extent, your position and consequent plea became inevitable. 

40However, I accept and take into account that as to the other matters in the second indictment, your plea was not related to his co-operation, but by a desire on your part to finally accept responsibility for your offending, and endeavour to clean the slate.  I therefore accept that the plea has a utilitarian value which relates to the avoidance of perhaps two trials to come, relating to the drug and burglary matters.  This has saved the community costs and court time.

41I also accept that once you offered the plea of guilty, you were accompanied by some regret, in particularly for the burglary which involved your family members.  I am unable however to assign any remorse to your plea.  Remorse is more difficult to assess and a much greater step in taking responsibility, and I have no real clear evidence before me that such a sentiment has been demonstrated by you.

42In relation to the armed robbery, my view I should consider that you were the instigator and organiser and main protagonist of that criminal enterprise which you carried out with a certain further, even if punctuated by ineptitude.

43You have a relevant prior criminal history, relevant to your prospects of rehabilitation and to your personal circumstances.  In 2010, you were sentenced to an aggregate prison term, cumulative on an uncompleted term owed to the State Parole Board for trafficking and possessing methylamphetamine and possessing cannabis.

44In 2006, you were sentenced to two years with a non-parole period of 16 months for possession of amphetamine, ecstasy and cannabis.  In relation to the armed robbery, you have a prior for robbery for which you were fined in 1992, a four year sentence with a non-parole period of two years and eight months for attempt armed robbery and use of firearm to resist arrest, and injury offences in 1993.  And then in 2006, His Honour Hart of this court sentenced you for armed robbery and possessed drug of dependence to a total of four and a half years and set a new non-parole period of three years.

45As to both of these matters, those priors demonstrate that the sanctions imposed by the court have not deterred you from resorting to this type of offending when it becomes convenient to you to commit such serious offending, and that your prospects of rehabilitation are poor.

46In disbursed from 1984 when you were fined for burglary and theft to today, are many other priors from criminal damage to sexual penetration of a child under 16, to many driving offences, all which demonstrate your utter disregard for the law and the consequences of its breach.  I consider that at 48 years of age, you are probably a recidivist from whom the community rightly seeks protection. 

47However, 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.

48I received the reference in evidence in this regard, and I take into account the letter from the general manager at Port Phillip Prison, Mr Thomas which confirms you have been acting as a disability mentor at the Mulberry Unit, which houses prisoners with a cognitive impairment since February 2013, and that you have been proven to be an effective mentor, which means you live and work in this cohort of inmates seven days per week.

49Evidence and a reference from the Disability Co-ordinator at the prison, Michelle Enbon, was received and she attested to your general empathy for prisoners with cognitive impairment, and to your valuable and respected assistance which has required you to meet specific and stringent criteria of behaviour and commitment.  All of this is to your credit and I take it into account in moderating your sentence. 

50I also received the reference note from Mr Gallis, a founding director of Footy's 4 All Foundation who runs a weekly mentoring program with the special needs prisoners at Port Phillip maximum security Mulberry Unit.  In this context he attests to your participation as instrumental in the success of the program.

51Paradoxically, all of this evidence may not only be an indication of rehabilitation prospects, but of your likely institutionalisation.  I take this into account particularly in the context of the application of the principles of totality and parsimony.

52During the plea and with the assistance of a remand (indistinct), it was clear that because of the breach of parole and the sentences imposed upon you, you have had about 20 months in the community over the last few years, but have been in effective custody since about 2012. 

53Fifty-three days of that reclusion is referrable to this matter, and I will have those days noted in the records of the court as pre-sentence detention, excluding today.  You were born in New Zealand, and came to Australia as a young child.  You were in school to Year 11, and you then completed a four year motor mechanic apprenticeship.

54Your mother's passing at a young age from leukaemia had a profound affect on you, which meant the end of your formal education and led to misbehaviour and brushes with the law.  You have however the support and visits of your family. 

55In 1999, you married but separated five years later.  The union produced two children.  This family was that which was the victim of your burglary conviction in this indictment.  You then began a new relationship with a woman who had two children of her own.  The four of you lived as a family from 2009.  Your partner remains supportive of you.  You have had some issues with drug use before 2009, but I was told that you have not had such involvement since that time.

56You have had, when not interrupted by incarceration, a good work history in hotels which you owned and managed.  Financial management has been your downfall with some gambling problems which has led to criminal conduct.

57The 2006 sentence of His Honour to which I have referred to, is instructive in some aspects.  His Honour noted that the armed robbery for which he sentenced you was not a spare of the moment offence, but committed after preparation and planning much like the one that I am sentencing you for. 

58You know that on that occasion that your co-accused carried a loaded firearm, and on the prior for attempted armed robbery of a jewellery shop, you carried a loaded pistol.  Luckily, you were otherwise armed on his occasion.

59His Honour on that occasion also noted that you had spent time in custody productively, and attempting to rehabilitate yourself.  But he was sceptical, but hopeful that you could rehabilitate yourself.  It is disappointing to note that at your age, you have again failed in that endeavour.

60I take into account current sentencing practises by way of a review of a number of cases and updated sentencing snap shots.  This sentence should in my view consider specific and general deterrence and just punishment as primary principles to apply, being mindful of the principle of totality.

61In this context, in my view, there should be a degree of cumulation as between the trafficking, the dishonesty offences and that the false imprisonment should be concurrent with the armed robbery.

62Please stand Mr Lord.  On the armed robbery indictment, on Count 1 of armed robbery, you are convicted and sentenced to six years imprisonment.  On Count 2 of false imprisonment, you are convicted and sentenced to 12 months imprisonment, concurrent with Count 1.  The total on this indictment is six years.

63On the second indictment on Count 1 of trafficking, you are convicted and sentenced to three and a half years imprisonment.  On Count 2 of burglary, you are convicted and sentenced to 15 months imprisonment.  On Count 3 of theft, you are convicted and sentenced to nine months imprisonment, concurrent with the other sentences on this indictment.

64On Count 4, handling, you are convicted and sentenced to 12 months imprisonment.  On Count 5 of burglary, you are convicted and sentenced to 20 months imprisonment.  The total sentence on the first indictment is six years.  On the second indictment, I order that one year on the trafficking on Count 1, and two months on burglary, Count 2, one month on Count 4 of handling and three months of Count 5 of burglary, be cumulative on each other and on the sentence on the first indictment.

65That is a total effective sentence of seven and a half years.  I set a non-parole period of four and a half years.  I note for the records of the court that you have 53 days of pre-sentence detention.  But for your plea, I would have sentenced you to a total effective sentence of eight and a half years with six years non-parole period.  I have signed disposal orders and forfeiture orders pursuant to the drafts submitted to me by the Crown.

66MR GRAY:  Yes, Your Honour.  Just one thing, the PSD should be 54 days, Your Honour because the plea was adjourned for a day.

67HIS HONOUR:  I will correct that to 54 days of pre-sentence detention.  Are there any other orders gentlemen?

68MR GRAY:  No, Your Honour.

69MR BARRESE:  No, Your Honour.

70HIS HONOUR:  Thank you, you can remove Mr Lord.

71MR GRAY:  As Your Honour pleases.  Thank you gentlemen.  Sine die.

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