Director of Public Prosecutions v Luchian

[2018] VCC 1179

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00685

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN LUCHIAN

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	26 June 2018
DATE OF SENTENCE:	2 August 2018
CASE MAY BE CITED AS:	DPP v Luchian
MEDIUM NEUTRAL CITATION:	[2018] VCC 1179

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – armed robbery (1 charge)
Legislation Cited: Crimes Act 1958, Sentencing Act 1991
Cases Cited: McCarthy v The Queen [2018] VSCA 91; Lord v The Queen [2018] VSCA 52; DPP v Dalgliesh (a pseudonym) [2017] 349 ALR; DPP v Dalgliesh (a pseudonym) [2017] VSCA 360.
Sentence: Convicted and sentenced to six years’ imprisonment with a minimum term to be served before being eligible for parole of four years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Wallace	Office of Public Prosecutions
For the Offender	Ms Cooper	Leanne Warren & Associates

Pages 1 - 8

 

 

HIS HONOUR:

1Mr Benjamin Luchian was born on 17 October 1992.  At the time of this offending he was 24.  He is now 25, about to turn 26.

2Ms Wallace appeared on behalf of the Director, Ms Cooper appeared on behalf of Mr Luchian.

3Mr Luchian pleaded guilty to one charge of armed robbery in indictment No.J10047604, an offence under s.75A of the Crimes Act.  The maximum penalty prescribed for that offence is one of 25 years imprisonment.

4The offence took place on 31 December last year.  It was a Sunday.  The victim was Mr James Young, he is aged 62.  He was the manager of the Yarra Avenue Cellars, located at 28 Yarra Avenue Reservoir.

5The armed robbery was committed by the use of a knife.  Mr Luchian said to
Mr Young, "Quick, I want money".  He wore no disguise.  He received the sum of $450 cash - one cannot really balance that paltry amount of cash against the grave risk to liberty taken by Mr Luchian on that day.

6I have re-watched Exhibit B, which is the CCTV of the armed robbery.  It is dramatic in two senses because it shows how quick and effective the crime was, but also, when you subsequently watch thereafter, the manner in which the proprietor is affected - albeit, remarkably continuing to carry out his business until the police arrive - shows the impact of these serious crimes.  As I say, it demonstrates the use of a large kitchen knife and no disguise.

7Ms Wallace, on behalf of Mr Luchian, accepted that the prosecution summary dated 28 May 2008, Exhibit A, were the facts upon which I am to sentence you.

8There has been no victim impact statement tendered, however as I said, from the observation of the CCTV it is clear the physical impacts an armed robbery of that type has on a person, and no doubt there would have been psychological consequences.

9Because of the manner in which you carried out this serious crime you were shortly thereafter arrested.  You were arrested at premises at 73 Worth Road Reservoir on 4 January.  You made a no comment record of interview.  You have been on remand since that time, two hundred and ten days, which will be service of the sentence I pronounce on you.

10I have signed, I think, Madam Prosecutor - I don't know whether you've got it, but I'm pretty sure I signed the disposal order?

11Mr Luchian, you unfortunately have substantial priors by way of your criminal background.  I rehearse those, not in any way to suggest that you come up to be sentenced again for them - that has happened - but they are rehearsed because of their type, which mean that this Court is particularly limited in what it can do insofar as a sentence is concerned.

12It is unfortunate that in your life you have been involved in serious criminality since 2008 in the Children's Court.  You have three armed robbery convictions recorded in the Children's Court.

13In this Court in March of 2012 you had recorded convictions of robbery, and two armed robberies, for which you got a sentence of two years and eight months with a minimum period of 16 months.  In August of 2014 you got a further period of imprisonment when you were convicted of attempted armed robbery.  You got a sentence of two years and two months with a minimum period to serve of 16 months.

14Now, it was said that after your release from prison you had approximately a period of a year after that sentence when you did not get into any further difficulty, however you were subsequently convicted of another offence in November of 2017, for which you were sentenced to a period of 42 days, and indeed you were only three days out of gaol for that offence when you committed this serious armed robbery.

15In all the circumstances the prosecution submitted that the only appropriate sentence for you was a period of gaol with an appropriate non-parole period.  There was no dispute from your counsel about that.

16Insofar as the plea on your behalf Ms Cooper tendered submissions, which became Exhibit 1, dated 18 June 2018, and also provided the Court with a chronology attached to those.  Those submissions indicated a desire for the Court to pass a combination sentence for you; that is, a period of gaol and a community correction order.

17As I indicated during the plea; your criminality, unfortunately, is too serious for such a sentence, given the totality of the circumstances of your crime, the fact that such crime occurred three days after being released from prison, and of course taking into account your priors.

18The limitations on a s.41 order in the Sentencing Act are such that even taking into account the 210 days you have served the maximum on top that could be given with a combination order would be one year only.  Such an order would be an inappropriate response by way of sentencing to this serious criminality.  As I said to your counsel, such a sentence would be totally inadequate, and I maintain that view.

19The unfortunate aspect of this case for this Court - and indeed for the community - is the matter put by your counsel that indeed this very serious crime was committed, at least in part, by your motivation to go back to gaol.  Upon your release you had no permanent place to live and had difficulties even after your earlier release.

20You suffer from the ongoing pangs of drug addiction, and indeed one of the difficulties when you were free from the prison environment is that you were not able to obtain methadone.

21You have, unfortunately, been institutionalised - both by way of care organisations as a child, sentences while a young child - or a young youth - and sentences in your adult life.

22The offending itself, as I have said, was serious - albeit quick and no injuries caused, it was submitted to me that I should accept that it is the lower level.  It is perhaps lower in some forms than some more dramatic armed robberies that we have in this Court, however it is not to be underscored that this is an offence abhorred by the community, often committed upon soft targets - which you did - upon persons carrying out their normal activity, and an offence committed, as in this instance, by an armed weapon, which was a knife.  It has to be recalled that the maximum penalty prescribed by Parliament because of the views of Parliament and the community as to the need for appropriate penalty, is one of 25 years.

23I accept that the matters put by your counsel have to be taken into account.  Firstly, your early plea.  It is obviously remarkable that insofar as an offence which took place on the last day of last year, that you were before the Court making your plea on 26 June, and you are now being convicted and sentenced on 2 August.  There is no doubt that that indicates that you have been cooperative and you are entitled to an appropriate discount for your assistance to justice, for the utilitarian benefit of that plea, for the fact that the victim in this matter has not been put through the trauma of coming to this Court for a trial - and I do give you that appropriate discount.

24It was put that you are still youthful.  At your age, 26, you are relatively youthful.  It is put that you have demonstrated genuine remorse.  I think that proposition has to be accepted on a somewhat guarded basis, given your background.  The only time that you are going to demonstrate true and actual remorse is when you finally rid yourself of the scourge of drugs, so that you are not committing these serious crimes.

25What was also relied on was the psychological report of Ms Lofthouse, which was tendered as Exhibit 2; that report being dated 6 June of this year -
Ms Lofthouse being a member of the Australian Psychological Society.

26The circumstances, as I said, are not only concerning for the Court, but concerning for the community.  On p.2 you give the explanation as to why this crime occurred.  You take responsibility for such crime against a background, as I have already said, of criminal offending that goes back to periods of incarceration not only in youth detention, but in adult courts.  As was said by Ms Lofthouse on p.2:

"Mr Luchian was able to accept responsibility for his behaviour that led to the current charge and expressed remorse.  Mr Luchian stated the contributing factors in his criminal offending included just being released from prison with no stable accommodation, being unable to get things sorted, being intoxicated, and that he just needed some money".

27It is obvious, as is demonstrated in your discussion with the psychologist - you have difficulty in coping on the outside with your addiction.  You have had, and been subject for the last six years, to a methadone program that unfortunately has not totally succeeded.  Your drug and alcohol use for many years was described by you as such to render a description of polysubstance abuse.  You have been subject to the scourges of methamphetamine, amphetamine and heroin.

28You unfortunately had a difficult early life.  You were unfortunately removed from your home at the age of 13 and came under the auspices of State care.  You have had difficulties in your education.  Your natural intelligence is not high, but in the circumstances you have suffered social deprivation as well.  Life has not been easy.  Those things of course have to be taken into account.

29There is no doubt that this Court accepts that many criminals who come before this Court - as you would know from being in gaol - have difficult backgrounds.  I accept that the background to this criminality must indeed be seen to go back many years in your life, but predominantly the reason is your unfortunate addiction to drugs and the scourge that it has made of your life.  It is to be pointed out that your counsel did not put these matters upon in a Verdins type proposition, but just as an explanation of the life that you led.

30The end result of the submission that Ms Cooper made to me is that she really described your predicament as tragic, and you are, unfortunately, a tragic example of what can happen in this community, where you get an unfortunate start, you become addicted, and you become involved in criminality - and I accept all those matters.

31I do, of course, take into account that background, and it is no joy to me to add to the institutionalisation that you have suffered from.  There is, however - because of the serious nature of this crime no alternative.  In your circumstances I find none of the particular circumstances taken into account by the Court of Appeal in McCarthy v The Queen [2018] VSCA 91, [22] and [39].

32It is appropriate to mention the most recent pronouncement of the Court of Appeal insofar as armed robberies are concerned, and this was in the case of Lord v The Queen [2018] VSCA 52, 7 March of this year. The Court of Appeal said:

"Armed robbery is a very serious offence.  It causes great harm to those directly affected and great disquiet in the wider community.  The very high maximum is the clearest indication of how serious the offence is to be viewed.  As this court has said repeatedly in recent years; the adequacy of current sentencing for serious offences is a matter of the first importance in public confidence in the criminal justice system".

33They went on to say, a matter which does not obviously apply to your case, given the decision of the High Court most recently in DPP v Dalgliesh [2017] 349 ALR:

"It is to be assumed the Director will take an early opportunity to bring an appeal to this court which will enable proper sentencing standards to be set for this offence". (11)

34As the High Court said, it is of most importance that personal justice is rendered to you, Mr Luchian, so that you are sentenced for the particular circumstances of your crime, and that is what I do.

35As the court said in Dalgliesh:

"The most important thing for a sentencing judge is to deliver individualised justice based upon the particular circumstances of the case".

36If I might say so, that has generally been the manner in which certainly this Court has gone about its task.  That, of course, is a very important consideration in as far as sentencing is concerned, and was indeed adopted subsequently by the Court of Appeal in the case of DPP v Dalgliesh [2017] VSCA 360, [39(a)].

37Mr Luchian, balancing all those matters as mercifully as I can for you, and taking into account the seriousness of the crime, I order that you will be convicted on the count of armed robbery, and that you be sentenced to a period of imprisonment of six years, and that the minimum period that you must serve before being eligible for parole is four years.

38As I say, it gives this Court no joy to add to the fact that you have been institutionalised over much of your years, but if you are going to save yourself and not be in gaol for the rest of your life, when you come back from serving this sentence you must rid yourself of the scourge of drugs.  You know that far better than me.

39Insofar as your plea of guilty Parliament asks me to advise you that had you not pleaded guilty the sentence that you would have got is a period of eight years with six; so that means that the benefit to you is a sentence not of eight years with a minimum of six, but six years with a minimum of four.

40The 210 days, Mr Luchian, that you have served to date are deemed to be service of this sentence, and a notation of this declaration will be recorded in the records of this court.  Do I need to refer to any other matters from counsel?  Yes.

41Well, good luck Mr Luchian.  Let's hope things change ultimately for you, all right?  Yes, the prisoner can be taken away.

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