Director of Public Prosecutions v Lyddy

[2018] VCC 861

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02528

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW LYDDY

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	2 May 2018
DATE OF SENTENCE:	2 May 2018
CASE MAY BE CITED AS:	DPP v Lyddy
MEDIUM NEUTRAL CITATION:	[2018] VCC 861

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Lee	Office of Public Prosecutions
For the Accused	Mr J. Siggins	James Dowsley & Associates

Pages 1 - 16

 

 

HER HONOUR:

1Andrew Lyddy, you have pleaded guilty to 11 charges of armed robbery, one attempted armed robbery and one of robbery.  All 13 offences occurred over a period of just over two weeks between 31 August and 17 September 2017.  All offences occurred at night or in the early hours of the morning.

2In 11 of the 13 charges the victims were console operators at petrol station convenience stores.  The two remaining charges involved shop attendants at an adult or sex shop and a bottle shop.

3On each occasion the victim was the only person working in the shop.  Because of the nature of the businesses that they were working in, there was no barrier between them and members of the public who come into the store other than a counter. 

4Such security measures as exist in these places seem to be confined to installation of CCTV which, in this case, was effective in recording your image and so identifying you.  But it provided no protection for the victims against the very real and obvious threat of immediate personal harm that you, brandishing a syringe or knife or, on one occasion, a threat of a concealed weapon conveyed.  You were clearly identified on CCTV footage in respect of all 11 armed robberies and the robbery.

5You made no attempt, it would appear, to disguise yourself.  On one occasion when you entered a convenience store wearing hoody, you were asked to remove the hoody and you did. 

6On some occasions you stole consumables as well as demanding that you be given money from the till.  Those consumables were cigarettes, bottles of coke, once some Panadol and, at the bottle shop, two cans of bourbon.  When consumables are included in the charges to which you pleaded guilty, the summary makes it clear that on each occasion you would either select those consumables and take them to the counter or go to the counter and ask for them, such as cigarettes, as if you were a real paying customer. 

7On each occasion, the subject of the charges, it was only when you were close to the attendant that you produced your weapon and made your demand.  On one occasion, in addition to demanding money and consumables, you demanded your victim hand over his iPhone.  When he initially refused, you repeated your demand.

8You may have been motivated by a desire to get money for drugs, but your conduct on each of the 13 occasions was purposeful.  For example, when you stole the iPhone, you were collected enough to return it to the victim and make him bring up the password and reset it so that you could use it. 

9You demanded money.  You were able to identify the sort of cigarettes you wanted, and the food and other consumables you chose were clearly things that you, on each occasion, wanted to consume.  Your conduct was clearly purposeful in the way you entered each of the convenience stores or other shops, waited until you were the only person there, approached the counter and made your demands there when you were very close indeed to the helpless attendants. 

10The amount stolen in these offences were relatively small in dollar terms, the highest amount alleged, $1,000; the least, a miserable $104.40.  Most of your victims were men, one of them, the final one, a woman. 

11When you were arrested shortly after the last of these armed robberies, money, that is cash, cigarettes, and the mobile telephone stolen in one of the armed robberies, together with the knife that was used in some of them were found in your possession.

12On six occasions, the weapon that you used was a syringe, seen to be filled with blood.  In fact, on the CCTV footage before the first armed robbery, you were actually seen putting the syringe into your arm and filling it.  On four occasions, the weapon was a knife.  On one occasion, the weapon was a syringe which was described as having a whitish fluid in it and, on one occasion, a syringe which was described as being empty. 

13One charge is a charge of attempted armed robbery.  That is because when you approached the victim with the syringe, he defied you, told you could stick the syringe into him but he was not going to put money in the bag.  He told you that he was not afraid of you, that you could do what you liked because there was a truck outside filling up and the driver of that was on his way in.  It was only when you saw there was indeed someone coming that you fled empty-handed; that is the only time you did not get anything. 

14One charge is robbery.  That was the one at the bottle shop.  On that occasion, you went straight up to the young man who was working at the bottle shop, you had two cans of bourbon with you and you demanded money.  You had your hand in your pocket and moved your hand in your pocket in a way that was clearly intended to convey that you had a weapon or were prepared to use some sort of force. 

15On all other occasions you produced and showed either a syringe or the knife.  The knife that was used in at least the last three armed robberies was the one found in your possession at the time of your arrest.  It was a large kitchen knife with an 18 inch or 24 cm blade according to the agreed summary.

16When interviewed after your arrest you admitted, to the police, committing the robberies, the robbery and the attempt.  You told police that you did so because you owed money for drugs and you had to pay off your drug debt.  You said you had been using ice in small amounts every few days.

17As discussed with counsel in the course of a plea, the pattern of offending revealed in the charges, the frequency of offences, occurring over that just over two week period, and the amount stolen indicate, first, that money obtained was more likely to be used to buy more ice, rather than pay off a pre-exiting debt.  Perhaps that was because whoever was supplying you was no longer prepared to supply you with credit.  But it also raises the possibility that your ice use was more than a little bit every few days, as you told police. 

18Whether, indeed, the money went to pay off a debt or to pay for more ice and whether you were using a little or a lot, and every day or every few days, matters little.  Ice addiction, the amount of ice being used, and committing armed robberies, whether to pay off an ice debt or fund an ice habit are not mitigating factors. 

19So far as your victims are concerned, all of them were solo workers in a small retail outlet.  Their work is low paid and relatively unskilled but it is work in a position of trust because they are handling money on behalf of somebody else.  They are particularly vulnerable workers because of the sort of places they work.  However, it should not be part of being the job of console operator, a bottle shop attendant or somebody who works in a retail outlet like a sex store, that they are going to be held up by somebody who comes in outside normal business or retail hours, pointing a syringe, a knife, or anything else at them.

20None of the victims of any of these 13 offences have made victim impact statements.  It is not necessary though to have victim impact statements to understand the fear that they must have or would have been likely to have experienced.

21It is notable in my view that all but two of the victims had names suggesting that they or their family's country of origin was the Indian subcontinent.  The name of one of the victims suggested Chinese ethnicity.  It leaves me wondering, in this case, if the victims are vulnerable not only because of the relatively unprotected places in which they were working and where it would appear the best security available or the best security offering was CCTV to monitor offending after the event, or for other reasons as well.  I do not know whether they were reluctant to make victim impact statements because of uncertainty about their visas, whether they had residency or were on visas which prohibited or limited the amount of time that they could spend in employment, or that they are vulnerable workers simply because they were not aware of their rights. 

22Whatever their circumstances, that is not something that will adversely affect your sentence.  I am doing no more than hypothesising about the circumstances of your victims.  But it is an all too common phenomenon that we see in this court when dealing with armed robberies of this nature, involving night shift console operators with names that indicate they are not of Anglo-Australian ethnicity and who do not make victim impact statements.  It is a matter of common knowledge that many of the people who work as night shift console operators are people here on student visas who are often either concerned about whether they might be accused of working hours greater than those allowed under their student visas or who are otherwise vulnerable people unaware of their rights or too afraid to complain. 

23It is a matter of real concern because they certainly do not seem to be able to be sufficiently organised as a group to be able to lobby their employers to make their workplaces safer.

24When interviewed, you told the police that you were aware of impact on your victims.  You spoke of seeing the fear in the face of one young victim.  You spoke of appreciating how intimidating you appeared, as you had intended.  It is all very well, once caught, to express remorse for and appreciation of the intended impact on your victims.  But I do not accept that you did not think of that before you entered each of these places and did what you did.

25In my view, you simply did not care enough about the harm to your victims.  You were making conscious choices to do whatever it took to get the money that you wanted.  Hence, your expression of remorse or regret afterwards, to me, rings hollow.  The more likely explanation to me is that having found how easily you could get your way and get the money, after the first time you threatened a shop attendant with a syringe filled with blood, you resolved to continue to obtain drug money whenever you needed it in the same way.  It suited you more than going without.

26I do not accept the expression of regret you made to the police when interviewed or all of the expressions of regret that you have made since then as evidence of remorse, as that term is understood by the criminal law, even though you said so to police and have maintained since being charged that you are remorseful for the impact on your victims.

27You knew exactly what you were doing and you intended to cause fear, and you were aware at the time that you were achieving your aim.  To say, when interviewed, and afterwards you are sorry, I do not think is properly to be characterised as an expression of remorse.  It is no more than a recognition that you did what you intended to do and achieved your intended aim.

28At best, or kindest, it might be said that you were acknowledging your victims were collateral damage, that is that you bore none of them any personal ill will but you were prepared to sacrifice their sense of safety in order to obtain money for ice.

29Your knowledge at the time and indeed in the planning for the commission of these offences that they would be terrified, and then saying after the event you are sorry just does not cut it.  Such awareness of the fear that you intended to cause and did, in fact, cause is, in my view, an indicator of cruel selfish heartlessness, not of remorse.

30Armed robbery is a serious offence.  One measure of the seriousness with which it is regarded is the maximum penalty prescribed by Parliament, namely imprisonment for 25 years.  The maximum term of imprisonment for robbery is 15 years.  That too is an indicator of the seriousness with which Parliament and the community regards this offending. 

31These 13 offences to which you pleaded guilty are all too prevalent examples of their type.  A person, possibly drug affected or suffering withdrawal symptoms, standing at close quarters to an unprotected victim in an unprotected space, offering serious threat of violence or harm to the hapless victim.

32The use of the knife is bad enough, but the presentation of a blood-filled syringe is, in my view, a particularly wicked form of this offence.  It conveys, and is intended to convey the impression that the perpetrator is an injecting drug user, that is that the assailant is desperate for drugs or the money to pay for them, and so lacking in humanity as to seek to coerce an innocent and unprotected shop person into handing over money by the threat of conveying a blood-borne disease if they do not comply.  The risk that a person acting in that way is likely to be impaired by drugs and therefore prone to irrational, impulsive, or poorly controlled behaviour is also a significant aggravating feature.

33The rewards you obtained were meagre, a few hundred dollars at most from the till, and such easily transportable consumables such as cigarettes and soft drinks  that seemed to attract your fancy at the time or to provide sufficient cover for you to get to the counter. 

34Contrasted with that though is the harm or potential harm to the victims and the threat of potential harm conveyed to the victims was very high; one might say absolutely disproportionate to the meagre rewards obtained by you. 

35It is clear, therefore, that considerations of just punishment, deterrence, both general and specific and denunciation loom very large in the sentencing process.  What then weighs against that? 

36When arrested by the police straight after the last armed robbery, you made full admissions.  You pleaded guilty and did so at an early stage.  The victims, therefore, have been saved the ordeal not only of a long wait for a court hearing but also from the outset, aware that you were not intending to challenge any of their accounts.  They did not have to prepare themselves for a court hearing, to relive the events in recounting them or face the ordeal of being cross-examined about whether it really happened as they said or you really were the person who did it. 

37Therefore, the utilitarian benefits, the saving the time and cost of a trial, the sparing the victims the ordeal of reliving or uncertainty of outcome and the advancing of the interest of justice with that are significant and warrant significant reduction in the sentence otherwise appropriate. 

38You have no significant or relevant previous convictions.  You have two very minor court appearances in the Magistrates' Court some time ago, neither for related offences.  Save to say this is not your first time before a court, they do not count adversely to you in the sentencing process.  In effect, you come before the court as a person almost without convictions. 

39As to your personal circumstances, it is difficult to ascertain them with any certainty.  I am told you are 32 years of age and that you were brought up by your mother, with two siblings, essentially by your mother, alone, after your father left when you were only 18 months old.  You had little contact or no contact with him at all until the age of 12 and what little contact it would appear you had with him after that, it was disappointing.  There was no engagement in a father/son relationship, something that you, at least at times, clearly wanted to pursue if you could.

40Your mother, I am told, has a chronic illness, rheumatoid arthritis, and has suffered from that for many years.  I was told that meant her poor health resulted in your perhaps not being able to be supervised as closely as otherwise a child might be.  Whether it is that or for other reasons, I was told that from the age of 12 you began abusing both drugs and alcohol.  I was told you left school in or after Year 10 and that despite your early school leaving and that your early start on abusing drugs and alcohol, that you had a long history of steady work after that. 

41Having read the psychological report that was tendered on the plea and heard your counsel's submissions, I would say that at kindest, you are a poor historian, maybe prone, as a result of long term drug and alcohol abuse, to confabulation, that is not deliberate lying but to finding accounts to try and fill in gaps in your life or your ability to recount your history. 

42According to the psychological report, the history recited in that, and to what your counsel told me, you report that you have not been able to engage in work since you suffered a workplace accident which resulted in an injury to your back or your spine in 2013. 

43You report a history of employment before that accident which, if accurate, would have had you in full time employment since you were aged ten or 12.  I was told that - well, the report said that you recounted you spent nine years in a job, the one before the job that resulted in the workplace injury.  No time was given for the duration of that last job which left you injured.  But before the nine year job, I was told you had spent three to four years in another one and you had another long term job before that for an unspecified period. 

44The report also reports you as saying that you had worked as a baker for a year, following a two year apprenticeship, and that before then you worked both as a cabinetmaker and a bricklayer for unspecified periods.  Just taking the times where times were given, and working back from 2013 – which on enquiry, I had confirmed, was the last time you had been able to work as a result of the injury – going back from 2013, that means you would have been in full time work for 15 years before the accident, which would take you back to ten or 12 years of age.  There is clearly something wrong in the history there. 

45You report heavy drug and alcohol abuse history since the age of 12, which you indicated had not impacted on your ability to work and maintain that consistent employment.  You told your lawyers and psychologist that your ice use had increased significantly in the weeks leading up to and during time of offending.  That clearly sits at odds with what you told the police in interview about small amounts of ice a few days apart. 

46Similarly, the reports of your relationship histories and the timing of relationship events which were in the psychological report relied on to explain a downward spiral in your emotional state, which led to or was compounded by or accompanied by increased drug use in the lead up to the offending and the commission of the offences is equally confusing and contradictory.

47At one stage, the psychologist appears to rely on your account of break up with your partner, Dawn, and loss of access to the children that the two of you had just two weeks before offending began as the significant precipitating event into the downward spiral of increased drug use and the offending.

48The psychological report also refers to you recounting that although grieving the loss of the relationship and, particularly, the loss of contact with your children, that you moved immediately into a new relationship  and that by the time of the offending and your arrest, your new partner was three months pregnant with twins. 

49I was also told in the course of the plea and in the context of having a future to look forward to, that your partner was expecting twins; that appeared to be consistent with what was in the report.  But when I asked whether they had been born yet, given it is eight months since you were remanded in custody, you then indicated from dock that, unfortunately, that pregnancy had not carried to term and that your partner had miscarried.

50These are just some of the examples of the confusing and contradictory accounts which were given to the police, to the psychologist or to your counsel.  It follows from that and, as a result of enquiries I made of your counsel in the discussions we had in the course of the plea, that I am unable to rely with any confidence on any of the matters in the psychological report, or which were put on instructions, either in mitigation or aggravation, or which were relied on in order to support any provisional or more formal diagnoses of psychological or psychiatric conditions. 

51The contradiction, confusion, and sometimes simply impossible to be true accounts - I want to make clear I am not saying that you are telling lies or I believe you are telling lies, but the unreliability is such that I cannot accept any opinions in the psychological report that are based solely on your self-report, and particularly having regard to the absence in the psychological report of any attempt by the author to reconcile them or to clarify them so as to give a more reliable link between what she was told and the conclusions that she drew.

52I do accept that you are 32 years of age and that you clearly have family support; family members have been here at court with you today.  I accept that you had an ice problem at the time of the offending and that you are likely to have had a significant history of alcohol and drug abuse for a considerable part of your adult years.  I accept that you are likely to have had an employment history but I am just unable to draw any conclusions as to how good it was, how steady it was, and how much of it was affected or impaired by ice or alcohol use or how the employment history reconciled with that.

53I also accept that since your remand in custody, you have participated in courses and it would seem all courses that area available to you which are designed to address substance abuse and behavioural regulation.  I accept that the period in custody has given you probably the longest period in you adult life, or maybe since your teenage years, of being in a position where it is actually really hard or much harder to get drugs and it would appear that you have taken the opportunity to resist the temptation to take substances that we all know are available in prisons to give yourself a time to dry out, to be substance-free, and to recalibrate yourself to a new normal.

54You have that very limited criminal history and you are therefore to be treated as a person who got to the age of 32 without significant criminal behaviour or contact with the criminal justice system.  This is your first time in custody and that is often harder for people.  I take all of that into account.

55You would appear to have the capacity, if you choose to use it and to commit to it, to engage in a more constructive way with your life and in the community, to work and engage in meaningful work, to address drug and alcohol abuse, to work to be and remain substance free, and to engage in meaningful relationships with life partners and with children.

56I will tailor the sentence to allow for you to continue to work towards that in custody, if found eligible for parole, on parole, and upon ultimate expiration of the sentence, unsupervised in the community.

57The offending before me is a course of conduct, 13 separate charges, 11 of them are completed armed robberies.  They are clearly very serious but it is a course of conduct and the sentence I impose must reflect the principle of totality.  Therefore, what might be an appropriate sentence for an individual armed robbery or for two armed robberies has to be tailored and tempered so as to make sure that the overall offending over that two had a half week period is reflected in the sentence. 

58Understanding that that is the constraint or the manner in which I must approach it, I have sought to impose a sentence as close as possible as is appropriate for each of the individual offences, and to have a very modest but quite partial cumulation for the different offences to reflect the number of charges and the different victims. 

59I have differentiated in the sentence between the charges of armed robbery where a syringe was used and where a knife was used.  That is because of what I described as the aggravating feature of the threat and the intentional conveying of the threat of transmission of blood-borne disease if the person did not comply.  That is not to say that using a knife is not a serious offence. 

60I have not differentiated between whether the syringe had blood in it, whether it appeared to have something other than blood in it, or whether it appeared to be empty.  From the perspective of the community and the victims, it is the production of the syringe that carries with it that threat of the risk of transmission of blood-borne disease which aggravates the gravity of the offending. 

61I have imposed a sentence in respect of the attempted armed robbery, that is a little lower, just a little lower than the sentence for the completed syringe armed robberies but is still just slightly higher than the sentence for the knife armed robberies because of what I said about the aggravating feature in respect to the syringe.

62The sentence for the robbery is lower on the scale again because there was no weapon produced.  It was the threat of the weapon, threat of violence from that that is the significant feature. 

63I have also imposed a slightly higher sentence for the armed robbery where you took the victim's iPhone as well as money and consumables because that was, as he told you, his personal possession, not his employer's possession.  He told you the phone was a gift from his father and asked if he could keep it.  Not only did you ignore that but you have that added feature that I have already referred to, of making him reset the passcode so that you could use it. 

64That is the thinking behind the differences in individual the sentences.  There is of course though a level of artificiality in this, given the number and nature of charges and the need to ensure that despite these, what could ultimately be fine distinctions or relatively small periods of time that differentiate between them, that the sentence must reflect the overall reality.  Could you now please stand.

65Andrew Lyddy, on the 13 charges - to the 13 charges to which you  have pleaded guilty, you are convicted.

66On Charge 1 of armed robbery involving the use of a syringe you are sentenced to be imprisoned for a period of three years and six months.

67On Charge 2 of armed robbery involving the use of a syringe you are sentenced to be imprisoned for a period of three years and six months.

68On Charge 3 of armed robbery involving the use of a syringe you are sentenced to be imprisoned for a period of three years and six months.

69On Charge 4 of armed robbery involving the use of a knife you are sentenced to be imprisoned for a period of three years and three months.

70On Charge 5 of armed robbery involving the use of a syringe you are sentenced to be imprisoned for a period of three years and six months.

71On Charge 6 of attempted armed robbery involving the use of a syringe you are sentenced to be imprisoned for a period of three years and four months.

72On Charge 7 of armed robbery involving the use of a syringe you are sentenced to be imprisoned for a period of three years and six months.

73On Charge 8 of armed robbery, that is the one that involves the taking of the iPhone as well as money and goods and the use of a syringe, you are sentenced to be imprisoned for a period of three years and eight months.

74On Charge 9, armed robbery involving the use of a syringe you are sentenced to be imprisoned for a period of three years and six months.

75On Charge 10, armed robbery involving the use of a knife you are sentenced to be imprisoned for a period of three years and four months.

76On Charge 11 of robbery you are sentenced to be imprisoned for a period of two years.

77On Charge 12 of armed robbery involving the use of a knife you are sentenced to be imprisoned for a period of three years and four months.

78On Charge 13 of armed robbery involving the use of a knife you are sentenced to be imprisoned for a period of three years and four months.

79I direct that Charge 8 is to be the base sentence and cumulation as follows.  Six months of the sentence on Charge 1, six months of the sentence on Charge 2, six months of the sentence on Charge 3, three months of the sentence on Charge 4, six months of the sentence on Charge 5, three months of the sentence on Charge 6, six months of the sentence on Charge 7, six months of the sentence on Charge 9, three months of the sentence on Charge 10, two months of the sentence on Charge 11, three months of the sentence on Charge 12 and three months of the sentence on Charge 13 are to be served cumulatively upon each other and upon the base sentence.

80That makes a total effective sentence of eight years and one month and I fix a period of 5 years and seven months as the time that you must serve before being eligible for parole. 

81I declare that you have spent 277 days in pre-sentence detention and direct that that be count and reckoned as part of the sentence already served. 

82I declare that pursuant to s.6AAA of the Sentencing Act that but for you pleas of guilty, I would have sentenced you to a total effective sentence of 12 years and three months and I would have fixed the period of nine years and three months as the period to be served before eligibility for parole. 

83I consider it appropriate to make the order for the taking of a forensic sample, having regard to the number, nature and seriousness of the offences.  I must advise you, Mr Lyddy, that I am directing that sample to be taken by way of a buccal sample, that is a mouth swab.  If you do not cooperate in the provision of the sample, then the police are authorised to use reasonable force to obtain it and it is likely that they will use the more invasive means, namely the taking of a blood sample; do you understand that?

84OFFENDER:  Yes.

85HER HONOUR:  I will make the disposal and compensation orders sought once I am satisfied that the amounts are correct and that the items are correctly identified, and I will do it in chambers.  Are there any further orders that are required to be made?

86COUNSEL:  No, Your Honour.

87HER HONOUR:  Have you checked the arithmetic?  Could you do so please?

88MR SIGGINS:  Yes, certainly, Your Honour.

89HER HONOUR:  I am sorry, Mr Lyddy, take a seat.  I thought this would be a faster exercise.  Is it seven/eleven, rather than eight/one?  Are you coming up with seven/eleven, rather than eight/one?  Do you want me to read it out to you again?

90MR LEE:  Perhaps yes, Your Honour.

91HER HONOUR:  All right.  The base sentence, Charge 8, three years, eight months.  Cumulations, six months, six months, six months, three months, six months, three months, six months, six months, three months, two months, three months, three months.  No, I think I have made a mistake, I think it is seven years, 11 months, not eight years, one month.

92MR SIGGINS:  I come up with seven years, 11 months, Your Honour, also.

93HER HONOUR:  Right, all right. 

94MR LEE:  We get eight/one here, Your Honour.

95HER HONOUR:  Eight/one was what I had and what I thought I had.  But just do it again.  Cumulation is six, 12, 18, 21, 27, 30, 36, 42, 45, 47, 50, 53; is that what you get?

96MR LEE:  Yes, 53, correct, Your Honour.

97HER HONOUR:  Four years is 48 months, that is five months difference, so that is four years and five months in the cumulations.  Yes.  Eight and five is - yes, so it is eight/one, yes.

98MR SIGGINS:  Yes, I also see my error too.  Thank you, Your Honour.

99HER HONOUR:  Yes.  Yes, so it is three years, eight months, plus four years, five months, is eight years one month, yes.  That is as I intended to do it.  All right, no further orders are required to made?

100COUNSEL:  No, Your Honour.

101HER HONOUR:  Thank you. 

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