Director of Public Prosecutions v Maccaginini

[2014] VCC 1819

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01263

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW MACCAGININI

---

JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	31 October 2014
DATE OF SENTENCE:	5 November 2014
CASE MAY BE CITED AS:	DPP v Maccaginini
MEDIUM NEUTRAL CITATION:	[2014] VCC 1819

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:  Sentence – attempted armed robbery – Early plea of guilty – History of drug and alcohol abuse – use of “ice” at time of offending – Good prospects of rehabilitation

Sentence:Community Corrections Order – 2 years duration – with mandatory and special conditions - s.6AAA Sentencing Act 1991 declaration

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Exell	Solicitor for Public Prosecutions
For the Accused	Mr T. Smurthwaite	Robert Stary Lawyers

HER HONOUR: 

1Matthew Robert Maccagnini you have pleaded guilty to one charge of attempted armed robbery which has a maximum penalty of 20 years imprisonment.

2As the maximum penalty reflects the offence is regarded by Parliament as most serious.

3Your offending was opened as follows:

4The offending took place in the early hours of Thursday, 12 September 2013, at the “Night Moves” adult store in Boronia.   The victim and owner of the store is a Mr Craig Lamprell and at time of the offence, he was working at the store alone.

5At approximately 2:00 am, you entered an ‘adult’ store in Boronia via the rear entrance.  The victim was working and was alone in the store as I have indicated.  You wore a blue-coloured hoodie, grey tracksuit pants and black thongs. You walked around the store for about 20 seconds and observed the security cameras before leaving.

6About ten minutes later, you again entered the store by the rear  entrance.  This time, you had changed into a red hoodie and you wore grey tracksuit pants, and black thongs. The victim recognised you from his visit a few minutes earlier. You selected a box containing a woman’s fantasy lingerie outfit and took it to the counter.

7The victim placed the item in a bag and asked you for payment.  You produced a silver-coloured foldout knife and held it over the counter, and said, “And all the cash.” This gives rise to the charge of attempted armed robbery.

8The victim pressed a duress button to alert a private security business. You then fled the store through the rear entrance. You were in the store for approximately 75 seconds on this subsequent occasion.

9The victim called ‘000’ and police attended. The incident was captured on CCTV. No property was taken during the incident. Your  latent thumb impression was later identified on the lingerie box.

10You attended Knox Police station on 3 May 2014 by appointment and were arrested. During a record of interview, you admitted to committing the attempted armed robbery.  You said; "I was just in a bad headspace and just thought - went into the Club X store, and just thought I'd just make a - some cash or something, and just went in there and walked in there, sussed out the area, and went up to the guy and basically said hand over some money.  I think I pulled out a little knife, and he pressed the button.  The alarm went and I ran - I got into my car, drove away and then stopped and two streets over - and just started regretting what I've done and just really upset at what I was doing, and I thought I'm struggling.  What am I gonna do?  And then just all from then on, I'm really - I've really got to get my shit together and really start, you know, being a better person because I shouldn't be doing this and I've got too many good things around me."

11You identified yourself in the CCTV footage.  You said that you were coming down and were just going to bed at the time of the offence, having had a big night the night before.  Your remembered taking the box to the counter and producing a fold-out knife.  You said that you have since thrown the knife away.  You said that you might have needed loose cash here and there but nothing serious enough to even warrant doing that.

12Your offending is aggravated by the following matters: (a) You targeting a person who was in a vulnerable position-working at a store in the dead of night. (b) There was a degree of pre-planning involved in that you cased the store a short time before and you changed your outfit to avoid detection when you entered the store a second time. (c) You were on bail for burglary, theft and obtaining property by deception when you committed this offence.

13Your offending is serious and calls for a punishment which is just in all of the circumstances. Your conduct must also be denounced.

14The impact on the victim has been significant as you might expect. He now suffers sleeplessness and experiences a level of anxiety when people dressed in hoodies attend his workplace. He had already been traumatised by a previous incident and your offending has brought back very bad memories of this which has caused him to struggle. While you were not to know that this had been the victim’s history, you take your victim as you find him, in any event, it is hardly surprising that a person working on his own at a 24 hour store might encounter such attacks.

15In assessing the objective seriousness of your offending I have factored in that you did not menace the victim with the knife and that when he pressed the distress button you immediately desisted. While this might have had something to do with self-preservation, the net effect of this was that the offending ceased at that time. I also factor in that the offence was of a short duration.

16Strong weight must nevertheless be given to general deterrence in a bid to deter others from behaving as you have.

17You were 24 years old at the time of the offending and are now 25, and have no prior convictions. However you have subsequent matters which were actually committed a few months before this offence, comprising two burglaries, two thefts and one obtaining property by deception for which you received a wholly suspended sentence in the Magistrates Court. The victim in respect of this offending was one of your mother’s former partners.

18By way of explanation for the offending before me, I was told that you had spent all of your money on ice and needed more funds for petrol and groceries for the week as well as for more ice, no doubt.  Although you had cut down on ice usage in the months leading to the offending, I was told that you had spent $500 of your fairly low salary on the substance and had consumed the last of it the day before. You were coming down off the drug when you committed the offence, and were feeling rather low at this time.

19You have a history of drug taking and alcohol abuse dating back to your late teens. However, you are no longer taking drugs and have not done so for about one year; nor have you further offended. A number of drug screens were tendered at the plea hearing which supported this development. You were introduced to ice with some so called friends. As I said at the plea hearing, they are no friends of yours. At first the drug made you feel more confident and gave you the ability to be more open with others but, inevitably the drug took control of you.  However, I was told that you had cut back on your useage after commencing a relationship with your girlfriend, save for this one occasion leading to the offence.

20I take into account your background which I shall not recount save to say that it appears to me a good deal of your difficulties arose after your mother left home when you were 16 years old. The fact that she did so on a day that you were doing an exam must have been especially difficult for you.  Her departure at such a formative time in your life appears to have been a trigger for your drug and alcohol abuse.  She has gone on to a succession of partners and I understand she and one of these were instrumental in you and your sister losing all of your investment funds.  Your sister said that this episode seemed to trigger a reaction in you which led to these offences in the context of drug abuse. Fortunately, you have a most supportive father and other family members and you also have a most supportive girlfriend who was not aware of your difficulties with ice.

21You left school at year 11 and have been employed ever since with K-Mart and you are now in your fourth and final year of a mechanics apprenticeship. You are also a talented basket-baller and have coached ‘up and coming’ basket-ballers for a number of years now. You are very well regarded by all those you have coached.

22Save for this patch of offending from May to September last year, and when I refer to that, I refer to the offence before me, and the offending which gave rise to the subsequent matters for which you have been dealt with in the Magistrates' Court.  Save for this patch, you have not offended before or since.  All of the offending occurred in the context of drug abuse, which I hope is now behind you.  In the circumstances I accept that save for this spate of offending over several months, you are of otherwise good character.  You are to be sentenced as a person with no prior convictions which also counts in your favour.   

23You were most co-operative with the police from the outset, attending an appointment rather than having to be arrested, and then making full and frank admissions in the record of interview.  You pleaded guilty at the earliest opportunity saving the witnesses, especially the victim the time and trauma of giving evidence at committal and trial and saving the community the time and expense of contested proceedings. This entitles you to a significant discount in the sentence you would otherwise receive and I make a further allowance in view of your co-operation before this.

24I also accept that you are genuinely remorseful for what you have done and have articulated appropriate insight into your offending.  At the plea hearing, you were prepared to express that remorse in the witness box and to write a letter in this regard.  Since that occurred this morning, I note that you have written a letter of apology.  Although in some cases such steps may be seen as self –serving,  I accept that in your case you are genuinely sorry for what you have done because of the impact on the victim and because you appreciate the seriousness of the crime which you committed.

25I also take into account the report of Mr Warren Simmons, psychologist, which indicates you do not have any impairment of mental function which would reduce your moral culpability. However, I take into account the remarks and opinion of Mr Simmons in a general way when sentencing you. I have also factored in the character references and letter from Mr Cussen from the Salvation Army.

26You were 24 at the time and are now 25. I must do what I can to maximise your chances of reforming which is a path you have already embarked upon. In view of your lack of criminal history, your strong support from members of your family and your girlfriend, your cessation of drug use, and solid work history as well as your early plea of guilty, remorse and insight, I regard your prospects of rehabilitation as very good. However, much will depend on your ability to stay off drugs and not to abuse alcohol either for that matter. Although you have done well so far, these are still early days and you must resolve to keep going on the path you are presently on. I place minimal weight on specific deterrence and protection of the community for much the same reasons as I have just enunciated.

27The Crown accepts that, in all the circumstances, a community corrections order is appropriate. I agree with this stance. I can see no benefit to you or to the community by a sentence of imprisonment; but let me be very clear with you, if you breach the CCO on which you are placed you will be at very great risk of going to prison for a significant term.  Do you understand that?

28Would you please stand up?  In relation to the charge of attempted armed robbery, you are convicted.  I order that you undergo a forensic sample procedure whereby you are to provide a sample of saliva by means of swabbing from the mouth.  I make the order because of the seriousness of the offence, because it is not opposed and because it is the public interests to do so. I warn you that if you do not co-operate when the authorised officer carries out the procedure then reasonable force may be used to ensure compliance.  In respect of the offence of attempted armed robbery I intend to place you on a CCO for a period of two years with the following conditions:  I should say that in order to impose a community corrections order I need to obtain your consent, so listen carefully please to the conditions that I propose.

29The mandatory terms that apply to all Community Correction Orders are: firstly, you must not commit another offence for which you could be imprisoned during the time that the order is in force; secondly, you must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011; thirdly, you must report to, and receive visits from the Secretary of the Department of Justice or his or her delegate; next, you must report to the Community Corrections centre within two working days of today before 4 pm. So that is, by Friday, before 4 pm. Next, you must let a community corrections officer know within two clear working days of you changing your address or job; next, you must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice, or his or her delegate. Next, you must obey all lawful instructions from and directions of the Secretary to the Department of Justice, or his or her delegate. The duration of the community corrections order in your case will be two years.

30The conditions that would apply in addition to the mandatory terms are firstly, that you must undergo 500 hours community work within the next two years.  Part of this may include the work that you already do as a basketball coach if this is deemed to be appropriate by the Regional director of Community Corrections or the appropriate officer.  So that is a matter that you would need to discuss with them.  Secondly, in relation to supervision; you must be under the supervision of a Community Corrections Officer for a period of two years. Thirdly, you must undergo assessment and treatment (including testing) for drug abuse or dependency and alcohol abuse or dependency as directed by the Regional Manager.  Next, you must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment, whether this be in the community or in a hospital or residential facility as directed by the Regional Manager.  As I have said, I have noted that this was not a recommendation by the assessing officer, but in my view because of the headspace that you said you were in at the time of the offending, I regard this as a necessary area of assessment with a view to treatment if deemed necessary. 

31Do you consent to the terms and conditions of the order?

32PRISONER:  Yes, Your Honour.

33HER HONOUR:  I should tell you that if you do not comply with all of the requirements of this CCO then you will face breach proceedings before me. You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charge - in which case, you may well be sentenced to a period of immediate gaol. I would regard a breach of the CCO as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.

34Do you understand this?

35PRISONER:  Yes, Your Honour.

36HER HONOUR:  Do you maintain your consent to the order?

37PRISONER:  Yes.

38HER HONOUR:  Therefore in relation to the charges, you are convicted and sentenced to a CCO in the terms and conditions that I have just set out.

39You can now leave the dock and approach your barrister, who will assist you with the signing of the order.

40You can take a seat behind your counsel.  I indicate that if not for your plea of guilty I would have sentenced you to an immediate term of 18 months’ imprisonment with a non-parole period of 9 months’ imprisonment.

41All right, is there anything further, counsel?

42MR EXELL:  No.  Draft copies of the forensic sample order were already provided.  Your Honour's Associate has that.

43HER HONOUR:  Yes, thank you.  All right, and obviously Mr Smurthwaite you will explain his obligations in relation to having that sample taken.

44MR SMURTHWAITE:  Yes, Your Honour.

45HER HONOUR:  Yes, thank you.  Thank you for your assistance, counsel, and we'll now adjourn.

- - -