Director of Public Prosecutions v Mackay

[2014] VCC 2032

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01523

DIRECTOR OF PUBLIC PROSECUTIONS

v

TROY MACKAY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	28 October 2014
CASE MAY BE CITED AS:	DPP v Mackay
MEDIUM NEUTRAL CITATION:	[2014] VCC 2032

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 P. O'Halloran	Office of Public Prosecutions
For the Offender	Mr M. Phillips

HIS HONOUR:

1

Troy James Mackay, you have pleaded guilty to one charge of armed robbery.  That crime carries a maximum penalty of 25 years' imprisonment.  You are

36 years of age and you pleaded guilty at the earliest reasonable opportunity.  I accept that when you gave yourself up to police which you clearly did, you made full and frank admissions as to the offending.  You went into custody on that day and were there for some 14 days.  I am told that you had not used illegal substances since that incarceration.  I accept that your plea of guilty is accompanied by appropriate remorse and you must of course get the utilitarian benefit of that plea of guilty.  Confirming that view is the fact that you gave sworn evidence before me.  As to your circumstances and as to your feelings about the matter I have no reason to doubt that you were telling the truth.  That is not a common thing to occur in these courts.

2Very importantly, you have no relevant prior convictions and I am told and accept that you have been using drugs for a long time.  That clearly indicates that you are by and large not a violent person and not a thief.  I accept that this offending took place in the course and or is the ultimate result of an addiction to ice over some 12 months in standing.  You had worked up until a few weeks prior to this offending and have indeed had a very good work record.

3The circumstances of the offending are that on a Saturday morning on 31 May 2014 you entered an Australia Post office branch wearing grey tracksuit pants and a black hooded jacket.  Your face was open and you were seen on CCTV footage.  You approached the counter where a 23 year old lady was counting money from the cash register.  You put a bag that you brought with you on the counter and produced what appeared to be a black small thin handgun.  In fact that was a toy weapon which you yourself had painted.  It must have been painted to make it look real and whilst I accept that it was an imitation, the person on the other end of it does not know that.  You said to her, "Give me the money or I will shoot".  She then grabbed at a colleague who was walking behind her then pushed her away from you.  You lifted your jumper and showed the next person, Ms Coleja, what she perceived to be a black hand pistol-type gun and demanded that she put money in the bag.  She froze and then you either knelt or jumped on top of the counter.  Another employee came to the counter as directed by you, put money from a number of the shop's cash registers into the bag provided.

4The owner of the shop came out and said that the police were coming to endeavour to scare you off.  You eventually ran out of the shop and the shopping centre and having stolen approximately $6,500 and having it with you in the bag.  Subsequently your facial image was able to be produced and according to the police summary, a family member identified you but you yourself went into the police station and confessed.

5Clearly you have reconnoitred to a certain extent choosing a target.  You went to the difficulty of buying a weapon to use and whilst it may not have been planning of great duration, it was certainly in my view, premeditated.  Once you used an imitation firearm and jumped up on the counter in an armed robbery, you were in the big league. 

6Tendered were three victim impact statements, two of which were read out.  Those victim impact statements in laudably short compass, describe the emotional impact the offending of this sort has on people.  It can be the situation where people remain nervous and anxious for very long periods of time.  It does not seem to be the case here but frequently people are unable to go back to their employment.  Those victim impact statements indicate why people go to gaol for committing armed robberies.

7The crime has to be regarded as serious and calls for the application of general and specific deterrence, as well as denunciation and punishment.  In my view the only available option here is one of active custodial sentence.  I then looked into matters personal to you in terms of calculating the length of that sentence.

8A number of documents were tendered including character references all of which I have read and which I have taken into account.  There is an apology that you have written yourself to the victims of this crime and I accept that.  When you were bailed after 14 days in custody you went on to a CISP program and there is a report from the CISP people saying that you have done well and engaged well and really done the best you can in that regard.  Tendered also were drug screens and I am satisfied that you have not been using illegal substances since the day that you went in to the police station and confessed.

9The matters you have going for you are, that you are 36 years of age and this is your first serious offending.  You have now not used for some months and you are in a stable relationship.  You have been able to, as I say,  desist from the use of drugs for now and a reasonably lengthy period of time.  On the material before me it is clear on listening to you, it is clear that you have insight into your offending.  It is clear that you understood the effect it had on others.  You have made significant attempts towards rehabilitating and with a work record of your duration, I think it is fair to say that the risk of you reoffending would be very low indeed if you could make certain that ice was never used again.

10I have taken all those matters into account and it seems to me that this is a serious example of an armed robbery in the way in which it was carried out.  It is very much mitigated in your situation by all the factors that I have outlined.  Unfortunately there is only one option open here but what I have endeavoured to do is give you an opportunity for a parole for a time earlier than might have otherwise have been the case and I have moderated the sentence to be imposed by reason of the factors that I have referred to.

11Taking all those matters into account, the charge of armed robbery, you are sentenced to be imprisoned for a period of two years, and I direct that you serve a period of one year before becoming eligible for parole.  I direct that 14 days be reckoned as having being served under this sentence and I say that pursuant s.6AAA but for your plea of guilty, would have been sentenced to be imprisoned for a period three years with a minimum of two. That is the benefit that you have got from your subsequent conduct.

12Any other orders I have to make gentlemen?

13MR PHILLIPS:  Just a moment.  Nothing arising thanks, Your Honour.

14HIS HONOUR:  Thanks.

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