Director of Public Prosecutions v Madiera
[2021] VCC 160
•19 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01195
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSE MADIERA |
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JUDGE: | HIS HONOUR JUDGE HANNEBERY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 February 2021 | |
DATE OF SENTENCE: | 19 February 2021 | |
CASE MAY BE CITED AS: | DPP v Madiera | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 160 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: s 75 Crimes Act 1958 (Vic); s 78A Corrections Act 1986 (Vic); Sentencing Act 1991 (Vic).
Cases Cited: R v Verdins & Ors (2007) 16 VR 269.
Sentence: Total effective sentence of 18 months, non-parole period 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Sargent | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr C. Terry | Gallant Law |
HIS HONOUR:
Jose Madiera, you have pleaded guilty to one charge of robbery pursuant to s 75 of the Crimes Act1958. The maximum penalty for that offence is 15 years' imprisonment.
In addition, you have pleaded guilty to one uplifted summary charge of breaching a prescribed term / condition of parole pursuant to s 78A of the Corrections Act1986 and have agreed to me sentencing you on that offence. The maximum penalty applicable to that offence is three months' imprisonment, or 30 penalty units.
Circumstances of Offending
The circumstances of both offences were set out in the Summary of Prosecution Opening[1] which were not the subject of any challenge in the course of the plea hearing, and will not be restated now in its entirety.
[1]Prosecution Exhibit 3.
In summary, the victim in this matter was a 67 year old woman. At 1.45pm on
14 October 2019 she attended the ANZ Bank in St Albans and withdrew $3,000 AUD and exchanged a further $450 USD. She placed the money in a wallet then walked out of the bank and crossed the road to where her car was parked. You were inside the bank at the time she made those withdrawals.
As the victim was standing next to her car looking for her car keys, you pushed her to the ground and grabbed the bag containing the wallet (Charge 1 – Robbery). You ran away through a nearby supermarket carpark. The victim and an unidentified male witness gave chase. The male witness yelled to you ‘where’s the money, where’s the money’. You responded by threatening this witness with a knife held in your right hand and threw the handbag at him. When the handbag was later returned to the victim, the money she had withdrawn from the bank was gone.
You were arrested on 18 October 2019 and interviewed. You admitted taking the handbag but denied pushing the victim or touching her at all. You denied that she had fallen over. You claimed the robbery was done at the direction of what you described as an ‘Islander male’ who had promised you $100 to steal the bag, and that you did not in fact receive any money from the robbery. You claim to have believed the victim was in her thirties.
I note that the prosecution do not accept your account provided in the interview, in which you claim to have had a co-accused directing you to commit the offence. I also note that there does not seem to be any independent evidence to support the claims you made in the interview about that matter. Beyond making that observation, I do not make any further comment on the matter, as the claims do not, in my view, mitigate the offending even if they were established to the requisite standard.
Further, I do not accept your statement made in the interview that you did not touch the victim. I accept the evidence that you did in fact push her to the ground in the course of this robbery, and intend to sentence you on that basis.
I do note, however, that you did make admissions to robbing the woman of her bag. You say in your interview that you were sorry for what you did, albeit that apology was done in the context of some minimisation of your role. You state that the offence was motivated by a desperation for $100.
The robbery was committed whilst you were on parole for a sentence imposed by Judge Smallwood in 2008, and committing that offence whilst on parole was the subject of the related summary offence (Related Summary Offence – Breach Prescribed Term/Condition of Parole).
Since the conduct comprising the breach parole offence is, in effect, the robbery charge for which you are going to be sentenced, I am conscious of imposing a penalty for the summary charge to avoid doubly punishing you for the same conduct.
The robbery itself has some serious features. This was not just a matter of a theft being achieved by the threat of force, you did in fact push a 67 year old woman to the ground.
The offence itself did involve at least some degree of premeditation, to the extent that you saw her inside the bank getting the money and then robbed her shortly after when she was alone by her car.
The offence was described by the prosecution, and accepted by the defence, as a ‘mid-range’ example of robbery. I agree with that overall assessment of its gravity.
Impact on Victim
I have had regard to the impact that this offending has had on the victim. The impact upon a victim is a relevant sentencing consideration (pursuant to s 5 of the Sentencing Act 1991). I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.
In her Victim Impact Statement (‘VIS’),[2] she states that she now feels ‘scared all the time’, which is entirely understandable. I also note that the robbery resulted in a loss to her of money that she was going to use on a personally significant overseas holiday that had to be cancelled because of this crime. Whilst the sum taken was not so great as to especially aggravate the offending, its loss did have a real adverse impact upon the victim and I take that into account.
[2]Prosecution Exhibit 1.
You are not charged with any offences relating to causing injury to the victim and as such I disregard those portions of the VIS that may be interpreted as suggesting you are guilty of offences beyond the robbery that is the subject of this Indictment.
Personal Circumstances
As for your personal circumstances, you are now 41 years old, and you were 39 years old at the time of the offending. You were born in Portugal and emigrated to Australia as an infant. You are the youngest of four siblings. Your formal education ended upon your expulsion from school in Year 8, and it would seem your teenage years were troubled, and by 17 you had commenced the use of heroin intravenously.
I am told that you have had and retain a good relationship with your parents. It is equally clear from the reference provided by your sister-in-law, Ms Graca, that you also have some support from your broader family.[3]
[3]Defence Exhibit 3.
You have admitted a prior criminal history that has seen you incarcerated for all but a small portion of your adult life. The prosecution has submitted that this history is significant and relevant to the current sentencing process and I agree with that proposition. You have spent not even two years out of custody since your first period of incarceration in 1998. Of this history, there are two matters of particular significance. In 2002 you were sentenced after an appeal from this court to the Court of Appeal to eight years' imprisonment with a six year non-parole period, for offences including aggravated burglary. You had been on parole for that sentence when you committed the offences, including armed robbery that resulted in a 12 year sentence from Judge Smallwood in this court in 2008. You were on parole for that matter when you committed the offence for which you are to be sentenced today.
I have had the opportunity to read both the Court of Appeal judgment and Judge Smallwood’s sentencing remarks.
The length and nature of your prior offending, and the fact that this offence was committed whilst still on parole, makes it very hard to avoid deep pessimism when it comes to your prospects of rehabilitation. That said, there is material that has been presented on this plea that suggests that, as challenging as the situation is, it is not entirely hopeless and that some limited regard must be given to your prospects of rehabilitation in sentencing you today.
I am informed that you had been on parole for some ten months prior to the commission of this offence. During that time, I am told you commenced with a good attitude that was reflected in you maintaining employment and, significantly, persisting in efforts to stay employed in a number of jobs despite facing some setbacks. I am encouraged to read of a genuine commitment to rehabilitation spoken of in the references of Emma Watts from Jesuit Social Services, Ruben Dias, of Hawksbury Labour Hire and from your sister-in-law Rachel Graca.[4] I am also told that there are no further criminal matters but for this that have emerged over the course of those ten months on parole.
[4]Defence Exhibits 3, 4, 5.
The current circumstances are somewhat more encouraging than those that existed when you appeared before Judge Smallwood in 2008. It was unfortunate indeed that you apparently succumbed to some despair about your circumstances and relapsed into drug use and then the offending that is before the court. The reference material suggests that substantial progress was being made before you lost employment as a truck driver. You reported to Ms Cokorilo, the psychologist, that this was because your employer found out you were on parole. You reported that this setback led you to becoming suicidal and that it was in this context that you say you committed the robbery in order to obtain money to buy heroin and intentionally overdose.[5]
[5]Defence Exhibit 2.
It is to be hoped that progress towards your rehabilitation can be made again. Whilst you are a long way from being a youthful offender, neither are you an old man, and it is in the interests of the community that you break the cycle of institutionalisation and reoffending.
Your history, however, requires that weight in sentencing be given to both specifically deterring you and to protecting the community. Some weight will, however, be given to your prospects of rehabilitation, which must necessarily be considered as very guarded. Both psychologist Ms Cokorilo and neuropsychologist Ms Scott assess you to be a high risk of reoffending, and both note that you will require substantial support upon release to address mental health and substance abuse issues to reduce that risk.[6] When sentencing you, however, I must seek to maximise your chances of rehabilitation as they may be.
[6]Defence Exhibits 2, 6.
Submissions on Sentence
You have pleaded guilty to these two charges and are entitled to have that taken into account in your favour when sentencing you. I further note that that plea was entered at a time acknowledged by the prosecution to be an early stage in proceedings. Especially in the context of the listing pressures faced by the justice system because of pandemic restrictions, there is significant utilitarian benefit in avoiding a committal and trial, and for that reason alone you are entitled to some discount on sentence.
I also have regard for the plea of guilty as evidence of remorse, especially in combination with some direct expressions of remorse in the interview, but more particularly, in the psychological material.
You have been in custody for this offending since your arrest on 18 October 2019. I note there is no pre-sentence detention available as your parole was cancelled before you were remanded in relation to your offending.
In the course of the plea, a psychological report and a neuropsychological report were tendered. The material reveals that subsequent to the commission of this offence you were the victim of an assault in custody which resulted in a traumatic brain injury and a diagnosis of Post-Traumatic Stress Disorder. Psychologist Sandra Cokorilo also noted that you presented with symptoms of Major Depressive Disorder.[7] Ms Scott’s conclusion is that as a result of the assault in custody on 20 October 2019, you sustained a traumatic brain injury of ‘mild or moderate severity’ from which you are unlikely to make a full recovery.[8] This injury will likely cause ongoing cognitive and emotional impairments into the future.
[7]Defence Exhibit 2.
[8]Defence Exhibit 6.
The conclusions of the experts as to these diagnoses were not disputed at the plea hearing. I accept that these conditions mitigate sentence, in that they will make imprisonment more burdensome for you than would be the case for someone not enduring those conditions, consistent with limb five of R v Verdins & Ors.[9]
[9](2007) 16 VR 269 (‘Verdins’).
It was further submitted by your counsel that I should conclude that limb six of Verdins also had application in this case, namely that there is a serious risk that imprisonment will have a significantly adverse impact on your mental health. As was discussed in the course of the plea, the evidence supporting this proposition was essentially the statement from Ms Cokorilo in her report that your ‘mental health issues would likely be exacerbated by further imprisonment unless [you were] properly supported’.[10] The matter is also referred to in the report of Ms Scott, who opines in the context of your previous suicidal ideation that ‘a lengthy period of incarceration could certainly pose a threat to the stability of [your] mental health’.[11]
[10]Defence Exhibit 2.
[11]Defence Exhibit 6.
I do not consider that the expert evidence goes so far as to enliven the consideration of limb six of Verdins. Neither report directly states that imprisonment would have a ‘significantly adverse impact’ on your mental health as would be required to make this out as a matter of mitigation of sentence. In the absence of any further evidence in support of that contention, I do not intend to place weight on that matter.
That is not to say, however, that the expert reports do not have significance in the sentencing process beyond what I have already acknowledged, that is, the increased burden of imprisonment that you will have because of the conditions identified. Both the psychological report and the neuropsychological report contained substantial detail about both your personal history and your current circumstances. They have been valuable in undertaking this sentencing task in that they have provided insight into the challenges you face in successfully rehabilitating, and the broader circumstances that apparently contributed to your inability to maintain what seems to have been an encouraging start to your period of release on parole.
You are presently in custody serving the non-parole portion of the 12 year sentence imposed by Judge Smallwood. That sentence, I am advised, is currently due to expire on 7 October 2021. The fact of you serving that sentence has some significance to the present sentencing task. I must have regard to totality in having regard for the effect of any sentence today on the actual further period of time you will spend in custody.
Further, in this case the order in which various sentences are served pursuant to s 15 of the Sentencing Act1991 has some relevance as to whether the current COVID-19 restrictions will have any impact on the nature of this sentence imposed today. I am sentencing on the basis that the non-parole period I impose on these charges will commence today, and as such will be served in the more restrictive pandemic circumstances that presently prevail. I accept that for the foreseeable future the suspension of personal visits, plus the subjective anxiety that a person in custody at this time of pandemic may endure, will make imprisonment more burdensome and I give that matter some weight.
Both the prosecution and defence submitted that a period of imprisonment was required in the circumstances of the case. To the extent there was any difference in the submissions put, the prosecution submitted that the period of imprisonment must be of such length that it was open to impose a non-parole period, though it did not submit that the sentence had to be of such length that a non-parole period must be imposed by law. The defence initially submitted that a straight sentence without parole being fixed was appropriate, but ultimately did not submit that the prosecution position on sentence was inappropriate.
I have had regard to the extent possible to current sentencing practices, in particular the Sentencing Advisory Council’s most recent snapshot for the offence of robbery. Mr Terry also helpfully referred to a number of sentences imposed for robbery since 2017, and I have considered those. Whilst every case is different and it was specifically not contended by
Mr Terry that any of the cases referred to were especially similar to the present matter, there is some limited worth in being conscious of the general range of penalties that have recently been imposed for the offence of robbery.
Pursuant to s 16(3B) and (3BA) of the Sentencing Act 1991, the sentence for the parole breach must be served cumulatively with the unexpired portion of the original sentence for which parole was granted and any period of imprisonment received for the offence committed whilst on parole. It was not contended by your counsel that there were exceptional circumstances that would mean that the sentences I impose today would be served other than cumulatively upon the unexpired portion of the sentence imposed by Judge Smallwood. There is, however, good reason for the sentences imposed on the breach of parole charge to be served concurrently with the robbery charge. This is necessary to avoid doubly punishing you in relation to what is essentially the same offence, and that constitutes exceptional circumstances that justify making an order for full concurrency between the robbery sentence and the sentence for breach of parole.
As well as the matters personal to you to which I have referred including your prospects of rehabilitation as I find them to be, I must also take into account the need for general deterrence, which is of considerable importance in a case such as this. The importance of general deterrence when sentencing for offences of robbery involving what might be called soft targets, in this particular case a vulnerable 67 year old woman alone near her car, has been repeatedly stated by the judges in this court and also in decisions of the Court of Appeal in this state. I take those matters into account.
There is also the need for specific deterrence when sentencing you, given your repeated offending involving somewhat similar type of offending. I must also consider the question of protection of members of the community and bear in mind the likelihood of your reoffending and this continues to cause me concern.
I am called upon by the Sentencing Act1991 to manifest the community’s denunciation of your conduct and to generally impose a just sentence.
Sentence
Balancing all these matters, I sentence you as follows;
On the charge of robbery, you are convicted and sentenced to be imprisoned for 18 months.
On the uplifted summary offence of breaching a prescribed term or condition of parole, you are convicted and sentenced to be imprisoned for one month, to be served concurrently with the sentence imposed on the robbery charge.
That results in a total effective sentence of 18 months and I direct that you serve a period of 12 months before you are eligible for parole.
Pursuant to s 6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed a total effective sentence of two years' imprisonment, with a non-parole period of 18 months.
Ms Sargent, are there any other orders that are required?
MS SARGENT: No, Your Honour.
HIS HONOUR: No . Anything else, Mr Terry?
MR TERRY: No, Your Honour.
HIS HONOUR: Thank you very much. I'll adjourn the court.
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