Director of Public Prosecutions v Mahney, Daniel James
[2013] VCC 544
•20 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01097
THE DIRECTOR OF PUBLIC PROSECUTIONS
| v |
DANIEL JAMES MAHNEY
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JUDGE: | Chief Judge Rozenes | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 May 2013 | |
DATE OF SENTENCE: | 20 May 2013 | |
CASE MAY BE CITED AS: | DPP v Mahney, Daniel James | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 544 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Robbery – spontaneous and poorly executed – delay – lost concurrency – prospects of rehabilitation
Legislation Cited:
Cases Cited:
Sentence: Total Effective Sentence: 18 months imprisonment
Non-Parole Period: 12 months imprisonment
Pre-Sentence Detention: 302 days
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K Churchill | Office of Public Prosecutions |
| For the Accused | Ms C Gwynn | Tony Hannebery Lawyers |
HIS HONOUR:
1 Daniel Mahney you have pleaded guilty to two charges of robbery, the maximum penalty for which is 15 years imprisonment on each charge. The offending here was in relation to two incidents which occurred in the early hours of 24 January 2012. You admitted 22 prior convictions, arising from 10 court appearances, over a period of some 5 years from 2004 to 2009. The present charges represent the most serious offences you have committed to date, despite some convictions you have for violence in the past.
2 The facts of the case were opened by Ms Churchill and are contained in the Prosecution Opening, Exhibit A in these proceedings. In brief summary, around 3:30AM on 24 January 2013 you committed two robberies on two separate complainants within 5 minutes for each other at a 7-11 in Box Hill. In relation to the first robbery, you followed the complainant as he left the 7-11 store after purchasing a sandwich, and approached him in the car park. You engaged him in some idle conversation before you sought to intimidate him by asking if he had ever been stabbed in the jugular as you lifted your shirt to reveal an object. The complainant handed over half his sandwich and you walked off. This conduct constitutes charge 1. Shortly afterwards, you approached the second complainant who was walking to the 7-11 from Box Hill Hospital. You approached him and demanded that “empty your pockets and give me everything you’ve got or you’ll be dead”. The complainant complied and handed over a pouch of tobacco and some money. You then stated you would hunt the complainant down as you ripped his hospital identify tag from his wrist, which contained his name and address. This conduct constitutes charge 2.
3 Shortly afterwards you presented at the Box Hill Hospital, police attended and located the items you stole on your person and you were arrested.
4 A Victim Impact Statement was tendered, exhibit B and read aloud by Ms Churchill. In that statement the complainant recalls the effect of your offending, and the fear he still feels as a result of your actions.
5 In response to my query about the appropriate sentencing range applicable in your case, the prosecutor said that a head sentence of somewhere between 2 to 3 years with a non-parole period of between 1 to 2 years was appropriate
6 On your behalf by Ms Gwynn tendered an outline of submissions – exhibit 1, a psychological report from Mr Jeffrey Cummins dated 28 August 2012 – exhibit 2, and bundle of certificates – exhibit 3.
7 In regards to your personal circumstances, you come from a supportive background and are the eldest of 3 children. I note that your parents were present in court on your plea and Ms Gwynn submitted that they visited you regularly whilst you have been in custody. You left school after completing Year 10 and have worked in furniture removals and as truck driver since. For most of your adult life you have battled with a drug and alcohol addiction, which has including abusing cannabis, ecstasy and amphetamines.
8 Ms Gwynn submitted that these offences occurred in circumstances where you had been drinking most of the day and were disgruntled with your personal circumstances following the breakdown of a relationship, some incidents which occurred at your accommodation and the difficulty you had getting off drugs. Ms Gwynn submitted that you were unable to explain why you committed these robberies in the way you did and for little reward.
9 Mr Cummins in his report said that you suffer from Alcohol and Amphetamine Dependence, as well as chronic Adjustment Disorder. I note that Mr Cummins strongly recommended that you undertake residential drug and alcohol rehabilitation upon release from custody.
10 On your behalf, Ms Gwynn submitted that I take into account the following matters by way of mitigation:
1) Your offending can be characterised as being at the lower end of the scale, having regard to the lack preparation, planning and sophistication, the items you stole were of little value, and there were no physical injures to any of the complainants;
2) You have pleaded guilty, and whilst the matter was listed for Trial today, Ms Gwynn submitted that the offer to plead to the 2 charges to which you were arraigned on was made in June 2012 but only accepted in May of this year;
3) There has been delay in this matter resolving of about year As such you have spent a longer period in custody than was required and have lost the opportunity to have these matters dealt with in the Magistrates Court;
4) That your criminal record is relatively confined and that you have good prospects of rehabilitation, as evidenced by your continued family support, the large number of courses you have undertaken in prison, that you have been drug-free whilst in prison and that you have a home and job waiting for you on release.
5) Ms Gwynn submitted that this was the longest time in custody for you, that you had applied yourself in custody and that in particular with respect to your substance dependencies, that this was the first time you had sought to address this problem. Ms Gwynn submitted that you are in a better position today than ever before to take advantage of an opportunity to turn your life around.
11 On the question of penalty Ms Gwynn submitted that the prosecution range was too high and that time served or a period of imprisonment close to time served would be appropriate in all the circumstances.
12 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
13 Robbery is a serious offence. It deprives persons of their property and violates the community’s fundamental values. Attacks upon soft targets such as in this case are prevalent. There are many instances of people such as yourself engaging in robberies on innocent people going about their everyday business. Let there be no mistake about the fact that these like any other victims are entitled to the full protection of the law. The public expect nothing less than an immediate custodial sentence to be given to those who terrify citizens with threats of violence for gain.
14 I accept that you did not injure or produce a weapon in the course of robbing both complainants. However in relation to the second complainant you sought to enforce your threat by taking the complainant’s identification badge and threatening to hunt him down.
15 I accept that this was, if not a spontaneous, then a hastily and poorly planned robbery. You had consumed a quantity of alcohol on this day and were feeling disgruntled with your life. Whilst this may go to explain your conduct it does not of course excuse it.
16 I have to say I am somewhat guarded about your prospects of rehabilitation. Whilst I accept you are drug and alcohol free, that is largely because you have been in custody for over a year. I commend your completion of drug and alcohol courses whilst in custody, but you have been battling with an addiction for most of your life and I am hesitant to conclude that upon release without professional support that you will remain drug-free. You have a chance here Mr Mahney to forge a new life, drug-free, but you need and I strongly encourage you to seek professional help. Without such help, you may very well find yourself back here, and ultimately back in prison.
17 I take into account your plea of guilty, that there has been delay in this matter resolving and that you have lost an opportunity for some concurrency in the Magistrates’ Court. I also take into account the fact that you have been custody for over year when regard is had to a 6 month sentence you received in the Magistrates’ Court and that the principles of totality and proportionality are enlivened.
18 Please stand Mr Mahney.
19 You are convicted and sentenced to 12 months imprisonment on each charge of Robbery.
20 I direct that 6 months of sentence imposed on charge 2 be served cumulatively on the sentence imposed on charge 1, making a Total Effective Sentence of 18 months imprisonment and I direct that you serve a minimum of 12 months before being eligible for parole.
21 I declare that 302 days of pre-sentence detention be reckoned as having been served under the sentence and I direct that a declaration to that effect be recorded in the records of the court.
22 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non-parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to 2 years and 3 months imprisonment with a non parole period of 20 months.
23 I make the disposal order by consent and also make an order pursuant to s.464ZFB of the Crimes Act 1958 for the retention of your forensic sample. I do so because of the seriousness of the circumstances of the offending, and because the application is by consent.
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