Director of Public Prosecutions v Mark

[2016] VCC 523

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-00165

DIRECTOR OF PUBLIC PROSECUTIONS

v

JESSE MARK

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2016
DATE OF SENTENCE:	29 April 2016
CASE MAY BE CITED AS:	DPP v Mark
MEDIUM NEUTRAL CITATION:	[2016] VCC 523

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Bruhn	Office of Public Prosecutions
For the Offender	Mr M. Amad

HIS HONOUR:

1You have pleaded guilty to one charge of theft.  The maximum penalty for this offence is ten years' imprisonment.  Further you have pleaded guilty to one charge of armed robbery.  The maximum penalty for this offence is 25 years' imprisonment. 

2The circumstances of your offending are set out in the Summary of Prosecution Opening upon Plea, Exhibit A.  Further to that the circumstances are amply and informatively added to by the CCTV footage of both offences, Exhibit C.  In summary the facts which found the charges you committed are firstly a theft at the Caltex service station on 4 November 2015.  You went in during daylight hours when other members of the public were around and you asked the male attendant to hand over money and he did.  He gave you $720 from the till and you left.  No threats were made.  You attempted to cover yourself by pulling a hood partly over your head in what was a very amateurish attempt to disguise your identity in view of the fact that your face was plainly visible before doing so.  Five days later on 9 November 2015 you attended at a police station of your own volition and confessed to the offending.

3Eight days later, on 17 November 2015, you attended at the same Caltex service station.  On this occasion it was also daylight hours and involved a bizarre episode where you were within two or three metres of the male shop assistant with your shirt pulled up bearing your chest and back for about five minutes.  At times you were bending over in a very curious way as a number of customers came and went making purchases. 

4All the while you were behaving this way you were a very short distance away from the counter and the attendant you subsequently held up.  If you wanted people to be attracted to noticing your behaviour and possibly identifying you, it would have been hard to better your effort in terms o the bizarre events in those few minutes before the robbery.

5You then approached the counter with part of your shirt pulled up covering your face and baring your chest and made demands of the shop assistant. 
You had a pair of scissors in your hand but the CCTV does not reveal any particularly threatening gestures that could be described as violent.  You were given $360 from the till and you left.

6Apparently a day or two later the police left a card at your premises after attending there.  There was no evidence to indicate whether they were following up the earlier offence on 4 November 2015 or suspected you in relation to the second offence on 17 November 2015.  Whatever the position, you attended at the police station of your own volition two days after the robbery on 19 November 2015 and confessed to the armed robbery.

7These are, without doubt, serious offences.  However the offending could only be described at the minor end of this type of offending that comes before the courts almost daily.

8The Crown have pointed to some aspects of the offence in the Crown sentencing submissions that quite rightly refer to matters that go to the gravity of these offences committed upon what could be described as "soft targets", Exhibit D.  Both victims have been invited to provide Victim Impact Statements but have declined to do so.  Accordingly there is no evidence before the court of any ongoing consequences for the two men involved behind the counter on these occasions.

9You have admitted the contents of a criminal record which discloses past offending, Exhibit B.  Almost eight years ago you were convicted of theft and attempted robbery in the Magistrates' Court on 19 June 2008.  You were given a Community Based Order for 12 months.  The only other matter known in terms of past history is that on 7 April 2009 you attended the Magistrates' Court for failing to comply with the CBO but I am told that was with respect to missing appointments rather than any further offending.  This would appear to be confirmed by the magistrate simply adding one month to the 12 month CBO that you were then currently under and imposing no further penalty.

10Apart from the matters before me it is apparent that over the last seven years since that appearance in 2009 you have not been before the courts for any criminal activity. 

11You are aged 28 years.  Your personal history has been outlined by your counsel and details appear in the Defence Outline of Submissions and chronology, Exhibit 1.  Some details also appear in the report of a psychologist, Carla Lechner, dated 29 December 2015, Exhibit 2.  In addition a North-western Mental Health Closure summary of 2 November 2015 also provides some evidence of mental health problems you have had by way of depression and anxiety amongst other things in the past, Exhibit 3.

12While your counsel has indicated Verdins principles are not enlivened, it is clear that you are in need of assistance with respect to depression, anxiety and your use of substances.  You have required inpatient psychiatric treatment at Broadmeadows only days before your first offence.  You then required inpatient treatment at Royal Melbourne only days prior to your second offence.  Your offending has been linked to problems with your substance usage both by way of prescribed medications and alcohol and possibly cannabis it seems. 

13The report tendered from Carla Lechner was of assistance.  Considering all the facts surrounding your offending and your personal circumstances I consider your prospects of rehabilitation are real.

14You counsel pointed to a number of mitigating factors.  You have pleaded guilty at the earliest opportunity and indeed attended at the police on two occasions to own up to your offending.  I accept this is very real evidence of remorse on your part.  You have also spared witnesses the ordeal of giving evidence and you have saved the community time and expense with respect to a trial.  You are entitled to have these matters taken into account in your favour and I do so.  You have family support including people attending today.

15Your counsel submitted a term of immediate imprisonment together with a Community Correction Order was the appropriate disposition.  The Crown very fairly agreed this approach was within the range and, indeed, tendered to the court authorities in which that approach was adopted in circumstances of theft and armed robbery.  I agree that a term of immediate imprisonment together with a CCO with appropriate conditions is the correct disposition in this case.

16As well as those matters personal to you to which I have referred I must also take into account other relevant sentencing considerations.  The community cannot and will not tolerate offending which so seriously compromises a citizen's right to feel safe in his place of work and offending that can have ongoing consequences for the victim.  The message must be clear and consistent that appropriate punishment will result. 

17Your sentence must manifest the community's denunciation of your conduct and impose just punishment.  I have to try and protect the community from any repetition of this type of offending by you and by others.  These are serious offences. 

18A CCO Assessment Outcome Report has been received assessing you as suitable for a CCO with conditions, Exhibit E.  I impose an immediate term of imprisonment together with a CCO. 

19You can stand up, thank you.  You are convicted and sentenced as follows. 

20Charge 1, three months imprisonment. 

21Charge 2, nine month's imprisonment together with a CCO of two years with the listed conditions in addition to those which accompany all CCOs. 
Such CCO to commence upon your release from prison.

22I direct that the prison sentence on Charge 1 be served concurrently with the prison sentence on Charge 2, making a total effective sentence of nine months. I declare 162 days pre-sentence detention pursuant to s.18 of the Sentencing Act be reckoned as served.

23Pursuant to s.6AA of the Act I declare that but for your plea of guilty I would have imposed a total effective sentence of 13 months imprisonment together with a two years' CCO.

24I make the ancillary orders sought that you have consented to.  Is there anything else that's required?

25MS BRUHN:  Your Honour, just to clarify, was Charge 1 the armed robbery offence or the theft offence from the ‑ ‑ ‑ 

26HIS HONOUR:  Theft.  Theft, I was told.

27MS BRUHN:  The theft offence.  So - yes, all right.  No, sorry, I was just clarifying that.

28HIS HONOUR:  Well do you want me to check on that?  I don't want there to be an error. 

29MS BRUHN:  I will ‑ ‑ ‑ 

30HIS HONOUR:  I'll hand you back what I was given.

31MS BRUHN:  Yes, yes sorry, Your Honour.  So Charge 1 was theft, Charge 2 was armed robbery.  Thank you for that.  Sorry, if I just - for some reason I thought it was the other way round.

32HIS HONOUR:  Yes take a seat, Mr Mark, I need my Associate to read out to you the Community Correction Order and make sure you understand that and I'll let Mr Amad go back to the dock with you there just in case there's anything you're not sure about.

33ASSOCIATE:  Would Mr Mark please stand?

34HIS HONOUR:  Mr Amad, do you want to go back with him or was there - you've explained these to him, have you?

35MR AMAD:  I haven't seen the orders yet, Your Honour, but I will.

36HIS HONOUR:  Yes just the conditions, that's all.  I just want - I'll get her to run them off and I don't mind if you go back to the dock with him there to explain each of those conditions before he consents to that.

37MR AMAD:  Thank you, Your Honour, I've explained those conditions to him.

38ASSOCIATE:  Mr Mark, this order will last for two years and commence upon completion of imprisonment (indistinct words).  You must attend at the Geelong Community Correctional Services and Stage government offices, level 5, 30A Little Mark Street, Geelong, within two clear working days after the commencement of this order.

39The major terms that apply to all Community Corrections Order are that you must commit another offence for which you could be imprisoned during the time that the order is force. You must comply with any obligation or requirement proscribed by Regulation 17 of the Sentencing Regulations 2011. You must report to and receive visits from the Secretary or delegate.

40You must report to the Community Corrections Centre within two clear working days of the order starting.  You must let a Community Corrections officer know within two clear working days of you changing your address or job.  You must not leave Victoria without first getting permission to do so from the Secretary or delegate.  You must obey all lawful instructions from and directions of the Secretary or delegate.

41The conditions that apply in addition to the major terms are unpaid community work, you must perform 100 hours of unpaid community work over a period of two years as directed by the regional manager.

42If you fail to comply with this order, Secretary to the Department of Justice or delegate, may give you a direction to perform additional hours of unpaid community work in accordance with (indistinct) of the Sentencing Act 19991. 

43Supervision.  You must be under the supervision of a Community Corrections officer for a period of two years.

44Treatment and rehabilitation.  You must undergo assessment and treatment including testing for drug use or dependency as directed by the regional manager.  You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the regional manager.  You must undergo any medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital residential facility as directed by the regional manager.

45You must undergo any mental health assessment and treatment that may include psychological, neuro-psychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager.

46HIS HONOUR:  Mr Mark, you may not think so but the prosecution and police have been very fair to you, the way they have conducted this case.  Armed robbery carries 25 years.  I have given you nine months.  You may think the fact is you have got a Community Corrections Order is a bit of a soft way out, well, I will tell you this.  You might be able to put it over Corrections people and parole officers but you are going to be coming back to me.  You do not put it over me, you understand?

47OFFENDER:  Yes, yes.

48HIS HONOUR:  So if you come back to me, I will hit you for six.  Do you know what that means?

49OFFENDER:  Yes.

50HIS HONOUR:  Right.  Good luck, you can take him.

51OFFENDER:  Thank you.

52HIS HONOUR:  Nothing else?  Thanks for your assistance.

53MR AMAD:  Thank you, Your Honour.

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