Director of Public Prosecutions v McMahon
[2016] VCC 1213
•22 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00204
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN BENJAMIN MCMAHON |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 August 2016 | |
DATE OF SENTENCE: | 22 August 2016 | |
CASE MAY BE CITED AS: | DPP v McMahon | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1213 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Sentencing Act 1991
Cases Cited: R v Tsiaris [1996] 1 VR 398; R v Verdins & Ors (2007) 16 VR 269
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution (Plea) (Sentence) | Mr J. Manning Ms V. Mellios | Office of Public Prosecutions |
| For the Accused | Mr A. Malik | Victoria Legal Aid |
HER HONOUR:
1 John Benjamin McMahon, you have pleaded guilty of one charge of armed robbery. The maximum penalty applicable to that offence is 25 years’ imprisonment. Your offending occurred on 29 September 2015 and involved the victim of your offending, Yunshan Huang.
2 It is not necessary for me to recount in great details the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing, consistent with Exhibit A. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing.
3 I turn to a brief summary of your offending.
4 You are at sentence 49 years of age. You were 48 at the time of your offending. The victim of this offence is Yunshan Huang, who was 53 years of age at the time and the owner of a milk bar in Chadstone. You and Mr Huang did not know each other, although you had been to the shop before, you told police in your record of interview.
5 On 29 September 2015, at approximately 9.00am, you came across a friend in the Chadstone area. With your friend was Carlton Schepsi. You and Mr Schepsi were introduced to each other.
6 You asked Mr Schepsi for a lift to the shops on Batesford Road in Chadstone, saying that you were going to get some money that was owed to you.
7 Mr Schepsi agreed and you and he left in Mr Schepsi’s Ford Falcon ute, Registration STW 667.
8 You directed Mr Schepsi to park at a bus stop on Power Avenue, which was a short distance from the milk bar on Batesford Road. Mr Schepsi remained in the car.
9 At 9.40 am, you entered the milk bar where Mr Huang was working alone.
10 You approached the counter and asked Mr Huang for a packet of cigarettes. After Mr Huang reached for the packet, you left the store without purchasing anything, but then re-entered the store a short time later and again approached Mr Huang.
11 You pushed past the side of the counter, knocking over a confectionary stand in the process and produced a knife in your right hand, pointing it at Mr Huang, demanding the cash register be opened.
12 Mr Huang complied and handed you a total of $145 in cash. After placing that in your pocket, you asked for a packet of cigarettes, which was also provided by the victim.
13 At that time another customer entered the store. You saw the customer and ran out of the store to Mr Schepsi’s vehicle.
14 You got into that vehicle and said “let’s get going”. Mr Schepsi asked you about the people behind you and you replied you did not know, not to worry and to go. Mr Schepsi then took off and dropped you at the nearby Holmesglen station on Warrigal Road.
15 At approximately 11.35 am police attended Mr Schepsi’s address and saw the vehicle, Registration STW 667 in his driveway. He was arrested and taken to a police station for interview.
16 CCTV footage corroborated Mr Schepsi’s account of events.
17 On 30 November 2015, about two months later, you were arrested and participated in a record of interview. In that interview you made admissions to your offending and said that you owed people money for drugs and they had come to pressure you. You said you did an armed robbery under duress.
18
You said you walked in the shop and produced a butter knife, firstly asking if
Mr Huang had two packets of cigarettes. You then walked out because you had thought twice about being an idiot, but then thought of the consequences from the people you owed money to and you said fear got the better of you.
19 You agreed that the victim, Mr Huang, was in shock and scared, and that you were also scared.
20 You went back the second time because you thought about the consequences when those you owed money to (the armed robbery) realised you did not have their money. You said you did not want to do it because you had been in trouble for such behaviour before, but as I said, you said fear got the better of you.
21 You said you owed people money for heroin, but did not wish to disclose their names to police. You said you had run into them at a bus stop that morning. You owed about $300. They had threatened to assault you if you did not pay.
22 You said you had brought a gram of heroin from them two days earlier.
23 You said you took $55 from the milk bar and gave the money to the people later that day. You said you “copped a smack in the mouth and got told to hurry up and give them the money and not to lie to them”.
24 You confirmed that Mr Schepsi did not know what was happening.
25
You said you got the knife from your friend’s place when you first met
Mr Schepsi and Mr Schepsi was unaware of that. You agreed that you took the knife for a reason, stating:
“I was going to try and get some money and do something – be stupid but then I had second thoughts of it, then I was gonna do it but I didn’t and yeah fear got the better of me.”
26 You said you had been to the milk bar on a number of occasions and had spoken to the victim previously, but had not thought about robbing him.
27 You identified yourself in the CCTV stills that you were shown and described your behaviour as “very foolish”, considering you had been in trouble previously for "this sort of thing".
28 You said heroin had been a problem for you for a long time and that you used heroin on the morning of the armed robbery. You said you were sincerely sorry for the trouble you had caused.
29 You were arrested on 30 November and had served 157 days by way of pre-sentence detention as at 4 May 2016. Your plea was originally listed for 5 May 2016, then subsequently adjourned. I refer to your pre-sentence detention later in these sentencing remarks.
30 There was not a victim impact statement before me. I understand Mr Huang had been given the opportunity to make a statement but had not done so. I can accept, however, he was likely in fear at the time of the armed robbery and such was conceded by you.
31 Turning to your plea of guilty, you indicated your intention to plead guilty at the first committal mention at the Melbourne Magistrates’ Court on 16 February 2016. I accept that was the first opportunity for you to enter your plea and therefore your plea of guilty was entered at an early stage and such is relevant when sentencing you and in mitigation of your sentence.
32 By your plea of guilty, the community has been spared the time and cost of a trial and witnesses have been spared the ordeal of having to give evidence upon your trial and, in that regard in particular, I refer to Mr Huang. Further, I take into account in your favour, you intimated early your intention to plead guilty to these charges and also note you made admissions to your offending in your record of interview with police on 30 November.
33 In the circumstances, I am prepared to accept your plea of guilty indicates remorse for your offending, though I am concerned about the extent of your remorse, considering your previous similar offending, to which I shall shortly refer.
34 There is an aggravating feature of your offending, in that there was a level of preplanning involved, in that you took the knife from your friend’s property and that when you took it, you were going to try and get some money and “to do something – be stupid”. Also I note your opportunity to leave the scene when you first exited the shop. You had the opportunity to "walk away" but did not and returned to commit the armed robbery.
35 A chronology was before me. You were sentenced by his Honour Judge McInerney on 16 March 2010, for one charge of armed robbery. You were paroled on 8 June 2011, such being cancelled on 9 January 2013. Parole was again granted on 7 January 2014 and again cancelled on 14 February 2014, about five weeks later. Parole was denied on 28 November 2014, which meant you were released after having served your sentence on 2 May 2015.
36 Your offending before me occurred approximately five months after you were released, having just served a sentence for armed robbery.
37 You admitted an extensive prior criminal history. Those offences involved mainly dishonesty offences. You have, over a number of years, also been given a number of different types of dispositions for your offending and you have breached court orders.
38 The prosecution provided me with the sentencing remarks of his Honour Judge McInerney of 16 March 2010, relevant to your most recent prior court appearance for armed robbery. The similarities between that offending and your offending before me are apparent. In brief, that offending involved you attending at a retail shop and the victim being prevailed upon by you with a weapon.
39 At that time is Honour was satisfied that, on the material before him, you were “not thinking too well”. On that occasion, you had conveyed yourself to the shop in a car, apparently owned by a friend. On that occasion you had also used a knife. You demanded the till be open and took a total of $125. You were, at that stage, also fully co-operative with police, stating the reason for your offending was that you were “pilled out” on what you had taken, apparently Xanax. Also, on that occasion, the knife was described as a "butter knife", although his Honour noted it should not be underestimated the terror that any person would endure, albeit from that type of knife when confronted in such a situation.
40 His Honour considered that the circumstances of that offending were serious. His Honour noted, as do I, that prior to that court appearance for armed robbery, you had never committed a crime of that seriousness before, although had previously been to gaol for theft offences.
41 His Honour was told at that hearing that you were not an addict, although had intermittent effects of poly-substance drug abuse over many years. I shall return to this later and the inconsistency with your instructions before me and your self-report to Ms Gianvanni.
42 His Honour accepted that on the day, that you were under the influence of drugs and took into account the principles in R v Tsiaris[1], as it then was, which is, pre R v Verdins & Ors[2]. His Honour accepted the connection between your criminality and your addiction and he conceded, at that time, such would lead to a moderation of the need for a deterrent sentence. At that stage, his Honour accepted the submission from counsel, that there would be danger in accepting your possible rehabilitation.
[1] [1996] 1 VR 398
[2] (2007) 16 VR 269
43 His Honour referred to the loss of your family to you whilst undergoing sentence. His Honour also referred to a number of courses you had then undertaken whilst in custody on remand for that offending. His Honour noted, at that stage, your good work history. His Honour, of course, also took into account your plea of guilty.
44 At that time, his Honour imposed a sentence of four years’ imprisonment, with a non-parole period of two years and 247 days were declared as pre-sentence detention.
45 I note that since the decision of his Honour on 16 March 2010, there have been a number of decisions, in particular from the Court of Appeal, referrable to the principles in Verdins. In particular, the need for rigorous examination to ascertain if any of the principles of Verdins applied (see Binse v R[3] and DPP v O’Neill[4]), the drug use at the time of offending, and whether or not Verdins principles would apply in such a situation, ie, if there was drug use. (See also Johnston v The Queen[5]).
[3] [2016] VSCA 145
[4] [2015] VSCA 325
[5] [2013] VSCA 362
46 I note Mr Malik, who appeared on your behalf at this plea hearing, was not relying on Verdins Principles 1-4 when sentencing you and such a concession, in my opinion and consistent with authority, was appropriate on all the material before me.
47 Mr Malik tendered a report, dated 29 July 2016, prepared by Elle Gianvanni, Forensic Psychologist, who assessed you recently while on remand on 21 July 2016.
48 In her clinical findings, Ms Gianvanni described you as currently experiencing post-traumatic stress and related symptomatology within the severe range. Those symptoms had been lifelong, but recently aggravated due to your accommodation in a protection unit. That had triggered distressing nightmares, memories and flashbacks about your own sexual abuse, which had impacted on your psychological wellbeing.
49 In the past to overcome post-traumatic stress disorder symptoms, you had experienced from age 18 to date, you had abused illicit drugs and alcohol on a daily basis, and in particular, heroin. Your anti-social and drug lifestyle led you to commit a number of offences throughout your life to sustain your drug/heroin addiction. As a result, you had been incarcerated on a number of occasions in New South Wales, South Australia and Victoria.
50 Despite completion of a number of offence specific and offence related programs over the years, you had not learnt any strategies to alleviate your emotional distress.
51 When you were released back into the community from your previous sentences, you relapsed into drug use, including heroin, other drugs and alcohol within a short time, which perpetuated your cycle of offending.
52 You instructed, in relation to your offending before me, that you owed money to a drug dealer after purchasing heroin and ice, and committed the armed robbery to obtain money to repay the dealer.
53 Ms Gianvanni concluded you were at a high risk of re-engaging in general offending, such as dishonesty offences, with or without a weapon, if you did not abstain from drugs and alcohol and remained untreated. But I have no doubt you are well aware of that.
54 In regards to violent offending, you were currently assessed as a moderate risk of re-offending, if not abstinent from drugs and alcohol and remained untreated.
55 A number of tests were conducted as part of Ms Gianvanni’s examination.
56
You described that since being in protection, you were surrounded by persons including those who perpetuated sexual offending. That had caused you to
re-live your own sexual abuse over and over again, which caused anxiety.
57
You denied experiencing any recent or current psychotic symptoms.
Ms Gianvanni noted that you were currently prescribed medication to treat depression or generalised anxiety disorder. You were also on the Methadone program for the first time in your life, having commenced in March 2016.
58 Details were provided of your background and history. You were born and raised in Sydney and described your early childhood and upbringing in positive terms. You described yourself as a “good kid” prior to the ages of 11 and 12. You denied any exposure, or being the victim of any abuse or emotional neglect from your parents. You had a sister two years younger than you and had a close relationship with her while growing up.
59 When you were 11 to 12 years of age, the family moved to Wollongong, which you found unsettling, having moved from a small town to a city. You described being told about your adoption when you were 12, which distressed you. You felt lost as a result of becoming aware of that and tried meeting new friends to keep yourself occupied. It was after you found out about your adoption you started to get in trouble with your parents for disobeying them. Then you were then offending from about the age of 13. You described eventually feeling abandoned and unloved by your parents. You also referred to a sexual assault upon you, as described in detail within the report and I will not further describe that here.
60 You did not tell your parents or sister anything about what had happened, as you were embarrassed and tried to forget it.
61 You said that after that assault you distracted yourself with school and playing sport.
62 In 1983 you were involved in the theft of a motor vehicle when you were 17 and developed a hatred of authority.
63 Around that time you commenced drinking alcohol on weekends and smoking cannabis. This led you to quitting school in Year 9, after which you obtained a job in a timber factory for two years. Your alcohol and cannabis consumption continued. You left your parents’ home with you not feeling wanted and began associations with negative peers, resorting to drugs and alcohol. In addition to your alcohol and cannabis use which increased, you commenced using cocaine, speed and other drugs from the age of 18 to 19 and were introduced to heroin when 20.
64 Your relationship with your parents fell apart when you were 22 or 23, when they realised the extent of your heroin addiction.
65 Between the ages of 22 and 40, you worked sporadically in the labouring industry, continuing to abuse heroin, drugs and alcohol on a daily basis and commit offences, as your criminal record disclosed. You always relapsed into heroin use as soon as released, despite having completed courses when incarcerated.
66 You have a daughter, now nearly 20 years of age. You described minimal contact with over the first six or seven years of her life and since then had lost contact with her. You said you had another child, a son. You had not seen him for years.
67 You further described turning to the use of Xanax with heroin, and it was in that context you committed your first armed robbery, before his Honour Judge McInerney.
68 During the sentence imposed by his Honour, you said you had spent most of the sentence at Marngoneet Correctional Centre, completed a number of programs, although Ms Gianvanni noted you could not recall strategies learnt from them.
69 Your breaches of parole related to you not attending supervision appointments and eventually you started using heroin again also ice, which led to problems, including this offending before me.
70 While you had expressed a willingness to stop abusing alcohol and drugs, you did not have any current strategies to do so, despite a number of drug and alcohol programs previously attended by you when incarcerated.
71 Regarding your past and current mental health, you disclosed emotional distress relating to your past sexual abuse and you said that until your current incarceration, that was masked by your substance abuse. You were also anxious in protection with other sexual offenders, given your own sexual abuse and indicated your desire to deal with your anxiety and prior sexual abuse.
72 Ms Gianvanni referred to medical file notes which supported your description of anxiety and ongoing panic attacks when in a single cell in custody.
73 You had attended a total of four 60 minute sessions and two 20-30 minute sessions with Ms Patricia Reed, Psychologist, while most recently on remand, having commenced on 16 May, with the last attendance prior to plea recorded 22 June 2016. Those sessions aimed at addressing your trauma and anxiety symptoms.
74 You were now sharing a cell, which you found preferable to being in a single cell. You were currently employed as a unit billet.
75 Ms Gianvanni said you did not have any pro-social friends to associate with in the community and no accommodation when released.
76 You were, however, able to identify any possible triggers to your anger and frustration and appropriate coping strategies. Your ability to walk away from such situations, however when intoxicated by alcohol and drugs, was diminished.
77 You presented with nil signs of impairment in your intellectual and cognitive functioning, albeit were not formally assessed.
78 You are currently showing depressive symptoms and experiencing anxiety, both within the severe range to extremely severe range.
79 Ms Gianvanni concluded you would require ongoing and intense psychological treatment, given the pervasive and debilitating nature of your anxiety and depression. However, Ms Gianvanni noted that without firstly, or simultaneously, addressing the underlying reasons for your abuse of substances which you used to mask negative emotions, individual psychological treatment would be futile.
80 You had not learnt strategies to alleviate pervasive emotional distress, which explained why you relapsed into drug use as soon as released into the community. That created a need for money, and thus this offending.
81 Your current diagnosis was of post-traumatic stress disorder and opioid use disorder. Should you attend treatment regularly to address your mental health difficulties and be abstinent from illicit drugs, your risk of future recidivism could be contained and ultimately decreased. I have no doubt you are aware of all of that and that is something I urge you to focus on in custody.
82 Regarding your time in custody, the author noted since your movement to the protection unit at MRC, your psycho-symptomology had worsened. In custody, it was suggested the prison psychologist monitor your mental health state. I also urge that occur.
83 Mr Malik prepared a helpful written outline of submissions which he addressed during the course of your plea hearing. At the outset he indicated the appropriate disposition would involve an immediate term of imprisonment and initially submitted that there would be with a non-parole period.
84 Upon instructions from you, he amended that submission to one of an immediate term of imprisonment with a community corrections order.
85 He referred in his oral and written submissions to the report prepared by the psychologist, Ms Gianvanni, and submitted that Verdins Principles 5 and 6 were enlivened by that report. He was, as I have said, not relying upon Verdins principles 1–4. In my opinion, based on the material contained in the report of Ms Gianvanni, I agree with his assessment of the applicability of Verdins to 5 and 6. I note in that regard also the prosecution conceded that Verdins Principles 5 and 6 would apply when sentencing you.
86 In support of that submission, Mr Malik also relied upon recent correspondence from the prison, which I discussed with him prior to your plea hearing commencing. You were, due to your anxiety, unable to attend court for the plea hearing, preferring the somewhat unusual course of your plea being conducted via video link. I agreed to that course as urged by your counsel and not opposed by the prosecution. Also to that course for this purpose of sentencing. I note at that time there was also a brief report before me from the prison medical officer confirming your severe anxiety/panic attacks and I quote:
“… severe anxiety can lead to panic attacks in certain situations including travel and certain interpersonal interactions. It is believed that transport to Court may exacerbate his anxiety leading to panic attacks and the detriment of his mental state. In the past he has had to have tele Court rather than transport to Court and we would appreciate a similar allowance in this instance.”[6]
[6]Signed by Georgina East, Medical Officer, dated 3 August 2016
87 Your counsel conceded you had a number of prior court appearances and in particular a relevant prior matter dealt with on 16 March 2010, when sentenced by his Honour Judge McInerney. I discussed with Mr Malik the similarities between that offending and that before me.
88 Your offending before me, as I discussed with him, also involved a soft target, a shop assistant, going about his normal daily business confronted by you, a person with a knife, albeit a butter knife as described.
89 I discussed with Mr Malik the aggravating features of your offending, specifically, the level of pre-planning and that you picked up the ‘butter knife’ and took it with you specifically to do a ‘job of sorts’. Further, after entering the particular shop on one occasion, you left, with the opportunity at that stage to desist. Unfortunately you returned a second time and committed this offence. Also as I discussed with your counsel, I do of course accept no disguises were used by you and that as you had previously attended the shop, you were likely to be identified.
90 I accept your offending occurred as a result of the pressure you felt to repay a drug debt.
91 Mr Malik spent considerable time during your plea hearing referring to your need for the counselling and therapy, as discussed by Ms Gianvanni. I note, to your credit to date, you have undertaken a number of sessions with Ms Reed whilst in custody to address your issues and that you describe that involvement as “beneficial” to you.
92
I am aware and conscious Ms Gianvanni is of the opinion the level of treatment you would receive in custody would not be sufficient to adequately address your anxiety and panic issues and other underlying issues that you have. There will no doubt be limitations to some of the treatment you will receive in custody and whilst I appreciate that, there is a punitive element to a community correction order, as well as rehabilitation. But ultimately I must determine whether, in all the circumstances of this case, including taking into account all matters in mitigation of your sentence and personal to you, the disposition urged by
Mr Malik is appropriate.
93 Mr Malik submitted that whilst you had been given opportunities in the past, as evidenced in your criminal record, you had continued to use drugs which had led to re-offending.
94 The focus of his plea was that by enabling you to be in the community on a community correction order, it would ‘cut that cycle’, enabling the underlying causes of your offending behaviour to be addressed.
95 Mr Malik conceded that there were other sentencing considerations to be considered when determining the appropriate sentence, including general deterrence, the need to protect the community, and denunciation of your offending. He submitted, however, those matters could appropriately be addressed through an immediate term of imprisonment, with the rehabilitative aspect of the sentence through a community corrections order with appropriate conditions attached.
96 Before me were two certificates relevant to your recent period on remand. You have completed a six-hour alcohol, drug and stress program and completed the six-hour Ice Effects Program. Further, there was a statement of results from Box Hill TAFE, which indicated you have completed a unit on maintaining hard floor surfaces and clean glass surfaces in 2016.
97 Mr Manning, who appeared on behalf of the prosecution, referred to the objective seriousness of your offending and the maximum penalty of 25 years that applied to it.
98 He conceded, however, yours was not sophisticated offending and that there was no physical injury sustained by the victim, no co-offender was involved and your offending occurred over a relatively short period of time. That is so.
99 Nevertheless, he submitted your offending was drug-fuelled and that your victim was a “soft target” shop owner. The offending had occurred in broad daylight with a knife, which was particularly concerning when compared with other forms of weapons sometimes produced, such as a baseball bat and stick.
100 Mr Manning also referred to your concerning similarity to your prior armed robbery involving a butter knife, knowing the premises beforehand and then being co-operative with police when apprehended.
101 Mr Manning submitted there was an element of pre-planning, in that you had made the decision earlier that day to arm yourself with the butter knife, and did. Even if you did not specifically intend to target that shop, you were intending to go to the shops to obtain money. You had the plan to commit an armed robbery somewhere.
102 Mr Manning also referred to you going into the shop a second time, having had the opportunity to decide whether or not to proceed with the armed robbery.
103
Mr Manning submitted your moral culpability for this offending was high and
I agree.
104 He referred to the importance of general deterrence when sentencing for offences of this type. I agree.
105 Mr Manning accepted your plea of guilty was entered at the earliest opportunity and was indicative of remorse for your offending. Further, that you had made admissions to the police about your offending and the victim had not been required to give evidence at trial.
106 Regarding your prior court appearance for armed robbery, Mr Manning noted that in His Honour’s sentencing remarks, you acknowledged the victim of that offending would have been scared, which he submitted was relevant to your level of remorse, as you would also have be aware on the occasion before me that you might cause fear to this victim.
107 Mr Manning referred to the need for specific deterrence when sentencing you and urged your rehabilitation prospects were guarded.
108 He submitted there was a notable difference between the two offences of armed robbery, that before me and that dealt with by his Honour Judge McInerney. That before me, it was stated you were only ever abstinent from heroin when in custody. However, it had been put to his Honour Judge McInerney when sentencing in 2010, that you were not an addict but rather a poly-substance abuser. His Honour had extended some leniency in relation to that addiction at the time of that sentence. I agree there is some inconsistency in your drug use history.
109 Mr Manning conceded regarding your extensive criminal history, there was some violence contained within it, but basically the offences were involving dishonesty and I agree. I note two offences of unlawful assault, but many years earlier in 2003 and 1993.
110 Mr Manning referred to you having been released just five months before you committed the offence before me. Mr Manning also referred to your failure to appear at court just three weeks prior to this offending. However, as that is yet to be dealt with by a court, I disregarded it when sentencing you.
111 Mr Manning also referred to court orders having been imposed in the past and you having breached them.
112 He submitted the need to protect the community from you was a significant matter when sentencing you and I agree.
113 He also referred to the report of Ms Gianvanni and her conclusion your risk of general offending was assessed as being high.
114 Mr Manning submitted that the appropriate disposition was a term of imprisonment, although he conceded that sentencing submission from the prosecution had been obtained based on the written sentencing submissions of Mr Malik, that was a head sentence with a non-parole period.
115 As I discussed with Mr Manning, whilst I am of course assisted by all submissions from the prosecution, I must determine the appropriate disposition based on all relevant sentencing considerations, which includes not only the gravity of your offending and all matters in mitigation of sentence and personal to an offender, but also the well-established sentencing principles relevant to this particular type of offending, being armed robbery.
116 I turn to your rehabilitation prospects. I have at best, guarded optimism. You have an extensive prior criminal history and a large number of issues that need to be addressed by you, to which I have referred when summarising the report of Ms Gianvanni. Ultimately, your rehabilitation prospects will be assisted by you taking on board all opportunities given to you for assistance, both within prison and then while on parole. You will find that the parole system is very different now and you will be able to have access to far more programs than would have been available previously, when you were last in custody. Of course, you must not just attend programs, you must also participate positively in those programs when offered to you, to benefit from them and reduce your risk of re-offending.
117 When sentencing you, I must seek to maximise your chances of rehabilitation, as they may be.
118 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account matters such as general deterrence, which is of considerable importance in a case such as this. There is also the need for specific deterrence when sentencing you, given your extensive prior criminal history and relevant armed robbery.
119 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. This continues to concern me.
120 I am also called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
121 As I discussed with your counsel, Mr Malik, I am conscious of the decision of Boulton v R[7] and the need for courts to rethink the conventional wisdom that the only appropriate sentence, even for serious offences, is one of an immediate term of imprisonment. That there are both rehabilitative and punitive aspects to a community corrections order.
[7] [2014] VSCA 342
122 The decision in Boulton has been referred to in a number of decisions since, which includes DPP v Maxfield[8], Alam v R[9], Marocchini v R[10] and recently Gul v R[11].
[8] [2015] VSCA 95
[9] [2015] VSCA 48
[10] [2015] VSCA 29
[11] [2016] VSCA 82
123
I did not, however, understand the decision in Boulton to remove the requirement that a sentencing judge must take into account all of s.5 Sentencing Act 1991 and not just consider s.5(4C) of that Act. Nor did
I understand Boulton to mean that sentencing principles enunciated by the Court of Appeal relevant to this type of offending (armed robbery) now amount to nought. Nor did I understand the decision in Boulton to remove the instinctive synthesis required when sentencing. I also did not understand Boulton to remove the need for me to be mindful of the maximum penalty for this type of offence, as set by Parliament.
124 Also, I note in Hutchinson v R [2015] VSCA 115, His Honour Priest JA cautioned:
“Acknowledging that a CCO might be appropriate, even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment, it should not be thought that Boulton offers a "Get out of gaol free card" in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes of a sentence.” [17]
125 In my opinion, a community correction order, even with a term of imprisonment, would not adequately reflect all relevant sentencing considerations in your case.
126 On Charge 1, you are convicted and sentenced to 5 years and 6 months' imprisonment, and I direct you serve a period of 3 years and 6 months before you are eligible for parole.
127 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 266 days in custody ( up to and including yesterday, which was 21 August 2016), by way of pre-sentence detention and I direct that be entered into the records of the court.
128 MR MALIK: It is 260 days now, Your Honour.
129 HER HONOUR: Two what?
130 MR MALIK: Two hundred and sixty days.
131 HER HONOUR: Two six zero, you said?
132 MR MALIK: Sorry, 266.
133 HER HONOUR: Two six?
134 MR MALIK: Yes, Your Honour.
135 MS MALLIOS: I am double-checking, Your Honour.
136 HER HONOUR: Yes, just double-check. Hold on, I will come back to that.
137 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to this charge and been found guilty of it, I would have sentenced you to a term of imprisonment of 8 years, with a non-parole period of 6 years.
138 The prosecution made application for a compensation order in the sum of $145. That was not opposed by counsel on your behalf and I make the order in the terms sought.
139 Now first things first, were there any other orders? I do not think so.
140 MS MELLIOS: No, that's it, Your Honour.
141 HER HONOUR: And how did you go with the PSD?
142 MS MELLIOS: Sorry, Your Honour, I'm just looking it up right now.
143 HER HONOUR: He was into custody, was it the 30th?
144 MS MELLIOS: 30 November.
145 HER HONOUR: So, he went in on that day, so you count the 30th.
146 MS MELLIOS: Yes.
147 HER HONOUR: And up to the 21st, which was yesterday, inclusive.
148 MS MELLIOS: Yes, Your Honour.
149 HER HONOUR: So if you could just quickly do that. Well, not quickly, but if you could do that.
150 MS MELLIOS: Two hundred and sixty-six days, Your Honour.
151 HER HONOUR: Two sixty-six, is it? I will send Ms Jackson back to maths school. All right. So that is 266 days. I repeat, pursuant to s18(4) Sentencing Act 1991, I declare you have spent 266 days in custody, up and to and including yesterday, 21 August 2016, by way of - - -
152 HER HONOUR: All right. So you got the sentence, which was five years, six months, with a non-parole three years, six months, in case you missed that. Two hundred and sixty-six days I have declared, and the 6AAA, in other words, if you had pleaded not guilty to that charge but been found guilty of it, then I would have sentenced you to eight years, with a non-parole period of six years. And I made a compensation order in the sum of $145, and that was it.
153 Now, is there anything else?
154 MR MALIK: No, thank you, Your Honour.
155 HER HONOUR: Yes, all right, thank you.
156 OFFENDER: Thank you.
157 MR MALIK: Thank you, Your Honour.
158 MS MELLIOS: Thank you, Your Honour.
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