Director of Public Prosecutions v McManus

[2018] VCC 994

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01223

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES WILSON McMANUS

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	26 June 2018
DATE OF SENTENCE:	29 June 2018
CASE MAY BE CITED AS:	DPP v McManus
MEDIUM NEUTRAL CITATION:	[2018] VCC 994

REASONS FOR SENTENCE
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Subject:   CRIMINAL LAW 

Catchwords:   Sentence - Armed robbery – Related summary charge -     Commit indictable offence on bail – Guilty plea

Legislation Cited: s 75A(1) Crimes Act 1958, s 30B Bail Act 1977
Cases Cited:
Sentence:   Placed on a Community Correction Order for a period of 
  three years – punitive and therapeutic components – 150
  hours community work

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms A Harrold	Office of Public Prosecutions
For the Accused	Mr P Bloeman	Victoria Legal Aid

HIS HONOUR:

Introduction

1. James Wilson McManus you have pleaded guilty to 1 charge of armed robbery contrary to s 75A(1) of the Crimes Act 1958 which carries a maximum penalty of 25 years imprisonment.

2. You have also pleaded guilty to one related summary charge, charge 2, committing an indictable offence, namely armed robbery, whilst on bail contrary to s 30B of the Bail Act 1977, which carries a maximum penalty of 30 penalty units or 3 months imprisonment.

Circumstances of the offending 

1. A prosecution opening was tendered on the plea which may be summarised as follows:

2. On Sunday 15 January 2017, at approximately 6pm, you attended at the United Service Station on 82 Barkers Road, Hawthorn wearing police-issue overalls, a beanie and green Converse shoes. The victim in this matter, Mr Ahsan Ahmed Mohammad, was the only store attendant present at the time and was standing behind the front service counter. There were no customers in the store. 

3. You entered the service station carrying a wooden stick which was approximately two feet in length and had a sharpened point. As you approached the counter, Mr Mohammad asked “Why are you carrying a stick?”. In response you pointed the stick at him and said “Give me $200 cash otherwise I'll hit you.” 

4. Mr Mohammad told you that he could give you the $200, but warned you that there were a lot of surveillance cameras in store which would get you in trouble. You replied “I don't care, it's a robbery.” Mr Mohammad said “Do you want to think again?” You replied “give it to me quickly”. As this exchange took place, you kept the stick pointed at Mr Mohammad.

5. In fear for his safety, Mr Mohammad opened the till and gave you $200 cash. As you were leaving, you told Mr Mohammad not to follow you or else you would hit him. You ran from the store and Mr Mohammad pressed the hold-up alarm under the counter for police assistance. Mr Mohammad took a photo of you on his phone through the service station window as you left the scene. It is these facts that relate to charge 1 on the indictment, armed robbery.

6. The entire incident was captured on in store CCTV footage. You were also captured on the CCTV footage of nearby businesses as you walked towards the service station, armed with the wooden stick. 

7. The overalls and beanie you wore during the incident were located by police a short distance away in a residential driveway. The wooden stick was also located by police at the front of the service station next to Mr Mohammad's vehicle.

8. At the time of the offence, you were on bail, having been bailed from the Richmond Police Station at approximately 4.50pm that same day. A full explanation of the conditions had been provided to you before you were released, including that you were not to commit any further offences. It is these facts that relate to summary charge 2, commit indictable offence on bail.

9. On 22 January 2017, you left Australia to visit your parents in Bali. Upon your return on 20 February 2017 you were immediately arrested by police at Tullamarine Airport.  You were transported to Box Hill Police Station and interviewed, answering no comment to the allegations that were put to you.

Objective seriousness of the offence 

1. As noted above, the entire incident was captured on CCTV footage. The CCTV footage was exhibited on the plea and I have viewed it. Despite the description of what may be described as a typical service station armed robbery, when the CCTV footage is viewed it is obvious from the actions and body language of the victim, that he was not unduly alarmed by your actions.

2. The CCTV footage depicts you walking up to the counter holding what appears to be a garden stake. Once you are at the counter you do not wave or thrust the weapon towards the victim but rather just stood there with the stick at your side. What then follows is a short discussion between you and Mr Mohammad which is consistent with what has been described in the prosecution opening. Ultimately, Mr Mohammad opens the cash register and despite there clearly being more money in the till than what you asked for, specifically takes out four $50 notes which is of course, the amount you asked for originally. Mr Mohammad gives you the $200, closes the till and you walk out. 

3. I note that Mr Mohammad was approached to prepare a victim impact statement but has declined.

4. Armed robbery is a serious offence which is reflected by the maximum penalty of 25 years imprisonment. However, in this instance in my view in all the circumstances I accept the submission of the prosecution and defence that this example of armed robbery may be considered at the lower end of the scale. 

5. That said, Mr Mohammad was a soft target and despite the fact that he did not appear threatened by you, your offending is still serious and must be denounced in the strongest terms.

Personal circumstances

1. You are 42 years of age. You are single and you do not have any children. You have an older sister who lives in California. Your parents, who are retired, have lived in Bali for approximately 10 years. You attended a grammar school in Western Australia from year one until year nine. You then attended the Hale School from years nine to 11 and finally attended the local Catholic school for your year 12 but you did not pass.

2. You have had a consistent work history since leaving school. You have worked in various occupations including pearl farms in Broome, a bungee jumping business in New Zealand and for many years as a chef at various locations. 

3. Between the ages of 10 and 13 you suffered sexual abuse at the hands of a male who was approximately five years your senior. The perpetrator of this offending was the son of your football coach. In the reports that were tendered on the plea from Mr David Scott of Windana and from psychologist Mr Jeffrey Cummins, both writers make reference to the effect of sexual abuse upon you and the possible link to your drug use. 

4. As to your drug history, you began to use cannabis at the age of about 11 and by approximately age 17 you were using heroin. Over the years you have at times managed to wean yourself off heroin with and without the assistance of residential rehabilitation programs. Mr Cummins reports that your heroin use was a form of self-medication to deal with your typically daily negative ruminative thinking regarding having been the victim of sexual abuse. Mr Cummins together with Mr Scott, both conclude that you would benefit from counselling in relation to this issue in addition to the treatment and counselling you have been receiving that has been targeted towards your heroin addiction.

5. In 2012, you suffered a serious snowboarding accident whist you were in New Zealand. Prior to that accident, you had maintained a three-year period of abstinence from heroin and other opiates. However, as a result of the serious injuries you had suffered, you were prescribed OxyContin in order to manage your pain. As soon as you had finished the final prescription, you immediately spiralled back into the cycle of heroin dependence.

6. In the weeks leading up to the commission of this offence, it would appear that your heroin addiction was escalating. You had committed a series of other offences including theft and street robbery. On the day of the armed robbery you had earlier committed a street robbery from which you were bailed only to later that day commit the offence at the service station. 

7. It seems that the commission of this offence caused you to take some immediate action in relation to your heroin addiction before you had been arrested for the offence. You left Australia and went to stay with your parents in Bali in order to dry out.

8. Upon your return to Australia you were arrested and bailed to Odyssey House. You remained as a resident of Odyssey House until 3 July 2017. You then went to the post-rehabilitation program referred to as Reconstructing Life After Dependency which is part of VincentCare, Victoria. On 9 November 2017, you were admitted to Windana Drug and Alcohol Recovery Centre and have been there now for some 229 days up to the day of the plea.

9. As noted, a report was tendered on your behalf from Windana which explains in detail the treatment you have been receiving at that facility. Mr Mark Lake, a facilitator at Windana gave evidence on the plea. He has worked very closely with you in the time that you have been a resident and gave evidence that you are in effect a model client.  Mr Lake confirmed the nature of the program and the intensive contact hours. An example of the weekly program timetable was tendered on the plea. It is obvious that the Windana program is very intensive and involves activities every day of the week including weekends. You have successfully completed the various phases of the program and in the coming months will be transitioned into supported accommodation. Mr Lake was confident that based on his observations of you in the program, you will continue your positive change, while acknowledging that it is a difficult road and there are no absolutes.

10. Since being bailed on your return to Australia, you have remained drug free and have clearly demonstrated a sustained period of rehabilitation. You have spent a combination of some 360 days at Odyssey House and Windana. In addition you spent time at the Reconstructing Life After Dependency Program. While this is not any form of pre-sentence detention, the significant time you have spent in fulltime rehabilitation - with positive results - in my view carries considerable weight in the sentencing discretion. 

11. Also tendered on the plea was a letter from your father who despite residing in Bali continues to offer you support in order for you to complete the programs that you have engaged in. He explained that he and your mother have stood by you through your difficult years of drug addiction and have arranged for you to be admitted to various facilities over the years. They continue to support you and maintain regular contact with you. 

12. You wrote a letter directed to the court which was also tendered on the plea. In that letter you provide further information about the programs which you have engaged in and the changes they have made in your life. You also acknowledge the consequences your drug addiction has had on others including the victim of this armed robbery, the wider community and your parents who as noted, have continued to support you during your ongoing drug addiction. In my view, your letter is genuine and sincere.

Sentencing considerations

1. Mr Bloemen who appeared on your behalf, outlined the matters in mitigation. You pleaded guilty at the earliest opportunity, which has of course saved the community the time and expense of a trial and most significantly has avoided the need for witnesses to give evidence.

2. Much of the plea was focused on your genuine and sustained efforts in relation to your rehabilitation. As noted, that process began when you went to live with your parents in Bali shortly after the offence in order to dry out. Upon your return you immediately entered into rehabilitation and have remained there since. In my view in all the circumstances I assess your prospects of rehabilitation as excellent. 

3. Ms Harrold who appeared on behalf of the Director of Public Prosecutions, acknowledged that while the offending is serious, it was rather unsophisticated and as noted, she conceded that it was at the lower end of the scale. Nonetheless, Ms Harrold highlighted the important principles of general deterrence and denunciation, and in your case, to some degree, specific deterrence. Ms Harold also acknowledged the significant period of rehabilitation you have embarked on. I have taken these matters into account. 

4. You are currently on a community correction order which was imposed by the Magistrates' Court in relation to other matters leading up to this offence. Part of the conditions of that order are being completed while you are a resident at Windana including the treatment component. 

5. I had you assessed for a further community correction order and you have been assessed as suitable. In my view it would be counterproductive to interrupt your rehabilitation and the supportive environment you are currently in. Therefore, in all the circumstances a community correction order is the most appropriate disposition and addresses the relevant sentencing considerations. I note that the prosecution also accepts that such an order is within the sentencing range in the circumstances.

Sentence

1. Mr McManus, please stand.

2. James McManus, on charge 1, armed robbery, you will be convicted and placed on a Community Correction Order for a period of three years. 

3. On summary charge 2, committing an indictable offence whilst on bail, you will be convicted and placed on the same Community Correction Order. 

4. The Community Correction Order will be an order with punitive and therapeutic components. You will be required to complete 150 hours community work and engage in assessment and treatment to further address your drug use. It is anticipated that the programs that you are currently involved in at Windana may be utilised for that purpose. You will also be required to engage in mental health assessment and treatment as directed which I hope may be able to address some of the underlying issues that you have been grappling with. 

5. Because of your commitments to your already intensive rehabilitation programs, pursuant to section 48CA of the Sentencing Act 1991, I direct that all of the hours that you satisfactorily complete pursuant to the treatment and rehabilitation condition may be credited as hours of unpaid community work.

6. Pursuant to section 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 2 years imprisonment with a non-parole period of 18 months

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