Director of Public Prosecutions v Mendelle

[2018] VCC 195

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 12-01904

DIRECTOR OF PUBLIC PROSECUTIONS

v

AMOS MENDELLE

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 March 2018
CASE MAY BE CITED AS:	DPP v Mendelle
MEDIUM NEUTRAL CITATION:	[2018] VCC 195

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Armed Robbery (1 charge)
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: R v Verdins (2007) 16 VR 269
Sentence: Convicted and sentenced to three and a half years’ imprisonment with a minimum period to be served of two and a half years’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Livitsanos	Solicitors for the Office of Public Prosecutions
For the Accused	Mr S. Ginsbourg	Slades & Parsons

HIS HONOUR:

1Mr Mendelle is aged 35 having been born on 20 August 1982.  This criminality took place when he was 29.  In the plea hearing, which took place on
15 November 2017, Mr Ginsbourg appeared on behalf of Mr Mendelle and
Mr Livitanos on behalf of the Director.

2The Indictment No.C1208387 contains one charge, being the most serious charge almost on the criminal legislature but for some drug and murder matters, that is a charge of armed robbery which pursuant to s.75A of the Crimes Act, brings with it a maximum sentence of 25 years.  That, on its own, is indicative of the view that the Parliament takes in regard to persons who commit armed robbery.

3Yesterday, I viewed again the CCTV of this crime.  Madam Associate, has that been given an actual exhibit number?

4COUNSEL:  I have it as Exhibit B, Your Honour.

5HIS HONOUR:  Exhibit B, that would probably be right after the prosecution summary.  Assuming that to be correct, I viewed the CCTV again just to reacquaint myself and I, of course, having been earlier acquainted with the matter, not only when I sentenced Mr Brown in 2013, but with this plea that took place on the 15^th of November 2017.

6The view demonstrates the seriousness of this crime.  It took place upon retail premises at 7/11 Springfield Road, Blackburn and Mr Mendelle entered the premises with an imitation gun.  His co-accused Mr Brown entered the premises with a knife.  The roles, which I looked at closely, demonstrated the leading role and more aggressive role was played by Mr Mendelle.  He was involved in gross threatening actions against the poor victim. Despite attempts at concealing their identity, the victim, Mr Singh, in fact recognised, he thought Mr Mendelle as having been a person who had been to the premises on a number of occasions, at least three occasion before that date. 

7Ultimately, of course, the crime was brought undone, despite the confidence of Mr Mendelle that he got away with the matter, because he went back to the premises themselves to buy petrol and was recognised. Mr Singh identified the registration number of the car in which Mr Mendelle was a passenger, and that led to the participants in the crime being arrested.

8Mr Ginsbourg spoke to the Court about priors.  There are concerning priors in regard to his client.  I accept that relatively, this Court deal’s with persons who are and have lived a drug affected life like Mr Mendelle, I have seen worse and there is no doubt about that.  However, he does have significant priors and extensive priors, but in particular a prior in 2002 for robbery, a prior in 2003 for being armed with a weapon and thefts. Of course, since 1999 he has been subject to the impact of drugs and has been committing crime throughout that time, indeed since the age of 17.

9It sometimes beggar's belief when you look at the CCTV, when you observe the terror that these crimes cause to innocent people going about their employment earning income, and providing services to the community, to realise the sum that Mr Brown and Mr Mendelle received as a result of this serious criminality was $250.  They were so anxious no doubt because they were both drug addled to get money.  They simply take the till, which even the most sensible person would understand these days, with everyone paying necessarily mostly by credit card or some form of card, had to be limited, and of course it was.

10Ultimately, as a result of the identification and taking down the registration by Mr Singh, a search warrant was issued and both of the accused were found to be in Blackburn premises where the imitation gun and the knives were found.  In regard to Mr Mendelle's record of interview, he denied the matters although he subsequently made admissions on 20/03.  As I said, I sentenced Mr Brown on 3 May 2013 for this crime.

11Mr Mendelle of course absconded in July 2013 and was ultimately found in South Australia in April 2017.  He was extradited to Victoria on 26 April 2017, pleaded guilty and was remanded in custody on 2 June 2017.

12I will come to the sentence of Mr Brown in due course, but it might be said that they have similar priors. Because of the acquired brain injury and the illiteracy of Mr Brown, and his own alcohol issues and the acquired brain injury, his sentence might be seen as lenient however, the operation of Verdins (2007) 16 VR 269, meant that the full effect of the need for punishment, denunciation, and a sentence which effects general deterrence had to be moderated.

13The prosecution sought a forensic sample order which I think I have already signed and sought a forfeiture order in regard to the knife and the toy guy which I will also sign, if I have not done already.

14Mr Ginsbourg's submissions were tendered as Exhibit 1, and essentially put the matters most appropriate to be put in the circumstances.  I think it must be said that despite Mr Mendelle's priors, he does not come to this Court to be sentenced again for those. There was no issue that, given the seriousness of this matter, there must be a gaol sentence.

15Insofar as to the actual offending, Mr Ginsbourg pointed out that it was driven by drug abuse and addiction.  Mr Mendelle indicated to the police that he had consumed somewhere about 12 cans of beer together with Valium and both of them had used the proceeds to obtain heroin, as I say, the gross proceeds of $250.

16Similar to Mr Brown, Mr Mendelle has been involved in drugs for a long time, he however, did during his 20s complete a chef's apprenticeship and worked in the hospitality industry on and off till his arrest in 2012.  It was in about 2011 when he came to live and work in Melbourne, he moved in with Brown and unfortunately abuse of alcohol and drugs continued thereafter.  As I say, he was ultimately arrested in October 2016 in Adelaide for drug matters.  He has been, as was indicated by the learned prosecutor, in remand since that date and what have we got by way of PSD now?

17MR LIVITSANOS:  Your Honour, I have calculated 503 days, not including today but my learned friend is just confirming that.

18MR GINSBOURG:  I agree with this, Your Honour.

19HIS HONOUR:  Yes, thank you.  Mr Ginsbourg submitted, although there was no evidential material, I should, as I did in Brown, find the principles of Verdins established. He asked me to take into account the prior service of gaol in South Australia however, I find that that is not an appropriate matter for me to take into account in this matter.  Mr Ginsbourg stressed the ongoing family support, unfortunately, as we all know, whatever the family support there is, it does not help if a person maintains his addiction to drugs.

20I said two things in the Brown sentence which I think relate very much to
Mr Mendelle who is now 35:- 

"All these matters are going to be taken into account in a sentence and insofar as any leniency or what might be seen as a lenient sentence in the totality of the circumstances." [18]

21And of course the issues of parity become important insofar as Mr Mendelle is concerned.  Mr Brown was 30, you, Mr Mendelle, are older and whatever your background and difficulties, as I said to Mr Brown, you come back again in front of this Court for serious offence like this, next sentence you will put away for a long time.  It is really a matter for you.

22The other matter, that I said to Mr Brown, equally applies to you, is the issue of your long-standing polysubstance abuse.  There offers no excuse nor does such reduce the culpability of the crime.  However, insofar as the sentence is concerned, where there is established a connection of a person being so addicted and addled by drugs, that they indulge in a crime, with a maximum penalty of which I have indicated, for which they get $250, such indicates the manner in which their brains are operating.

23As I said to Mr Brown, as a result the need for a sentence which effects those principles is reduced in these circumstances.  The purposes which would otherwise be effected by punishment by way of general deterrence must be moderated in a sentence, as I did in Mr Brown, but equally, as I said, given the seriousness of these manners, it is still a very difficult balancing process.  You have now escalated to the most serious criminality.  I warn you Mr Mendelle, you come before this Court again, and the next time you are going to get a big sentence.  Your life, if you have a life, is totally up to you.  If you get out of the gaol, there can be no drugs because you cannot control yourself with drugs.  You know more about being in gaol than me, but I take it you do not want to continue your whole life in it.

24Therefore, parity and the principles that I have referred to do come to be considered in Mr Mendelle's sentence.  Clearly Mr Mendelle did not have the acquired brain injury, but the principles that I have set out do apply.  However, I find
Mr Mendelle's role to have been more serious and deserving of greater punishment given the primary role that he played.  There needs to be a slight difference in regard to sentence.

25If you could stand up please, Mr Mendelle. For this armed robbery, in all the circumstances, in particular parity, you will be sentenced for a period of three and a half years with a minimum period to be served of two and a half. I order pursuant to s.18 of the Sentencing Act 1991 that the 503 days that you have served to date be deemed service of this sentence, and that a record of that declaration be made in this Court. Mr Prosecutor, I think I have indicated the forensic sample matters and the forfeiture. Are there any other matters that I - and I should do 6AAA. Any other matters that I need to attend to apart from that?

26MR GINSBOURG:  No, Your Honour.

27MR LIVITSANOS:  No, Your Honour.

28HIS HONOUR:  It is important and especially in the environment that you are in that the issue of the plea of guilty is explained to you.  Parliament has determined that it is appropriate for this Court to nominate where they have sentenced someone who has pleaded guilty, what the sentence would otherwise have been had you not pleaded guilty. 

29So that pursuant to 6AAA I declare that had you not pleaded guilty
Mr Mendelle, the period you would have been sentenced to would be five and a half years with a minimum three and a half, as against the sentence that you have been sentenced to of three and a half with two and a half minimum.  Any other matters I need to attend to?

30MR LIVITSANOS:  No, Your Honour.

31HIS HONOUR:  Yes, thank you.  No doubt Mr Ginsbourg will talk to you in due course but otherwise Mr Mendelle can be taken away.  Good luck.  You are not doing the appeals Mr Prosecutor? 

32MR LIVITSANOS:  No, I am not, if I can be excused, Your Honour.

33HIS HONOUR:  All right.  I stand down while we reassemble.  Have I signed all those various orders?

34MR LIVITSANOS:  We are just checking that now. Your Honour, has indicated, Your Honour will.

35HIS HONOUR:  Very well, yes.

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