Director of Public Prosecutions v Michaelides

[2018] VCC 1111

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00519

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW MICHAELIDES

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 July 2018
DATE OF SENTENCE:	19 July 2018
CASE MAY BE CITED AS:	DPP v Michaelides
MEDIUM NEUTRAL CITATION:	[2018] VCC 1111

REASONS FOR SENTENCE
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Subject:         Attempted armed robbery.
Sentence:      2 year community corrections order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms B. Goding
For the Accused	Mr E. Cinar

HIS HONOUR:

1Andrew Michaelides, you have today pleaded guilty to one charge of attempted armed robbery, for which the maximum penalty is 20 years' imprisonment.

2The offence occurred on 17 June 2017.  The circumstances of your offending are contained in a prosecution summary dated 17 June 2018, which was tendered in evidence and read in open court by the learned prosecutor Ms Goding.

3Your counsel Mr Cinar had told me that the summary is accurate, and forms a proper basis upon which I can proceed to pass sentence upon you.  It is therefore not necessary that I set out in full that which is set out in the prosecution summary, and I will do so only in an abbreviated way.

4At about 8.30 pm on 17 June, you attempted to rob at knifepoint the operator at the Edithvale BP service station.  You went into the shop at the BP service station armed with a boning knife with a 6-inch blade held out in front of you and said to the operator "give me all the money in the till", to which the operator replied that he did not have any money.

5When you were told that you were on closed-circuit television, you left the store.  At the time, you were wearing a grey jacket with the hood pulled up and a baseball cap.  Otherwise, you were not disguised.

6This kind of offending, being as it is by an armed offender on a soft target unarmed, is prevalent in our society unfortunately, and the sentences imposed by the courts must have proper regard to the sentencing principle of what is known as general deterrence.  That is to say that the sentence must send a clear message to offenders who would seek to offend as you have, that if they do so and they are apprehended, the punishment from the court will be appropriate.

7Your offending in my view falls towards the very lower end of the range for this kind of offending.  It appears to me to have been somewhat unplanned and doomed to fail, captured as it was on closed-circuit television.

8Some couple of months after the offence occurred, the Crimestoppers program published photographs of you committing the offence, and to your credit you handed yourself into the police.  That was on 22 September of 2017.  You were interviewed by the police and you made full admissions, and you were released pending charge on summons.

9You were subsequently charged on 11 January of this year, and after a filing hearing and the committal case conference, you indicated that you would plead guilty to the charge of attempted armed robbery, and you have now done so.

10All that is to your credit.  By your plea of guilty, you have saved the time and cost of a trial, and you have facilitated the course of justice.  In your record of interview, you indicated in clear terms your remorse at your offending, which was described as a "brain snap", and I treat your plea of guilty at the earliest opportunity as further indication of your remorse.

11This is the kind of offence which is prevalent because it is often perpetrated by persons who are unfortunately afflicted to drugs and other substances, and often offenders who fall into that category have a past criminal history.  You do not.  These matters aside, at the age of 36 you have led an unblemished life.  All that needs to be taken into account.

12Your counsel, Mr Cinar, filed a helpful written submission on your behalf, which I marked as Exhibit 1.  He also provided to the court a psychological assessment of you from Ms Penelope Carvellis dated 1 March 2018, which I marked as Exhibit 2.

13Ms Carvellis has described you as an extremely distressed and nervous individual.  At a young age, you were diagnosed with hydrocephalus.  You had an enlarged head, and the condition causes excessive fluid build-up in the brain.  As a child, you underwent multiple surgeries for this condition, and because of your physical appearance, you underwent an unfortunate degree of bullying whilst at school.

14This intensified as your schooling progressed.  You could not partake in sport and other physical activity not because of your condition, but because of the bullying you suffered from social isolation and feelings of inadequacy throughout your adolescence.

15In your teenage years, you commenced to gamble, and this progressed to a gambling addiction.  The gambling addiction, like with so many others, has caused you to suffer financially, and at the time that you offended, I was told and accept that you were motivated to do so because you were behind in a personal loan repayment.  There were other matters going on in your life at the time also, in which you feared homelessness, and there had been a recent death in the family, all of which concerned you.

16You have been diagnosed as suffering severe depression, suicidal thoughts, chronic anxiety, feelings of inadequacy since adolescence, and with a chronic gambling addiction.

17Mr Cinar in his submissions submitted that although the offending was serious, this is a case where the court should, with conviction, impose a community corrections order with appropriate conditions.  In support of his submission, Mr Cinar relied upon the Court of Appeal decision in Boulton and other cases of this court.

18This is a case, I think, where there is evidence that the fifth limb of Verdins will apply because of your state of mental health.  It is highly likely in my view that you would find a term of imprisonment, were it to be imposed, much harder than other offenders. 

19In her report, Ms Carvellis said, inter alia:

"It is recognised that the matter of sentencing is entirely within the court's discretion, and the factors beyond the scope of a psychological report will be relevant to its determination.  Speaking in terms of Mr Michaelides' psychological condition, I would simply note that he would be at significant risk of experiencing a deterioration in his mental state if he were to receive an immediate custodial disposition.  Considering his current positive prognosis, his level of genuine remorse and commitment to continued treatment and abstinence from gambling, Mr Michaelides does not appear to be at risk of reoffending.  If he were to receive a custodial sentence, it would be implicit that he were actively monitored by a mental health professional to ensure that he received appropriate treatment.

"It is of course almost a truism that virtually any prisoner will experience some level of depressive symptomatology.  In Mr Michaelides' case, his pre-existing condition is such that his experience of anxiety and depressive symptoms is likely to be both more intense and more prolonged than that of a prisoner who is not suffering a severe major depressive disorder, or generalised anxiety disorder, upon intake.

"Mr Michaelides is at considerably greater risk of developing more extreme symptoms, specifically suicidal ideation in the course of a potential incarceration, and would be likely to require relatively close monitoring by clinical staff within the custodial system."

20I received into evidence a reference, which if I may say so is an impressive reference, from Mr Alan Lawson as to your good character, and I also received into evidence documentation that shows that you have excluded yourself from certain licenced premises - that is to say, licenced for gambling.

21Ms Goding on behalf of the prosecution submitted that this was a case where there should be ordered a term of imprisonment and a community corrections order in combination, in which event the court would be limited to imposing a term of imprisonment to 12 months. 

22Having given the matter considerable thought, I have taken the view that it will be appropriate in this case not to impose a term of imprisonment, and I will not do so.  I have taken the view that you are very remorseful, and you have taken important steps towards your rehabilitation, including excluding yourself from certain gambling venues and seeking psychological help from Ms Carvellis in order to address your problems. 

23I think the risk of you offending in this way is slight, and that your prospects for rehabilitation are reasonable to good.  In my view, it would likely cause a detriment to you and your psychological recovery were you to be sent to prison for this offence.

24In all of these circumstances, I will make a community corrections order with conviction in relation to the charge, and there will be conditions that the community corrections order will be for a period of two years, and there will be a condition that you must perform 150 hours of unpaid community work over the two-year period.  That you attend for supervision, and that you undergo treatment and rehabilitation for mental health assessment and treatment for your gambling addiction.  There will be another order that you continue to attend for counselling with Ms Carvellis, and obey her lawful directions and instructions.

25Now, are you prepared to enter into a community corrections order with those conditions, Mr Michaelides?

26OFFENDER:  Yes I am.

27HIS HONOUR:  Yes, just come out of the dock if you would, and take a seat behind Mr Cinar.  Mr Cinar, I will have handed to you the community corrections order.  If you could go through it with your client, please, and make sure that he understands it.  Mr Michaelides, you need to understand that one of the conditions I have not mentioned, but which is in respect of every community corrections order, you must comply with all the conditions, and importantly you must not reoffend in the period of the corrections order, that is to say, for the next two years.

28If you do not comply with any of the conditions, which are strict, you do not comply with the directions given to you by Ms Carvellis for example, or if you do not comply with any directions given to you by corrections, then you will be brought back before me and re-sentenced, do you understand?

29OFFENDER:  Yes.

30HIS HONOUR:  So I am giving you the opportunity, it is up to you whether or not you take it.  If you do not, you will likely go to gaol, simple as that, do you understand?

31OFFENDER:  I understand.

32HIS HONOUR:  Mr Cinar will go through the document with you.

33MR CINAR:  As Your Honour pleases.

34HIS HONOUR:  Now, I should add that I have been asked to make what is called a forensic sample order, which is an order which permits the taking of a sample from your body.  Now, I have signed the order because of the seriousness of your offending, and the fact that it was not opposed, and I think the making of the order is in the public interest.

35Having signed the order, you will have to attend at the Chelsea police station at 312 Station Street, Chelsea, within a period of 28 days.  And when you present yourself, a policeman there may take a swab from your mouth.  If you refused to do so, he can use reasonable force to take it, you understand that?

36OFFENDER:  I understand.

37HIS HONOUR: Now, I have also been asked to make a disposal order, which was also not opposed, and I have signed it. And for the purposes of s.6AAA of the Sentencing Act, I state that had it not been for your plea of guilty to the charge, I would have imposed a term of imprisonment of three years, and I would have ordered that you serve a minimum term of two years before being eligible for release on parole.  Are there any further matters?

38MS GODING:  No, those are the matters, Your Honour.

39HIS HONOUR:  Very well.  Mr Michaelides, unfortunately over the last few years I have had a lot of people in this court tell me that they understand the community corrections order, and that they will comply with all of the conditions, and there will never be another problem.

40Unfortunately, a lot of them come back before me, you understand?

41OFFENDER:  Yes.

42HIS HONOUR:  And when they come back, I have a transcript of everything that I have said to you today, you understand?

43OFFENDER:  Yes.

44HIS HONOUR:  So that we do not forget what we have said.  Now, if you breach the order in any way, you will be brought back.  And if you come back, I will remember what has happened, because I will have the transcript.  And having told you that if you do not comply with the order you will be resentenced and likely to go to gaol, that is very likely what will happen, do you understand?

45OFFENDER:  I understand.

46HIS HONOUR:  So you must comply with the order, all right?  On the rising of the court you are free to leave.  Adjourn the court until 10 o'clock tomorrow.

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