Director of Public Prosecutions v Moran
[2019] VCC 2066
•21 November 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.17-01600
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACK MORAN |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 21 November 2017 | |
CASE MAY BE CITED AS: | DPP v Moran | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2066 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms J. McDonnell | |
| For the Accused | Ms L. Dubroja |
HER HONOUR:
1 Jack Moran, you have pleaded guilty on indictment to two charges of armed robbery, one of theft and one of handling stolen goods. Armed robbery carries a maximum of 25 years imprisonment, theft carries a maximum of 10 years imprisonment and handling stolen goods, 15 years imprisonment. You have also pleaded guilty to a related summary offence of assault with a weapon which carried a maximum penalty of two years. The maximum penalties reflect the seriousness with which parliament regards such offences.
2 The circumstances of your offending are set out in a document labelled, "Prosecution Opening on Plea” dated 14 August 2017, and marked as Exhibit P1. Your counsel informed me that this document was agreed in terms of its factual content. That document details the accepted facts but in short compass, on three separate occasions, 8 December, 20 December and 28 December 2016, you attended at a Bunnings store at Keysborough on 8 December and at Springvale on the other two occasions, and stole items from the tool shop section. On each occasion you attended with a shopping list of what you wanted to take, loaded up and left the respective store.
3
On 8 December 2016 you were loading items from the tool shop into a trolley when approached in the store by Deborah Leeden and Nicola Judd who worked at Bunnings and were suspicious of your behaviour. You said to
Ms Leeden, "I'll fuckin' cut ya bitch" and pulled a Stanley knife shoving it towards her. You then continued to grab items before running from the store. This was your first armed robbery the subject of this indictment.
4 Twelve days later on 20 December 2016, you attended at the Springvale Bunnings warehouse, partially disguised with a cap and sunglasses and again with a shopping list. When confronted by store greeter Keren Perry who saw you existing the tool shop with a DeWALT hammer drill, you told her, "You can't touch me." You were holding a Stanley knife in your right hand at the time that you said this and left the store. This was your second armed robbery the subject of this indictment.
5 Eight days later on 28 December 2016 you returned to the Bunnings warehouse in Springvale. On this occasion you took a DeWALT angle grinder and walked past the register section. Keren Perry recognised you from the previous occasion and moved towards you. You continued to walk and it was observed that you had a Stanley knife blade in your hands so Perry moved away. You dropped the blade and ran from the store. It is these facts which form the basis of Charge 3, theft, and the summary offence of assault with a weapon.
6 I note that each of your offences were captured on CCTV. Having been identified a search was conducted of your premises by police on 16 February 2017. During this search a bank book, cards belonging to Melvina Mason, and a drivers licence belonging to Renato Monaco were located. These items were stolen and are the subject of Charge 4, handling stolen goods.
7 You were interviewed by police on 16 February 2017 and remanded at this time. You denied ever being in Springvale except to go to the station, and otherwise did not recall the incidents alleged to you in that interview which are now the subject of your pleas of guilty.
8 I am told that your offending was born from your use of ice and GHB and that you were stealing in order to fund that habit. This explains the shopping list said to be in your possession at the time of your offending.
9 Whilst relatively unsophisticated, I do not accept that your offending was opportunistic given you attended with a shopping list of goods to take and would also steal a knife instore in order to make good your escape. Whilst the charges may differ and you will be sentenced in accordance with those differences and maximum penalties, you effectively offended in a similar way on three separate occasions. Your offending was brazen, aggressive and is serious. I accept though in general terms that for offences of their type, your offending is towards the lower end of the scale. I find Charge 1 to be the most serious of the charges before me.
10 Whilst each of your victims declined to make a victim impact statement, I have little doubt that they would have been scared if not terrified by you. It may well be that they no longer feel safe in their working environment, as everyone is entitled to do, as a direct result of your actions.
11 You have an admitted prior history which encompasses matters in both Victoria and Queensland. I had initially been told at your plea on 10 November 2017 that you went to Queensland in 2015 and 2016 where you were offence and drug free. Further enquiry was made by the Crown and neither of those initial propositions would appear to be correct. I accept that the three court appearances in Queensland which you now admit were for relatively minor matters.
12 Your history in Victoria encompassed some 14 court appearances. Whilst all but one of those appearances were in the Children's Court, you have served five periods in detention and have relevant priors for armed robbery, violence and dishonesty. You also have a history of breaching court orders in terms of sentencing order, family violence orders and bail orders. Whilst it was put to me that your more recent history would demonstrate a de-escalation of your offending, the matters on this indictment would indicate a return to your past criminal behaviour. You are not to be punished again for the prior offences but they are relevant to an assessment of your moral culpability, your prospects for rehabilitation and a need to protect the community from you as well as considerations of specific deterrence. In so doing I remain mindful that you are a youthful offender, having been 20 years of age at the time of your offending, and that rehabilitation should be given weight in the sentencing mix.
13 I am mindful that this is your first time in adult custody and that you are currently housed at Barwon Prison which as a maximum security facility is likely to be a more onerous prison environment.
14 I have also taken into account matters personal to you and raised by your counsel during her plea. This includes
- The fact that you are now 21 years of age and were 20 at the time of your offending.
- You have one brother some three years younger than you.
- You had a difficult upbringing in the Dandenong area, your parents separated on a number of occasions and finally when you were 11 years of age.
- You witnessed your mother being the victim of domestic abuse perpetrated by your father.
- You have very recently disclosed that you were the victim of sexual and physical abuse by your father when aged three to four years.
- Your father was also an abuser of drugs and alcohol.
- You yourself were using drugs and alcohol by 12 years of age and were first detained at 13 years of age.
- You have a limited educational history, having completed a Year 7 education. You have a limited work history primarily in labouring type positions.
15 I am told that you have a close relationship with your mother and brother although I note that she presently has an active intervention order protecting herself from you and that you are presently not welcome at the family home. You have nowhere to live at the present time and limited if any supports in the community.
16
I have had recourse to the psychological report by Carla Lechner dated
18 October 2017 and marked at Exhibit D2. She remarks that you were noticeably drug-affected during her assessment of you despite the fact that you were in custody, and that you admitted to her that you have continued drug use mainly buprenorphine since being remanded. She does not say that your presentation affected her assessment and the impact on her findings. In her opinion you are extremely immature for your age and are of average cognitive ability. You have minimised your offending and had limited expressed empathy for your victims. You have a cannabis and stimulant use disorder and at the pre-contemplative stage in terms of addressing your problem. She saw some aspects of post-traumatic stress disorder and of adult ADHD. I note the principles of Verdins and others were not relied upon in your plea.
17 Clearly drugs have been a part of your life since a very early age and continue to be so. Drugs have affected your education, work history, family and personal relationship. Drugs on any view are presently ruining your life and when drugs are consumed by you, also impact on other people such as your innocent victims in your offending. The only way for things to be positively different for you is to get drugs out of your life and consider dealing with the things that have occurred during your upbringing.
18 I was provided with urine screens whilst you were in custody which are dated either side of Ms Lechner's attendance upon you. They were all clean so it may be that you are beginning to contemplate change. I can only hope that that is indeed the case.
19 I also have a certificate of completion for a managing sleep program whilst in custody. I take all of those matters into account.
20 I understand that your willingness to plead guilty came about at the committal stage of the proceedings on 10 August 2017 and that it is conceded that your plea of guilty came at an early stage. The committal hearing was for legal argument only, I accept that your plea is one which facilitates the course of justice in sparing the time required and the distress that would be caused to witnesses in a contested context. I do accept that your plea is an early one which takes responsibility for your actions and has utilitarian value. Your remorse on the materials before me would appear to be limited.
21 The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victims if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure as far as possible that offenders are rehabilitated and are reintegrated into society.
22 I note that on your behalf, Ms Dubroja contends that a combination of a gaol term combined with a community corrections order is still within current sentencing practices for your offending and would otherwise adequately take matters into account that have been raised on your behalf. I was not convinced that such a disposition would adequately cover the relevant sentencing considerations but I have had you assessed as to your suitability for such an order. Whilst assessed as being at high risk of re-offending, you were assessed as suitable for a community corrections order.
23 The Crown say that an immediate gaol term with a head sentence a minimum term is the only way to properly reflect the sentencing considerations which include general deterrence, specific deterrence, punishment and denunciation and can adequately take into account aspects of rehabilitation. I agree with the Crown. As discussed at your plea hearing I do not accept that I can impose a gaol term combined with a community corrections order for offending of this seriousness given the matters to which I must have regard.
24 I make the ancillary orders as sought which were for disposal. Those orders are made with your consent.
25 I now turn to sentence. In relation to Charge 1, armed robbery, you are convicted and sentenced to two years imprisonment. That is the base sentence.
26 In relation to Charge 2, you are convicted and sentenced to 18 months imprisonment of which six months are cumulative on Charge 1.
27 In relation to Charge 3 and 4 which are the charges of theft and the summary offence of assault with a weapon, I intend to impose an aggregate sentence of six months imprisonment as I am satisfied that those two offences are founded on the same facts or form or a part of a series of offences of the same or similar character. Three months of that sentence is cumulative on the base sentence and on Charge 2.
28 In relation to the charge of handling stolen goods, which is Charge 4, you are convicted and fined the amount of $200 for which I grant a stay of one month.
29 The total effective sentence is one of two years and nine months imprisonment. I direct that you serve 18 months imprisonment before being eligible for parole. Furthermore I declare 278 days as time already served on the sentence imposed this day.
30 Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges. If not for your pleas of guilty I would have sentenced you to a total effective sentence of four years imprisonment with a minimum 30 months before being eligible for parole.
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HER HONOUR: Was the pre-sentence correct?
MS McDONNELL Yes Your Honour.
HER HONOUR: Good. Is there anything further? I thank you both for your attendance today and I certainly thank you for your appearance on each of the occasions Ms Dubroja and the very valiant efforts you made on your client's behalf. If the prisoner could be removed thank you.
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