Director of Public Prosecutions v Mostert
[2012] VCC 579
•4 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00469
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON MOSTERT |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 4 May 2012 | |
CASE MAY BE CITED AS: | DPP v Mostert | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 579 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms E. Ruddle | |
| For the Accused | Ms B. Franjic |
HER HONOUR:
1 Jason John Mostert, you have pleaded guilty before me to one charge of attempted armed robbery. The facts underlying the offending are as follows.
2 On New Year's Eve 2011, you travelled with two friends into the city, getting off the train at South Yarra Station. You entered an IGA Express store in Toorak Road at about 3.30. You tried to open the door to a locked liquor cabinet. You were approached by an IGA employee, Amandeep Chohan, who tried to help you. You demanded that Mr Chohan give you a bottle of Johnnie Walker Blue Label scotch. He refused to give you that bottle for free and you produced a folding knife from your pocket and held it to Mr Chohan's rib and hip area, making a further demand for the scotch, using words to the effect of, "Either you give it to me or I take it myself." The knife was about seven and a half centimetres in length with a serrated edge.
3 Mr Chohan went to the counter at the front of the store, pretending to get keys to the liquor cabinet, saying to other staff who were there, "Give me the keys," in English, and then in Punjabi said to two co-workers, who were also Indian, words to the effect of, "He's got a knife". Whilst you were momentarily distracted, Mr Chohan then picked up a bottle of vodka with which he hit you over the head. There was a subsequent fight, during which you dropped the knife and it was picked up by Mr Ryan, who also broke up the fight between yourself and Mr Chanda, another IGA employee.
4 You and Mr Ryan then left and were soon after arrested by police in nearby Murphy Street. You required treatments for cuts to your head and knee, and in fact received eight stitches to a wound in your head at the Alfred Hospital. Mr Chohan received superficial cuts to his hand and was taken to hospital and required no further treatment.
5 In a record of interview with police that day, you agreed that you were present at the IGA but denied using or brandishing the knife, although you said you had one, telling police it never came out of your pocket. You denied asking about the Johnnie Walker scotch, saying that you never drank it. You denied telling Mr Chohan to give you the scotch and told police that Mr Chohan said something about you taking the bottle and him claiming it on insurance, and that you probably said, "I'll take it." You denied threatening Mr Chohan and said you had the knife for cutting up fruit.
6 I now turn to your personal circumstances. You are now 35 and were 34, almost 35, at the time of this offending. Your counsel informed me you came from a stable family. You were initially raised in Lang Lang, your father working all his working life as a mechanic at General Motors Holden. You are the eldest of four children. You have a sister and two brothers, none of whom have ever been in trouble with police, it appears, and who are gainfully employed. You describe to your counsel a reasonably happy childhood, although it appears, from an early stage, you had difficulties at school and exhibited disruptive behaviour. You are of the opinion you may have had ADHD, although you were never diagnosed or treated for this.
7 Eventually your parents, who had moved to Pakenham when you were about five, then moved to Bunyip, and you remained living with your family there until you were an adult. You left school at the end of Year 10 at Warrigal Secondary College and worked for about 12 months with a local concreter. You have a fairly good employment history. You followed the employment with the concreter with 12 months' work on a farm, and then began some employment in Western Australia, where you worked in drainage and also as a brick cleaner.
8 On your return to Victoria, you worked for eight to 12 months with a construction company in Narre Warren. In 2000, you were in Queensland, where again you worked as a construction worker. Your specialty appears to be in drainage. You worked for three years laying drainage for a sub-division in Pakenham for a company named Quinn Constructions. You worked for that company on two occasions, both in 1995, and then again in 2003. You also worked for two years in Botany Backhoe Hire, where you were employed connecting a sewer to a main pipe. In 2010-2011, you worked as a drainage operator for a company, Pescatore Constructions, completing work there in early 2011. Your counsel informed me that the company is aware of your offending but declined to write a reference, they being disappointed in your involvement in the offending that has brought you here before this court.
9 You had been residing for about seven years with your fiancée and, for five years of that, had lived with her in rented premises in Aspendale. She, it would appear, fairly abruptly terminated the relationship. There had been a number of strains to do with attempts to have a child. It was discovered you had a low sperm count but were unable to afford IVF treatment. You have also had continuing problems with alcohol and heroin abuse, which I will refer to in more detail later in this sentencing remarks.
10 In any event, your fiancée went to live with friends and left you alone in the premises and responsible for the whole of the rent, which you could not meet, and you were soon evicted. Thereafter, you were essentially homeless, moving between friends' houses. This was your accommodation situation at the time of this offending.
11 You began using cannabis at the age of 15 but were introduced to heroin when you were 18. It began as a weekend habit and soon after, as is so in nearly in all such cases, it became a daily habit, and you have had difficulties with it ever since. You have also used amphetamine on a fairly regular basis, although not for some years. Alcohol has also been an ongoing problem. Your counsel described you as a binge drinker.
12
You have a number of prior criminal convictions, some of them quite serious. In 1994, you were fined for possessing a regulated weapon, then in
1996 fined for wilfully damaging property. Then in 1997, for theft, possession of cannabis and making a false report to police. You were fined again for using cannabis in 1997. In 1998, you were fined again for assaulting police. In 1999, you were fined for possession and use of heroin, and fined again in 2000 for using heroin. It appears you then moved to Queensland and there got into serious trouble. In May 2000, you were fined for possession of weapons and possession of a weapon under the influence of liquor or a prohibited drug, and for assaulting a police officer. You were placed on a good behaviour bond for wilful destruction in June 2000. In December 2000, you were fined and given community service work for unauthorised dealing with shop goods, which I assume is shoplifting, and obstructing a police officer. Then in late January 2001, you were placed on probation for wilful damage, assault and obstructing police, a serious assault and behaving in a disorderly manner. You were unable to recall the circumstances underlying that offending. You were placed on probation for 18 months, which was revoked and you were sentenced to a term of imprisonment.
13 Then in June 2001, you were convicted for armed robbery. That related to your attendance on a friend's house in order to collect some money. That friend was not home. There were other people with some possessions, such as suitcases, in the street and you apparently attacked them with a knife and demanded they hand those items over. You were sentenced to two years in gaol.
14 On your release, you returned to Victoria but were placed on a suspended sentence in August 2002 for burglary and theft. Again, you were placed on a suspended sentence by the Melbourne County Court in February 2004 for aggravated burglary, unlawful assault, reckless conduct with the likelihood of causing serious injury and criminal damage. Your counsel informed me that related to an assault by you on a neighbour to your parents' home, with whom there had been a long-running dispute. You threw bricks at the property, smashed windows and entered the premises.
15 Again in August 2004, you were fined for shoplifting and fail to answer bail, and also for making a threat to kill which related, your counsel informed me, to a threat you made to a man who made sexual advances to your then partner. In August 2004, you received a six month Intensive Corrections Order on charges of damaging property, trespass in a public place, throwing a missile and using indecent language.
16 In June 2005, you were sentenced to three months' suspended imprisonment for unlawful assault, behaving in a riotous manner, using indecent language in a public place, which apparently related to an incident where you were drunk at a train station. You breached that order, for which you were dealt with on 24 January 2006 by further offending, which appears to relate to you being apprehended by police whilst driving whilst your authorisation was suspended and whilst you were drunk. You also assaulted police on that occasion. You were then sentenced to three months' imprisonment.
17 In February 2007, you were fined for using an unregistered motor vehicle and other driving offences, such as driving whilst disqualified, fraudulently using a registered numberplate, handling or receiving stolen goods and theft from a motor vehicle, for which you were placed on a four month Intensive Corrections Order.
18 In April 2009, you were dealt with on what appears to be a consolidation of charges, including burglary, assault police, being a prohibited person possessing a firearm, possession of heroin and three charges of theft from a shop. You were placed on a suspended sentence on that occasion.
19 In July 2011, you were placed on a Community-based Order for charges relating to graffiti. You counsel informed me that you are in the habit of drawing murals on public property, involving your tag name, "Dazzle".
20 The offending for which you have come before this court is extremely serious. It is serious not only because of what you did but because of its prevalence in the community. The courts all too often - in fact, I dealt with an almost identical matter just yesterday - are confronted with situations where people go into what would be considered soft targets - that is, supermarkets or petrol stations - and use weapons in order to get money, or in your case alcohol, from shop staff. The knife you used on that occasion, to my observations - I have seen a photograph of it - was nasty and would have caused an amount of fear.
21 I accept the submissions your counsel made as to what appears to be clearly the impulsivity of this action, the fact that you were drunk - apparently you had been drinking the night before and had drunk vodka on that morning - I accept it was ill-planned and you were easily apprehended. Nevertheless, the courts have to be concerned with crimes which are seen to be both serious and which are prevalent. I am certainly not saying that what you did amounted to an attempt with an armed gang to hold up a bank. Nevertheless, the seriousness of what you did relates to the vulnerability of your victim and the prevalence of this type of offending. Your problem, Mr Mostert, is that you have been involved in an armed robbery before, notwithstanding it is over ten years ago.
22 Counsel informed me that whilst you have been in gaol you have made a concerted effort to clean up your act, if I could put it that way. I received certificates attesting to the fact that you have completed both a Staying Safe in the Community program and a Certificate II in Engineering, which has enabled you to work in the metal shop at the MRC. You work there on a daily basis between nine and three. You are next in line for a position of some authority within the metal shop and that is very much to your credit.
23 You have also - and can I tell you this is not at all unusual amongst prisoners - used the gym on a daily basis. You have given up smoking. You have apparently put on a deal of weight. You were on methadone for a number of years and were attempting to give that up in 2011. You did so even after your fiancée left, which was probably not great timing, but it is to your credit that you have continued to keep off methadone.
24 You had been estranged from your family for many years. You last saw your parents by accident a few years ago, when you were visiting a grandparent in a nursing home, and your brothers and sisters apparently have little to do with you. You have received no visits whilst in gaol. I note that your former fiancée, Ms O'Connell, has been present in court. This is the first time she has seen you for many months, but has informed your counsel that, in a cautious sense, she is prepared to look at reconciling with you, depending on how you go.
25 You are at the age, Mr Mostert, where you have to make a decision about what you are going to do with your life. There is a syndrome well known to these courts where people come along who have got a long history of prior offending, as you have, and say, "I'm sick of it and I don't want to live that way any more." If they do not reach that ultimate stage, then you can expect that that person will go on to spend most of the rest of their lives in the chaotic, unproductive life of the unsuccessful criminal, because you are not a good criminal by any means. It appears that most of your offending has occurred whilst you were under the influence of alcohol. Your counsel informed me that the considerable number of dishonesty offences that you have committed were not in fact carried out in order to support your habit, which is unusual. Probably that is because you have a good capacity for employment, but it certainly seems that when you were drunk, as you were on this occasion, you do offend. As I said, you have been before the courts a number of times and now you appear on your second charge of armed robbery.
26
After the sentence that I will impose upon you today, I can tell you,
Mr Mostert, if you ever come back in front of a court again, all you are ever going to get from a court is gaol. A man who has got two prior convictions for involvement in armed robbery - and I accept one of those prior convictions is armed robbery and today this is an attempted armed robbery - a man who has been involved in two such enterprises is not going to get any sympathy from the court. You are going to be seen to be a danger to the community and, as I have said on the plea, you have had a number of opportunities given to you by way of Community-based Orders and Intensive Corrections Orders, and it appear to have got you nowhere. It is quite ridiculous, I might say, for a
35 year old man to be engaging in graffiti. That graffiti is a hallmark of mid to late adolescent offending, and the fact that you still in engage in it says something to me about your maturity. There is nothing wrong with being a good artist, but if you choose to display your art in the way that you do, which is a criminal offence, then that says a great deal to me about your capacity for understanding what comprises orderly behaviour in the community and your capacity to live in an orderly fashion in the community.
27 It was urged upon me that I should deal with you by way of a sentence which contains a more than usual period of parole. It was put to me that you have reasonable prospects of rehabilitation. The problem is, Mr Mostert, it is not hard to be good in gaol. The structure is there. Your capacity to avoid alcohol and drugs in gaol is there on a pretty easily obtained basis, if you make that decision to do so. It is not hard to continue what is clearly a characteristic in your life, and that is work. It is not hard to behave well and to look after yourself properly in a confined, very structured environment. I certainly congratulate you on your efforts, but your prior criminal history does not lead me to believe that you have any great capacity to, of your own volition, keep behaving in that way once you are released back into the community and it is all left up to you.
28 As I have said, you have now reached a crossroads. It is quite clear to me that your fiancée is only going to be interested in reconciling with you if she is satisfied that you can live in a law-abiding non-confrontational, non-traumatic way in the community. I say to you, as I have just said, if you do not make that decision, your life is going to be chaotic and unhappy for years to come, and fundamental to this, of course, is you resolving the abuse problems you have with alcohol and heroin. It is simply a matter for you.
29 I must sentence you in a way which marks the seriousness of this offending and its prevalence. I am satisfied you do have some prospects for rehabilitation. I am impressed that your former fiancée thinks sufficiently highly of you, despite what must have been quite a traumatic and chaotic existence with you, that she is prepared to turn up to court and to say what she has had to say. I also accept that gaol for you is a reasonably isolating experience, in that you do not have family or friends that visit, and you need to reflect on that as well, Mr Mostert. Clearly, you do not have family and friends, because of the way you behave and because of the way you have dealt with alcohol and the use of illegal drugs. So if you are having a solitary time in gaol, you need to have a think about why, and I suggest it has got a lot to do with the way you behave when you are out in the community.
30 In a guarded fashion, I am prepared to find that you have prospects of rehabilitation, but as I said, I am still concerned as to how you will manage once you get out in the community and do not have the tight structure of gaol around you. In any event, I am prepared to sentence you in a way which will give you a considerable period of time on parole.
31
What I need to tell you is this, and I do not think a lot of people who are ultimately given the opportunity of parole realise it, if you commit an offence while you are on parole and you come back for the court on that offence, the legislation says that unless there are exceptional circumstances surrounding your offending - and by that, I mean you virtually have to have been offending in order to save the Western world from nuclear war - a court must make you serve any new sentence on top of, in addition to, any parole period that you still owe. So if you get out on parole and you have got ten months that you owe the Parole Board, and two months in you commit an offence, you will get a sentence for that offence - and I am telling you, anytime you offend now,
Mr Mostert, you are going to get gaol - and that new sentence will have to be served on top of the eight months in my example. You need to bear that in mind whilst you are on parole.
32
I take into account the fact that you have pleaded guilty at the earliest possible opportunity. I take into account the impulsivity, the lack of sophistication demonstrated by your offending. At the same time, the fact that you would behave in this impulsive and violent manner whilst under the influence of alcohol is concerning and means I have to have regard, given your very long history of abusing heroin, aspects relating to protection of the community.
I take into account that you have done well for yourself whilst you are in gaol. I take into account that you are a highly employable person and have a good history of work and that you have continued that good work ethic in gaol, and that you have a good prospect of gainful employment once you are released.
33 In all the circumstances, I therefore sentence you as follows:
34 On the charge of attempted armed robbery, you are sentenced to two years and four months in prison. I order that you serve 16 months of that sentence before becoming eligible for parole.
35 I direct that 126 days of that sentence have already been served by way of pre-sentence detention, which means you have got about another 12 months to go. Thank you.
36 Pursuant to s.6AAA, had you not pleaded guilty, I would have sentenced you to a term of imprisonment of three years and order that you serve a minimum term of two.
37
MS RUNDLE: Your Honour, the calculation the Crown did was actually
125 days.
38 HER HONOUR: I am including today.
39 MS RUNDLE: Including today? Thank you, Your Honour.
40 HER HONOUR: Yes.
41
MS RUNDLE: Your Honour, we seek the disposal order for the two knives.
I have got a copy of the order.
42 HER HONOUR: Yes, thank you.
43 MS FRANJIC: There is no objection to that.
44 HER HONOUR: Yes, thank you. You can take Mr Mostert down, thank you. Thank you, I will just hand you back those certificates.
45 MS RUNDLE: Thank you, Your Honour. There was just one small matter in the description of the events.
46 HER HONOUR: Yes?
47 MS RUNDLE: Your Honour said broke up the fight with Chanda. It was the fight with Mr Chohan. Mr Chanda was the one who broke up the fight. Nothing turns on it.
48 HER HONOUR: I said it was Mr - - -
49 MS RUNDLE: My note said - - -
50 HER HONOUR: No, because I noted it was a different store attendant who broke up the fight.
51 MS RUNDLE: Yes.
52 HER HONOUR: So I remember saying Mr Chanda.
53 MS RUNDLE: Sorry, Your Honour, I must have misheard.
54 HER HONOUR: That is all right. Thank you for that. Thank you, we will adjourn sine die, thank you very much.
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