Director of Public Prosecutions v Nason

[2023] VCC 1614

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 23-01036

DIRECTOR OF PUBLIC PROSECUTIONS

v

SCOTT EVANS

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2023
DATE OF SENTENCE:	7 September 2023
CASE MAY BE CITED AS:	DPP v Evans
MEDIUM NEUTRAL CITATION:	[2023] VCC 1614

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW      

Catchwords:                    False Imprisonment – Robbery – limited involvement compared to co-offenders – plea of guilty after sentence indication accepted – criminal history – high moral culpability – early plea of guilty – evidence of remorse

Legislation Cited:           Sentencing Act 1991

Sentence:  33 days’ imprisonment and 18-month Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Cookson	Office of Public Prosecutions
For the Accused	Mr A. Lewin	Emma Turnbull Lawyers

HIS HONOUR:

Introduction

1For you, Mr Evans, and at least two others, 10 February 2022 involved offending against the victim.  Your involvement was limited compared with the others. The offending of those others was serious.

2I have sentenced one of the others, Ms Flanagan, to a term of imprisonment.  The other, Mr Gurbuz, is due to appear before me on 3 November 2023 for further plea and sentence.  You sought a sentence indication, which I gave, and you accepted.

3For Ms Flannagan and Mr Gurbuz, there were two incidents on 10 February involving two victims.  You were involved in the second incident.  The circumstances of that incident, including your involvement, are set out in the prosecution's opening.  You agree with its contents.

Circumstances

4After the first incident, Ms Flannagan rang and arranged to meet with the victim, which they did. At Ms Flannagan's request, the victim drove her to her home in Carlton.

5On arrival, they were met by Ms Flannagan’s daughter and her daughter’s boyfriend.  The group went to an apartment.  Ms Flannagan’s daughter and her boyfriend then left.  At this point the victim thought only she and Ms Flannagan were in the apartment.  This apartment has two levels, described in the summary as upper and lower.

6They were in the lower level for about three minutes before going to the upper level because Ms Flannagan said she wanted to go to the toilet. The victim followed.  However, Ms Flannagan entered a bedroom and shouted the name, 'Phoenix', whereupon Mr Gurbuz left the room and he approached the victim.

7Mr Gurbuz pushed the victim onto the bed, punching her in the face as he did so. As the victim attempted to leave the room, you and Mr Harrington entered the upper level from the lower level and Mr Harrington entered the bedroom.

8Mr Gurbuz tied the victim's hands with two electrical cords and removed a large machete from his pants.  He said, 'You’re lucky this is all I’m fucking doing to you'.  Mr Harrington took the victim’s bags and jewellery and began removing her property, including a MacBook Pro, an iPhone, bank cards, her car keys and various personal items.

9At some stage, Mr Gurbuz and Mr Harrington left the room briefly, holding the door closed so that the victim could not open it.

10Mr Gurbuz held the victim against her will for some time, making various threats, assaulting her and holding his machete.  At one point he moved her to the other bedroom and told her to, 'Log into your banking now and transfer me money before I slice you from ear to ear'.

11Then Mr Gurbuz untied the victim but held the machete to her throat and instructed her to transfer to him $20,000.  In fear, the victim made two bank transfers to a bank account in Mr Harrington’s name, totalling $3000.

12Mr Gurbuz asked the victim her car’s value as they would be taking it.  At about 9.05 pm, Mr Gurbuz, Mr Harrington and you took all of her possessions and went to leave the apartment.  The victim tried to follow all of you out, but Mr Gurbuz told her, 'I don’t know where the fuck you think you're going, get your arse back in that bedroom', which she did.

13Pausing there, the charge of robbery against you, Mr Evans, is on the basis you were acting in complicity with Mr Gurbuz and Mr Harrington in the robbery.  It is conceded you were unaware of the machete held by Mr Gurbuz at any point during the offending.

14Mr Gurbuz and Ms Flanagan left the apartment and went to the underground carpark.  Possessing The victim’s car keys, Mr Gurbuz drove her car away with Ms Flanagan as a passenger.  It is unknown when you and Mr Harrington left the building.

15Victim impact statement

16On 28 March 2023, the victim made an impact statement.  The incident has left her in constant fear for her life.  She has been diagnosed with two anxiety-type disorders for which she suffers panic attacks and insomnia.  Medicines do not seem to work.  She wanted to study at university but cannot concentrate.  Her family supports her, but her state has affected them adversely.

17The incident has rendered her unemployed.  Her income has plunged from the significant to very little.  The thefts of her property, including her motor vehicle, have significantly affected her financially.  She is still without a motor vehicle.

18She concludes her statement:

'Being held hostage for such a long period of time, being degraded, spat on and abused physically and emotionally has definitely changed the way I view myself and who I will become in the future'.

Criminal history

19Between January 2005 and September 2015, you have appeared in a criminal court in this State and South Australia on seven occasions and have been found guilty or convicted of 23 charges.  You have been sentenced to imprisonment once where the sentence was one month.  This sentence was combined with a community correction order.

Personal

20You were born in Adelaide, South Australia and grew up there.  You are now 40.  Your parents separated when you were three and you were raised by your mother.  You left school at 15 and commenced an apprenticeship as a fitter and turner, which you completed when you turned 19.

21It was submitted on your behalf you have almost always been employed in Australia and gainfully worked as a tradesman or labourer. I accept that submission.  An employment reference was tendered by your counsel, which details your employment with the referees since your release from custody in February 2023.  You currently work with a team of three other employees and according to the author of the reference, who is the managing director, you are a key element to their business structure.

22You married at age 30 and have two children aged nine from that marriage.  You are now separated from your wife and the mother of your children.  You are in a new relationship.  Both she and your father have been present at court at the various listings of this proceeding except today.

23You have been a lifelong polysubstance user, however your levels of use (with some exceptions) have been of a level that whilst problematic, still allowed you to maintain employment and a relatively stable domestic situation.

24You reported to Corrections that you first started using drugs, namely marijuana, at the age of 17 years.  At 21 you began using methylamphetamine and party drugs.  You reported you were able to abstain from drug use for up to eight months at a time and that you relapsed prior to these offences when you and your wife separated.  You further reported you have ceased ice use in March 2023, however started taking prescribed medicinal marijuana for pain management after a motorbike accident.

Discussion

25Section 5(1) of the Sentencing Act 1991 sets out the purposes of sentencing. Each purpose is relevant to your case. Section 5(2) of the Sentencing Act sets out matters which I must take into account where they are relevant.

26Gravity

27The offences committed against the victim were serious.  The experience was terrifying for her.  Your involvement was very limited.  Nonetheless, it would have acted to increase her fear through your presence and reduced her will to resist.  There is nothing to reduce your moral culpability for your part in the offending.  It is high.

Guilty pleas

28An evaluation of the value of a guilty plea involves when it was entered or an indication was given as to an intention to plead guilty.  In your case, you pleaded guilty at a relatively early opportunity.

29A guilty plea means you have accepted your guilt for the offence.  This is an unequivocal acceptance of your responsibility for the particular offence or offences.  The fact of a guilty plea is usually a piece of evidence establishing your remorse.  I consider you are remorseful.  Your remorse is important because it shows a determination not to re-offend.

30Your guilty pleas have the practical effect of assisting the criminal justice system in dealing with criminal cases. It removes your proceeding from the list of cases requiring a trial.  A jury trial is both time consuming and expensive.  You have created space for those proceedings which genuinely require a trial and avoided the need for witnesses to give evidence, including in particular the victim.

31Even though the problems caused by the virus have lessened considerably, they have not disappeared.  The virus still manages to disrupt the progress of trials in this Court, and the Court itself has been left with a backlog owing to the restrictions at the height of the pandemic.

Community correction order

32Part of my indication involved a community correction order.  You have been assessed by a Corrections officer, who found you suitable and a medium risk of re-offending generally.  I will adopt that person's recommendations.

Sentence

33Accordingly, on the three charges, being charges of false imprisonment and robbery and committing an indictable offence on bail, I sentence you to
33 days' imprisonment and, with your consent, which you have now given, a community correction order of 18 months' duration with these conditions that I previously announced.

34There are 33 days of pre‑sentence detention, which I declare as time served under my sentences. 

S6AAA

35If you had not pleaded guilty but had been found guilty after a trial, I would have sentenced you to a total sentence of 12 months' imprisonment. That indicates the massive effect the plea of guilty has had on the ultimate outcome in respect of you.

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