Director of Public Prosecutions v Nickels

[2015] VCC 277

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00082

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER RICHARD NICKELS

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 March 2015
CASE MAY BE CITED AS:	DPP v Nickels
MEDIUM NEUTRAL CITATION:	[2015] VCC 277

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Ayres
For the Accused	Mr J. Gullaci

1Peter Richard Nickels, you have pleaded guilty to an indictment charging you with an offence of robbery and an offence of armed robbery, each offence taking place on 1 October last year upon the same victim. 

2The offences are serious.  Armed robbery carries a maximum term of imprisonment of 25 years, robbery carries a maximum term of imprisonment of 15 years.  You have admitted prior convictions, court appearances and they have been canvassed during the course of the plea hearing. 

3The prosecution tendered and relied upon a summary of prosecution opening which is Exhibit A.  I do not propose to repeat it.  It was read this morning and I incorporate it into these reasons for sentence.  It shows offending conduct in the form of robbery and armed robbery.  It seems to me to be towards the lower end of the spectrum of offending conduct of that kind, with the unusual motive, it would seem, to obtain some small amount of alcoholic beverage that you were not prepared to pay for or to permit others to pay for.  The offences were particularly unsophisticated, it seems to me.  Although of course in the eyes of the victim, the storekeeper, he would naturally have been frightened, not knowing what you would do.  A person waving a knife, albeit not particularly close by, is a pretty uncomfortable experience to say the least and your behaviour was very difficult for him to predict.  He may well have had significant fear, as is reflected in the victim impact statement.  Ordinarily, victims of these sorts of armed robberies suffer significant and long-term emotional and psychological effects.  There is no clear evidence of that in the victim impact statement but it may reasonably be inferred that there is a real possibility of psychological overlay for the victim for some considerable period of time.

4Turning to matters personal to you, your counsel has provided me with a brief outline of the submissions which he has taken me through just a few minutes ago.  I incorporate those also into my reasons for sentencing.  I accept the matters of mitigation upon which he relies.  You have pleaded guilty at the earliest reasonable opportunity.  You are entitled to the utilitarian value of that.  That plea of guilty is also consistent with remorse.  You have expressed remorse.  You admitted the offences to the police and I accept that you are remorseful for your conduct. 

5You have a number of prior convictions but none for robbery or anything like a serious as robbery, much less armed robbery.  To the extent that you have court appearances involving offences of violence, they are very limited and of now significant antiquity.  I accept the proposition that this represents a significant escalation in your criminal offending conduct.  It was committed, it seems to me, against a background of long-term substance abuse.  Mr Gullaci relied upon the report of Carla Lechner, psychologist, which sets out conveniently your background history, including your history of substance abuse which began in your use of marijuana from the age of 11.  She quotes you as saying "Dad fed me bongs a bit, had a habit most of my life, about 1 to 7 grams a day, before lock-up about 3 grams a day."  You went on to say "I don’t want to touch anything when I get out."

6You chromed for about a year at age 15.  You were often unconscious.  You told Ms Lechner "Dad got me into speed intravenous" in your mid-teenage years, as I understand it, from age 16 or thereabouts.  It seems that you continued with your drug use experimentation and that drug use was also supplemented by the use of Valium, Aropax, Seroquel and Camprax. Although I think those were drugs you were given in  jail, you were also using prescription drugs of that type.  Indeed, at the time of the offences you had been "drinking heaps, lots of pills, Valium, Seroquel, heaps of Ice and marijuana" is what you told Ms Lechner.  

7That might have been regarded as an inadequate evidentiary base from which to form an opinion as to the degree of your substance abuse and your history of substance use. But the evidence is supplemented by a letter of Bacchus Marsh Medical Centre which tends to support the information that you provided to Ms Lechner.  It also supports the contention that you are and have been at various times keen to get off your substance abuse and to lead a clean life. 

8You have successfully detoxed in the past.  Unfortunately, you have relapsed and there had been a significant relapse at or about the time of your offending conduct.  You clearly were in a state of depression, suicidal thoughts, poor sleep, low self-esteem and significant substance abuse immediately prior to your offending.  Indeed, you were being prescribed Aropax, Seroquel and Valium as at 8 September 2014 shortly before these offences occurred which of course were supplemented by the polysubstance abuse in which you were still engaged.  

9The question arises as to whether I should treat your longstanding substance abuse as a mitigating factor in your offending conduct.  Ordinarily, adults who choose to take illicit substances, mood-altering substances, stimulants and commit offences whilst under their influence cannot rely upon those circumstances in mitigation of sentence.  However, the courts do recognise that where a person has had a difficult background, has been introduced to drugs at a young age during their formative years and has established a habit during those formative years and has difficulty in breaking that habit thereafter that the link between substance abuse and offending conduct can result in sensible moderation of the moral culpability that attaches to the offending conduct and it can reduce the level at which the court is required to impose a sentence that tends to deter others.  That is on the basis that persons who exhibit those characteristics are not to be regarded as suitable vehicles for deterring others to the same level as somebody who did not have those characteristics. 

10For that reason the question arises here as to what, if any, moderation of sentence I should apply because of the application of those principles.  It seems to me that this is a case where I can properly apply the Verdins principles to moderate to a sensible degree the moral culpability that attaches to your conduct and also the need to hold you up as an example to others in applying the principle of general deterrence.  I say to a sensible degree because it does not by any means excuse your conduct and I think that your genuine remorse which I accept is the case would enable you to appreciate that you still deserve punishment and that this court still has a duty to provide appropriate punishment for your conduct.  You did it, you have got to do the time.

11However, the need to deter others, the need to deter you and the need to express the denunciation of the court for offending conduct of this kind has to be balanced against the need to facilitate your rehabilitation as far as possible and in the protection of the public against further criminal conduct by you in the future it is undoubtedly desirable that you be rehabilitated.  Because it seems to me that there is enough material in the evidence that was provided in support of your plea including the letter from your former employer and including the efforts that you have made to get off drugs in the past, that there is I think a reasonable prospect that you may ultimately succeed.  If you do succeed you seem to be quite capable of leading an honest and productive life. 

12Your previous convictions do not suggest that you are likely I think to offend if you are able to get off drugs and alcohol.  If you can beat those substance abuse problems then I think you have got every prospect of staying out of trouble in the future.  The general public is going to be better protected if you can be rehabilitated because, as I say, you are unlikely to cause harm or otherwise commit criminal offences if you can be assisted to beat your drug and alcohol problems. 

13Parliament has provided for a Community Corrections Order as an alternative to imprisonment, even in cases which would otherwise require substantial terms of imprisonment in appropriate cases.  In recent times the scope of those orders and the level of imprisonment that can be imposed in conjunction with a Community Corrections Order have been increased.  In more recent times still the Court of Appeal in the State in the case of Boulton and Ors has made it clear that the Courts are to consider whether it is necessary to send somebody to prison, given that there is the option of imposing a Community Corrections Order and to the extent that the court concludes that it is necessary to impose immediate custodial sentence, whether all of the sentencing considerations can be met by imposing a term of imprisonment of relatively short compass with a Community Corrections Order with suitable conditions.  I have come to the conclusion that it is appropriate in your case to assist you as best the court can to continue with your rehabilitation, and to encourage your stated intention of getting clean and staying clean by imposing such an order.  

14You would appreciate that ordinarily offences of armed robbery in particular, and robbery is a serious enough offence, they are commonplace, they are very frequently committed by people who are affected by illicit drugs and they very often involve soft targets in the form of shop assistants who are vulnerable to attacks of the kind that you engaged in.  For that reason the courts have to impose sentences that have the capacity to deter others.  Ordinarily, that would require quite a substantial term of imprisonment which would be beyond that which could be attached to a Community Corrections Order.  But it seems to me that in all the circumstances in your case applying the Verdins principles and the desirability of rehabilitating you and also putting the level of this offending into proper perspective as compared with other offences of a similar kind committed in different circumstances that it is possible for me to impose a relatively short term of imprisonment and couple that with a suitably drawn Community Corrections Order. 

15I had proposed to your counsel earlier that a period of 18 months seemed to me to be a suitable time.  He has assumed the burden of trying to persuade me to knock that down a bit, if I can use  colloquial language.  I am persuaded that I can knock a bit off and I propose to do that.  It will require you still to serve a term of imprisonment of something in the order of 12 months.  But it will be a little less than the 18 months that I originally had in mind.  You will understand that I have got to draw a suitable balance here.  I have got to punish you adequately.  I have got to pass a sentence that deters others as well as doing the best I can to marry that with an order that helps you to rehabilitate yourself.

16I am in a position to impose a sentence upon you.  I am going to tell you what I have in mind.  It will be 15 months rather than 18 months.  It will be coupled with a Community Corrections Order for a period of two years.  The order will not require you to undergo any unpaid community work.  I leave that condition out because I think the community will be best served by ensuring as far as possible that you are able to comply with the other terms of the order which will be designed to get you off and keep you off illicit substances.  For those reasons I would impose a condition of supervision, meaning that you would have to be reporting fairly regularly to Corrections Victoria, that you would be required to participate in rehabilitation programs for drugs, alcohol and to also submit yourself to mental health assessment and treatment.  That goes hand in hand with the drug and alcohol rehabilitation aspects.  It seems to me that all of those conditions are necessary to ensure as far as possible you have the best chance.  I am inclined to bring you back before me after the order has been in operation for three months, which will mean that the Community Corrections Order would start upon your release from your term of imprisonment, go for two years from then and I would bring you back before me three months after the commencement of the order to see how you are going and to monitor your progress under the order. 

17You will no doubt be aware that it will be necessary for you to comply with the terms of the order.  There is not much point in me placing you on an order if you are going to breach it. Because that will mean that you will be brought back probably before me and if you are in breach of the order simply by not complying you are still up for up to three months' imprisonment for breaching it, plus you would be liable to be re-sentenced for this matter which would almost leave me with no option other than to impose a suitable term of imprisonment which would be up in a maybe three or four years head sentence.  I am quite sure that you would not want to go back to jail once you finished this particular term.  The order will also require you to stay out of trouble so that if you commit an offence punishable by imprisonment during the period of the order, two years, that too would put you in breach of the order and you would be up for punishment for the offence that puts you in breach, you would be up for punishment for the breach, up to three months' imprisonment, plus you would be again up for a prospective term of imprisonment for re-sentencing for these matters.

18It is not necessarily an easy road.  There will be times, I have no doubt, when it will be irksome and you need to consider carefully whether you are prepared to adhere to the terms of the order before agreeing to enter into it.  Because once you put your signature to it then you will be required to abide by its terms.  You have talked to Mr Gullaci about it; are you willing to enter into an order of the kind I have just outlined?

19PRISONER:  Yes, Your Honour.

20HIS HONOUR:  Yes, very well.  Doing the best to balance all of the competing sentencing considerations, on the charge of robbery I sentence you to imprisonment for a period of 8 months.

21On the charge of armed robbery I sentence you to imprisonment for a period of 13 months. 

22I order that two months of the sentence on Charge 1 be served cumulatively upon the sentence of 13 months imposed for Charge 2, making a total effective sentence of 15 months' imprisonment.  I declare that 140 days of pre-sentence detention be reckoned as time served on the sentence that I have imposed and deducted administratively.  So you would have to serve I think something between 10 and 11 months beyond that which you have already served. 

23Had it not been for your plea of guilty to these offences, I would have sentenced you to three and a half years' imprisonment with a non-parole period of two years.

24There are no ancillary orders, are there, Mr ‑ ‑ ‑ ?

25MR AYRES:  Just the forfeiture order.

26HIS HONOUR:  Yes, I make the forfeiture order.  I don’t think I've got a draft here, have I?  You're about to give me one.

27MR AYRES:  There's a copy here, Your Honour, yes, thank you.

28HIS HONOUR:  I make the forfeiture order that is sought by the prosecution and the Community Corrections Order will now be prepared and for the two offences on the indictment I also impose a Community Corrections Order which will commence at the conclusion of your period of incarceration for two years after that and it will have the conditions that attach to it that I have already indicated, namely supervision, drug and alcohol treatment, rehabilitation, mental health assessment and treatment and a judicial monitoring appointment on a date three months after the order starts.  Very well.

29COUNSEL:  If Your Honour pleases.

30HIS HONOUR:  So that order will now be drawn up.  When it is, Mr Gullaci, perhaps you would go with Mr Travers and make sure that your client fully understands what he's signing for.

31MR GULLACI:  I will, Your Honour.

32HIS HONOUR:  Yes, you can take a seat whilst that's done.

33MR GULLACI:  Your Honour, while that's being done can I approach just to start explaining some of those ‑ ‑ ‑

34HIS HONOUR:  Yes, sure. 

35I might add that I have considered the question of imposing a non-parole period.  I don’t propose to do so in all the circumstances. 

36Very well.  That order is now in place and I will see you on the dates specified on the order and hopefully by that time you would have had the benefit of whatever programs you can get onto within the prison system and a good start on your Community Corrections Order.  If that all goes well then hopefully you will be able to negotiate the Community Corrections Order and put all this behind you.   

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