Director of Public Prosecutions v Nolan

[2017] VCC 1814

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-01079

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS JAMES NOLAN

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	13 November 2017
DATE OF SENTENCE:	28 November 2017
CASE MAY BE CITED AS:	DPP v Nolan
MEDIUM NEUTRAL CITATION:	[2017] VCC 1814

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Armed Robbery; Escape Custody; Theft; Assault Emergency Worker on Duty; Commit Indictable Offence Whilst on Bail, Contravene a Conduct Condition of Bail, Contravention of CCO.

Legislation Cited:  Sentencing Act 1991 (Vic);
Cases Cited:  R v Verdins (2007) 16 VR 269; Azzopardi (2011) 35 VR 43

Sentence:Two years and nine months' imprisonment with a non‑parole period of one year and ten months. 

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Duckett	Office of Public Prosecutions
For the Offender	Mr. A Pyne (for Plea) Ms N. Low (for Sentence)	Victoria Legal Aid

1HER HONOUR:  Nicholas James Nolan, you have pleaded guilty to one charge of armed robbery, one charge of escape custody, one charge of theft and one charge of assaulting an emergency worker on duty.  You have also consented to the uplifting of one summary charge of committing an indictable offence whilst on bail, and one summary charge of contravening a conduct condition of bail, and have pleaded guilty to each of these additional charges.

2I note that this offending occurred whilst you were subject to a 12 month CCO that I imposed upon you on 3 June 2016 in relation to charges of aggravated burglary, intentionally cause injury, driving whilst disqualified and handle/receive/dispose of stolen goods, and while you were on bail in relation to summary charges which have yet to be heard in the Magistrates' Court. I am also sentencing you in respect of your contravention of the CCO I imposed on you in June 2016. I will return to this later.

3The circumstances of the offending in February and March 2017 were set out in full in the Summary of Prosecution Opening, accompanied by relevant CCTV footage. I sentence you on the basis of the facts contained in that opening which I will summarise briefly. 

4During the evening of 14 February 2017, Ms Wang, the victim, was preparing to close her family owned milk bar with her two sons aged 10 and 13.  When Ms Wang walked to the front of the shop to take the rubbish out, she saw you and your co‑accused, Joshua Fuller, coming towards her. You had come from a white Ford sedan parked nearby and had your faces covered. Mr Fuller was carrying a tomahawk and both of you were wearing a glove on your right hand.  Ms Wang became frightened and ran to a back room of the shop where she remained with her two sons. 

5You and Mr Fuller entered the milk bar and approached the counter area.  Mr Fuller leaned over the counter, opened the cash register and attempted to remove the till.  He then jumped over the counter and together with you, Mr Nolan, removed $500 in notes and $300 in coins from the till (charge 1, armed robbery). Mr Fuller also took five packs of JPS cigarettes valued at $160. After you left the store the two of you got back into the white Ford sedan in which two unidentified persons were waiting and drove away 

6From the back room of the shop, Ms Wang and her two sons watched the robbery as it happened using the store's CCTV cameras. Her older son held his foot to the door to the back room throughout the robbery as it had not shut properly, while her younger son called 000. Ms Wang was screaming for help.  A nearby neighbour heard her screams and a loud bang, and as he came outside to investigate he witnessed the white sedan leave at high speed. 

7Ms Wang and her sons exited the store once the CCTV footage showed you and Mr Fuller had left.  Her neighbour spoke to her as they waited for police who arrived shortly thereafter. 

8The white Ford sedan was recovered later that night after a brief police chase, with Mr Fuller being the sole occupant. The tomahawk used by Mr Fuller and the gloves used by him and you in the armed robbery were found in the vehicle along with a packet of JPS cigarettes. A number of fingerprints and a palm print left at the store were later matched to you. 

9At the time of offending, you were on bail in relation to two different matters (summary Charge 4, commit indictable offence whilst on bail). A condition of your bail required you to report to Doncaster police station every Monday and Friday. On Friday 17 February 2017 you attended Doncaster police station in order to sign bail. Your girlfriend was waiting for you outside in the car, but the police did not know this. When you arrived at the station, you were arrested in relation to the armed robbery. As you were about to be handcuffed you asked to be handcuffed at the front due to having a sore wrist. You insisted that you would not cause police any trouble and the police officer obliged, handcuffing your hands in front of your body.

10You were walked by police out of the station towards the custody reception area, past the car occupied by your girlfriend. As you walked past the car, you jumped head‑first through the open passenger window and yelled "go, go, go" to your girlfriend who was in the driver's seat.  Half of your body was still outside the car and the officers attempted to pull you out of the window. The vehicle began moving whilst both officers were holding on to you. The right shoulder of one of the officers became lodged in the pillar of the car causing sharp pain and making him unable to extricate his arm from the vehicle for one to two seconds as it was moving. Afterwards he felt a dull pain in his shoulder. 

11You and your girlfriend drove away from the station and did not return (charge 2, escape custody). You did not comply with the reporting condition of your bail after this date until your arrest on 6 March 2017 (summary Charge 12, contravene a conduct condition of bail).   

12On the night of 5 March 2017 police attended a rural property in Kinglake following reports of a male acting erratically after parking a car outside the property. When police attended they found a white Toyota HiLux ute with the lights on and engine running at the front of the property. They found you lying face‑down in the front yard, lifting your head and legs. You pulled your t‑shirt over your head and began walking in circles scratching yourself and making animal noise. You appeared to police to be drug‑affected. When approached you adopted a boxing stance and attempted to punch one police officer who deflected it with his left arm, breaking his watch in the process (charge 4, assault emergency worker on duty). You were then brought to the ground and handcuffed during which time you caused the same officer to sustain scratches to his right arm.  The Toyota HiLux was searched and an ice pipe was located within it. You were arrested and taken to hospital by ambulance for assessment but did not require admission.

13Police enquiries into the Toyota HiLux revealed that it had been reported stolen on 19 February 2017 (charge 3, theft). The number plates on the vehicle had been changed and it had been painted white. 

14In your record of interview on 6 March 2017, you said that you escaped police custody because you were desperate and did not understand why you were being arrested. You denied any involvement in the armed robbery on 14 February 2017. You recognised the white Ford sedan as having been used by Joshua Fuller, however denied knowing who owned it. You stated you had stolen the Toyota HiLux because you needed a car badly and decided to borrow it. You admitted that the ice pipe found inside belonged to you. 

15You pleaded guilty to these offences at the earliest opportunity, that is at the committal mention on 30 May 2017. You have been in custody on remand since your arrest on 6 March 2017. Not including today, you have served 267 days of pre‑sentence detention. 

16Your co‑accused Mr Fuller pleaded guilty to the armed robbery and has attended a plea hearing in this court but is yet to be sentenced.  The prosecution noted that, unlike you, Mr Fuller has six prior convictions for armed robbery and so this court will not be disadvantaged by not having access to the sentencing remarks concerning him. 

17I turn to your personal circumstances, which are referred to in the psychological report from Gina Cidoni dated 3 November 2017. I have also taken into account the references tendered on your behalf from your parents, uncle, family friends and a former employer. I note that your parents were in court at your plea hearing to support you. 

18You are 24 years old and were 23 at the time of the offending. From the material tendered it is clear that you were raised in a stable and supportive home environment. Your father was a carpenter and you mother is an administrative assistant. You have a sister who lives in Perth. Neither your parents nor your sister have any history of involvement with the criminal courts. 

19You had no problems at school but left after Year 10 to undertake a bricklaying apprenticeship, which you completed. As a child and teenager you were involved in several sports, motorbike riding and later trained for boxing.  According to your former employer and other referees, you have a strong work ethic and are a competent tradesperson. 

20Your employment has been punctuated, however, by instability and drug use.  You started using cannabis at the age of 16 and methylamphetamine from the age of 22. You were using drugs throughout your apprenticeship but were able to maintain a steady level of work at that time. After receiving your bricklaying qualification your drug use began to affect your work and personal life more dramatically. Your former employer described a cycle where you would for some period of time work well before becoming unreliable and failing to attend.  You stopped working in late 2016. Your parents described similarly a change in your character from the onset of your drug use. 

21In her psychological report, Ms Cidoni assessed you as having low average intellect and suffering from depressed mood, moderate anxiety and poor coping resources. She did not consider that were you suffering from psychosis or personality disorder. You gave a history of being stabbed in 2015 then suffering depressed mood and anxiety, which led you to see a psychiatrist, but there was no indication of ongoing treatment. You used cannabis in your teens and methylamphetamines and GBH from the age of 22. You reported to her short periods when you tried to maintain abstinence with no long‑term success as your girlfriend and associates were still using. 

22Ms Cidoni concluded that you suffer from substance abuse disorder with stimulant intoxication in enforced remission since remand. 

23As to your psychological state at the time of offending Ms Cidoni opined that your judgment and clear thinking at the time of the offending were likely to have been severely compromised given that were you drug‑affected each day and possibly suffering from drug‑induced psychosis at the time you assaulted the emergency worker. Ms Cidoni noted that you did not comply with the drug treatment condition of your 2016 CCO. 

24Finally, Ms Cidoni reported that in talking to her you showed an appreciation that your offending was serious and very wrong and that you expressed appropriate remorse and understanding of the impact that your conduct had on the victim. 

25Your counsel did not seek to rely on Verdins[1] principles but submitted that your drug taking and immaturity helped to explain your offending. In relation to the gravity of your offending, your counsel acknowledged in particular the seriousness of offending against soft targets and on‑duty police, both in relation to the trauma for the victims themselves and the concerns of the wider public.  In relation to the armed robbery, he submitted that there was no physical confrontation between you and the victims, or specific threats or gratuitous violence, that the incident was over within two minutes and that the value of the items stolen was not particularly high. 

[1]R v Verdins (2007) 16 VR 269.

26Your counsel relied on your early plea of guilty and your expression of remorse noted by Ms Cidoni and by a number of your referees. In addition he noted that you have been busy on remand undertaking courses and working as an induction billet and making hoses. 

27In relation to your relative youth, your counsel submitted that I ought to take into account a number of relevant matters. Firstly, that young offenders are more prone to immature and ill‑considered behaviour without regard to consequences[2], which may assist to explain such dramatic behaviour as the armed robbery for fairly minimum gain.  Secondly, your relative youth suggests an increased potential for rehabilitation.[3]  Thirdly, there is a risk that ongoing incarceration will impair, rather than improve, your prospects of rehabilitation.[4] 

[2] Azzopardi (2011) 35 VR 43, 53 [34] (Redlich JA).

[3] Ibid 54[35].

[4] Ibid 54 [36].

28In relation to your prospects of rehabilitation, your counsel relied on a number of protective factors which may reduce your risk of re‑offending. These include the ongoing support of your family and friends, the fact that you have a trade and a demonstrated work history, as well as an offer of full‑time employment from your former employer when you complete your sentence. In addition you have remained free of drugs and according to your family regained your previous stable personality. Your counsel emphasised that your time on remand is the first significant period you have spent in prison and in that time you have remained drug‑free and have been using your time productively.

29It was conceded by your counsel that the court would impose a term of imprisonment, and that deterrence, denunciation and just punishment would be important sentencing considerations. It was submitted, however, that a combination sentence would be appropriate in achieving these principles as well as providing a significant rehabilitative component. 

30In addressing your failure to comply with community‑based orders, your counsel emphasised that you completed the work component of your CCO within two months and that the subsequent breaches related to your relapse into drug use, not your attitude towards court orders. 

31The prosecution submitted that the offence of a planned armed robbery against a soft target attracts general and specific deterrence and protection of the community as predominant sentencing principles. Although you were not carrying a weapon at the time, you must have been aware that Mr Fuller was carrying a tomahawk as he was brandishing it when you both entered the store.  Moreover, young children watched the armed robbery as it happened on CCTV.  Some degree of planning is evidenced by the fact that you and Mr Fuller made attempts to disguise yourselves by partially blocking your faces and wearing a glove. It was submitted that the relatively new offence of assaulting an emergency worker on duty reflects community concern at this offending against police members and other emergency workers. Finally it was submitted that your conduct in fleeing, as you did, from police custody, resulted in a police officer having his arm caught in a moving vehicle and that this is a serious example of this type of offence. For these reasons the Crown submitted that a combination sentence was not open in this case.

32I turn to consider the gravity of your offending.  The offence of armed robbery carries a maximum penalty of 25 years imprisonment.  This offending occurred at night against a soft target in her place of work and in the presence of her two children. Whilst the three victims were in a separate room during the offending, they watched it as it unfolded on CCTV;  Ms Wang was shouting for help;  one of her sons was holding the door shut to prevent you entering the back room; and the other son was dialling 000 for help.  It must have been a terrifying experience for them. I conclude from your partial disguises and from the tomahawk carried by Mr Fuller that there was some degree of planning involved in this offending. I accept that other common aggravating features such as direct threats, physical confrontation or gratuitous violence were not present in this offending, although this may simply have been a result of Ms Wang's speedy retreat into the back room. I acknowledge that the incident was over within two minutes and that the value of the items stolen was not particularly high. On the other hand, the offending was in breach of a community corrections order as well as bail for other matters. In the circumstances I consider this to be in the mid‑range of seriousness as compared to other examples of armed robbery.

33The offence of escaping custody carries a maximum penalty of five years imprisonment.  You put the police officers pursuing you in danger by using a both vehicle to effect your escape. 

34The offence of theft carries a maximum penalty of 10 years' imprisonment. You stole a car and went to the trouble of disguising it by painting it and changing the number plates. 

35The offence of assaulting an emergency worker on duty carries a maximum penalty of five years imprisonment. As noted above, this offence has recently been created to reflect public concern that emergency workers be able to carry out their duties without fear of being assaulted or injured. I accept that you were probably drug‑affected at the time, but as your counsel does not rely on any Verdins principles, your moral culpability for this offending is not reduced. 

36The summary offences of commit an indictable offence whilst on bail and of contravening a conduct condition of bail each carry a maximum penalty of 30 penalty units or three months imprisonment. 

37I accept that you are remorseful for your offending. Notwithstanding your denials during the record of interview, you pleaded guilty at the earliest possible opportunity and your remorse is expressed through the references from your family and friends and Ms Cidoni's report. Through your plea of guilty you saved Ms Wang and potentially her two sons from having to give evidence at trial about what must have been a terrifying experience for them. Ms Cidoni indicated that you demonstrated appropriate empathy for the victims. 

38I remain concerned however in relation to your prospects of rehabilitation. You have several prior convictions including theft of a motor vehicle in July 2016, handling/receiving/disposing of stolen goods and aggravated burglary in June 2016, and contravening a conduct condition of bail in August 2016. The original offending which gives rise to the current contravention proceedings included charges of aggravated burglary, intentionally cause injury and handling stolen goods. Whilst a number of protective factors against your re‑offending were outlined by your counsel, you had access to stable accommodation with your parents, work opportunities and the general support of your family and friends throughout the time of your offending. Drug use is clearly a key risk to your re‑offending. You were previously given the opportunity to undertake drug and alcohol treatment in a community‑based order, but relapsed into drug use within two months and never attended an appointment. I acknowledge that this is the first significant period you have spent in prison and the longest amount of time you have been abstinent from drugs for some time. On balance I consider your prospects of rehabilitation to be guarded. 

39Sentencing principles of deterrence, both specific and general, protection of the community and just punishment are important considerations in this case. In the light of your fairly recent violent offending involving aggravated burglary with intent to assault and intentionally causing injury, and the fact that your current offending occurred whilst were you on bail and whilst were you were subject to a community corrections order, there is a particular need in this case for specific deterrence. Offending against soft targets and emergency workers in particular is of considerable social concern and calls for appropriate denunciation. 

40I accept, however, the submissions made by your counsel in relation to the principles that apply to sentencing you as a relatively youthful offender, and I have attempted to balance them against the need for deterrence given the serious nature of your offending. I have also taken into account your plea of guilty, your remorse, the other matters put on your behalf by your counsel, and the need to give effect to the principle of totality. 

41I also note the need to avoid double punishment in sentencing you for the offences of committing an indictable offence whilst on bail and breaching a community corrections order, given that these are effectively aggravating features of Charges 1, 2, 3 and 4. 

42In all the circumstances, I consider it appropriate to impose the following sentence. Would you please stand, Mr Nolan.

43On Charge 1, armed robbery, you are convicted and sentenced to two years imprisonment. This is the base sentence. 

44On Charge 2, escape custody, you are convicted and sentenced to six months imprisonment. 

45On Charge 3, theft, you are convicted and sentenced two one months imprisonment. 

46On Charge 4, assaulting an emergency work on duty, you are convicted and sentenced to six months imprisonment. 

47On summary Charge 4, commit an indictable offence whilst on bail, you are convicted and sentenced to three months' imprisonment. 

48On summary Charge 12, contravening a conduct condition of bail, you are convicted and sentenced to one months imprisonment. 

49I turn to the issue of cumulation. In relation to charge 2, escape custody, I must find exceptional circumstances in order to direct that the sentence imposed on that charge not be served cumulatively on any other sentences of imprisonment imposed.[5] There is also a presumption of cumulation in relation to charges 1, 2, 3 and 4 due to each offence having been committed whilst were you released on bail for other matters.[6] 

[5]Sentencing Act 1991 (Vic) s 16(1A)(b)

[6] Ibid s 16(1A)(e), (3C)

50I order that six months of the sentence on charge 2 and two months of the sentence on charge 4 be served cumulatively on the sentence on charge 1. 

51You have breached the community corrections order that I imposed on you on 3 June 2016 by non‑compliance, that is by failing to report for supervision or alcohol and drug treatment on a number of occasions, and by further offending, that is the offences for which you are being sentenced today. I note that the contravention report by Corrections dated 21 September 2017 indicated that you completed the 50 hours of unpaid community work within two months of the order being imposed, but that you then disengaged from all contact with Corrections. The report recommended cancellation of the CCO and re‑sentencing on the original offences to which the CCO related. 

52The relevant offending involved you driving whilst disqualified in a vehicle with stolen number plates attached to the victim's home, which you entered with an intention to assault the victim, and you indeed struck him with a crowbar. 

53In the circumstances I propose to cancel that community corrections order and re‑sentence you on those offences. I propose to make the following orders. 

54On Charges 1, aggravated burglary, 2, intentionally cause injury, 3, handling stolen goods and Summary Charge 9, drive whilst disqualified, you are convicted and sentenced to an aggregate term of three months imprisonment. 

55On Summary Charge 10, contravene a community corrections order, you are convicted and sentenced to three months' imprisonment. 

56I order that one month of that sentence be served cumulatively on the other sentences imposed today. 

57The total effective sentence is, therefore, one of two years and nine months' imprisonment with a non‑parole period of one year and ten months. 

58There are 267 days of pre‑sentence detention, not including today, and I direct these be entered into the court records and deducted administratively. 

59I indicate pursuant to s.6AAA of the Sentencing Act[7] that but for your plea of guilty I would have sentenced you to three years and seven months imprisonment. 

[7]1991 (Vic)

60The prosecution seeks a compensation order in the amount of $960 to be paid to Ms Wang. This order is not opposed. I propose to make it now.  The prosecution has advised that the same order will be sought in relation to Mr Fuller.

61Pursuant to s.89(4) of the Sentencing Act[8], upon your conviction of theft of a motor vehicle (charge 3), I am required to make an order regarding your driver's licence. It was noted by the prosecution that your licence was disqualified for two years at the Ringwood Magistrates' Court on 15 June 2017 for unrelated offending. I simply order that the disqualified of your licence take place for a period of one month commencing today. 

[8]1991 (Vic)

62Do either counsel have anything to say about the mathematics, effectively? 

63MS DUCKETT:  No, Your Honour, thank you for enquiring.

64MS LOW:  No, Your Honour.

65HER HONOUR:  If there are no other matters then we will adjourn, thank you. 

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