Director of Public Prosecutions v O'Blein
[2012] VCC 1356
•11 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MILDURA
CRIMINAL DIVISION
Case No. CR-12-01480
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KARL O'BLEIN |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 11 September 2012 | |
DATE OF SENTENCE: | 11 September 2012 | |
CASE MAY BE CITED AS: | DPP v O'Blein | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1356 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. O'Doherty | Office of Public Prosecutions |
| For the Accused | Mr G. Tellefson | Hilton-Wood and Associates |
HIS HONOUR:
1 Karl Stephen O'Blein, you have pleaded guilty to one charge of armed robbery contrary to s.75A(1) of the Crimes Act 1958. The maximum penalty for that offence is 25 years imprisonment.
2 You have admitted an extensive criminal history and your offending began when you were 12 years of age. Primarily your criminal history is comprised of offences of dishonesty which I am informed by your counsel were a product of the poverty you experienced as a child and during your developmental years. You also have two prior convictions for aggravated burglary wherein you were sentenced to be detained in a Youth Justice Centre for 18 months and on another occasion were released on probation.
3 I accept that your prior criminal history is a product of your disrupted and traumatic childhood and background. You have pleaded guilty to the charge now before the court and I have taken your plea of guilty into account in your favour in mitigation of sentence.
4 A summary of prosecution opening was read to the court and your offending may be briefly summarised as follows.
5 On 25 April 2012 the girlfriend of Aaron Scott, a friend of yours, Tanya Mason, was informed that her grandfather had passed away in MacKay in Queensland. During the course of that day you and Scott discussed the proposition that an armed robbery would be committed at the United fuel service station in Mildura in order to obtain funds to allow Mason to travel to Queensland to attend her grandfather's funeral.
6 At approximately ten past eight on that evening you and Scott drove to the area of the United fuel station for the purpose of there committing an armed robbery. You entered the store armed with a blade from some scissors and menaced the store attendant who was there present alone. You threatened him and demanded that he produce money and place it in a pillow case which you produced. The store attendant produced $730 in cash which was placed in a pillow slip together with a number of packets of cigarettes. A customer entered the store and observed the armed robbery taking place and fled and was not thereafter involved in it.
7 You then left the service station and were driven away by your co-offender, Scott. Mason was then collected and you all then drove to MacKay in Queensland, stopping for food and petrol on the way there. The money that you had obtained during the course of the armed robbery was used to fund this trip to Queensland.
8 You returned to Mildura on 17 May 2012 and on 18 May 2012 you were arrested by investigating police in relation to this matter. A number of warrants were executed and items of clothing together with the weapon used in the armed robbery were located in your co-offender, Scott's car. During the course of a record of interview conducted with you by investigating police you made full admissions to your offending and described the circumstances of the offence to them.
9 In my opinion the armed robbery committed by you on this occasion is a serious example of an offence which has been described as a serious offence in itself. Plainly general deterrence and in your case, specific deterrence, are significant sentencing considerations and you also must be punished for your offending.
10 You were born on 1 March 1992 and you are now aged 20 years. As I have stated already you have admitted an extensive criminal history. Although essentially all of your court appearances have been in the Children's Court.
11 I have received in evidence a report of Mr Bernard Healy, a clinical and forensic psychologist, detailing your background and personal circumstances. It is clear from the contents of that report that your background may properly be described as tragic and disrupted and as a consequence of that disruption you have developed an addiction to both alcohol and illegal drugs of dependence which in turn have no doubt contributed to your offending history.
12 Your educational history is limited and your work history has also been of a limited nature. You have no contact with either of your parents and you have one sister who resides in Queensland. She is aged 25 years and it would appear that you also have little or no contact with her.
13 During the course of the plea in mitigation you counsel, Mr Tellefson, called Ms Danielle Roberts to give evidence on your behalf. Ms Roberts attested to the fact that she first met you in 2007 when she was managing a car wash in Mildura. You approached her to obtain employment but she was unable to offer you a job. Instead she drove you home and upon arrival there discovered that you were living in what may properly described as abject conditions. You were then 15 years old.
14 Ms Roberts, who at the time was a trained Department of Human Services carer and foster parent decided to, in effect, take you in and from that time on she has been a steadying and important influence in your life. You resided with her for a period of approximately 12 months in 2007 and she described you as being well integrated into her family.
15
Nevertheless your offending behaviour continued after your contact with
Ms Roberts and as she said in her evidence in all probability that is a product of the influence on you by one of your cousins and no doubt the underlying psychological difficulties that you experience as a result of your traumatic childhood and upbringing. Nevertheless Ms Roberts, it would appear, remains a constant support in your life and she gave evidence that in the event that you are released on parole from prison you will be able to reside with her and she will continue to support you and assist you in your endeavours to rehabilitate yourself.
16 As I observed during the course of the plea hearing, Ms Robert's evidence was of an exceptional quality and it has given me considerable confidence that with her support you may, in fact, be able to rehabilitate yourself in the future. She stated that you are a talented young man and in particular it would appear that you have some talents in information technology which may in turn provide you with the opportunity for meaningful and structured employment in the future.
17 But for Ms Roberts’ influence and support in your life it would appear that you would be in the community effectively without any support at all, which is, of course, a tragic position for someone so young to be in.
18 As I have already observed you are 20 years of age and accordingly your youth is a significant sentencing consideration in my determination of an appropriate proportionate penalty in this case. In R v Mills [1998] 4 VR 235 the Court of Appeal referred to the general propositions about sentencing youthful offenders as follows:
1) Youth of an offender, particularly a first offender should be a primary consideration for a sentencing court where that matter properly arises;
2) In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may, in fact, lead to further offending. Thus for example individualised treatment focusing on rehabilitation is to be preferred. Rehabilitation benefits the community as well as the offender;
3) The youthful offender is not to be sent to an adult prison if such a disposition can be avoided. Especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender and where the offender has not previously been incarcerated a shorter period of imprisonment may be justified.
(This proposition is a particular application of the general principle expressed in s.5(4) of the Sentencing Act).
19 You of course are not a first offender but in my opinion there remains a realistic prospect that a lenient sentencing disposition in your case will facilitate the process of rehabilitation and accordingly rehabilitation does remain an important sentencing consideration in your case. See R v Huynh [2004] VSCA 156 per Nettle JA.
20 Doing the best that I can to apply these sentencing principles to your case and having arrived at the conclusion that in my opinion you will benefit from an extended period of supervision on parole I have arrived at the following conclusion.
21 In relation to the charge of armed robbery you are convicted and sentenced to be imprisoned for two years and six months. I fix a non-parole period of ten months. I declare that you have served 116 days imprisonment by way of pre-sentence detention not including today. But for you plea of guilty I would have sentenced you to a term of imprisonment of three years and six months and fixed a non-parole period of 18 months.
22
I have made the disposal orders and forensic sample orders in your case,
Mr O'Blein and I should inform you that the police can use reasonable force to obtain the forensic sample from you.
23 Is there anything further required?
24 MR O'DOHERTY: Nothing further, Your Honour.
25 HIS HONOUR: Thank you. Mr O'Blein that means that you'll be eligible for parole in about seven months time and I urge you to take up the opportunity of getting your life into some stable position with Ms Roberts' assistance and all of the services that will be delivered to you whist you're on parole. All right. We'll adjourn now until 10.30 tomorrow.
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