Director of Public Prosecutions v O'Callaghan

[2018] VCC 1652

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00635

DIRECTOR OF PUBLIC PROSECUTIONS

v

TODD O'CALLAGHAN

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JUDGE:	HER HONOUR JUDGE MARICH
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2018
DATE OF SENTENCE:	11 September 2018
CASE MAY BE CITED AS:	DPP v O'Callaghan
MEDIUM NEUTRAL CITATION:	[2018] VCC 1652

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 L. Cameron	Office of Public Prosecutions
For the Accused	Mr M. Reardon	Victoria Legal Aid

1HER HONOUR:  Todd O'Callahan, you have pleaded guilty to an indictment containing one count of armed robbery, which carries a maximum penalty of 25 years' imprisonment.  The circumstances in which you came to commit that offence are set out in the summary of prosecution opening on plea, dated 3 August 2018, which was read into evidence at your hearing.  I have had regard to that opening when determining the appropriate sentence in your case.  The prosecution also tendered an outline of prosecution plea submissions, dated 30 August 2018, for your hearing.

2In addition to making oral submissions, your counsel relied on a written outline of submissions for plea hearing, dated 28 August 2018, and later provided to my associate supplementary submissions, dated 6 September 2018.  I have also had regard to each of these submissions in formulating my reasons for sentence.

Circumstances of the offending. 

3On Thursday 22 December 2016, at approximate 7.40 pm, you, in company with a co-offender, Shane Jefferson, entered North Dandy Liquor in Dandenong.  You were both dressed in black.  You were wearing a Scream mask over your face, and Mr Jefferson was wearing an orange bandana covering part of his face.  Mr Jefferson was armed with a knife approximately 25 centimetres in length. 

4CCTV footage of the crime was tendered by the prosecution in the course of the plea hearing (Exhibit C).  I have watched that CCTV footage.

5The victim, Wentao Zheng, was working behind the counter.  Mr Jefferson went behind the counter and put a knife to Mr Zheng's throat and yelled, amongst other things, "Give us all your money." 

6Mr Jefferson remained with the victim, holding the knife against his throat.  You also walked behind the counter.  The victim opened the cash register, and Mr Jefferson told him to stand in the corner, as Mr Jefferson took cash from the till.

7You both then took cigarettes from behind the counter and bottles of alcohol from the shelves on the shop floor.  You were both saying to one another, "Hurry up, we have to go," as you put the alcohol in your bags.  You then both approached the victim, and Mr Jefferson asked for his wallet, however the victim did not have his wallet at work with him.  Several customers entered the store during the armed robbery.  Each exited very shortly after entering.

8As I have mentioned, I have viewed the CCTV footage of the incident, and it is clear that those customers were visibly shocked by what they saw. 

9In the course of the armed robbery, the bandana slipped from Mr Jefferson's face, and the victim recognised him as a customer he had served before.  Though your mask remained on your face in the course of the armed robbery, you had, at the time, a distinctive Mohawk haircut.  That Mohawk haircut was not visible from the CCTV footage, I have noted, as you were wearing a hoodie over your head.

10After exiting, the two of you ran towards a nearby street, where you both entered a blue Toyota Corona, registration BUZD18, and drove off. 

11There are a number of serious and concerning features of your offending.  You were in company with Mr Jefferson.  You were an active participant in an armed robbery in which a large knife was held by your co-offender to the throat of a person whilst they were working.  The CCTV footage shows that you took the opportunity of stealing cash and other items from the store while the victim, Mr Zheng, was held under threat with a knife to his neck at times, and afterwards, while he stood in a corner and you both continued to take items.

12You assisted Mr Jefferson by offering him your backpack for the cash that he was removing from the register.  You also ran to the doorway at more than one point as if to keep watch.  You were both in disguise, and the offense could not be described as spontaneous, given the use of those disguises, and the use of a getaway car parked away from the store.

Investigation, arrest and interview. 

13At 12.05 am on 23 December 2016, about five hours after the incident, Mr Jefferson's mother and father attended Dandenong Police Station and provided information which led to police being led to identify Mr Jefferson.  Police investigations confirmed he was the registered owner of the blue Toyota Corona, registration BUZD18.  At about 6 am on that day, police located the blue Corona parked outside an address in Cherry Grove, Doveton, where Mr Jefferson resided, and at about 10 am on that day, police arrested both you and your co-offender at the front of that address.

14I have been told by your counsel that you were living next door to that address at the time of that crime and arrest.  Also on 23 December 2016, police executed a search warrant at Mr Jefferson's address and found a number of items that were used in the armed robbery, including a Scream mask found in the rear of the blue Corona and $280 in cash found in a wallet on the kitchen bench.

15Both you and you co-offender were taken to the Dandenong Police Station for interview.  When interviewed, you denied involvement in any armed robbery.  You denied having been in Dandenong North for approximately two years.  You claimed that you were with Mr Jefferson from about 3 to 4.30 pm the previous evening, until approximately 7.30 to 8.15 pm but had not seen him again until approximately 5 to 10 minutes before police arrived at the Doveton address.  You claimed you could not recall time accurately, due to having smoked methylamphetamines.

16You told police that you were not with Mr Jefferson when the armed robbery took place, and you told police that you had seen Scream-style masks before, and may have worn one approximately 12 years earlier when you were in high school, but did not own one and had not come into contact with the mask seized by police from the blue Corona.  Your denials of involvement in the armed robbery were false, and led to Victoria Police continuing their investigation and gathering other evidence to implicate you in the offence.

17Victoria Police later subjected the Scream mask seized from the Doveton address to forensic analysis.  DNA was located in the inner nose, mouth area of the mask, which was determined to be 100 billion times more likely to have originated from you than if it originated from an unknown, and unrelated person selected from the Australian Caucasian population.

18The results from the DNA analysis led to you being charged with this offence on 6 December 2017, approximately 11 and a half months after you committed the armed robbery.  In the meantime, your co-offender Mr Jefferson had been charged on the day of interview, i.e. 23 December 2016, and was sentenced on 9 November 2017, approximately one month prior to you being charged.  I will return to the sentence imposed in Mr Jefferson's case when I come to consider the sentencing principle of parity.

Effect on the victim. 

19Though there was no victim impact statement, Mr Zheng told police in his statement that, "I was so terrified for my life."  Your counsel in the course of the plea, and mitigation of penalty, conceded that it would have been a harrowing experience towards the victim. 

20I am unable to accept your counsel's submissions that the absence of enduring traumatic effects upon the victim mitigates the sentence that should otherwise be imposed or that it justifies a conclusion that this is an example of armed robbery that may fall into the low range of offending, unlike other cases of armed robbery, in which the victim has experienced enduring traumatic effects.

Plea of guilty 

21You were charged on 6 December 2017 and your matter was listed for committal mention at the Melbourne Magistrates' Court on 8 February 2018.  You failed to appear, and a warrant was issued for your arrest.  You were arrested and re-bailed, and then failed to appear at committal mention on 20 March 2018.  On 23 March 2018 you were arrested and committed to stand trial on a plea of not guilty.  No witnesses were cross-examined at committal.

22On 26 March 2018 at initial directions hearings in this court, the parties indicated that the matter was likely to resolve, and the matter formally resolved on 11 April 2018 and the court was told of that resolution at further initial directions hearing on 24 April 2018. 

23I accept and take into account that you pleaded guilty at an early stage, and as submitted by your counsel, that this plea is indicative of remorse, as well as having utilitarian value.

Personal circumstances 

24At the time of offending, you were 25 years of age, and you are currently 27. 

25You were born on the Gold Coast in Queensland, and moved to Melbourne at the age of five, before moving again to Mildura with your mother at age six.  You have a younger sister.  Growing up, you had limited contact with your biological father.  He was living in Melbourne, and had his own issues with unemployment through your childhood. 

26Your father now works in garden maintenance, and you have a harmonious though distant relationship with him.  You have not been in contact with him since you were remanded into custody.

27Your mother lives in Mildura and works in aged care.  She is an in a de-facto relationship with your step-father, and has been since you were three or four years old.  I understand that she is supportive of you.  Your step-father works as a machine operator. 

28At the age of about 13, your step-father assaulted you severely, I understand not for the first time, and you attended school with two black eyes.  The purported reason for the assault was excessive discipline.  A few weeks later you were removed from your home, and placed into the care of DHHS.  Your sister remained at home.

29Though I have not been provided with any medical or psychological reports in your case, I infer that this must have had a terrible and traumatic effect upon you, to be separated from the care of your mother and sister as a result of your step father's apparent inability to control his temper with you at that tender age of 13.

30From that age, you alternated through a number of foster homes, with occasional periods of living with your mother or father.  At 15, you re-established with your birth father, and lived with his family for one month, until there was a disagreement, and then you returned to Mildura to live.  At 16 you found a foster home, which, I understand, provided you with some stability for the first time in years. 

31At 17 years of age, you commenced an eight-year relationship with your now ex-partner, and you have sons together.  That relationship ended when she left you for one of your friends.

32You attended a number of schools, eventually leaving part way through year 9, at 14 years of age.  It was thought that you might have been diagnosed with Asperger's syndrome, though more recent assessments do not support that diagnosis.  You have felt at times that you have experienced difficulty fitting into society, and at school, and in a family environment. 

33I understand that after leaving school, you worked in a variety of jobs, including commencing a mechanic apprenticeship, and also as a motorcycle, wrecker, a farmhand, and a machinery operator, and that you worked seasonally, for many years, in Mildura.

34You have not worked since early 2017, in the context of approximately three years of homelessness prior to this offending. 

35You first drank alcohol at age 16 or 17, which progressed to the point of alcoholism during your early 20s, however you have managed to bring your usage of alcohol under control in the last two years, and that is to your credit.

36You have a long history of use of illicit drugs.  You started using cannabis at the age of 12, which had progressed to the point of using up to 3 grams daily over the last three to four years, though your counsel indicated that you cut down after this offense.  You first used methylamphetamines at the age of 20 to 21, and at the time of committing this offence, were using approximately 1 gram per day.  Your counsel accepted that you had consumed methylamphetamines on the day of offending.  You were also using heroin in varying amounts, in the two years leading up to the offending.

37You have never participated in any residential detoxification or rehabilitation, though you have instructed your counsel that you have remained abstinent from illicit substances during your period on remand, and I note and take into account that you have handed to me a negative drug result certificate for all surveyed drugs, except methadone, which is prescribed, which was conducted at Port Phillip Prison on 27 July 2018 (Exhibit 2).

38This supports what you have told your legal practitioners about being abstinent from drugs, and that is good work.  I also accept and take into account your completion of courses whilst in prison.  I note, in particular, the certificate of attendance at the prison legal education and assistance project, court readiness program, and the certificate of completion of the coping enhancement and wellbeing program (Exhibit 2).

Prior criminal history 

39You have an extensive history of criminal offending, a record of which was tendered at the plea (Exhibit A).  There have been six adult court appearances prior to the commission of this offense.  I note, as your counsel has submitted, that this is your first offence of armed robbery, though on 4 August 2016 you were found guilty in the Mildura Magistrates' Court of offences of attempted burglary, five counts of theft and other dishonesty offenses, and were sentenced to three months’ imprisonment, and a nine-month community corrections order, with rehabilitation conditions, among other conditions.

40You also have prior convictions for offences against the person. 

41That was not the first time you have been sentenced to imprisonment.  In September 2014, you were sentenced to imprisonment for numerous offenses of contravening a family violence intervention order and driving offenses.  Commission of this offence breaches the Community Corrections Order that was imposed by the Mildura Magistrates' Court on 4 August 2016.  You have previously breached other Community Corrections Orders on 16 April 2014, and 24 September 2013.

Delay 

42It was submitted by your counsel that weight in mitigation of penalty should be attached to the delay of approximately 11 and a half months between the commission of the offence, and the date of charge. 

43There are two ways in which delay may be relevant.  First, it is relevant to the extent to which an offender has achieved rehabilitation during the delay, which effect the relevance of specific deterrence in any given case.

44Second, delay is relevant to the extent that it constitutes a form of punishment in itself, given the anxiety and uncertainty of having the prospect of a sentence having over one's head, that an offender will ordinarily experience.[1]

[1]R v Merrett, Piggott and Ferrari (2007) 14 VR 392, 400-401

45This submission rested upon your counsel's submission that a delay was undue, in circumstances where, it was said, the prosecution considered that there was sufficient evidence to proceed against the co-offender, and that you had admitted to being with the co-offender at the time of offending (which was not quite correct, as the window of opportunity that you had agreed to in your record of interview may have finished just short of the time of offending, and, indeed, you denied involvement).

46This submission was amplified in oral argument and in supplementary submissions filed by your solicitor on 6 September 2018 after the plea in mitigation of penalty.  I do not accept that there was any undue delay in charging you, given your misleading answers in the record of interview, falsely denying involvement.  This necessitated investigators obtaining analysis of the DNA you left on the Scream mask, which analysis took time.  Unlike your co-offender, your face had not been revealed on the CCTV recording.

47In oral argument and in the supplementary submissions, it was conceded that you had committed numerous other offences during the time between offending and charge.  These included theft of a motor vehicle and driving offences, upon which you were placed on a 12-month Community Corrections Order by the Melbourne Magistrates' Court on 7 December 2017, and, as was later disclosed in the supplementary submissions, an offence of breaching an intervention order, upon which you were sentenced to two months' imprisonment in Broken Hill in May 2017.

48It could not be said, therefore, that there had been rehabilitation from offending during the delay.  I do note, however, that you have had the prospect of sentencing for this offence hanging over your head for nearly 21 months, and I am prepared to allow for some mitigation of sentence on that basis.

Objective gravity of the offence of armed robbery 

49The prosecution has submitted that this offending was a serious example of armed robbery and for the purposes of sentencing falls in the mid-range of the spectrum of conduct that can be captured by the offence.  This was the finding made by the Learned Sentencing Judge in sentencing the co-offender at paragraph 83 of Her Honour's reasons for sentence.[2]  The offending, it was submitted in your case, was not unplanned, as the co-offender had previously attender the bottle shop and disguises were worn by you both.

[2]Director of Public Prosecutions v Jefferson [2017] VCC 1634

50The car used to flee the scene was parked away from the bottle shop.  Also in support of the submission, counsel for the prosecution noted that a knife was produced by the co-offender, and you were complicit in its use and did not remove yourself from the offending after the presentation and use of the knife.  The offending took place over just short of a three-minute period and was not momentary.

51The offence was also committed during the mid-evening, exposing members of the public to the offending and the potential for harm, with three customers entering the store during the course of the armed robbery and leaving after seeing you and your co-offender.  As I understand the ultimate submission made on your behalf, it is open to me to characterise your offending as being of mid-range, though at the lower end, as submitted by your counsel.

52Your counsel accepted that, given the Learned Sentencing Judge who imposed a sentence upon Mr Jefferson concluded his offending was closer to mid-range, I could come to a similar conclusion in your case, given the active and supportive role that you played, with some moderation of ultimate sentence, given those difference between you, which again falls to be considered in the proper application of the parity principle.

53In my view, this was a serious example of the offence of armed robbery, and I accept (consistently with the view of the Sentencing Judge who sentenced your co-offender) that it can properly be classified as a mid-range example of offending.  The commission of the offence in company, the use of disguises, and the fact that the offence was committed upon a soft target - i.e. a person at their place of work and a business which received cash payments - supported this conclusion.

54I also note the use of a particular weapon in my conclusion as to the seriousness of the offence, though I have taken care to avoid double punishment for this factor, given that it amounts to an element of the offence itself.  In imposing sentence in your case, I will make allowance for the differences in role between you and your co-offender and the differences in your criminal history.

Parity

55Your co-offender, Shane Jefferson, pleaded guilty to the armed robbery to which you have pleaded guilty, and an extra count that you do not face of make threat to kill, arising from the same incident.  He also faced additional charges of breaching a community corrections order.  On the charge that you face, he was sentenced to three years and six months' imprisonment, which formed part of a total effective sentence of four years and four months' imprisonment, with an order for parole eligibility after two years and four months.

56Mr Jefferson had a prior conviction for armed robbery upon which he was sentenced to the community corrections order that was breached.  There was a modest difference in the timing of your pleas of guilty, as his plea was entered at the earliest stage, though I disregard that for parity purposes. 

57In proper application of the parity principle of sentencing, I am required to impose sentence that reflects the differences in the culpability and person al circumstances of you both and that avoids unjustifiable differences in your sentences upon the count of armed robbery.

58I accept your counsel's submission that Mr Jefferson played the dominant role in the armed robbery.  Mr Jefferson was armed and held the knife at the victim's throat, and was the key aggressor.  He had also, apparently, previously visited the store.  His car was used as transport, and the disguises and other items were found at his home and in his car.  That is not to say you did not play a necessary and supportive role in commission of the offence, and I accept the prosecution's submission, of course, that you are complicit in his offending.

59I also note that whilst you were of a similar age at the time of offending and both had previous criminal histories, you have no previous convictions for armed robbery.  Mr Jefferson not only had previously committed the offence, but was serving a Community Corrections Order for his sentence on that offence at the time of commission of this offence.  I will make the necessary allowances for these differences in the sentence imposed.

Relevant sentencing principles and current sentencing practices. 

60I take into account the purposes for which sentence must be imposed, including the need for deterrence, both general and specific.  I accept the prosecution's submission that the gravity and prevalence of the offence of armed robbery, particularly on a soft target such as a bottle shop, requires a conclusion that general deterrence in the primary sentencing purpose.  I also consider that specific deterrence is needed in your case, given your prior criminal history.

61The sentence I will impose will punish you and denounce your behaviour and allow for community protection, whilst allowing for your continued efforts at rehabilitation.  Though you did offend between the date of commission of the offence and the date of charge, given your abstinence from illicit drugs whilst in custody, I consider that you do have some prospect for successful rehabilitation, providing you can resist the temptation to consume illicit drugs.

62I am obliged to have regard to current sentencing practices in determining sentence, though in this regard I note the guidance of the High Court in DPP v Dalgliesh,[3] which has been applied many times in many subsequent cases, ie that current sentencing practices are one of the many factors that must be taken into account in sentencing and should not predominate.  I have read and considered the Sentencing Advisory Council's sentencing snapshot that was provided to me in the course of the plea in relation to the offence of armed robbery.

Sentencing submissions.

[3]Director of Public Prosecutions v Dalgliesh (2017) 349 ALR 37

63It was submitted by your counsel that in all of the circumstances, though a custodial sentence was required, I should impose a sentence of up to 17 months' imprisonment, which would allow me to impose a Community Corrections Order upon release from custody.  This submission was made notwithstanding that these offences were committed in breach of an earlier Community Corrections Order.

64The prosecution submitted that the only sentence that was proportionate to all of the circumstances of the offending and offender was one of immediate custody with a non-parole period.  I have considered carefully whether a sentence could be imposed which allows for the imposition of a community corrections order.  I am mindful of the propositions arising in Boulton[4] and later decisions of the Court of Appeal relating to community corrections orders, but, ultimately, I accept the prosecution's submission.

Sentence

[4]Boulton v The Queen (2014) 46 VR 308

65On the count of armed robbery, you are convicted and sentenced to two years and nine months' imprisonment, and I direct that you serve a period of one year and nine months before you are eligible for parole. 

Pre-sentence detention

66I declare 172 days reckoned as served.

Section 6AAA declaration

67Pursuant to s.6AAA of the Sentencing Act 1991 of Victoria, I declare that had you pleaded not guilty to this charge and been found guilty of it, I would have sentenced you to four years' imprisonment with a non-parole period of three years.

68I will state that, in my view, a longer than customary period of parole eligibility has been imposed to allow for the offender's continued efforts at rehabilitation and also to reflect the parity principle, particularly in regard to the non-parole period imposed in respect of the co-offender. 

69I have considered the submission that due to the fact that there was a subsequent sentence of imprisonment that some concurrence would be allowed, but I am unable to accept that submission in the circumstances of the case, given the manifest difference between offending committed in Broken Hill and the offence committed in this case.  Are there any other orders or matters?

70MR CAMERON:  No, Your Honour.

71MR REARDON:  May it please the court.

72HER HONOUR:  Thank you.  I will stand down until 10.30, thank you.

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