Director of Public Prosecutions v O'Toole
[2017] VCC 250
•17 March 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR 16-01703
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEAN O'TOOLE |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 December 2016, 9 March 2017 |
| DATE OF SENTENCE: | 17 March 2017 |
| CASE MAY BE CITED AS: | DPP v O'Toole |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 250 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – armed robbery – attempted armed robbery – causing injury recklessly - plea of guilty - aggregate sentence
Legislation Cited: Sentencing Act 1991(vic)
Sentence:Total Effective Sentence of 5 years imprisonment with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S Ballek | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr T Fitzpatrick | Victoria Legal Aid |
HIS HONOUR:
Introduction
1Sean O'Toole you have pleaded guilty to ten counts of armed robbery, two counts of attempted armed robbery and one count of causing injury recklessly.
2The objective seriousness of these offences is demonstrated by the maximum penalty for each:
·Armed robbery - 25 years.
·Attempted armed robbery - 20 years.
·Causing injury recklessly - 5 years.
Your offending conduct
3The summary of the prosecution opening is very lengthy and covering your offending conduct between 7 June 2016 and 30 June 2016. I do not propose to set out much of what is contained in the prosecution opening because the armed robberies and the attempted armed robberies were all committed by you in a very similar way.
4It is sufficient to only summarise one of the armed robberies in order for it be understood how you went about committing these offences.
5On 7 June 2016 you entered a Caltex service station, wearing a black hooded top and you were armed with a knife. You confronted a shop attendant and demanded money, threatening to stab the shop attendant. He handed over $170 in cash and a packet of cigarettes.
6Each of the subsequent armed robberies were committed by you in a very similar way. You attempted to conceal your face. You were armed with a knife. On each occasion, you made threats to shop attendants, to have them comply with your demand for money. On each occasion, except for one, the shop attendants handed over money.
7On the two occasions you attempted to commit armed robbery, you went about the attempt in much the same way as you committed the armed robberies, but you did not obtain the money that you demanded.
8The count of causing injury recklessly occurred when you attempted an armed robbery on 30 June 2016. The shop attendant had opened the till of a cash register. When you had demanded money from him, he pushed the drawer of the till shut and as he did so, his left thumb brush against the knife blade you were holding. This resulted in him suffering a small laceration to the outside of his thumb.
Sentencing principles
9The sentencing principles of general deterrence, specific deterrence, denunciation, just punishment and protection of the community figure very prominently in the sentence which I must impose on you.
10Each of the shops you entered were soft targets. They were shops where it was unlikely that it would be more than one shop attendant present. It was your plan to disguise yourself; to demand money and if your demand was not met, to at least show the knife to the shop attendant and to brandish it, if necessary.
11The sentence I must impose on you must send the message that committing an armed robbery or attempting to do so will be met with a very stern sentence. In your case there must be an element of specific deterrence because over a short period of time you repeatedly engaged in the same offending conduct, and you may well have continued it if you had not been caught on 2 July 2016.
12The community is entitled to feel outraged that people like you confront innocent and defenceless shopkeepers in the way you did. The punishment imposed on you must be just punishment, and the community must be protected from people like you who hit a soft target, disguised and armed with a potentially dangerous weapon.
13Four of your victims made victim impact statements. Let me describe to you the impact upon them of what you did:
·One of them never thought this would happen to him. He was shocked and scared by your conduct. He now closes his shop earlier and as a result has suffered a loss of income. He has been left with nightmares of you and what you did and is having trouble putting what occurred out of his mind.
·The next describes the shock she experienced. It forced her to take leave from her work to recover. Her father left his employment to accompany her to her work. She is now suspicious of people, who she meets each day.
·The next describes being in such a state of shock that she started sweating and felt paralysed. She has not returned to work, resulting in a loss of income, and she and her husband are now finding it difficult to survive on his income alone. She is now suspicious of people around her. She finds it difficult to sleep and is finding it difficult to forget what occurred.
·The man whose thumb was cut by the knife you were holding has not been emotionally or financially affected by the armed robbery, but I hope you will take on board what he says. He thinks that you were shocked and regretful by what you had done. He has asked me to take that into account in sentencing you and to offer you the opportunity to rehabilitate yourself and turn your life around.
14I hope that some of this is hitting home with you. You entered the lives of ordinary people who were doing nothing more than going about their ordinary lives in their work to earn a living. Except for the man who so generously has asked me to show you lenience, the others have been gravely affected by what you did. They have to live with the results of your offending conduct, and so do you.
Your plea
15In the course of the plea made by your counsel, he referred to:
·His extensive and very helpful submissions in mitigation of penalty.
·A folder containing your letter directed to me, dated 8 December 2016; and a number of certificates of courses which you have engaged upon while in custody. During the plea, he provided me with another handwritten letter from you, which I assume was written recently and also further certificates of courses which you have engaged upon.
·A letter of Ms Moss, dated 3 March 2016, who is your former partner and the mother of your two children.
·A letter of Ms Muscat dated 3 March 2017, who is your mother.
·Urine sampling of you demonstrating that you have been free of the use of illicit drugs whilst in custody.
·A report of Dr Zimmerman, psychiatrist dated 29 November 2016.
16I will not set out the detail of the submissions made by your counsel, nor will I summarise the documents he referred to in much detail. What I propose to do is capture some aspects of your background and your present circumstances.
17You are 26 years of age. You are the father of two children. You are the eldest of three children. Your mother and father separated when you were relatively young. Up until that time you appear to have enjoyed a stable childhood, but the separation of your mother and father appears to have affected you deeply.
18You moved between your father's home and his new family, and your mother's home, and you changed schools as became necessary. It is clear that you were angry at times and were disruptive a school student. It would appear that you finally left school because it did not suit you. You entered upon an apprenticeship as a cabinet maker, which brought you some stability.
19You moved to another suburb after your relationship with your father and stepmother deteriorated. You went to live with your grandmother. The move meant that you were unable to continue with your apprenticeship because you did not have a driver’s licence and could not effectively travel the distance from her home to your employer's place of business. It was around this time that your mental health began to deteriorate in to antisocial behaviour, withdrawal and you resorted to the daily use of cannabis.
20You developed a relationship with Ms Moss. Some stability returned to your life. You were working full-time and your first child was born. You moved to Queensland in order to move away from a negative peer group. Up until that time you had fallen into the use of methyl amphetamine. You managed to avoid that while in Queensland. You returned to Melbourne after about 18 months. You appear to have fitted in well and you continued with your stable life that you had developed after meeting Ms Moss. Your second child was born during this period.
21You were the victim of a carjacking in March 2015. You developed anxiety and you became withdrawn, depressed and you felt deeply traumatised. You returned to the use of methyl amphetamine and ultimately become addicted to it. By early 2016, your use of illicit drugs spiralled out of control and your relationship with Ms Moss came to an end. You had nowhere to live. You couch surfed and lived rough.
22You experienced another traumatic event in June 2016 when you were kidnapped and unlawfully assaulted by a man armed with a shotgun alleging that you owed a drug debt.
23Your letters to me express profound regret for your offending conduct and your desire to remove yourself from that offending conduct, drug use and to return to the profitable life that you once had when you were with Ms Moss and were drug-free and working.
24The letters of Ms Moss and your mother described your regret that you have found yourself in this position - in custody, facing a lengthy term of imprisonment and the removal from the life you want to return to.
25You were examined by Dr Zimmerman, psychiatrist, on 23 November 2016. He took an extensive history from you of your background. He conducted an examination of you and he concluded that you have a substance misuse disorder, through your addiction to methyl amphetamine and cannabis, and that you are suffering from depression. He formed the opinion that there is a relationship between these disorders and your offending conduct. He also commented on your expression of remorse; your prospects of rehabilitation and how your medical condition should be managed in the future.
26While you have been in custody you have engaged in a number of courses which are demonstrated by the certificates I referred to earlier. Again, I do not propose to summarise the courses you have undertaken except to say that it is encouraging to see that not only have you done that, but you have remained drug-free in a prison environment, where unfortunately drugs tend to be found.
27I accept that you have a mental impairment. I accept that it does have a bearing on the kind of sentence which I must impose on you, and that the mental impairment from which you suffer will mean that the sentence I must impose upon you will weigh more heavily on you than it would on a person of normal health.
28You were arrested on 4 July 2016. You were remanded in custody on 7 July 2016. By 28 September 2016 you indicated that you would plead guilty to these charges, and that was confirmed on 3 October 2016 when it was resolved that the charges would proceed by way of a hand-up brief.
29You pleaded guilty at an early point in time which has a utilitarian benefit in that it is has saved the victims of your offending conduct the trauma of giving evidence in trials, and it has saved the State the cost of conducting trials.
30I am not entirely certain whether your prospects of rehabilitation are particularly good. They are linked so heavily to your avoidance of the use of illicit drugs. Since you have been remanded in custody, obviously the cycle of your offending conduct and your illicit drug use has ceased, but I note that you were charged with a number of offences between 14 July 2015 and 7 April 2016, which I chose during the course of your plea to describe as lower-level offending. Overall, much of your offending conduct appears to be linked to your use of illicit drugs and your underlying psychiatric condition.
31I accept that you are deeply regretful for what you have done. I accept that you are sincerely remorseful.
32Your counsel conceded that you must be sentenced to a significant term of imprisonment, and about that there can be no doubt. As compelling as all of these matters are which go to mitigation of penalty, they cannot be allowed to overwhelm the gravity of your offending conduct.
33Before I finally sentence you I must add that because of the number of armed robberies and the attempted armed robberies and the fact that they occurred in very similar circumstances, that I consider that it is appropriate to sentence you to an aggregate sentence, rather than an individual sentence for each count. I include in that the charge of causing injury recklessly.
34The sentence I now impose on you is proportionate to the gravity of your offending and the light of the objective circumstances of its occurrence.
35I now ask you to stand please.
36You are convicted of each of these charges and you are sentenced to an aggregate sentence of imprisonment of five years. I will set a minimum of three years before you will become eligible for parole.
37Pursuant to s.AAA of the Sentencing Act 1991, if it had not been for your pleas of guilty, I would have sentenced you to eight years' imprisonment and I would have set a minimum of six years before you would become eligible for parole.
38I will reckon the time that you have spent in presentence detention as time served under the sentence. The calculation is 253 days, not including today. I will now have that noted in the records of the court. You may now be seated.
39Now, Ms Klopper, is there an application for a disposal order, is that right?
40MS KLOPPER: Yes, Your Honour, and a copy of the order was handed to your associate this morning.
41MR CAMERON: That's by consent, Your Honour. It's by consent.
42HIS HONOUR: Yes, all right, thank you. Mr Cameron, anything else?
43MR CAMERON: No, Your Honour.
44HIS HONOUR: Ms Klopper?
45MS KLOPPER: No, Your Honour.
46HIS HONOUR: Yes, all right. You can remove Mr O'Toole, please.
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