Director of Public Prosecutions v Orchard
[2020] VCC 1546
•28 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
| GENERAL LIST | |
| CR-20-00631 | |
| DIRECTOR OF PUBLIC PROSECUTIONS v LAINE ORCHARD | |
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| JUDGE: | HER HONOUR JUDGE HASSAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 September 2020 |
| DATE OF SENTENCE: | 28 September 2020 |
| CASE MAY BE CITED AS: | DPP v Orchard |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1546 |
REASONS FOR SENTENCE
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| Subject: | CRIMINAL LAW |
| Catchwords: | Sentence — burglary — theft — common assault — armed robbery — deal with property suspected to be proceeds of crime — plea of guilty — soft targets — gambling addiction — criminal history — general deterrence — specific deterrence — protection of the community — prospects of rehabilitation |
| Legislation Cited: | Sentencing Act 1991 (Vic) |
| Cases Cited: | - |
| Sentence: | Total effective sentence of three years and nine months with a non-parole period of two years and two months Section 6AAA declaration: six years with a non-parole period of four years |
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr H Boyd-Wilson | Office of Public Prosecutions |
| For the Accused | Ms A Wong | Victoria Legal Aid |
HER HONOUR:
1Laine Orchard, you have pleaded guilty to two charges of burglary, for which the maximum penalty is a term of imprisonment of 10 years. You have also pleaded guilty to two charges of theft, for which the maximum penalty is a term of imprisonment of 10 years; a charge of common assault, for which the maximum penalty is a term of imprisonment of five years; and a charge of armed robbery, for which the maximum penalty is a term of imprisonment of 25 years. You have also pleaded guilty to the related summary offence of dishonestly possessing the proceeds of crime, for which the maximum penalty is two years’ imprisonment.
2Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’.
3 In brief, the circumstances of your offending were as follows.
4Between 14 June 2018 and 22 April 2019, you were employed at the Rococo Restaurant, which had venues in Hawthorn and St Kilda. You were initially employed at the St Kilda venue and then moved to the Hawthorn venue. During your employment, you were promoted to become a supervisor.
5You were dismissed on 22 April 2019 for stealing money from the St Kilda restaurant.
6As part of your employment, you had been provided with a key to the Hawthorn branch of the Rococo Restaurant and you also knew the alarm code for the restaurant.
7On 8 September 2019, Yuvdish Rampadaruth, the manager at Rococo Restaurant, Hawthorn, closed the restaurant and placed the contents of the cash register within a safe at the restaurant. He placed the key to the safe on a shelf above the safe. At approximately 12:10am, Mr Rampadaruth locked the restaurant and activated the alarm and went home.
8At approximately 12:17am, you entered the Rococo Restaurant using a key which had been given to you during the time of your employment. You deactivated the alarm on entry. You used the safe key to open the safe and stole $5,500 cash from the safe. The money was the earnings from Friday, Saturday and Sunday. On leaving the restaurant, you turned the alarm back on at approximately 12:47am. That was charges 1 and 2 on the indictment of burglary and theft.
9At 10:30am on 9 September 2019, Mr Rampadaruth received a call from the restaurant advising the contents of the safe had been stolen. Mr Rampadaruth attended the restaurant and observed no signs of forced entry. The key to the safe had been left in the lock. CCTV installed at the premises was not working at the time.
10Your phone records disclosed that you were in the area of the Hawthorn exchange at 12:40am and that at 1:27am you were in the vicinity of the Crown Casino.
11On 17 September 2019, Mr Rampadaruth was again working the closing shift at the Rococo Restaurant, Hawthorn. At approximately 11:50pm, Mr Rampadaruth activated the alarm and locked the restaurant. He was the only member of staff at the restaurant at the time.
12As he was leaving, he noticed that there was a key stuck in the outside lock of the alternative front door. Mr Rampadaruth was trying to remove the key when he noticed you inside the restaurant, crawling along the floor, near the bar area.
13You were wearing a red hooded top, gloves and a mask, and therefore Mr Rampadaruth was not able to identify you. You got up and came towards Mr Rampadaruth. You had a knife in your hand and yelled something at him. Mr Rampadaruth ran to his car and called police.
14Mr Rampadaruth later returned to the restaurant and noticed that $255 had been stolen from the cash register. He also examined the key which had been stuck in the front door. Based on the information about where the key had been cut, he realised it was the same key which had been provided to you when you were employed at the restaurant.
15CCTV captured the incident. On viewing the footage, Mr Rampadaruth identified you. Your call charge records disclosed that you were in the Hawthorn area between 11:15pm and 12am. At approximately 1am, you were in the Crown Casino area, and this incident is the basis of charges 3, 4 and 5, which are burglary, theft and common assault on the indictment.
16I now turn to 13 October 2019. At approximately 12:35am on 13 October 2019, Chevinda Karunanayake was in the process of locking up the Rococo Restaurant, Hawthorn. Before he left the restaurant, Mr Karunanayake walked to the bar area to get a bottle of wine to take home. On this occasion, you entered the restaurant through the front door, which was still unlocked.
17You were wearing a black face covering which covered the bottom half of your face, a red and black long-sleeved checked shirt and white gloves. You were holding a large knife in your right hand.
18You said, ‘hey man, give me your phone’. Mr Karunanayake responded that he did not have a phone. You then said, ‘OK, open the safe’. You pointed your knife at where the safe was located.
19Mr Karunanayake started walking towards the safe, located in the back office. You followed him, still holding the knife. Mr Karunanayake said, ‘please don’t hurt me’, and you responded, ‘I’m not gonna hurt you, it’s not personal. Just don’t do anything’.
20You and Mr Karunanayake walked into the back office. You told him to turn the lights on and open the safe. You then took out the key and opened the safe and told Mr Karunanayake, ‘get all the money out’.
21He took the cash envelope from the safe and handed it to you. He also removed the coin slot and put it onto a chair. The envelope contained approximately $340. You grabbed a handful of the coins which had been placed on the chair.
22You then asked Mr Karunanayake to turn the CCTV cameras off. He did not know how to do this, and you told him the switch was at the top of the wall. Mr Karunanayake turned the CCTV cameras off.
23You then pointed to the safe and asked for the ‘tips’ envelope. Mr Karunanayake handed you the envelope. You said, ‘nothing personal, tell Chris Fulham that he fucked with the wrong people’.
24You and Mr Karunanayake left the office. You walked in front of him, still pointing the knife at him. When you stopped at the front door, you repeated, ‘nothing personal, just tell Chris Fulham he fucked with the wrong people’. You then said, ‘thanks for your cooperation’ and ‘you can call the police now’, before running out the front door. Mr Karunanayake recognised you. The incident was partially captured on CCTV footage, and this incident is charge 6, armed robbery.
25You were arrested on 13 October 2019 at the Crown Casino. You were searched and had $20 in cash. You admitted to arresting police that you had a large knife in your backpack and admitted that this knife had been used in the armed robbery. Also located in your backpack was a CBA bank card in the name of Arthur M Egar (summary charge of possessing the proceeds of crime), clothing you had worn when you committed the armed robbery, envelopes containing staff tips which you had stolen, and a further $26.20 in cash.
26You were interviewed at the Bundoora Police Station, during which you told police:
·when they asked why you had been arrested, you said it had been a stupid decision, you did it because your rent was due, and you had fallen into a gambling addiction and you felt fucked over by Mr Fulham;
·you used to work at Rococo for over a year and you did not leave on good terms;
·you got the knife from Woolworths, South Yarra, and you purchased it a couple of days ago;
·you did not buy the knife with the intention of committing an armed robbery;
·you took the knife with you when you left your home the previous evening, but you had not decided if you were going to commit the armed robbery;
·after you left the restaurant, you caught a taxi to Crown;
·you did not have any other money other than the money you had stolen, and you had lost the money, gambling;
·you admitted the ‘tip’ envelopes were stolen from Rococo;
·the CBA card in the name of Arthur Egar had been obtained as lost property when you were working at Ezard and you had intended to return it but forgot;
·you had recently lost your job at Ezard and were given an eviction notice for this Monday; and
·you were probably the politest person who had ever robbed someone, and you reassured your victim that you did not want to hurt anyone.
27You made full admissions to the armed robbery of 13 October 2019, but you denied involvement in the burglaries of 9 and 17 September 2019.
28You were remanded in custody.
29You pleaded guilty to the charges on the indictment and to the summary charge at a committal mention on 4 May 2020.
30This is an early plea. It has utilitarian value in that it has saved the victims, witnesses and the community the cost and trauma of a trial. Its utilitarian value is of heightened significance in the present circumstances of extreme stress upon the administration of criminal justice in this State, caused by the COVID-19 pandemic. I also accept that your plea of guilty is indicative of remorse on your part. You also wrote a letter to the Court in which you say you are deeply sorry for your actions and are committed to making better choices in the future. I accept that this is a sincere expression of remorse on your part.
31I turn now to the objective gravity of your offending.
32This was serious offending. It involved you, over the course of around one month, repeatedly entering the premises of your former employer and stealing.
33You made use of both the key you had acquired during your employment and your familiarity with the security equipment, the alarm codes, and the premises generally.
34I am told you targeted your former employer because you believed he owed you wages. This is no excuse. If this was indeed the case, there were a number of ways you could have lawfully addressed your underpayment, instead of resorting to serious criminal behaviour.
35You subjected both Mr Rampadaruth and Mr Karunanayake to frightening ordeals. In Mr Karunanayake’s case, you directly threatened him with a knife. There have been no victim impact statements filed but the gravity of armed robberies committed against ‘soft targets’ — that is people who are vulnerable because they work in isolated or insecure circumstances — is well recognised.
36In summary, the many aggravating features of your offending include: that it was premeditated; it involved a breach of trust against your former employer; it was motivated by animosity against your former employer; on each occasion you entered the premises at night, disguised and armed with a knife; and the most immediate of your victims were people at their workplace, vulnerable because they were alone and closing up the business for the night.
37I am told you were in the grip of a gambling addiction at the time of your offending, and your arrest at Crown Casino on 13 October 2019, and your phone records showing you in the vicinity of the Crown Casino on the earlier occasions, supports this. But although this may explain to some extent your offending, it in no way excuses it.
38I turn now to your personal circumstances.
39You were born on 28 June 1996. You were 23 at the time of the offending and you are now 24 years old. You were born in Geelong and your parents are John and Andrea Orchard. Your parents separated when you were seven years old. Both your parents run businesses and are successful.
40After your parents separated, you lived first with your father, and then with your mother and your younger sister. Your mother re-partnered when you were 14 years old and you did not have a good relationship with your mother’s new partner. You moved in with your grandparents, but you had an argument with your grandfather and moved out. You have lived independently since the age of 18, but you enjoy a close relationship with both your mother and your father.
41You told your counsel that you had been sexually penetrated by a scout master when you were 10 or 11 years old at a camp near Anglesea. You say you first disclosed this in 2015 but have not sought any treatment or counselling.
42You completed your secondary education and obtained your VCE in 2014 with an ATAR in the high 70s. You hope to go on to study business and follow in your parents’ footsteps.
43You have worked since you were around 11 years old, helping in your mother’s catering business. You have also worked as a DJ. Since the age of 20, you have worked in hospitality at Rococo, and then at Ezard Restaurant between April 2019 and August 2019, when you were dismissed. I am told this occurred when your employer at Ezard discovered that you have a criminal record.
44Your criminal record begins in 2015 with two appearances at the Geelong Magistrates’ Court, one in April and one in July. In April 2015, you received an adjourned undertaking without conviction for offences related to the contravention of a family violence order. In August 2015, you were sentenced to 28 days’ imprisonment for offences including recklessly causing injury, theft and damaging property.
45In November 2015, you were sentenced in this Court to 12 months in a Youth Justice Centre for offences including armed robbery, attempted armed robbery, theft of a motor vehicle and committing an indictable offence on bail.
46Your next criminal conviction occurred at the Toowoomba District Court in Queensland on 8 August 2016. Here, you were convicted and sentenced to six months’ imprisonment, wholly suspended for 18 months, for seven charges of carnal knowledge of a girl between 12 and 16.
47This conviction is a result of a relationship you had with a 14-year-old girl in 2014 when you were in Queensland. You were 17–18 years old. You were extremely distressed by both the relationship breakdown and being charged and convicted with criminal offences as a result of this relationship.
48You must have been made a registrable sex offender in relation to your Queensland conviction. You have a number of convictions for failing to comply with reporting conditions.
49Your parents, John and Andrea, both provided character references on your behalf. Both say you have had behavioural problems as a child and growing up. Your mother, Andrea, says you have had provisional diagnoses of ADHD and Asperger’s, but there has been no conclusive diagnosis of any mental health condition, and no submissions were made to me that you have any mental health condition relevant to sentencing.
50You do suffer from a congenital condition called long QT syndrome, which causes episodes of irregular heartbeat and fainting. You require a hospital check-up every six months. You are presently three months overdue for your current check-up. There were no submissions made to me that this condition would make your time in custody more burdensome.
51The Sentencing Act 1991 (Vic) prescribes the purposes for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community. A custodial sentence must only be imposed as a last resort. I take into account the effects of your crime upon your victims, and I must have regard to current sentencing practices and to maximum penalties.
52Both general and specific deterrence and community protection are relevant sentencing considerations, given the serious, dangerous and repeated nature of your offending, and having regard to your criminal history.
53I find it difficult to assess your prospects of rehabilitation. You are intelligent, and you have used your time in custody productively. Since February 2020, you have been undertaking a tertiary preparation course and you are enrolled to commence a Bachelor of Business Management at the University of Southern Queensland commencing in 2021. You have undertaken as many vocational and rehabilitative programs as possible in custody, although, due to COVID-19, there are limited programs available. Unfortunately, you have not been able to participate in a gambling help course, despite numerous attempts.
54You were working in the kitchen when you were in the mainstream prison population, but you lost your job in the kitchen in February 2020 when you were moved into the Drummond Protection Unit because of your criminal history — I assume because of your Queensland conviction. You remain in the protection unit and you are focusing on your studies.
55You have the continued support of your parents, who were visiting you prior to the COVID-19 restrictions.
56All this bodes well for your rehabilitation, but on the other hand, despite being an intelligent and, I am told, a personable young man, you have continued to commit serious criminal offences.
57You are not a young offender within the meaning of the Sentencing Act 1991 (Vic), but you are still a young man and your youth is a significant factor in my determination of an appropriate sentence for you.
58Whatever my assessment of your prospects of rehabilitation, I must nevertheless craft a sentence which supports your rehabilitation. I intend to do so by fixing a shorter non-parole period to enable a lengthier period of rehabilitation back into the community under the supervision of the Adult Parole Board.
59I also take into account the current difficult conditions in prisons caused by the COVID-19 pandemic.
60The prosecution submitted that a term of imprisonment consisting of a head sentence and a non-parole period was the only sentence open to me. Defence conceded that, given the seriousness of your offending, this was the case.
61You are convicted on all charges.
62On charge 1, burglary, you are sentenced to a term of imprisonment of 15 months.
63On charge 2, theft, you are sentenced to a term of imprisonment of nine months.
64On charge 3, burglary, you are sentenced to a term of imprisonment of 18 months.
65On charge 4, theft, you are sentenced to a term of imprisonment of six months.
66On charge 5, common assault, you are sentenced to a term of imprisonment of 12 months.
67On charge 6, armed robbery, you are sentenced to a term of imprisonment of three years.
68On the summary charge of possessing the proceeds of crime, you are sentenced to a term of imprisonment of two months.
69Charge 6 is the base charge. I direct that three months of the sentence on charge 1 and six months of the sentence on charge 3 be served cumulatively to the sentence imposed on charge 6.
70This makes a total effective sentence of three years and nine months. I am directing that you must serve a period of two years and two months before you are eligible for parole.
71Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of six years, with a non-parole period of four years.
72Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 351 days of the sentence I have passed upon you and I direct that this be entered into the records of the Court. I have already stated that I have made the orders sought by the prosecution.
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