Director of Public Prosecutions v Ostler, Christopher
[2013] VCC 285
•14 March 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-01867
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER OSTLER |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 14 March 2013 | |
CASE MAY BE CITED AS: | DPP v Ostler, Christopher | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 285 | |
REASONS FOR SENTENCE
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Subject: Sentence- Armed Robbery- youthful offender- prior history- reasonable prospects-18 months Youth Justice Centre order
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Milesi | |
| For the Accused | Ms H. Papakonstantinou |
HIS HONOUR:
1 Christopher Ostler, you have pleaded guilty to one charge of armed robbery. The maximum penalty for armed robbery is 25 years' imprisonment. You were 18 at the time of the offence and you were living in the Hoppers Crossing area. On 21 July 2012 at 1.45, together with a co-offender, you went to the 7-Eleven Store at the corner of Tarneit Road and Heaths Road in Hoppers Crossing. The store was open but security measures were in place. Your co-offender knocked on the door and you hid behind some glass bottles. The store attendant opened the door and let your co-offender in. He ran to the counter, jumping onto it and through the security wires above the counter. At that point he pulled a mask down over his face. You entered the store and positioned yourself at the entrance, keeping the door ajar, preventing the door from locking. You were also wearing a balaclava.
2 At times during the incident you had your right hand down the back of your trousers. It was said it was in order to keep your pants up. It may be that you were hiding something or concealing something there but in any event it was your co-offender who, once behind the counter, produced a hunting knife approximately 30 centimetres in length and demanded the attendant open the till. From the door you shouted "Just open the till, give us the money." In fear, the attendant opened the cash register, which was emptied. The amount of cash taken was $272. You shouted "Grab smokes too" and the co-offender opened the cigarette storage containers and threw packets of cigarettes towards you , which landed near you on the floor. This can be seen from the footage on the DVD that was tendered. Whilst holding the front door you managed to pick up a few packets. The others were left there.
3 The attendant managed to press the duress alarm behind the counter and, becoming aware of this, your co-offender punched him to the face twice with his right fist whilst still holding the knife in that hand. He then attempted to climb back through the wiring . he stumbled. Both of you ran off along Tarneit Road.
4 Responding to the duress alarm, a police unit located you and your co-offender a short distance from the store. You both fled on foot with police in pursuit. You were arrested after a short struggle.
5 The co-offender was arrested. He had the $272 in cash, two packets of cigarettes, a black handled dagger knife and items of clothing that had been worn by him.
6 When you were interviewed, after being conveyed to the Werribee police station, a dark coloured beanie and a red bandana were found hidden in your underwear. You said that you committed the offences because you were a bit hungry and needed some money for food.
7 Armed robbery, as the maximum penalty indicates, is a very serious criminal offence. In this case it is made worse by the fact that you were wearing a disguise, as it were. It was accompanied by violence to the store keeper who was a soft target and was committed at night. It was committed in company. It was committed for little reward, and would have been a terrifying experience for the storekeeper. Your feeble excuse that you were doing it for food I find completely unacceptable, given that you had been smoking and drinking expensive alcohol just before.
8 You have a prior in December of 2009 for burglary, theft, robbery, theft of a motor vehicle, going equipped to steal, driving a motor vehicle without a license and dealing in property suspected of being proceeds of crime. At that time without conviction you were released on a Youth Supervision Order for a period of six months. There are other conditions attaching at that time.
9 I take into consideration your plea of guilty and assign it an adequate sentence discount because the plea was entered at an early stage. You made admissions in the record of interview and although the interview contains attempts to indicate some regret at the commission of the offences, the pre-sentence report which I have received, speaks of your inability to really understand the seriousness of what you did . it may be that you will develop this but it will be much later on, perhaps when you gain a bit of insight.
10 In terms of your personal circumstances, you come from a family relationship which has been volatile and marred by violence. Your parents separated when you were 13. You only had weekend access to your father, although an intervention order against him was put in place at some point. However you were close to him and had some contact with him. He died when you were 14, shortly before the 2009 offences. At that time you were referred to Youth Supervision.
11 Before that, during bail, you had been referred to grief counselling with some positive engagement on your part. You started using cannabis from the age of 15 which increased to an almost daily use. That use would seem to be addressed during your supervision but as is often the case you relapsed. You occasionally drank alcohol from the age of 15, although this does not seem to have been or developed into a major problem.
12 You partially completed Year 9, then you were suspended after fighting. You left in 2008 and have not achieved much by way of academic attainment. Whilst on support bail in 2009, for a while you engaged in the training initiative with Youth Justice. It involved ongoing education. But as was the case more recently, you just did not have the wherewithal to continue.
13 It appears that you were subject to an episode which is also referred in this report at p.4 where you were employed in a carwash in Geelong Road. You left that position in part because of irregular wages but primarily because you were visited by past trauma, when you were said to have been the victim of an abduction at age 14 or 15 at a time when you were intimidated and threatened by people who worked for a particular company and who believed that you were responsible for a robbery against them. They attempted to apologise to you later but, upon the attendance of one of these people at the car wash, you sufficiently unnerved to leave that employment and seek other employment.
14 In a sense, that particular episode highlights what the report from the Department of Human Services for suitability for a Youth Justice Centre order highlights at p.7 , and that is, that you would still be impressionable in a custodial environment, particularly in an adult penal system. It is said that you are rather naïve about the criminal justice system and would not be accustomed to the norms and mores of such settings, rendering you more susceptible to undesirable influences in an adult custodial environment.
15 The writers, Donna Asher and Jo Tahook, who are respectively a senior court advise officer with the Youth Justice Western Unit and the unit manager at the Youth Justice Western Unit, in their report of 10 January 2013 are of the opinion that you are a young person lacking the internal strength to effectively deal with a custodial environment where most of the prisoners would be considerably older with entrenched criminal behaviour which may affect your rehabilitation prospects adversely. Both writers are of the view that a custodial sentence would be better served in Youth Detention. You meet the criteria stipulated in Section 32 of the Sentencing Act and are therefore deemed suitable for a Youth Justice Centre Order.
16 Clearly, your prior history is of concern. But you are a youthful offender. There is some evidence latterly of remorse. Your plea will entitle you to a discount on your sentence. Though your excuse about food appears feeble , it may be that some financial stressors and circumstances at the time, which included a young baby and a girlfriend, may have been underlying causations to this offending, although the basic underlying basis for the offending, in my view, was boredom and stupidity. The fact that your mother has attempted to have you live with her in the past and is in court and was on the last occasion is something that is positive in your life and is to your credit. Despite the difficulties that she has had with you; at least she is still here and that is something that enables the Court to have some hope.
17 You have older brothers and sisters. You have made some effort to provide for your son at the time when he was still either with you or at least with your girlfriend. Efforts have been made by Mr Wilkinson and the family to take you under their wing and provide you an example of what steady work and stable lifestyle can mean in the future.
18 In my view your prospects of rehabilitation are probably reasonably good, only because of your age. Because up to now you have stuffed things up comprehensibly.
19 The report is cautious in describing what the last couple of years have meant for you. You were sentenced to a six month Youth Supervision Order in December of 2009 and you successfully completed that order in June of 2010. After these offences you were admitted, or at least assessed, for suitability for supervised bail in July of 2012 whilst in custody. You explained that you have been influenced by your co-offender, Damien. You were unemployed at the time and not receiving any benefits and you were financially struggling. As I have said before it is completely incongruous that people of your age can complain about not having food whilst drinking and smoking.
20 The writers say that it was evident that you initially lacked insight into the gravity of your offending and you tended to minimise and want to justify your behaviour and that your victim empathy was superficial and lacked sincerity.
21 I now understand that you are no longer together with your girlfriend, so your efforts at rehabilitation are going to have to be in order to be able to have access to your son if you want to have any influence on his life whatsoever. You are certainly not going to be able to do it from either a Youth Justice Centre or a prison. Because if you continue on this way with your prior history, and now with an armed robbery prior, prison is where you will spend most of the years of your life if you do not change. No one, not even a judge, can tell you how to go about that or persuade you that you should do it. That has got to come from your own head.
22 Unfortunately during that period at which time people were offering you assistance, it was clear that you lacked motivation in the long term and your non-compliance meant that you had basically exited and failed most of the programs that were offered to you. I do not know if you undertook any anger management but it is clear that you require it, and if it is offered to you in the Youth Justice Centre environment, you should undertake it.
23 It is clear that during the time of your bail when you resided with your mother from time to time you had been not only demanding and abusive and aggressive but life with you became untenable and you sought alternative accommodation. You have been fortunate at least that the family, through your brother, has been able to provide with that and that a person like Mr Wilkinson has attempted at least to provide you with an apprenticeship so that you can have a future once you are released from custody. I understand that that offer is still viable and it is an offer you should take up as soon as you are released.
24 Your ability to comply with the order and with whatever is required of you during your custodial disposition is really a matter for you. You cannot have the same attitude that you have had when you were offered positive lifestyle programs in the past. If you do that, then not only are you going to spend longer in your period before accessing parole but your time in Youth Justice is going to be much harder.
25 You have clearly not taken advantage of the opportunities afforded to you. I understand that you know that you are likely to lose your liberty and it appears that you have gained some insight into your behaviour and you have taken some steps towards your rehabilitation. I hope that that is the case.
26 I have signed orders for the disposal and for a forensic sample in this case. It is an order that your forensic sample be retained for placement on the DNA database.
27 On the count of armed robbery you are convicted and sentenced to 18 months in a Youth Justice Centre, where you will be detained.
28 Are there any other orders that I need to make? I should say that I declare that you have served three days by way of pre-sentence detention and but for your plea I would have sentenced you to 24 months' detention.
29 MR MILESI: Nothing further from the Crown, Your Honour.
30 MS PAPAKONSTANTINOU: Nothing from me, Your Honour.
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