Director of Public Prosecutions v Outsikas, Dosser
[2016] VCC 541
•19 APRIL 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION CR-16-00026
CR-16-00380
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| LUCAS DOSSER |
| ARTHUR OUTSIKAS |
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JUDGE: | JUDGE WILMOTH | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 April 2016 | |
DATE OF SENTENCE: | TUESDAY 19 APRIL 2016 | |
CASE MAY BE CITED AS: | DPP v Outsikas, Dosser | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 541 | |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: First accused –pleas of guilty to one charge of armed robbery and one charge of assault – aged 19 at sentence – major depressive disorder and autism – no prior convictions – stable employment – very good prospects for rehabilitation – lenient sentence warranted by unusual circumstances.
Second accused - pleas of guilty to one charge of armed robbery, one charge of intentionally causing injury, one charge of assault and one charge of assaulting an emergency worker on duty - robbery planned – co-accused drafted to assist – aged 41 – extensive criminal history –drug abuse since early age -– guarded prospects for rehabilitation
Legislation Cited: Crimes Act 1958
Cases Cited: Verdins v R [2007] VSCA 102
Sentence: First accused 4 year CCO; Second accused TES 6 years with non-parole period of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | MS C. PICONE | OPP |
| of Public Prosecutions | ||
| For the Accused Dosser | MS J. SMITH | Stary Norton Halphin |
| For the Accused Outsikas | MR S. KENNEDY | Tait Lawyers |
HER HONOUR:
1 Lucas Ashley Dosser and Arthur Outsikas have each pleaded guilty to a charge of armed robbery and a charge of common law assault. Arthur Outsikas also pleaded guilty to a charge of assaulting an emergency worker whilst on duty, and a charge of intentionally causing injury.
THE OFFENDING
2 At about 2.30 pm on 15 October 2015, each offender perpetuated an armed robbery upon the female attendant at a Cignall store in Ferntree Gully. The robbery was planned by Mr Outsikas and the circumstances in which Mr Dosser took part are somewhat unusual in that he did not know what was planned when he agreed to assist Mr Outsikas in the job “for cash in hand”.
3 The two went to the store in a car belonging to Outsikas and driven by him. On the way, Outsikas had told Dosser that the job was a robbery on a tobacco store. He said it was an easy job and no one would be hurt. On arrival at the store, Outsikas gave Dosser some tape, a small axe and gloves. He had a rope tied around his waist with a loop tied off to house the axe, for it to be carried and concealed. He was told to get out of the car and wait while Outsikas parked the car. After about 20 minutes, Outsikas went into the store alone and spent a few minutes trying to barter with the attendant over the price of cigarettes. He repeated this about ten minutes later and came out of the shop. These two incidents and much of what followed were captured on CCTV. After a female customer had left the store, the offenders entered wearing baseball caps, sunglasses, hooded long-sleeve tops, with the hoods down, and track suit pants.
4 Outsikas approached the attendant, talking about cigarette prices, then he produced a metal bar from the leg of his pants. He jumped over the counter, waving the bar at the attendant and told her to be quiet and that he wanted money and cigarettes. She was very scared and later said his voice was, “very fierce”.
5 He then grabbed her in a headlock with his left arm while still holding the metal bar in his right hand and pulled her to the floor. She struggled but he continued to hold her on the floor. Dosser remained on the other side of the counter and fumbled as he retrieved the tape from his pocket. He passed the tape to Outsikas who continued struggling with her as she resisted his efforts to apply the tape to her mouth, which he was unable to do at that stage.
6 He picked up the metal bar again, trying to subdue her, while demanding cigarettes and cash, and struck her with it. He demanded the keys for the shop, but she said she did not have them.
7 Mr Dosser, who had still been standing on the other side of the counter putting gloves on, then jumped over the counter and grabbed the attendant who was standing by that stage, while Outsikas searched the back of the shop.
8 Dosser told her to get onto her knees and he then taped her hands behind her back and covered her mouth with it. The taping of the attendant is the charge of common law assault in respect of each offender.
9 By this time, Outsikas also had gloves on, and he proceeded to open the till and remove about $400 to $500 in cash. He then used the metal bar to jam the front door shut. He told Dosser to write a sign saying the shop is shut, to be placed on the door. Dosser did so, and pulled down the blinds to conceal any view from the street. As he did this, Outsikas disconnected the CCTV which had been operating until this time.
10 At some stage, the attendant saw Dosser pull the axe from his pants. A customer arrived at the door and found the door barred and looking into the shop, he saw the attendant, her mouth gagged and her hands bound, trying to attract his attention. He tried to push open the door, but Outsikas approached and told him that they were “checking for gas”. The customer returned to his car and called the police.
11 Dosser asked the attendant if the customer had seen her, and she replied, “No”. He told her to sit down, and not to move.
12 Outsikas asked her if there was any more money and she told him there was a plastic bag under the counter. He took the bag which contained $1,050 dollars. The attendant was taken to a rear office. She became aware that Outsikas had taken her purse from her bag containing $315, her licence, a bank card and a credit card.
13 The offenders loaded cartons of cigarettes into garbage bags. This completes the charge of armed robbery.
14 The police arrived and entered the store. Senior Constable Brecht saw the attendant with brown packing tape pulled down around her neck as if it had been pulled from her mouth. Her hands were free and she was crying.
15 At first, Senior Constable Brecht thought that the two offenders were members of the public assisting her but as Outsikas moved towards him, he noticed an axe in his hand. Outsikas then raised the axe in the air, and Senior Constable Brecht grabbed the arm that held it. They wrestled on the ground, and it is this that gives rise to Charge 3, assaulting an emergency worker on duty.
16 As Outsikas broke free, the other officer, Constable Kapsaskis grabbed hold of him. Brecht then saw Dosser moving towards him and unable to see his hands, he drew his gun and pointed at Dosser, shouting “Police. Don’t move”. Kapsaskis and Outsikas continued to wrestle.
17 Dosser picked up the axe and threw it into the back room, then moved towards the front door with Brecht yelling at him repeatedly, “Don’t move,” and, “Get down”.
18 When Dosser was two metres from Brecht, he complied and got onto his knees, and it was only then that Brecht could see that he was not armed.
19 Believing Outsikas still had the axe, he remained fearful for the safety of Kapsaskis. The attendant was still in the back room, screaming, and Brecht yelled out to her, “Are there any more?” She did not answer but held up one finger, which led Brecht to believe there was a third offender he had not yet encountered.
20 Meanwhile, Outsikas continued to struggle with Kapsaskis, who sprayed him in the face with OC Spray but Outsikas reached out and grabbed the metal bar and hit Kapsaskis on the head with it. This is Charge 4, intentionally causing injury.
21 Kapsaskis let go of Outsikas, believing Outsikas had hit him with the axe. As Outsikas made for the front door, Kapsaskis followed him, bleeding from the head wound. This was observed by a witness who had arrived at the same time as the police and had remained outside.
22 Outsikas ran from the scene and was later found hiding in bushes nearby. Other police units arrived and handcuffed Dosser, allowing Brecht to check the back room where the attendant had remained, in an extremely distressed state.
23 Constable Kapsaskis was taken to hospital by ambulance. He suffered a laceration to his head and other, more minor, injuries.
THE AFTERMATH
24 Dosser was interviewed that evening and made full admissions to the armed robbery. He said he was living in shared accommodation with Outsikas and that morning he was about to go to a medical appointment, when Outsikas asked him if he wanted to do a quick cash-in-hand job to help pay the rent he owed, and he agreed, believing the job to involve lawn-mowing or something similar.
25 That afternoon, Outsikas again asked him if was prepared to do the job, and he agreed again, and then went with Outsikas in his car.
26 As I said earlier, Outsikas then explained to him what the job was and according to Dosser, told him he had to do it because if anyone dobbed, he would go after them.
27 Mr Outsikas told him that once inside the store, they would lock the door and get the attendant to sit in the corner, and she would have her hands tied to the chair. Mr Dosser said he was scared and went along with it.
28 That implied threat, was in effect, denied by Mr Outsikas in instructions given to his counsel. He told his counsel he had little memory of the event but he was not a violent person and would not have said it. While his criminal history discloses only one prior conviction for physical violence, there are four instances of offending concerning possession or carrying of weapons. His criminal history is extensive and includes some serious offending with sentences of imprisonment and multiple breaches of orders imposed by the court. Weighed against this, is Mr Dosser’s lack of any prior convictions and his otherwise good character until this time. There is nothing to provide any objective understanding of why he committed this crime, and the intimidation he claims was applied to him seems plausible in the circumstances. Accordingly, I accept that it was said.
29 Mr Dosser was asked in the interview why he did not leave when he had the opportunity, when Outsikas was parking the car, and he was left waiting for about 20 minutes. He said he had the idea of crossing the road and jumping on a train but he had no ticket or money, and so felt he could not. Asked why he did not leave and notify someone, he said he was scared and shocked and unsure of what to do. He thought of leaving and finding his father but by that time he saw Outsikas approaching him and it was too late. After that, he said, he wished he had done something.
30 He said that inside the store, Outsikas told him to do things and he did them. He had not noticed the metal bar until Outsikas pulled it out.
31 Outsikas was interviewed that night and told police he had just started taking a new antipsychotic medication and as to the allegations, he remained mute or gave non-responsive answers.
PERSONAL CIRCUMSTANCES OF MR OUTSIKAS
32 Mr Outsikas, I am now going to turn to your personal circumstances, and set those out: You are aged 41, you came to Australia from Greece with your family when you were a young child. When you were 12, your parents separated because of your father’s violence and several years later, your mother remarried. You got on very well with your stepfather, and unfortunately, he died a few years ago. You had no contact with your own father until recently when he was injured as a result of a car accident and you have been caring for him. After the divorce of your parents when you were 14, your father had turned to heroin and encouraged you to use it, which you did, by the time you were 16. You had succeeded at school until the divorce but your education suffered when you had to move schools and you regret the fact that you left school after Year 10.
33 The use of drugs resulted in you turning to crime to pay for drugs and that continued. At the time of these offences, your use of drugs had diminished considerably. Your mother had struggled to lead you away from drugs, and you were sent to Greece to live with your grandmother for a year. There, you completed military service and then returned to Australia but relapsed into drug use again.
34 Despite that, you achieved a good work history, being promoted to a semi-management role in the furniture business and always finding work after being released from prison. You are a single man and you are the father of a 19-year-old daughter whom you see regularly. You have quite an extensive criminal history, as I said before, consistent with your long history of abuse of drugs of different types. You have also been medicated over the years to treat various conditions, including Hepatitis C but mainly anxiety and depression and possibly a psychotic disorder which has not been formally diagnosed and of which there is no recent evidence according to a report from Dr Lester Walton.
35 It seems you developed a volatile, mental dispossession, and would often use a concoction of prescribed medication.
36 A more recent relationship resulted in the birth of a child but you discovered you were not the father and this was a stressful time, with your former partner making demands on you.
37 You believe you have only spent six and a half years at liberty since 1995. You have been sentenced to imprisonment many times and have breached suspended sentences and community orders which have resulted in imprisonment.
38 Relevantly, one conviction was for armed robbery, in which you were involved as being on watch, and another, for assaulting a police officer.
39 At the time of the offending, you had relapsed into drug use and had also taken benzodiazepines and Serepax. You had also discontinued mood-stabilisation medication, and Dr Walton formed the opinion that your statement of emotional turmoil at the time contributed to you exercising poor social judgement.
40 Because of the medication you had taken, you have very little memory of the offending, but you have acknowledged that you were the primary offender. Not only that, but you planned the robbery and gathered the equipment and the weapons, and then drafted Mr Dosser to assist you.
41 Your general practitioner had seen you before the offending and told you that you needed to see a psychiatrist but you did not do so. You did not take steps to address the state you were in and after many years of offending and drug taking, you would have known how vulnerable you were to relapsing into substance abuse and offending.
42 You have recently incurred a very large debt of $200,000 to the bank as a result of a failed enterprise you had embarked upon, and with no means of repaying it, this was an added stressor.
43 Accordingly, I am not satisfied that there is the required nexus between your mental state and the crimes, as your counsel, Mr Kennedy, urged me to find, that would attract the principle in the decision of Verdins to moderate general deterrence.
44 All this goes some way to explaining your behaviour but does not excuse it.
45 Dr Walton described you as a psychologically immature man, a rather impulse-driven person given to poor decision-making. He considered that your depression will likely make your experience of prison more difficult than for others and that does enliven the fifth limb of the decision in Verdins, and I take that into account in determining the length of your sentence.
46 Dr Walton also noted your remorse expressed to him several times and your apparent puzzlement at your behaviour, suggesting an indication that your tendency towards anti-social behaviour might be waning with the passing of time and recent avoidance of incarceration, notwithstanding the recent wrongdoing.
47 That is, perhaps, a glimmer of hope for your prospects of rehabilitation but that will be some years from now, because of the seriousness of the crimes and the guarded approach I must take to your likely rehabilitation.
48 You pleaded guilty at an early stage, which has avoided the need for a trial, and is acknowledged as being of assistance to the criminal justice system. For that, you are entitled to a discount on your sentence, and I also accept it as an indication of your remorse. Importantly, it has spared the victim and the police officers from having to give evidence.
49 Mr Brecht provided a victim impact statement in which he described the frightening scenario which has had a long-lasting psychological impact on him.
PERSONAL DETAILS OF MR DOSSER
50 Mr Dosser, you are aged 19, and you were 18 at the time of the offending. You had been sharing a house with Mr Outsikas and I have already explained how you came to join him in the crime.
51 You had been there in his house only two weeks in your first venture away from home and you had not seen much of Mr Outsikas and so had not been able to gauge his personality.
52 By then, you had appeared to have overcome some significant difficulties in your life caused by the condition of autism from which you suffer, with some other deficits as well, despite having an above-average intelligence. You come before the court as an impressive young man who has achieved a lot despite these difficulties and it is hard to comprehend how you came to offend in such a very serious way, never having been in trouble before.
53 Your background tells some of the story: a very helpful report was obtained from Dr Aaron Cummingham who assessed you recently, a specialist in the field of Autism Spectrum Disorders, he has diagnosed that condition, as well as Major Depressive Disorder, and he considers after consulting with your mother as well, that the indications of the autism disorder have persisted since early development or birth.
54 At the beginning of Year 10, you were prescribed Ritalin, owing to reports from school that you had been forgetful and inattentive in a way that suggested difficulty with executive functioning. At the age of 15, you became depressed, and attempted suicide in an impulsive manner, consistent with significant mood instability. You were then prescribed anti-depressant medication which you ceased taking two weeks before offending as it made you drowsy. Apparently, sudden cessation of such medication is not recommended medically.
55 Dr Cunningham’s opinion is that the social and moral reasoning impairments of autism likely contributed to your naivety with respect to the crime, as it was planned by Mr Outsikas, and his threat to you caused the fear which further motivated you to participate and not escape when you could.
56 While you still knew that what you were doing was wrong, your moral reasoning was affected, and so the principles in the decision of Verdins apply, and general deterrence as a sentencing component should be sensibly moderated.
57 Dr Cunningham also considers that you are vulnerable to abuse and manipulation because of your impairment and you would be at risk of contamination in a prison environment. He considers that you need to maintain your stable lifestyle and have psychological assistance.
58 Returning to your background and your present circumstances, you left school after Year 10, and after completing a carpentry pre-apprenticeship and taking on some other work, you were employed by Traffic Group Australia, where you have remained for the past 18 months.
59 Mr Jason Hickey, the state manager of that organisation, gave evidence that you are a good employee and that you have succeeded to the extent that you are now a team leader. You told him of the offending, and he is prepared to give you a second chance and continue to employ you. Mr Hickey has some experience employing and assisting young offenders, and he is aware of the obligations which might be placed on you pursuant to your sentence, and by the same token, he is also prepared to re-employ you in the event that you were placed in detention.
60 After you were charged, you were bailed, subject to supervision by the Southern Youth Justice Unit, and a report was provided by Mr Warren Gardiner stating that you had complied in an excellent fashion. It included some psychological counselling which you are prepared to resume.
61 You have been living at home with your parents and you have their support and that of your extended family. You do not drink or use illicit substances.
62 You pleaded guilty as early as possible and I apply that in the same way as for Mr Outsikas, allowing a discount on your sentence and accepting it also as an indication of remorse.
63 You have expressed that to those who have provided references for you, all of whom speak highly of you.
64 You have impressed people as a member of the Scout Movement for several years, and as worthy of the Long Tan Defence Force Award and the VET Award while you were still at school, both awarded to students who demonstrated leadership.
65 You had wanted to join the army but were rejected on medical grounds.
66 Such serious offending as this calls for detention unless there are significant reasons why that can be avoided. This case of armed robbery is made the more serious by the injury inflicted on the police officer, and the assault upon the attendant and of course the terror to which she was subjected. Because of that, general deterrence and denunciation by the court are of great importance but are to be balanced by your youth and the associated need for your rehabilitation and your very good prospects in that regard.
67 A young person should have considerable weight given to that need for rehabilitation and should be sentenced accordingly although the gravity of the crimes might reduce that weight.
68 Your counsel urged me to consider, in what she herself described as a “bold submission”, imposing a community correction order. In a case like this, that would indeed, be a most lenient disposition but I am satisfied that it is warranted in this case.
69 Your circumstances are unusual in that neither drugs nor alcohol play any critical role in your life at all. You had until this offending overcome depression and the difficulties associated with autism to achieve success in your job, something not many 19-year-olds can lay claim to, let alone a young man burdened by these conditions.
70 These sentencing conditions are very different from those applied to Mr Outsikas. The difference in age, the threat made to you, your reduced criminal culpability, your good character until this offending, and your good prospects for rehabilitation attract a much more lenient sentence.
71 Would you stand now, please, Mr Dosser.
LUCAS DOSSER’S SENTENCE72
73 Accordingly, I will be imposing a community correction order to cover both charges, which will commence today and will last for 4 years. You will be under supervision and you must perform 200 hours of unpaid community work over 12 months. You must submit for psychological and psychiatric assessment and treatment if suitable, subject to a mental health plan to be prepared, and you must take part in any other programs as directed. You must also attend court for judicial monitoring from time to time. You must attend the Corrections Office at 46-50 Walker Street, Dandenong, by 4 pm on Thursday, 21 April, that is this Thursday, and the order will be ready for you to sign shortly, Mr Dosser.
74 Ms Smith, the prosecution seeks an order for a forensic sample?
75 MS SMITH: It’s not opposed.
76 HER HONOUR: Not opposed? All right. Mr Dosser, that order for a forensic sample of saliva to be obtained will be made and I must advise you that the police have the power to use reasonable force to obtain that sample but I trust that will not be necessary.
77 OFFENDER DOSSER: Thank you.
78 HER HONOUR: The judicial monitoring will be listed for Friday, 24 June, at 9.30. You make a note of that, please, Mr Dosser.
79 OFFENDER DOSSER: Yes.
ARTHUR OUTSIKAS’S SENTENCE
80 HER HONOUR: Turning now to the sentence for Mr Outsikas. I turn first to the sentencing requirement in respect of Charge 4 against you, Mr Outsikas, intentionally causing injury to an emergency worker on duty. Section 10AA(4) of the Sentencing Act (1991) requires the court to impose a sentence of imprisonment of not less than 6 months unless a special reason exists.
81 Clearly, Constable Kapsaskis was a police officer on duty and you knew that; those being further requirements of the legislation.
82 It was not put that there are any special reasons and I agree with the prosecution submission that in any event, the charge warrants a term of imprisonment longer than 6 months.
83 In fixing the appropriate length of the sentence, I take into account the mandatory minimum, bearing in mind that the circumstances of the offending places it above the lowest category of offending because of the use of the metal bar.
84 I note that the maximum penalties for the offences in this case are 5 years’ imprisonment for assault and for assaulting an emergency worker, and 25 years for armed robbery and 10 years for intentionally causing injury.
85 Would you stand now, please, Mr Outsikas?
86 I sentence you to the following terms of imprisonment:
87 For Charge 1, assault, 2 years;
88 For Charge 2, armed robbery, 5 years;
89 For Charge 3, assaulting an emergency worker, 2 years; and;
90 For Charge 4, intentionally causing injury, 3 years.
91 For the purposes of cumulation, the sentence for Charge 2 is the base sentence. I order that 2 months of each of the sentences for Charges 1 and 3 and 8 months of the sentence for Charge 4 be served in cumulation upon the base sentence. This results in a total effective sentence of 6 years. I fix a period of 4 years which you must serve before being eligible for parole.
92 If you had pleaded not guilty, I would have sentenced you to 8 years’ imprisonment with a non-parole period of 6 years.
93 You have been in pre-sentence detention for 187 days not including today, which are to be reckoned as already served and I shall cause that to be noted on the court record.
94 The prosecution seeks an order for disposal of a list of items connected with the crimes and an order for forfeiture of your car which was used and the car key. Mr Kennedy, is there consent to those orders?
95 MR KENNEDY: Can I just have one second, Your Honour?
96 HER HONOUR: Yes, certainly.
97 MR KENNEDY: I’m instructed to plead no consent to the vehicle, Your Honour.
98 HER HONOUR: I see.
99 MR KENNEDY: Where that leaves us, I don’t know. There’ll have to be a further application, I think.
100 HER HONOUR: Yes, I think that is right. First of all, there is an order for disposal of items, apart from the car. I will make that order.
101 MR KENNEDY: Yes, Your Honour.
102 HER HONOUR: As to the forfeiture of the car, Ms Picone, that will have to be left for some other occasion. Perhaps you and Mr Kennedy could consult about a date for that or work out what has to be done.
103 MS PICONE: Thank you, Your Honour. I note that.
104 HER HONOUR: All right. Are there any other matters?
105 MS SMITH: No, Your Honour.
106 HER HONOUR: All right. I think the Community Corrections Order is ready for signature. Do you want to have a look at that first, Ms Smith?
107 MS SMITH: If I can approach the offender?
108 HER HONOUR: Yes, certainly.
109 (Community Corrections Order signed and acknowledged.)
110 MS SMITH: Thank you, Your Honour.
111 OFFENDER OUTSIKAS REMOVED
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