Director of Public Prosecutions v Parcell

[2020] VCC 1181

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT GEELONG

CRIMINAL JURISDICTION

CR 20-00568

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER PARCELL

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	23 June 2020
DATE OF SENTENCE:	4 August 2020
CASE MAY BE CITED AS:	DPP v Parcell
MEDIUM NEUTRAL CITATION:	[2020] VCC 1181

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr A. Paull	Adrian Paull Lawyers

HIS HONOUR:

1Christopher Parcell, on 10 January 2020 you were in Pakington Street, West Geelong.  You went into a menswear store and selected an assortment of clothes.  The shop owner and her assistant were suspicious of your intentions.

2The shop owner asked if you wanted to try on any of the clothes.  You responded by saying you were not trying on anything and you proceeded to walk out of the store with the clothes.  You took out a knife and held it a mere
5 centimetres from her throat saying that you had a knife and you would use it.  The owner stepped back and you swung the knife saying that, 'I'm taking them bitch or you'll die'.

3You then ran out into the street.  A passer-by was alerted by the owners that you were a thief and he bravely swung a punch at you, causing you to drop your knife and some of the clothes.  You continued to run and ultimately escaped the scene.

4The police viewed the CCTV footage and identified you.  You were arrested two weeks later on 24 January 2020.

5During the interview you claimed that you did the armed robbery on the clothing store because some men had threatened to bash you if you did not.  You declined to give details of these men.

6The victims have been much effected by your crime.  The owner outlined the various difficulties that she has had in respect of crimes upon her store.  They are broad and they are not sheeted all home to you.  What she does say is that, 'As a small business owner I should be able to feel safe at work and not threatened by the opportunistic few'.  She says in respect of this matter that she felt uneasy and she saw your aggression and wild look in your eyes and she was shaking as you ran out.  She says,

'In summary, I am working long hours and emotionally exhausted.  My body aches at night and I'm dizzy at all times.  I am a fit, healthy woman, but have suffered emotional trauma as a result of this assault'.

7The staff member wrote in her victim impact statement that the experience was so terrifying.  She felt trapped.  She was terrified and confused and did not know which way to turn.  She was terrified she was going to get stabbed or her employer.

8She says that you have made her workplace the last place on earth she wanted to be, 'I've never been the same since and I've left that workplace'.  That has been massively financially disadvantageous to her.  But she also misses her staff, her friends and she says her life has been turned upside down.  She enjoyed her job, she had been there for a number of years and there were many customers who asked for her as she followed them through, in particular, for their weddings.

9She says she does not sleep as she used to.  She is awake most nights.  She said she should be at her stage of life just having a cruisy life, but now she feels much differently.  She says, 'It's not fair that he did this'.

10This armed robbery was brazen and a frightening example of the always serious crime of armed robbery.  You took a deadly weapon and terrorised the shop owner and her employee, brandishing it close to the shop owner's neck and swinging it to get her out of the way.

11As is clear, the psychological effects upon the victims has been very significant.  That in turn has impacted upon the owner's willingness to fully operate her business in the way that she would like and has before.  And as I have outlined, the employee has had to give up the job that she enjoyed entirely.

12The courts have to stand firm in punishing those that terrorise ordinary shop owners and staff.  Also the message of deterrence must be clear and as effective as it can be.

13Your counsel submitted the crime was not sophisticated or well planned.  In a sense that is correct, but you fell back onto the use of the knife and threats to get what you wanted and to get out of the shop.  Your escape was impaired by the passer-by who bravely responded to the victims crying out.  In the end, you did not get much, if anything, for your dreadful conduct.  You did not say to the police or anyone that you were in fact bashed by these unknown men as a consequence of the robbery going wrong after you left the store.

14You are still a young man.  You were 18 at the time and are now 19.  For such a young age you have a concerning list of prior convictions commencing in the Children's Court when you were about 14.  There have been many court appearances and dozens of offences, including for crimes of violence, weapons offences and an earlier attempted armed robbery.  There are also dishonesty and drug offences.  Almost all rehabilitative sentencing orders have been breached.  You have served time in Youth Detention and in gaol on remand.  This period of remand, since 25 January 2020 is your longest time in adult gaol.

15You grow up on the surf coast in a blended family with older half siblings.  There were problems at home with the level of your father's drinking.  You displayed significant behavioural problems at school.

16Your parents moved to South Australia in 2015, leaving you with an older half-sister.  This arrangement did not work out and you were then placed into the care of the Department of Health and Human Services.  You remained in foster or residential care until you were 18.

17There were significant periods of couch surfing and absconding from DHHS residential houses.  As noted, you also had periods of remand and detention in the Youth Justice Centre.

18Your childhood and adolescence were far from ideal.  Indeed, disadvantaged is the more accurate description.  I have taken this fact into account in respect of your drug addiction, offending history and the development of antisocial patterns of behaviour.

19Sadly your mother died in 2017 from a brain tumour.  You were in detention in a Youth Justice Centre at the time and were released to be with her only hours before she died.

20Your father had a significant period of imprisonment.  He too had cancer and had his voice box removed.  You reconnected with him recently while on remand for the first time since you were about 13.

21Your education was very limited and unproductive.  However, positively, you are currently engaged in VCAL courses while on remand.  You have no work history or employment to speak of.

22You have had all manner of drugs or used all manner of drugs from an early age.  In recent times and on the day of your offending you had used significant amounts of methylamphetamines.

23The assessment done by Mr Cummins, a psychologist, led him to the opinion that you have an antisocial personality disorder and a query as to a borderline personality disorder.  Those matters are revealed by, and/or cause you to be impulsive, have low self-esteem and self-image, and have difficulty dealing with relationships.  You have a lower than average IQ.  You have problems with anxiety and depression.

24Within the constraints required now within prison as a consequence of the COVID-19 pandemic, you are doing all you can in prison and are well settled.  Due to the pandemic prison is harder and that is a factor in the sentencing synthesis.

25That said, I note that you want to remain in prison within the current settled situation rather than go to the Youth Justice Centre.  I will say more of this shortly.

26You were assessed for your suitability for a Youth Justice Centre disposition.  Your time in Youth Justice detention in the past was replete with concerning incidents.  I received a very comprehensive report with respect to your suitability for a Youth Justice Centre.  I will refer to parts of it.

27First, as to your response to the crime.  The assessor said,

'It is the assessment of the writer that Mr Parcell showed an appropriate level of remorse and empathy towards the victims, stating that they would have been "terrified" and the incident would have been "horrifying". 
Mr Parcell further stated, "I feel bad for the people", and was aware of the impact of his offending had caused one of the victims to resign'.

28You were able to articulate what factors contributed to your offending and emphasised that you need to leave the Geelong area where you are surrounded by negative peers and access to drugs.  You intend to move to another regional town upon your release.

29The report went on to say you are currently remanded in custody at the
Port Phillip Prison where you report you have been for six months.  You have indicated that there have been, to date, no major incidents and you consider things positive there.

30The report writer discusses and I have taken into account the assessment of your mental health and your physical health.  And the report writer has read all the material provided from Mr Cummins, from Mr Simmons and from earlier Forensicare reports.

31The report writer goes on to say although you present with a positive attitude towards rehabilitation, you have had in the past significant difficulties with Youth Justice and you have been subject to a number of community orders which have been breached.

32In respect of your time in Youth Justice the report writer spoke with those that know your history in the Youth Justice Centre.  I will not read all of it but what was made clear was that in your time in the Youth Justice Centre at Malmsbury and other places there have been 40 recorded incidents, of which a number were serious.

33It was concluded that you did not appear to be a vulnerable and impressionable young man, that is impressionable to undesirable influences in the adult prison.  To the contrary, you consider yourself to be well settled and are getting insight by reason of the education and other programs within the unit that you are in, such that there are perhaps brighter prospects for your rehabilitation than there have been in the past.

34The report writer took into account that you wish to remain in prison and you appear settled and had taken up the opportunities presented.

35So the report writer said while it is acknowledged that you are in the middle age range, having recently turned 19 and you present with some risk factors, including your mental health, it was the assessment and in my view a very considered and measured assessment of Youth Justice that you are not suitable for a Youth Justice Centre order.

36As indicated, in Youth Justice detention there were, in the past, concerning incidents.  A significant number of them.  As I have said a number of times, by contrast you are settled and behaving in the youth unit, Penhym, at Port Phillip Prison.  You are displaying greater maturity and applying yourself to your VCAL studies.  As I have indicated, you made it clear you very much prefer to serve the sentence in adult gaol than a Youth Justice Centre where there are the risks of old animosities and adverse peer influences.

37You have a good relation with a stepbrother, or brother, who is a youth worker by profession.  He has regular contact with you by phone.  He is willing to assist you when you are released.  This is just the sort of support person you need, Mr Parcell.

38You are a young offender, notwithstanding your long criminal history, your youth remains significant.  In a balanced way I must do what can be done to facilitate your rehabilitation.

39The principles set out in the important decision of Azzopardi[1] have application.  Those principles also recognise that where the offending is serious and there is a long history of prior serious offender, more weight has to be given to denunciation, general deterrence and specific deterrence.

[1]Azzopardi [2011] VSCA 372

40From time immemorial, the courts have done what could be done to keep a young person out of gaol.  However, there comes a time when a young person, having committed a serious crime after years of offending, that there is little choice but to impose a sentence of last resort, being adult gaol.

41That position has been reached in this case.  While the preference of an offender does not determine the sentence to be imposed it is important in this case that you are doing well as you have ever have in the youth unit at
Port Phillip Prison.  As I have said, you are developing insight and remaining out of trouble.  Something that was not your experience at the Youth Justice Centre.

42The recommendation of Youth Justice that you are not suitable for
Youth Justice Detention is also a factor in determining that the criteria set out in s.32 of the Act are not met.  A sentence of imprisonment is what must be imposed.

43The mitigatory matters are your plea of guilty.  Your sentence will be less because of your plea.  The plea is important in the current circumstances where jury trials have been suspended.  The reason for the suspension of trials, the COVID-19 pandemic, also impacts, as I have said, on how onerous prison is.  There are no more visits anymore and extended periods of lockdown and there is more anxiety as prisoners fear an outbreak in the confines of the prison.

44As noted, you have used your time on remand well, displaying a far greater commitment to rehabilitation  and matters such as education and doing courses, such as you can do within the pandemic circumstances.

45Your counsel urged a sentence combined with a community corrections order.  I arranged for an assessment to be done, which was done via telephone on
9 July 2020.  I pause to say that assessment was done a week or so before the Youth Justice assessment.

46However, the report in regard to a community corrections order was only provided to the court and the parties this morning.  It concludes you are suitable for a community corrections order.  It is scant on why that was the case, especially in light of your history of poor compliance with Children's Court community based rehabilitative orders.

47In my view, your previous poor history of compliance is of concern, with respect to imposing a community corrections order.  I do not want to set you up to fail.

48In addition, I do not consider that the period of time that I would have available for the imprisonment portion of the combined sentence would be adequate to meet all sentencing purposes, even taking into account, as I can, the time that you have served on remand.

49There is no doubt that you will need supervision and support, and this can be best achieved by a period of parole.  Of course when and if you get parole is for others, not the court.  In my view, given your youth and your better attitudes of late, there is much to be said for a longer period of potential parole.  It is a moment to be seized and it may be that you finally turn your life around and turn it away from crime and drug use.

50All this said, I must nonetheless properly denounce your frightening, violent crime.  I must ensure there is a strong message of deterrence to you and to others while doing what I can to facilitate the all-important rehabilitation of you.  All this means that your sentence of adult gaol is one of some years, with the potential for parole.

51For these reasons I impose the following sentence for the crime of armed robbery:  you are sentenced to a period of imprisonment of three years and four months, with a minimum term of 20 months.

52As I calculate it, you have done already a period on remand of 191 days.

53MR MOORE:  Correct, Your Honour.

54HIS HONOUR:  That period of time having been reckoned, I declare that it is part of the sentence that I have just imposed.  And I will ensure that the declaration is entered into the records of the court.

55Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of four years and six months, with a non-parole period of two years and eights' months.

56Are there any other disposal orders or the like?

57MR MOORE:  Forfeiture order.

58HIS HONOUR:  Yes.  There will be a forfeiture order in respect of the knife signed.  Is there anything else required, Mr Paull?

59MR PAULL:  No, Your Honour.

60HIS HONOUR:  Thank you.  What I propose to do is to stand down or stand away from the meeting, it can continue so that you can have a discussion with your client, Mr Paull.  Keep it within the bounds as you well know.  Thank you for your considerable assistance with this particular matter.

61MR PAULL:  If Your Honour pleases.

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