Director of Public Prosecutions v Patton
[2020] VCC 438
•17 April 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 19-02220
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAKE PATTON |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 April 2020 | |
DATE OF SENTENCE: | 17 April 2020 | |
CASE MAY BE CITED AS: | DPP v Patton | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 438 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Crouch | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr J. Taaffe | Doogue & George |
HER HONOUR:
1 Jake Patton, you have pleaded guilty to one charge of armed robbery, the maximum penalty for that offence is 25 years' imprisonment.
2 You have also agreed to me hearing and have pleaded guilty pursuant to s.145 of the Criminal Procedure Act 2009 to Summary Charge 2, committing an indictable offence on bail, being an armed robbery. The maximum penalty applicable to that offence is 3 months' imprisonment.
3 This offending arises out of events which took place on 26 July 2019 involving the victim of your offending, Norman Khan (hereafter "Khan").
4 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecution and discussed during the course of the plea hearing.
5 It is sufficient for present purposes to say the facts in this case are most serious and disturbing. I turn to a summary of your offending.
6 You are 19 years of age at sentence and were 18 at the time of this offending. The victim Khan was working as a 'Di Di' driver, a ride sharing service operating through a mobile phone application.
7 On 23 July 2019, you entered into bail at Broadmeadows Magistrates' Court in relation to a charge of theft of a motor vehicle.
8 Three days after entering the bail on 26 July at about 2.00 am, Khan finished work and resumed accepting passengers through the 'Di Di' application.
9 At approximately 2.05 am he accepted a job to pick up passengers from Coles Express Roxburgh Park Service Station and to drop them off at an address in Craigieburn. The trip was booked in the name 'Meg'.
10 Khan drove to the road adjoining the service station and picked up you and another male who were waiting there.
11 You got in the back seat and the other male into the front seat of the car. You asked Khan if he could drop you off at two separate locations. Khan agreed and asked his passengers to add the additional location through the application. You said you could not do that because your phone had run out of battery.
12 The other male gave the victim verbal directions to an unknown location in Craigieburn where he got out of the vehicle and left. You then moved into the front seat of the car from the rear seat.
13 You verbally directed Khan to the intersection of Olrig Grove and Canisby Way, Craigieburn. Khan parked the car and you then asked if there were any safety cameras recording in the car, Khan said there were not. You then took out a knife and pushed it against Khan's neck and told him not to report anything to the police.
14 You reached over and took Khan's mobile phone which was in a phone holder on the dashboard of the car.
15 Khan asked you to stop. You pushed him and caused a small cut to his left thumb. You got out of the car and ran away.
16 Khan drove to a nearby location and called ‘000’. Police and ambulance attended.
17 Later that afternoon, Khan used the 'Find my iPhone' application which indicated his phone was at an address in Craigieburn, your home.
18 On 26 July 2019, police went to Coles Express and obtained CCTV footage which showed you and another male waiting outside the petrol station at the time of the offending. It also contained CCTV showing you at Roxburgh Park Hotel and Roxburgh McDonald's in the hours leading up to this offending.
19 On 15 August 2019, police executed a search warrant at your home in Craigieburn and found a flick knife, and Khan's phone in your bedroom. You were arrested, taken to Broadmeadows police station and answered 'in effect' no comment to police questions during that interview, and it was of course your right to answer in the way you did.
20 You were remanded on 15 August 2019 and up to and including 5 April 2020 (the day prior to your plea hearing) you had spent 235 days in custody by way of pre‑sentence detention.
21 This offence of armed robbery is a category 2 offence. As a direct result of the offence, Khan suffered an injury, a minor cut to his left thumb. As a category 2 offence, s.5(2H) of the Sentencing Act 1991 applies.
22 The prosecution in Exhibit A noted, as do I, that you are age 19 at sentence and 18 at the time of the offending and are sentenced as a young offender. A number of authorities have referred to sentencing young offenders including R v Mills.[1] The principles in Mills are not of automatic or usual application. Each case depends on the circumstances, including that of the offending as well as the offender (see DPP v Lawrence).[2]
[1](1998) 4 VR 235 (‘Mills’).
[2](2004) 10 VR 125.
23 In Azzopardi v The Queen[3] reference was made to youth and rehabilitation being of reduced mitigation when sentencing for a serious or persistent crime such as armed robbery.
[3](2011) 35 VR 43 (‘Azzopardi’).
24 You do not, however, have any prior criminal history, although I do note that you were on bail having entered into bail on 23 July 2019.
25 Your counsel Mr Taaffe tendered details of 'other' offending charges by you (Exhibit 3) and summaries of them. Whilst you do not have any prior court appearances/convictions, you have pleaded guilty to offending committed on 21 February 2019, 25 February 2019, 26 February 2019, 12 July 2019, and 24 July 2019 at Broadmeadows Magistrates' Court. I was told sentencing is to occur on 28 April 2020 after the sentence in the matters before me.
26 Turning to your pleas of guilty before me, you were arrested on 15 August 2019; and on 7 November 2019 at a committal mention this matter proceeded to this court by way of pleas of guilty. I accept you indicated your intention to plead guilty to these two charges (that is, on the Indictment and the Summary Charge) at an early stage.
27 You have pleaded guilty to these two charges and you are entitled to have that fact also taken into account in your favour and I do so. The community has by your pleas of guilty been spared the time and cost of a trial and witnesses, in particular Khan, have not been required to give evidence at your trial. As I have already said, I take in your favour you also intimated early your intention to plead guilty to these charges.
28 I am prepared to accept in the circumstances your pleas of guilty indicate remorse for your offending, also expressed by you to others.
29 Khan had been advised of his rights to make a victim impact statement. No statement was provided.
30 Your counsel Mr Taaffe prepared a written outline of submissions (Exhibit 1) and addressed them during the course of your plea hearing.
31 Mr Taaffe submitted that whilst there was a need for general and specific deterrence as important sentencing considerations relevant to this offending, he urged a number of mitigatory factors were also applicable.
32 Mr Taaffe urged the gravity of your offending should be assessed on the basis that the property obtained was low in value. That this offending was, he urged, not planned and lacked sophistication. That it was impulsive and opportunistic. That the confrontation with the victim was confined in time and space to his car i.e. not amongst the public, as I understood his submissions, and I discussed his submissions with him.
33 It is often the case that the amount of property obtained is relatively low in value. It is also not unusual in armed robbery offending that it is not extensively planned and lacked sophistication. It does not need to be, to be effective. There was in my opinion some, albeit of short duration, planning. Once in the car you saw the phone and decided you wanted it (consistent with your counsel's written submissions (paragraph 4, Exhibit 1)). When your friend left the vehicle you then got into the front seat. You asked if there were any camera's in the car and when told 'no' produced the knife and put it to Khan's neck. The fact that Khan was confined in time and space in his car is more concerning given his limited ability to get away from you.
34 Mr Taaffe also submitted the police easily recovered the mobile phone, and that is so. In my opinion that only marginally impacts upon assessment of the gravity of this offending. All these factors, in my opinion, do not put your offending at the lowest end of gravity, but closer towards mid-range.
35 Mr Taaffe submitted your offending occurred in the setting of extensive methamphetamine use and apparent emotional turmoil as you had an argument with your then partner earlier that evening. I discussed with him lack of reference to the latter in material before me including instructions from you to Dr Barth. You had used methamphetamine not long before committing this offence. Your counsel conceded, appropriately, your drug use was not mitigatory of this offending. At that time, you said you were using cannabis daily from 2016 to 2019 and methamphetamine daily from 2018 to 2019.
36 Regarding your pleas of guilty, Mr Taaffe submitted this was at the earliest opportunity, and such had utilitarian value. That it was an acceptance by you of the commission of these offences and the victim had not been required to give evidence or cross-examined, and I also note those matters.
37 Regarding remorse, Mr Taaffe relied upon your statements to Dr Mathew Barth and a number of references tendered which referred to your remorse for this offending.
38 Mr Taaffe submitted that this was your first substantial time in custody having spent approximately two weeks at Melbourne Assessment Prison then at Metropolitan Remand Centre (MRC).
39 Prior to this time in custody, you had only spent less than one day in the cells attached to Broadmeadows police station before being released on bail that same day.
40 I was told you elected to enter the adult prison system for this offending rather than youth detention (see paragraph 11, Exhibit 1).
41 In custody, I was told, you had used your time working, and to detoxify from daily methamphetamine and cannabis addictions. You have abstained, from drug use in custody.
42 A number of certificates were tendered from your time in custody and courses undertaken (Exhibit 6): 'Alcohol and Me, Healthy Balance'; 'Ice and Me' (6-hour course); and a Certificate II in Cleaning from Kangan Institute. A prison education summary report dated 16 March 2020 indicated you had also passed Certificate II in Kitchen Operations; Certificate II in Warehousing and Storage (times two); and Education Services.
43 Also tendered were two urinalysis results: 14 January 2020; 11 October 2019, both negative for illicit substances.
44 I accept you have used your time in custody productively. There is, however, a long way to go, especially regarding your drug use according to Dr Barth. The real test of your commitment to abstinence will be when you return to the community, and where drugs are more readily available, and you will need the willpower to avoid negative/antisocial peers. Dr Barth opined in his report, to which I shall shortly refer, that abstinence will be difficult for you.
45 I was told you were currently employed seven days a week, cleaning the unit in which you were housed, and I discussed that accommodation with Mr Taaffe. It is a self-contained cottage you share with four other inmates. That accommodation, I was told, was regarded as privileged accommodation because you were, according to Mr Taaffe, well behaved. I discussed with him the likelihood this accommodation was also possibly provided due to your age and any perceived vulnerability should you be in other parts of the prison system.
46 Turning to your age at the time, Mr Taaffe submitted you were a young offender and you are. I accept the importance of rehabilitation when sentencing a young offender and, in that regard, I note you do not have any prior criminal history although I do note repeated offending in 2019 prior to this offending before me. Some of those offences occurred on 24 July 2019, your offending before me just two days later on 26 July 2019. This causes me some concern regarding your rehabilitation prospects. Those prospects will be improved if you address your drug use. Currently I assess your rehabilitation prospects as reasonable to good subject to you addressing the issues described by Dr Barth in particular.
47 Your family continued to support you and you were able to return to the family home upon your release. I note, however, you were also living with your parents at the time of your offending in 2019 generally, i.e. all over that offending, and specifically at the time of this armed robbery. You were also using drugs when living with them.
48 Mr Taaffe confirmed from discussions with your mother that you enjoyed a stable home environment. Your parents had urged prior to this offending and around the time of it generally in 2019, that you attend a general practitioner, being concerned about your drug use. You would sometimes stay out for three to four nights awake, then come home before you 'crashed'.
49 Your mother reported she knew you were on drugs; however, you were not communicating with she or your father. You now are talking openly about it and avoiding drugs in prison.
50 Mr Taaffe urged you had a home to go to upon release and I accept that is so. Your parents, I was told, had also purchased a go-kart for you to ‘work on or repair’, a passion of yours. You had been involved in speedway motor sports for most of your life, as described in Exhibit 1, paragraph 33 – I think that was Exhibit 1.
51 Your parents and other family members had been having face-to-face contact with you in prison until 21 March 2020, that contact ceasing due to prison policy regarding COVID-19.
52 You still had contact with family and friends by regular phone contact or through the mail. I do, however, accept at your age and your first time in custody, you no longer have face-to-face visits and such can be relied upon as 'hardship', not only to you but to your family and their inability to see you face-to-face, not in my opinion, however, amounting to exceptional circumstances. That has increased your anxiety, being separated from your family with the added risk of a potential COVID‑19 virus within prison, or even in the community.
53 Mr Taaffe referred to the report of Dr Barth. Dr Barth referred to the current diagnosis of anxiety, antisocial personality disorder, stimulant use disorder and cannabis-use disorder. Your anxiety was exacerbated by your drug use and your associations with untrustworthy and negative influences. Addressing your risk of reoffending, Dr Barth opined that 'intensive and multifaceted assistance' would promote your rehabilitation. Mr Taaffe referred to Dr Barth's description of you as someone with intelligence at the lower end of the normal range, an unsophisticated thinker with difficulty expressing your emotions, and I discussed that report with Mr Taaffe.
54 Your counsel was not relying on the principles in R v Verdins & Ors[4] and such in my opinion was an appropriate concession based on the material before me.
[4](2007) 16 VR 269 (‘Verdins’).
55 I was told of your background and history. You are the youngest of three children and described your childhood as unremarkable, and in a supportive and loving environment.
56 You attended secondary school at Craigieburn Secondary College from Years 7 to 9, however during your education required assistance with reading, writing and mathematics from a private tutor.
57 You were expelled from school part-way through Year 9 in 2016 when you went to an aid of a friend who was being beaten by other students. I note despite being expelled you went on to complete Year 10 VCAL at Kangan TAFE, ending your schooling part through Year 11.
58 After leaving school you commenced a sheet metal fabrication apprenticeship, in approximately May 2018. That employment ceased in September 2018 after your employer's wife passed away and your employer took a break from that business. You struggled with her death.
59 I was told by Mr Taaffe of you having had to deal with a number of grief issues over your life. When you were five or six, your mother had serious eye problems which required surgery and long recovery, and as I understand it, as a result she is unable to see. A year later she had breast cancer and surgery. At age 11 your grandfather passed away and your best friend also died. At age 15, your aunt's partner was diagnosed with cancer and at 18 as previously noted your employer's wife passed away.
60 Mr Taaffe submitted that there were a number of significant matters you had to deal with. No doubt they were, such evidenced by you attending counselling to assist you to deal with issues such as grief. You received some counselling from Orygen Headspace over four sessions, your most recent on 2 April 2019. You left that counselling it seems when you were assigned different counsellors.
61 Your counsel urged you had good prospects for rehabilitation, and I have previously referred to my assessment. He urged you were young, you had shown a willingness to improve yourself at school and in custody. That you had a good work history and social involvement through motorsports. You had strong family support and had expressed regret and insight into this offending. You had demonstrated you could remain abstinent from drug use when on remand and had insight into the consequences of drug use.
62 Your counsel addressed s.5(2H) Sentencing Act 1991 ('the Act'). The Act confers a discretion on the court to impose a sentence other than a sentence of imprisonment, if the court finds 'substantial and compelling circumstances that are exceptional and rare' exist. In determining whether there are substantial and compelling circumstances under ss(2HC), the court –
'(a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in section 5(1); and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to—
(i)the offender's previous good character (other than an absence of previous convictions or findings of guilt); or
(ii)an early guilty plea; or
(iii)prospects of rehabilitation; or
(iv)parity with other sentences.
63 As I discussed with counsel regarding paragraph (c), the absence of previous convictions is a relevant consideration. The fact you have pleaded guilty is a relevant consideration. Your youth is a relevant consideration; and associated with that, the primacy of rehabilitation. Your counsel in so submitting in your case relied upon:
(a)your young age;
(b)lack of prior relevant criminal history, and;
(c)that you had a supportive home to go when released (described by him as akin to 'home detention' given COVID-19 restrictions on movement of persons in the community). Therefore would be, as I understood his submission, you would be less likely/able to commit offences.
64 Your counsel Mr Taaffe relied upon s.(2H)(e) urging substantial and compelling circumstances that were exceptional and rare existed in your case that justified, he urged, not imposing a sentence of imprisonment.
65 Mr Taaffe submitted the appropriate disposition taking those matters into account, I could impose a sentence of imprisonment of time already served together with a lengthy Community Corrections Order, and he also relied upon Boulton v The Queen[5] and Community Corrections Orders having both a punitive and rehabilitative aspect.
[5](2014) 46 VR 308 (‘Boulton’).
66 I turn to the report of Dr Barth, dated 23 March 2020 (Exhibit 2). He assessed you on 20 February 2020. Further details were provided in that report regarding your background and history which I have read however will not repeat. Reference was made to you having been diagnosed with ADHD during primary school. You admitted you were aggressive towards other students, disruptive in class and regularly failed to attend school, ultimately being expelled at the end of Year 9.
67 Your escalating drug problems derailed your ability to maintain your employment. You reported an extensive substance abuse history, drinking alcohol from age 15; abusing cannabis from 15 using on a daily basis until remand. You experimented in your early teens with amphetamines, cocaine and ecstasy. You began using ice when you were 17 and developed a significant addiction very rapidly. You said ice came to dominate your life and you were socialising with other heavy drug users. You also used Xanax and other benzodiazepines.
68 You said you participated in drug and alcohol courses on remand and found them very beneficial. You expressed a desire to participate in further treatment and I encourage that.
69 You described the background to this offending involving socialising with negative peers and escalating drug use. That culminated, you said, in increasing impulsive and irresponsible behaviour.
70 You expressed remorse to the victim for your offending.
71 In the opinion of Dr Barth you did not meet the criteria for mood disorder, anxiety-related disorder or adjustment disorder. He estimated your intelligence to be at the lower end of the normal range.
72 In his opinion, you remained a very immature man for your age and that your coping skills for intense emotional reactions were limited. You coped with external stressors in your life by resorting to drug use and in some instances became aggressive towards others to feel a sense of empowerment. The heavy substance abuse contributed to your offending.
73 In the opinion of Dr Barth, you met the diagnostic criteria for antisocial personality disorder, stimulant disorder and cannabis use disorder.
74 Regarding your insight into drug use, there was a significant lack of your understanding of strategies to abstain from drug use and as such an involvement with the drug subculture meant you remained an elevated risk of relapsing, in his opinion. You required intensive specialist substance abuse treatment. You were at the time of his report in the very early stages of addressing a significant drug addiction and your insight into your behaviour was poor. You currently lacked realistic plans to remain abstinent. Specialist substance abuse treatment was warranted. I am sure that you know that.
75 You had expressed to Dr Barth a desire to abstain from further drug use and to live a healthier lifestyle and that, in my opinion, is of course a commendable aim. You will be tested, however, when you return to the community. He also noted your rehabilitation was at an early stage and your understanding of the steps required to maintain long term abstinence from drugs was underdeveloped. As a result your risk of relapsing into substance abuse remained significant.
76 In his opinion, you would benefit from extensive psychological treatment and ongoing drug rehabilitation, including intensive specialist substance abuse treatment, psychological assistance to enhance your remedial coping and mood management skills, and education focussing on developing practical living skills and vocational training.
77 A number of references were also before me (Exhibit 4). From Grant Patton, 22 March 2020, your older brother, your offending was out of character. He described you as a family-driven person with a lot of potential. You had expressed remorse for this offending. He would continue to support you and believed you had learnt from your mistakes, wanting to move forward.
78 A reference from Stacey Taylor, undated, your sister-in-law: she described you as smart, caring, loving, kind-hearted and hard working. This offending was out of character. You regretted your offending. You had a very supportive network and believed that you had learnt from your 'mistakes'.
79 There was a reference from Jennifer Patton and Mark Patton, your parents. The family remain supportive of you. You had always lived with your parents and would return home. They described you as remorseful. You were always an active person and loved being outdoors, referring to your involvement with speed cars. They described you as a very protective person and your mother referred to her own ill health and your support of her during her treatment.
80 You were diagnosed as a child with auditory seq deafness, short term memory loss, behavioural auditory dyslexia, later depression and anxiety. You were very distressed by the death of your grandfather in 2011 and attended a grief counsellor. There were also other family members affected by ill health as described by your parents. You started with Headspace to deal with a number of losses that had impacted on your life. There was also reference to your distress at the death of your 'boss's wife'. Reference was made to your interest in sport, including boxing, rugby, go karts and motor racing. They would continue to love and support you.
81 There was a reference from Jennifer Olsen, 24 March 2020, a family friend who has known you since you were born. She described your mother's illness and impact of it upon you. She described you as always respectful and kind to her family. They would continue to support you to help you get your life back on track.
82 There were also a number of references dated 2019 and I discussed those with Mr Taaffe. Given the chronology it seems that these were references likely written referable to other offending by you (not the charges before me), but I have read them in that context. I was told the authors nevertheless know of your offending before me.
83 There was a reference from Judith Patton, 16 August 2019, your grandmother.
84 A reference from Helen Stewart, 20 August 2019, your aunt. She described you as caring and loving. In the past she had helped tutor you with school-work due to your learning challenges. She described you as having sporting interests, in particular go kart racing, and she would remain supportive of you.
85 A reference from Karen McIntosh, 16 August 2019. She would continue to support you. Your families shared holidays regularly. She described the trauma you had been through with illness in the family. You had always been respectful towards her.
86 A reference from Rochelle Honan, 18 September 2019, your cousin. You at times looked after her children. You are intelligent and a determined person. She would continue to support you.
87 Addressing the references, Mr Taaffe noted, as do I, that your family considered your mother's illness had been a particular hurdle for you and which occurred at the time you started school. You had become independent at a young age. Not surprisingly, you feared your mother was going to pass away, and I have no doubt that that played on your mind.
88 As previously stated, I regard your rehabilitation as reasonable to good depending on your continued addressing of drug issues. I accept you have started to address your drug use and have completed a number of courses in custody and that is to your credit. I also note, however, that according to Dr Barth your risk of relapsing into substance abuse remains significant and that you lack any realistic plans currently to remain abstinent. The more courses you do, the greater the prospect of your rehabilitation. In that regard I note that you have had employment in the past and despite being expelled from school were motivated to enrol at Kangan Institute and completed Year 10, and part of Year 11, as I understood it. You also need to address your contact with non-prosocial peers.
89 In fixing an appropriate sentence, I must seek to maximise your chances of rehabilitation as they may be, mindful as I am, in that regard, also of your age and Mills.
90 Mr Taaffe's primary submission – this is regarding sentence, to which I have previously referred - was that I should find substantial and compelling circumstances that are exceptional and rare and not proceed to a further sentence of imprisonment.
91 Should I not be so satisfied, relevant to that test – I think he described it as 'the gateway into that test' - then taking into account all relevant sentencing considerations – and not those limited to s.5(2H) - relevant to your offending, gravity of it, all matters relied upon in mitigation and personal to you, that I should impose a sentence combining a term of imprisonment (time served) with a Community Corrections Order.
92 His further submission, not abandoning his primary submissions, was that if I considered a term of imprisonment the only appropriate disposition, I impose a longer parole period to assist your rehabilitation in the community.
93 The prosecution filed a written outline of submissions on sentence noting, as do I, this offence of armed robbery with injury, is a category 2 offence and s.5(2H) of the Act applied unless one of the criteria in ss.5(2H)(a) to (e) applied.
94 The prosecutor Mr Crouch addressed the matters relied upon by Mr Taaffe as being exceptional and rare and submitted I should not be so satisfied.
95 Mr Crouch submitted I must give less weight to your personal circumstances than to other matters such as the nature and gravity of the offence, and further I must have regard to the intention of Parliament that when sentencing you as an offender for a category 2 offence, only an order under Division 2 of Part 3 should be made, and whether the circumstances of your case justified a departure from such a sentence.
96 Regarding s.5(2H) of the Act, it does not appear that the words 'substantial and compelling' have been considered by the Court of Appeal in the context of s.5(2H), however has been considered relevant to s.10A(2)(e) in DPP v Hudgson[6] where the court said:
'The word "compelling" connotes powerful circumstances of a kind wholly outside what might be described as "run of the mill" factors typically present in offending of this kind.'
[6][2016] VSCA 254 [112] (‘Hudgson’).
97 Section 5(2H) was introduced into the Sentencing Act 1991 after s.10A(2) and was clearly modelled on it. I see no reason not to follow the Court of Appeal's reasoning in Hudgson.
98 I am not satisfied the matters relied upon by your counsel to which I have referred are substantial and compelling circumstances that are exceptional and rare.
99 Then addressing s.5(2) Sentencing Act 1991 generally, Mr Crouch referred to your offending involving a 'soft target' and that Khan was working late at night as a driver and alone, that you exploited his vulnerability to effect the robbery, entering the car as a passenger and directing him to a location where the armed robbery occurred, robbing him inside his car.
100 I was referred to R v Alashkar:[7]
'Taxi drivers, service station convenience store attendants and persons operating small family businesses such as milk bars spring readily to mind in this context; [i.e. I add soft targets]. They must be able to rely upon the full protection of the law and those who contemplate exploiting their vulnerability in the fashion of the appellant [in that case] must anticipate that the consequences for them may very well be the imposition of a substantial gaol term'.
[7](2007) 17 VR 65 [36].
101 Mr Crouch referred to you asking the victim if there were any video cameras in the car before you produced the knife. You were carrying the knife with you, which the prosecution submits showed a 'degree' of planning and preparation, that you held the knife against the neck of Khan, causing the cut to his hand, and told him not to report the matter to police. Also, you were on bail at the time of the offending and I note a specific summary charge before me.
102 The prosecution submitted the circumstances of your offending made it a serious example of the offence of armed robbery.
103 Mr Crouch conceded your plea of guilty was entered at the earliest opportunity and conceded principles in Mills applied when sentencing you. However, he also submitted this offending required general deterrence, denunciation, just punishment - - -
104 SUPPORT PERSON: Just wave and tell them you can't hear.
105 HER HONOUR: Yes?
106 OFFENDER: I can't hear.
107 HER HONOUR: Did it just stop then? Can you hear me? Can you hear me? No. Wait on, wait on. We're going to dial back in. Hold on, just wait, wait, wait. Sorry, counsel, these things happen.
108 OFFENDER: Hello.
109 HER HONOUR: Oh, you're there. Can you hear me now?
110 OFFENDER: Yes, thanks, Your Honour.
111 HER HONOUR: That's all right. And if it happens again, wave or something, all right? Because I'm not watching you. Someone will notice, all right? Haven't got far to go. I'll repeat if I have to.
112 Mr Crouch conceded your plea of guilty was entered at the earliest opportunity and conceded principles in Mills applied when sentencing you. However, he also submitted this offending required general deterrence, denunciation, just punishment and protection of the community considerations, and I agree.
113 As armed robbery had been deemed a category 2 offence, the weight Mr Crouch urged to be attached to your youth, was reduced, although not wholly extinguished, and he referred to Azzopardi.[8]
[8]Azzopardi [44].
114 Regarding submissions relevant to COVID‑19, I was referred to Brown v The Queen.[9] Its applicability depended upon the facts and circumstances in any particular case. Mr Crouch submitted that there were not exceptional and compelling circumstances in your case. I agree, other than a lack of recent face to face-to-face family contact, to which I have previously referred and I accept is so.
[9][2020] VSCA 60 [48].
115 The prosecution submitted the only appropriate disposition was an immediate custodial sentence.
116 I have considered all submissions, including the principle of parsimony. I am also aware of Boulton and the pronouncements of the Court of Appeal relevant to those principles. In Boulton the court urged that judges 'rethink the conventional wisdom about whether prison is really the only option'.
117 As well as matters personal to you to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
118 There is also the need for specific deterrence when sentencing you. You do not have any prior criminal history, however, have pleaded guilty to a number of other offences which occurred prior to the offending before me, some of it just two days prior.
119 I must also consider the need to protect members of the community from you and bear in mind the likelihood of your reoffending. I am comforted to a degree in that regard should you continue with counselling as described as being necessary by Dr Barth, although note his words of caution regarding your rehabilitation prospects without appropriate counselling.
120 I am also called upon by the Sentencing Act 1991 to manifest the community's denunciation of your conduct and generally to impose a just punishment.
121 As I discussed with counsel, I can sentence for these charges by imposing an aggregate sentence and I do. Just remain seated.
122 On Charge 1 on Indictment No. K12135770 and Summary Charge 2, you are convicted and sentenced to an aggregate three years' imprisonment and I set a period of 12 months before you are eligible for parole.
123 In setting the non-parole period I have imposed what I regard as a short non-parole period. I note considerations when sentencing non-parole periods referred as including those to in R v VZ.[10] The non-parole period I have imposed will hopefully assist your eventual rehabilitation in the community.
[10](1998) 7 VR 693 [15].
124 Pursuant to s.6AAA Sentencing Act 1991, had you pleaded not guilty to these offences and been found guilty of them I would have sentenced you to a term of imprisonment of five years with a non-parole period of three years.
125 Pursuant to 18(4) Sentencing Act 1991, I declare you have spent - I want this checked - 246 days in custody by way of pre‑sentence detention up to and including yesterday, 16 April 2020, and I direct that that be entered into the records of the court.
126 The prosecution made application for a forfeiture order. This was not opposed. I think that was it, as opposed to consented to. I think my notes said this was not opposed to by counsel on your behalf and I make the order in the terms sought.
127 Now, first of all, was that what you said? Not opposed? I think that's my note that I - - -
128 MR TAAFFE: I may have said that, that the order's consented to.
129 HER HONOUR: It's consented? This was consented to, all right. Now, PSD, is that right? You're happy with that?
130 MR TAAFFE: Yes, Your Honour.
131 HER HONOUR: Do you agree with that, I should say?
132 MR CROUCH: Yes.
133 HER HONOUR: So how many months is roughly 246? Thirty into that, what's that?
134 MR CROUCH: It's eight months and two days, Your Honour.
135 HER HONOUR: All right. So what's that? About four months in round figures to go.
136 What that means for you for the non-parole period I have set what I regard as a short non-parole period. You have got about, you know - I have not done the maths to the day, about four months to go, all right? Now, that is not to the day, all right? Make sense?
137 OFFENDER: Yes, thank you, Your Honour.
138 HER HONOUR: No, that's all right. I'm just letting you know so that you understand. Were there any other orders?
139 MR CROUCH: No, Your Honour.
140 HER HONOUR: No, all right. Mr Taaffe, I'll give you just a couple of minutes with the room cleared, if you want, to have a quick word to your client.
141 MR TAAFFE: I'd be grateful.
142 HER HONOUR: Just to save you phoning, going out, doing whatever you do to contact him. But can you at least keep it short? I can't allow you to - - -
143 MR TAAFFE: Yes.
144 HER HONOUR: - - - have a half-hour session, you know?
145 MR TAAFFE: Yes, that won't be necessary. Thank you, Your Honour.
146 HER HONOUR: All right. Well, I'll clear the room out apart from my tipstaff, who needs to remain to work the equipment. But he's not my tipstaff. I won't be talking to him about this case, so don't worry about that, Mr Taaffe.
147 So what we're going to do is just wait there a minute, Mr Patton. We're going to clear out the room of everybody except my tipstaff, who has to remain. Sorry, and Mr Taaffe, who's going to have a quick word to you. It will be quick. If you want to speak to someone later on, you'll have to arrange it somehow. All right?
148 OFFENDER: Thanks for your time, Your Honour.
149 HER HONOUR: No, that's all right. Well, everyone else will clear out. Thanks, yes. Thank you. Give you chance - thanks for that, counsel. Yes, all right.
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