Director of Public Prosecutions v Paul
[2015] VCC 1813
•11 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00946, CR-15-01176, CR-15-01693
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM PAUL |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 November 2015 | |
DATE OF SENTENCE: | 11 December 2015 | |
CASE MAY BE CITED AS: | DPP v Paul | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1813 | |
REASONS FOR SENTENCE
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Subject: Criminal law – plea - sentence
Catchwords: Armed robbery – attempted armed robbery - theft
Sentence: Three years imprisonment with a non-parole period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N Baarlink | Office of Public Prosecutions |
| For the Offender | Mr M McGrath | James Dowsley & Associates |
HER HONOUR:
1 Adam Paul, you have pleaded guilty to breaching the three year Community Corrections Order imposed upon you by this Court on 3 September 2013. The conduct constituting the breach comprises 13 unacceptable non-attendances for supervision, drug and alcohol treatment, and unpaid community work. In addition, you committed further offences on 22 January 2015 (attempted armed robbery and theft of a mobile phone, against victim Theodoros Georgiou) and 1 March 2015 (armed robbery against Jackson Jensen).[1] Those further matters were the subject of proceedings in the Magistrates' Court which resolved into pleas which I am dealing with at the same time as the contravention hearing.
[1] Attempted armed robbery carries a maximum penalty of 20 years imprisonment. Armed robbery carries a maximum penalty of 25 years imprisonment. Theft carries a maximum penalty of 10 years imprisonment.
2 The details of the further offences are set out in the agreed Summary of Prosecution Opening for plea and I sentence you on the basis of the facts set out in those documents. I note that as at the time of further offending you were on bail on unrelated matters, and you were also subject to the CCO referred to in the preceding paragraph.
3 The victim Mr Georgiou was 40 and mainly wheelchair bound and usually had a carer with him. At the time of the offending you were in a relationship with Bree Darcy. You both had previously met Mr Georgiou at Centrelink. At about 8 pm on 22 January 2015, you, Ms Darcy and an unidentified male, attended Mr Georgiou’s house. You and Ms Darcy were invited in and the unidentified male also entered. Ms Darcy demanded an apology from Mr Georgiou, who asked, “Apologise for what?” The unidentified male stood over Mr Georgiou and asked him questions in an intimidating manner, then produced a large kitchen knife and pressed it against Mr Georgiou’s stomach. Mr Georgiou felt pain and he grabbed the blade of the knife when pushing it away from his stomach, cutting his right thumb. Ms Darcy yelled at the unidentified male to stop, but he took Mr Georgiou’s metal walking cane from the floor and struck Mr Georgiou multiple times on the head, causing lacerations and bleeding and causing the cane to break.
4 During the unknown male’s attack on Mr Georgiou, you were yelling, “Where’s the money, where’s the money?” Mr Georgiou told you he did not have any money. This conduct is the subject of Charge 1 on the indictment. During the course of the attack, Mr Georgiou’s Samsung Galaxy S4 mobile phone was stolen. You and your co-offenders then left Mr Georgiou’s house. Your phone records subsequently revealed that you were operating your own SIM cards from Mr Georgiou’s phone between 23 January and 28 January 2015. Your theft of the mobile phone is the subject of Charge 2 on the indictment. There was no Victim Impact Statement from Mr Georgiou.
5 Your offending against Jackson Jensen, who was 17 years old at the time, may be briefly summarised. In the middle of the afternoon he left the gym, wearing a Waikato Chiefs rugby jersey, to take a bus to the train station. As he was walking to the bus stop you stopped him and asked him where he was from and upon learning that he was from Christchurch, criticised him for wearing the rugby jersey he was wearing and told him you had a right to it as you were from Waikato. You swore at him and said you wanted to fight him. He boarded a bus at the railway station. A short time later, you boarded the same bus, told him to take the jersey off or you would “bash” him. You pointed to the handle of a knife tucked into your waistband and told him it was a knife and ordered him to take off the jersey, “Or it’s your life”. He took off the jersey and gave it to you. You got off the bus and put the jersey on. This conduct is the subject of Charge 3 on the indictment. The police were called and attended the scene and spoke to the complainant. A few hours later, police found you sitting on a bench outside the train station with his jersey next to you. You were arrested and then interviewed.
6 Mr Jensen provided a Victim Impact Statement dated 1 August 2015 which was tendered. It describes how frightened he was by the incident and how he continues to feel unsafe when on the street.
7 I turn to your background and personal circumstances. You were born in New Zealand of Maori descent and adopted by your parents at 7 weeks of age. You moved with them to Australia in 1987. You have four brothers and two sisters. One of your brothers died while you were in custody in 2012. Another brother, who is aged 44, was deported to New Zealand this month. Another older brother lives in New Zealand. You are not close to them. Your mother died in November this year. Your father is in poor health after triple bypass surgery in 2011 and a brain tumour in 2013 and he lives with your younger 15 year old brother. Your two sisters, with whom you are close, live here in Australia. I note that your father is here with you today.
8 You finished school in 2001, worked as a traffic controller and lived with your girlfriends from 2005 onwards. In 2009 you went home to live. But you then became homeless due to problems with drugs and alcohol and committed the offences in November 2012 for which I sentenced you on 3 September 2013 to a three year CCO. After being arrested for those offences, you were placed in custody before being bailed to live with one of your sisters. You then moved back in with your parents to help look after them. While you were in custody in late 2012, one of your brothers died of a heart attack.
9 For the first few months after being sentenced by me in September 2013, you had a full time job with a freight company as a forklift driver, were living at home with your father and younger brother, were engaged with your CCO and were not using drugs. You completed 210 hours of the 300 hours of community work ordered, doing general garden maintenance on Saturdays at a homestead for retired racehorses.
10 You then stopped working with your employer because you did not have a current New Zealand passport proving your right to work in Australia, although there was nothing preventing you from obtaining a new one. After stopping work, you left home on two successive occasions while your parents were in New Zealand to live with your girlfriends. The first relationship ended in late 2014. The second relationship was with Ms Darcy, who lived with your family for two weeks before being asked to leave and who was present when you committed two of the further offences to which you are being sentenced for today. You resumed taking drugs. You were living at home and argued with your father about your drug use.
11 Although you completed 210 hours of the unpaid community work ordered, you disengaged from the Office of Corrections and incurred many unacceptable absences. This meant that you did not get the benefit of the drug and alcohol treatment you were ordered to undergo. You returned two dirty urine screens, the second of which was just a week before you committed the further offences on 22 January 2015.
12 You have been on remand for your offending against Mr Jensen since the date of your arrest on 1 March 2015. During this time you have served a 60 day sentence for an offence of assault by kicking. The total pre-sentence detention for the offence against Mr Jensen is therefore 226 days (that is, 286 days minus 60 days), up to and including todays date. There is no pre-sentence detention attributable to the offence against Mr Georgiou.
13 You moved to the Metropolitan Remand Centre on 11 March 2015. The riots there occurred on 30 June 2015. Although you did not participate in the riots there, you were kept in lockdown conditions as a result of those riots. Even after you were moved to Port Phillip Prison on 2 July 2015, those lockdown conditions persisted until early October. You were kept in your cell for 22 hours per day. You ate your meals there. You were unable to use the gym or to participate in any prison programs. Visits to you were limited and you only saw your parents twice. I note that because you were on remand at the time, you are unable to receive the administrative reduction in sentence which is available to prisoners serving a sentence who are subject to lockdown conditions.
14 Since early October, you have been able to remain out of your cell from 8.15 am to 7.40 pm and to go to gym. You are on the waiting list for drug counselling and a behaviour change course. You have remained drug free and have only been required to perform one random drug screen, which has been clean.
15 Your counsel tendered letters of support from your two sisters, a certificate confirming that your mother passed away on 3 November this year, as well as a Notification to Prisoner of Assay Result dated 6 September 2015 which confirmed that your urine sample provided on 23 August 2015 was negative for all drugs screened. Your counsel indicated that your father is in poor health but that he supports you and remains in telephone contact with you, as you do with your younger brother. Your father is unable to work through ill-health, as I have previously mentioned.
16 You are a permanent resident in Australia but not an Australian citizen. Under s.501(3A) of the Migration Act, which has recently been inserted into the Act, the relevant Minister is now required to cancel your Visa if you are serving a sentence or if you are sentenced to a term of imprisonment of 12 months or more.
17 Your counsel took no issue with the summaries provided by the prosecution. In relation to the offending against Mr Georgiou on 22 January 2015, your counsel noted that you were on ice at the time and needed money. He submitted that you ought not to be sentenced for the violent acts of your co-accused and that your role was limited to making demands for money and stealing the victim’s mobile phone. This matter was resolved as a plea on 27 October 2015.
18 In relation to the offending against Mr Jensen, your counsel noted that you were on ice at the time of offending and that the matter resolved as a plea to armed robbery at the committal, without witnesses being called.
19 Your counsel submitted that in spite of your breach of the CCO you had complied significantly with the condition of unpaid community work. He noted that if you received a gaol term of more than 12 months you would be deported to New Zealand, where you have limited family. He noted that imprisonment has weighed more heavily upon you because your mother died whilst you have been in custody and because you have spent three months in 22 hours per day lockdown whilst at Port Phillip Prison. He submitted that you are willing but have been unable to participate in courses while in custody. He submitted that you still have prospects of rehabilitation but that this will depend on your ability to abstain from drug use. He noted that you were able to find employment following the last sentence imposed upon you.
20 He conceded that you offended while on bail and that you breached the CCO. He acknowledged that the further episodes of offending were committed some six weeks apart against different victims, but submitted that the principle of totality applied and that there remained scope for significant concurrency. He submitted that in the light of your substantial compliance with the unpaid community work condition of the CCO, it was appropriate that I cancel it and make no further order in that regard. Finally, he submitted that specific and general deterrence were relevant sentencing considerations, along with just punishment and rehabilitation.
21 I note the breach report dated 29 August 2015 to the effect that you satisfactorily complied with your program conditions for the first nine months of the order, but that your attitude changed thereafter. You were given a number of warnings and opportunities to engage with treatment providers but only minimally complied. You were exited from drug and alcohol treatment after incurring ten unacceptable absences and when tested in late 2014 and early 2015 were found to have urine samples containing amphetamine and methylamphetamine. The report recommended that your CCO be cancelled and that you be resentenced on the original matters otherwise than by a CCO to reflect the seriousness of the contravention and further offending.
22 The prosecution pointed to a number of aggravating features of both episodes of further offending: they were serious offences committed whilst you were on a CCO and while you were on bail; each involved a vulnerable individual, in the case of Mr Jensen, a young 17 year old walking alone, whom you followed onto a bus; in the case of Mr Georgiou, a disabled man who is largely wheelchair bound, who was attacked in his own home, threatened with a knife (by your unidentified co-offender) and who suffered physical injuries, albeit not at your hands. In these circumstances, it was submitted your prospects for rehabilitation are guarded. It was submitted that specific deterrence, denunciation and general deterrence loom large as sentencing considerations and that there should be some cumulation in respect of the two episodes of offending. It was submitted that a term of immediate imprisonment of more than 12months with a non-parole period was an appropriate disposition for the further offending.
23 I agree with the description above of the aggravating features of your further offending. In the current circumstances, there are limited mitigatory factors to consider. You completed around two-thirds of the unpaid community work required of you under the CCO I imposed on you in September 2013. You spent three months in lockdown conditions at Port Phillip Prison earlier this year whilst on remand and those conditions were very onerous. You pleaded guilty relatively early to each of the further offences. The further offences do not appear to have been premeditated and occurred within weeks of each other.
24 On the other hand, of course, when reoffending, you were on bail, and on the CCO I have previously imposed upon you. You had returned to drug use, left your family’s home, lived with a girlfriend at a number of addresses and ceased attending drug and alcohol treatment. Your further offending took place against the background of offences of a similar nature. Having regard to the maximum penalties set by Parliament, armed robbery and attempted armed robbery are serious offences. Your further offending indicates that your prospects of rehabilitation must be regarded as very guarded.
25 I consider it appropriate to impose an aggregate sentence for the further offending because it was of a similar nature, albeit that the offending against Mr Georgiou was more serious, because the offending was close in time and joined on the one indictment and because you were not on parole at the time that you re-offended.
26 Taking into account the sentencing principles of denunciation, just punishment, general and specific deterrence, rehabilitation and totality, and bearing in mind the three months which you spent in lockdown conditions in Port Phillip Prison earlier this year, I propose to sentence you as follows.
27 Would you please stand.
28 On the charge of breaching the community corrections order imposed in September 2013, I find the breach proven. Having regard to the number of hours of unpaid community work completed, I cancel that order and make no further order.
29 On the three further offences the subject of the indictment, I impose an aggregate sentence of imprisonment of three years with a non-parole period of two years. I declare that 226 days be reckoned as pre-sentence detention and I order that this be noted in the records of the court.
30 Finally, pursuant to s. 6AAA of the Sentencing Act, I indicate that but for your plea of guilty, I would have sentenced you on the further offending to five years' imprisonment with a non-parole period of three years.
31 Thank you. Are there any matters that I need to address?
32 MR BARLINK: No, Your Honour.
33 HER HONOUR: Thank you.
34 MR BARLINK: Thank you, Your Honour.
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