Director of Public Prosecutions v Paul
[2013] VCC 1088
•3 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00946
CR-13-00947
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TEMENAWA PAUL |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June 2013 | |
DATE OF SENTENCE: | 3 September 2013 | |
CASE MAY BE CITED AS: | DPP v Paul | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1088 | |
REASONS FOR SENTENCE
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Catchwords: SENTENCE – attempted armed robbery – theft – robbery
Legislation Cited: Sentencing Act 1991 (Vic) – Crimes Act 1958 (Vic)
Sentence: 3 year Community Corrections Order with conditions
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. Roper of Counsel | Director of Public Prosecutions |
| For the Accused Paul | Mr J. Milsom | James Dowsley & Associates |
HER HONOUR:
1 Temenawa Paul, you have pleaded guilty to one charge of attempted armed robbery contrary to s 75A(1) and s 321M of the Crimes Act 1958, one charge of theft contrary to s 74 of the Crimes Act 1958 and one charge of robbery contrary to s 75 of the Crimes Act 1958. The maximum penalties for each of those offences are as follows: attempted armed robbery, 20 years' imprisonment; robbery, 15 years' imprisonment; and theft, ten years' imprisonment.
2 Mr Roper for the prosecution read out a summary of the case that is brought against you. You have admitted the accuracy of that statement and I sentence you on the facts as set out in that document.
3 The charges relate to three separate instances of offending. You were aged 28 years at the time of the offending. The first instance, and the subject of Charge 1, occurred on Friday 2 November 2012 at about 11.45 am, when you, in the company of Mr Sudmeyer, approached the victims who were with two of their friends at Caulfield Railway Station. The victims and their friends were all aged around 18 to 19 years. You demanded cigarettes from them while Mr Sudmeyer stood beside you. When no cigarettes were produced for you, you became verbally abusive, swearing at them and said "You'd better have ciggies or we'll take your phones". You also demanded $5 for a taxi fare. You then walked up to one of the friends and said "Do you want to fight?" and said that you could get your friends to come down and bash their whole group.
4 At this point, Mr Sudmeyer took out an imitation handgun, pointed it at the group and said "Can I have a fucking smoke now?" And you said, "Give us your phones and empty your pockets". The group pleaded with you that they had no money and slowly began to back away from you both. The two friends walked towards the station platform while the two victims walked towards the tram stop. You both followed the victims then passed in front of them, blocking their path and forcing them to stop. You pointed at Mr Dickman's pocket and said "Give us your phones, boys". Mr Dickman and Mr Hill refused and backed away from you and you then said to Mr Dickman, "Does this guy want to fight me, he's not looking at me?", Mr Dickman then turned to you and said "No, I don't want any trouble." At that point, Mr Dickman noticed that Mr Sudmeyer was pointing the gun but he saw it flash and realised it was a fake. The incident ended when you both eventually gave up your demands.
5 The second instance of offending and the subject of Charge 2 occurred on Sunday, 18 November 2012 at about 10.30 pm. You, again in the company of Mr Sudmeyer, approached Marcin Pavlovski as he was waiting for a tram outside the South Melbourne market. You asked him for a cigarette and when he replied that he didn't smoke, Mr Sudmeyer pulled the cords of the headphones through which he was listening to music and grabbed his iPhone. Mr Pavlovski asked for his phone back and approached you. Mr Sudmeyer then produced a yellow handled box-cutter with the blade extended and waved it around his face and body. Mr Pawlowski slowly backed away and boarded a tram, leaving you both at the tram stop.
6 The third instance of offending and the subject of Charge 3 also occurred on Sunday, 18 November 2012. At about 11pm, you both approached Defert Remi who was standing and smoking a cigarette outside his workplace in Fitzroy Street. He was texting on his Samsung Galaxy phone when Mr Sudmeyer grabbed the phone. You were standing next to him and aggressively said words to the effect of "What are you going to do about it?" and then asked Remi if he was going to call the cops. He replied that he was and he went inside, called Triple 0 and told his staff that his phone had been stolen. You were both then chased by some of the staff down the street.
7 You were both arrested when police attended Fitzroy Street shortly after the third incident. You were both taken to the St Kilda Police Station for formal recorded interviews. You, Mr Paul, admitted being present during all of the incidents. In relation to the incident at Caulfield station you said that the victims got cocky and that you weren't going to "Take shit from them". You admitted asking for money and cigarettes and to threatening to bashing one of them for disrespecting you but said that you did not actually intend to bash anyone. You said that you could not remember much else and had been affected by alcohol or drugs. You also said that Mr Sudmeyer may have pulled out a Jet lighter that looked like a pistol but that you did not notice whether he actually did as you were too busy arguing with the victims.
8 In relation to the incidents at the tram stop outside South Melbourne market and on Fitzroy Street, you admitted to being present but said it was Mr Sudmeyer who had committed the offences and was in possession of the box cutter. You admitted to holding onto the stolen property as you did not want Mr Sudmeyer to get in trouble with the police.
9 In the scheme of things, having regard to the wide range of conduct which will fall under the ambit of the serious offences with which you have been charged, I consider that your offending is at the lower end of the scale.
10 I turn to your personal circumstances and background. You were born in New Zealand and came to Australia with your parents in 1987. Your parents live in Roxburgh Park and have no history of attention from the police. Both your parents have serious health issues which have had a strong impact on you. You have four brothers and two sisters and I note that both of them are in court today. One of your brothers took the day off work on the day of the plea so that he could be in court to support you. Mr Milsom, on your behalf, also tendered a letter of support from your sister, Nerissa Dobbie, Exhibit B, who was unable to get time off work to be present for your plea hearing. Ms Dobbie has provided considerable support to you in resolving your problems. You are also supported by your parents but they were both unable to attend your plea hearing due to their ill health.
11 Mr Ian Joblin, forensic psychologist, set out your background in his report. You were raised in Broadmeadows until your family moved to Roxburgh Park in 2002. You completed primary and secondary schooling and were involved in sport but had some social difficulties. On completing school in 2001, you began an apprenticeship as a bricklayer. You stayed there for nine months before starting a TAFE course to become a traffic controller for a road construction gang. You have worked as a traffic controller for a number of companies since gaining that qualification. When you saw Mr Joblin in 2005, you were working long hours including night shifts for two companies and were enjoying the work. You have also worked with your brother for a transport company in Laverton. You have received the Newstart Allowance for the past two years.
12 You lived with your parents until about 2005 when you moved in with your girlfriend in St Albans. You lived with her for four years until you separated. You then lived with your parents again before moving to Ringwood with another girlfriend. She was the subject of your court appearance for unlawful assault in 2009 and after that you again returned home to your parents. You then left home and lived on the streets of South Melbourne and St Kilda, occasionally staying with your cousin in South Melbourne or in addresses in Fitzroy Street. The reason why you did not return home to your parents is unclear but it appears that while you were living on the streets you were having serious difficulties with drugs and alcohol. It was at this point that the current offences occurred.
13 When you were arrested for the current offences on 18 November 2011, you were placed in custody before being bailed to live with your sister, Ms Dobbie, in Keysborough. You later then moved in with your parents to help look after them. One of your brothers died of a heart attack in late 2012 while you were in custody and you were distressed over your inability to attend his funeral and be with your family at that difficult time.
14 You have a prior history of offending that includes violent offending. The unlawful assault in 2004 attracted a bond without conviction and an unlawful assault in 2009 attracted a fine with conviction. The relevant serious priors are those of theft and aggravated burglary in 2005 for which you were sentenced to 12 months' imprisonment by way of Intensive Corrections Order. You successfully completed this Intensive Corrections Order. You have never received a sentence involving an immediate term of imprisonment.
15 Mr Milsom tendered a number of documents on the plea. First there was the psychological assessment of Mr Joblin which was Exhibit A. Mr Joblin's opinion was that the major issue leading to the current offences was the lifestyle you were leading when you committed them. You had befriended Mr Sudmeyer and were using Ice, methamphetamine in its smokeable form and drinking excessively. Since being granted bail for the current offences, you reported to Mr Joblin that you have had no involvement in drugs or alcohol and have been leading a stable lifestyle. You are currently living with your parents and are focussed on caring for them.
16 You told Mr Joblin that the CISP and counselling from SEADS had been a great been of great value to you. He noted that you have sufficient insight to recognise your problems and that you are very aware of the seriousness of the current offences. He reported that you have interesting potential and have an appropriate attitude to employment and an appropriate feeling of responsibility towards your parents. His opinion was that you need on-going professional attention such as that offered by CISP and SEADS and would also benefit from on-going monitoring.
17 Second there was a letter of support from your sister, Ms Dobbie, Exhibit B dated 19 June 2013. In that letter, Ms Dobbie said that you have been living with her family for three months and that she loved having you there. You were well behaved and kept out of trouble while you were living with her and that you were employed with part time work but this ended when the work ran out. She said that you have the support of the whole family and described you as "A wonderful man who made some bad choices but is sorry for them and has made a fantastic effort to regain his life back."
18 Third, I refer to the letter tendered today, a reference from your other sister, Desiree Sabilik, dated 2 September 2003, which is Exhibit F which indicates that you have expressed your shame and remorse at your immature and thoughtless behaviour. Around the time of the offences, one of your brothers was very ill and you were particularly close to him. You were disconnected from family and were homeless at the time. She notes that you have not re-offended while being on probation and you have undertaken and completed successfully the CISP program and drug counselling. You have been an important part of taking care of your parents who have serious health issues. You are living with them, tending to their everyday needs, cooking and cleaning and your parents have come to rely on you heavily as your other siblings either work full time or have health issues themselves. It indicates that you successfully secured full time employment due to commence pending the outcome of these proceedings and, given that you have reconnected you’re your parents and the rest of the family, it is clear from your behaviour that you have adopted a more mature outlook on life and your future and she concludes that speaking on behalf of the family, she is confident that you will not re-offend.
19 Finally, Mr Milsom tendered a number of CISP reports. The recommendation from CISP dated 3 December 2012 notes your drug and alcohol abuse prior to your arrest for the current offences and reports your agreement to be involved in assessment and treatment to assist these problems. The CISP Progress Report dated 13 January 2013 reported your attendance at all appointments for counselling, your compliance with treatment and your determined approach. The final Progress Report dated 15 March 2013 reported your successful completion of CISP, your commitment and resilience and the insight you have developed into the impact of your substance abuse, both on yourself and on your family.
20 I turn to factors in mitigation. While you originally provided different accounts to police when arrested from those perhaps provided by Mr Sudmeyer, you made full admissions. You pleaded guilty at an early opportunity before a committal hearing was held. You have successfully complied with extremely strict bail conditions which included residential conditions, exclusion zones, a curfew and other conditions and successfully completed the Intensive Corrections Order imposed in 2005. Through this conduct you have demonstrated a considerable capacity for rehabilitation, given appropriate support.
21 You were intoxicated and living on the streets at the time of the offending. As noted by Mr Joblin, your lifestyle at that time was the major cause of your offending. You have abstained from alcohol and drug abuse since being released on bail and have shown a commitment to rehabilitation in the programs you have participated in. You have shown a desire to obtain employment, having obtained part time employment in 2012 and having secured what appears to be a full time position to commence pending the outcome of these matters.
22 I accept that your awareness of the possibility of imprisonment for these offences has made it difficult for you in terms of seeking employment to date.
23 Mr Milsom submitted on your behalf that you paid a lesser role in the offences then Mr Sudmeyer as you were not in possession of the imitation hand gun or box cutter during the incidents and did not have any physical contact with the victims.
24 Mr Roper, for the prosecution, submitted that you played an equal role in that you were jointly involved with him in the offending and backed him up and that, given the number of victims and offences and your serious role in priors, an immediate term of imprisonment was the only appropriate sentence. I do not consider that the fact that you were not in possession of the weapons indicates that you had a lesser role in the offences. Mr Roper submitted that an immediate term of imprisonment was the only appropriate sentence. He also made application for disposal orders et cetera, which you did not oppose. However, the prosecution did not oppose the making of a Community Corrections Order attached to a term of imprisonment.
25 Mr Milsom submitted that a Community Corrections Order, either standing alone or attached to a short term of imprisonment would provide sufficient punishment and assist in your rehabilitation. He submitted that any term of imprisonment should be wholly suspended. He asked that account be taken of the fact that you spent 16 days in custody while on remand and that this period was particularly difficult for you as your brother, aged 39, died unexpectedly of a heart attack and you were unable to attend his funeral and grieve with your family. I take into account that you endured particular hardship during your 16 days in custody.
26 You were assessed by Corrections and deemed suitable for a Community Corrections Order. Corrections recommended that the following conditions be attached to the Community Corrections Order. Provisions for unpaid community work, supervision, assessment and treatment for alcohol abuse and drug abuse, mental health assessment and treatment and behaviour programs that address the factors relevant to the offending.
27 Temenawa Paul, I have decided to impose an aggregate sentence for the three charges. Section 9(1) of the Sentencing Act 1991 (Vic) enables me to do so where the offences form part of a series of offences of the same or similar character. On each of the charges I place you on an aggregate Community Corrections Order to last for three years from today. You must agree to the imposition of this order. Do you agree, Mr Paul?
28 OFFENDER: Yes.
29 HER HONOUR: I impose the following conditions. (1) That you perform 300 hours of unpaid community work to be completed within the period of the order; and (2) that you be subject to supervision while on the order; and (3) that you attend for assessment and treatment for both alcohol and drug abuse; and (4) that you attend for mental health assessment and treatment; and (5) that you undergo assessment for programs and courses aimed at addressing factors relating to your offending and participate in such programs or courses as directed.
30 In addition to the conditions that I have specifically imposed, you must also abide by the terms that apply to all Community Corrections Orders. These are that you must not commit any other offences during the period of the order being in force, that is three years from today. Any offence for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to and receive visits from a Community Corrections Centre at Broadmeadows within two clear working days of today. Also, you must not leave Victoria without first getting permission from a Community Corrections Officer and you must inform the Community Corrections Office of any change of address of where you live or where you work within 48 hours of that occurring. Finally, you must obey all lawful instructions from and directions of Community Corrections Officers. Do you understand the conditions I have imposed and the general terms that apply?
31 OFFENDER: Yes.
32 HER HONOUR: I must also tell you that if you do not comply with any of the terms and the conditions imposed, you risk being brought back in front of me and I would have to consider whether to re-sentence you on all of the charges. Do you understand?
33 OFFENDER: Yes.
34 HER HONOUR: I recognise that in sentencing you to a Community Corrections Order I have given you a lenient sentence. I note that since being released on bail for these offences, you have made significant progress towards your rehabilitation. You have found stable living arrangements, abstained from alcohol and drugs, participated fully in all the rehabilitation programs to which you have had access, have a period of employment and appear to have secured the possibility of full time employment shortly.
35 I am satisfied that the community does not require protection from you. I consider that sentencing you to a further period of incarceration would interrupt the progress that you have made and jeopardise your full rehabilitation. I am satisfied that the sentencing purposes of deterrence and denunciation are achieved by the 16 days' imprisonment you have already served, especially taking into account the increased hardship that you suffered while in custody at that time.
36 Finally, I consider that in all the circumstances, your recent offending is an interruption to what otherwise might be characterised as a chapter in your life in which you have demonstrated solid rehabilitation prospects. In these circumstances I am not satisfied, pursuant to s.5(4) of the Sentencing Act that the purpose for which this sentence is imposed cannot be achieved by a sentence that does not involve an immediate term of imprisonment.
37 Is there a disposal order sought against Mr Paul?
38 MR ROPER: Yes, it's (indistinct)
39 HER HONOUR: So that is in relation to the hand gun and the box cutter?
40 MR ROPER: That's right.
41 HER HONOUR: I note that you don't oppose the making of the order in relation to the disposal, so I'll make those orders.
42 MR ROPER: Yes, my instructor has drafted - - -
43 HER HONOUR: Very well, excellent.
44 MR ROPER: Excuse me, Your Honour.
45 HER HONOUR: Yes.
46 MR ROPER: Does Your Honour propose to make a declaration pursuant to s.6AAA?
47 HER HONOUR: I don't need to, do I, in relation to this because I haven't sentenced him to a term of imprisonment.
48 MR ROPER: Actually yes, I'm sorry.
49 HER HONOUR: Otherwise I would have. Very well. Are you happy with the orders?
50 We're just waiting for something to happen, the printer may have to warm up but I'll just adjourn briefly and wait for the orders outside, so you can go about your business.
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