Director of Public Prosecutions v Pettingill
[2015] VCC 467
•17 April 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-14-02238
CR-14-00019
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMIE PETTINGILL |
---
| JUDGE: | HER HONOUR JUDGE DAVIS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 31 March 2015 |
| DATE OF SENTENCE: | 17 April 2015 |
| CASE MAY BE CITED AS: | DPP v PETTINGILL |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 467 |
REASONS FOR SENTENCE
---Subject: Criminal law – plea – sentence
Catchwords: Theft – threat to inflict serious injury – attempted robbery – obtaining property by deception – armed robbery – trial and plea indictments – guilty plea to all but one charge – single issue trial on armed robbery – good prospects of rehabilitation – genuine remorse.
Sentence: Four year Community Corrections Order with conditions, on both indictments, with hours of unpaid community work cumulative.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G. Hevey | OPP |
| For the Offender | Mr P. Tomlinson | Haines and Polites |
HER HONOUR:
1Jamie Pettingill. You pleaded guilty to seven charges on indictment CR-1400019 in the County Court at Melbourne on 10 December 2014 which I will refer to as the plea indictment. You indicated an intention to plead guilty to these charges at the conclusion of the committal hearing on 9 January 2014 and also indicated at that time that you would plead guilty to Charge 1 on the trial indictment, indictment CR-1402238. In relation to Charge 2 on the trial indictment, armed robbery (Hudson), you offered to plead guilty to the statutory alternative of robbery but this offer was rejected.
2At the commencement of the trial on 23 February 2015, you pleaded guilty to the charge of theft, not guilty to the charge of armed robbery, but guilty to a charge of robbery which was not accepted. The trial proceeded as a single issue trial, namely whether it was an “armed” robbery. The trial was a very short one and you were convicted of the armed robbery charge. From this verdict, it is clear that the jury found that while committing the robbery, you had in your possession an offensive weapon, in this case, a knife. I sentence you on this basis.
3The seven charges on the plea indictment consisted of four charges of theft, one charge of threat to inflict serious injury, one charge of attempted robbery, one charge of obtain property by deception. The maximum penalty for theft is ten years' imprisonment, the maximum penalty for threat to inflict serious injury is five years' imprisonment, the maximum penalty for attempted robbery is ten years' imprisonment, the maximum penalty for obtain property by deception is ten years' imprisonment, and the maximum penalty for armed robbery is 25 years' imprisonment.
4I turn to the facts relied upon in relation to the charges contained in the plea indictment.
Count 1: Theft.
5On 20 June 2013, Ms Tanya Zandipour was acting as a volunteer for a charity at a stand at the Broadmeadows Shopping Centre with her mobile phone on a desk in front of her. At about 8.30 am, you came from behind her, pushing her forward as you reached past her to steal the telephone, valued at about $800. You then ran from the centre.
Count 2: Theft.
6On 19 July 2013, Mr Mason Stocchelli was catching the train home from school, arriving at the Jacana Railway Station at 3.52 pm. He was with his school friend, Liam Kirk. You approached the two boys, asked Mason if you could use his mobile phone to call his mother, promising not to run away with it. He handed you his phone, valued at $799. You appeared to use it to call your mother, then told Mason you would not return the phone.
Count 3: Threat to inflict serious injury.
7Mason then took a step toward you. You put your right hand behind your back and Mason was able to see a brown coloured handle of some sort. You said to him, "Don't fuck with me. I'll cut your fucking face off."
Count 4: Attempted robbery.
8Immediately after making these threats, you turned to Liam and asked him repeatedly if he had a phone which he denied. You said to him, "Don't fuck with me." Eventually you told Mason and Liam to walk away, which they did.
Count 5: Obtain property by deception.
9On 19 July 2013 at about 4 pm, you attended at the Glenroy Cash Converters store. You offered to sell the store employee the phone that you had recently stolen from Mason Stocchelli, asserting that you had lawful authority to deal with the phone. You were paid $350 for the telephone. The transaction was recorded in the shop's register book which included your name, address, signature and photo identification.
Count 6: Theft.
10At about 1.50 pm on 24 July 2013, Ms Jennifer Deguzman was waiting at the door of her office in Glenroy. You approached her and asked if you could use her phone to call your mother. She loaned you her phone and you appeared to use it to make a telephone call. Her colleague arrived to open the door and you ran from the scene with the victim's phone, valued at about $800.
Count 7: Theft.
11At about 2.17 pm on 24 July 2013, Mr Alfredo Pires was at a bus stop in Broadmeadows. You approached him and asked if you could use his phone to call your mother. He handed you his phone. You appeared to make a telephone call and then ran away with the telephone.
12I turn to the trial indictment.
Count 1, theft and Count 2, armed robbery.
13On 8 August 2013, you were at the Jacana Railway Station. You approached two schoolboys, Brodie Hudson and Blake McKibbon. You demanded that Blake McKibbon give you his phone and he did so. This is the charge of theft, Count 1, to which you pleaded guilty at trial. You then demanded that Brodie Hudson give you his phone, and after he hesitated, you lifted up the front of your shirt to reveal the black handle of a knife which was sticking out of the top of your pants and said, "I've got a knife". Brodie Hudson then gave you his phone. This is the charge of armed robbery to which you pleaded not guilty at trial. The jury convicted you of armed robbery.
14Victim impact statements were provided by Brodie Hudson, Blake McKibbon and his mother, Sandra McKibbon. Brodie Hudson says he feels nervous catching the train to and from school each day and worries if someone comes up to him. He knows that you live nearby and is always looking out for you. Blake McKibbon has been unable to go to the Jacana Railway Station on his own and worries that he might see you around Broadmeadows. He no longer talks to or trusts people he sees on the streets. He still thinks about the incident. His mother expressed her anger and frustration at your bullying behaviour and the impact it has had on her son in terms of taking away his sense of safety.
15Counsel for the prosecution submitted that an immediate custodial sentence is appropriate for a number of reasons. You committed these offences only weeks after you completed the suspended sentence you received on 28 May 2010. Your conduct in threatening to cut your victim's face off in Count 3 was serious. Your conduct in relation to the armed robbery was also serious. Even if there was no direct evidence of planning in relation to that charge, the mere carrying of a knife suggests the seriousness of your conduct. It was submitted that your offending took place over two months and was against soft targets including young school children, women or a man just standing at a bus stop. In addition, it was submitted that you were not forced to act this way to fund your addiction.
16I turn to your personal circumstances. You were 23 years old at the time of the offending and are now 26 years old. You are the middle of three children born and raised in Broadmeadows. You live with your mother and siblings. Your parents remain in a relationship although your father lives with your grandmother in Venus Bay. You maintain a very close relationship with your parents, grandparents and large extended family. Your family's notoriety has had a significant impact on you since you were quite young. You have been in a relationship with your girlfriend for the past three years. Although you excelled in sport in junior school, you struggled at school and were asked to leave on two occasions and eventually left before completing year 11. You suffered epilepsy as a teenager which has been successfully managed with medication. After leaving school, you were unable to find a job for a long time and spent much of your time gambling which continued until your arrest. In September 2013, you obtained work part-time in traffic control and you are still employed in that position. You are in good physical health. You do not smoke and have never used illicit substances. You were a binge drinker but now only drink socially.
17Your counsel tendered two psychological reports, one dated 5 May 2010 by Dr Aaron Cunningham and one by Jeffrey Cummins dated 30 March 2015 but relied more heavily on the more recent report. In that report, Mr Cummins opined that you presented as being slightly below average intelligence but not as functioning in the borderline range. He noted that you committed the offences to generate cash to fund your gambling addiction.
18Mr Cummins noted that you have no prior history of mental illness or treatment. Your current girlfriend who lives with your mother is employed full-time and has no mental health history. You spend your weekends with her. Mr Cummins considered that at the time of the offending, you were suffering from a gambling disorder as well as an adjustment disorder with mixed anxiety and depressed mood. You were hiding your gambling from your family and girlfriend. You were also stressed because your current girlfriend had a pregnancy termination against your wishes. You expressed your remorse to Mr Cummins for your offending and its impact on your victims. He noted that you have not gambled since being arrested on 12 August 2013 and that you reported that your gambling is in sustained remission and no longer requires treatment. You also reported to him that your mental health is relatively stable and better than it has ever been. Through your counsel, you indicated that you continue to engage in psychological counselling. You have maintained your involvement with local cricket and football clubs since your teenage years. You remain in stable employment.
19Mr Cummins concluded that you and your family have gained insight into the stressors or situation that may lead to a relapse of your gambling problem, and they and your partner also take an active role in ensuring that you are able to avoid the stressors. You told Mr Cummins that you intend to find rental accommodation to share with your partner. He noted that you expressed an interest in returning to formal education to complete VCE and, if possible, to undertake further education with a view to training as a counsellor.
20Your counsel also relied on two personal references which were tendered as Exhibit C and D on the plea. They include a reference from the treasurer of the Jacana Cricket Club, Paul Soutter, who has known you for the past ten years. He notes that you have suffered in the past because of your notorious family name and have used the club as a haven, flourishing there as a sportsman and more recently as a role model. He notes that you have really turned your life around. Ronnie Bassi, the general manager of your current employer, states that you have been a very motivated, reliable, personable and competent employee who has shown excellent leadership skills while working in a team environment.
21I accept your counsel's submission that your offending was unsophisticated, spur of the moment, opportunistic offending without premeditation or planning. There was no use of weapon except for the one instance of armed robbery. I note that the majority of the charges resolved prior to the committal hearing, that is the ones relating to the plea, with others resolving at the conclusion of the committal. You pleaded guilty to the charge of theft on the trial indictment and only contested one aspect of the charge of armed robbery. The early resolution of most of the charges led to significant benefits to witnesses and victims who were spared the need to give evidence and the community was spared the expense of a longer trial. I accept that your plea of guilty to all but one charge is an indication of remorse.
22While you are not a young offender, I accept that you remain a youthful offender, and that in the light of your recent employment history, stable relationship and cessation of gambling and heavy drinking, you show very good prospects of rehabilitation. I accept Mr Cummins' conclusion that your mental health would deteriorate if you were imprisoned. I also accept that in the light of your family's notoriety, you might attract unwanted attention in prison which would not assist your rehabilitation.
23Although you have a serious prior conviction, I accept that it is not particularly relevant to the present matters.
24I also note that you do not oppose the forensic sample order that was sought by the Crown. It may be that Mr Hevey does not have those orders to hand. I do not seem to have them and I am not sure if those orders are still sought, but that may be something which ‑ ‑ ‑
25MR HEVEY: They are still sought, Your Honour, and I will make sure that the forms are provided to Your Honour, of course.
26HER HONOUR: Thank you. I note that, in any event, you have consented to those orders being made or have not opposed them.
27Your counsel submitted that in all the circumstances and particularly in the light of the guideline judgment in Boulton's case, the appropriate disposition is the imposition of a Community Corrections Order of significant length which should include treatment, therapeutic conditions, a significant community work component, an exclusion condition in relation to gaming venues and supervision.
28In the light of your counsel's submission on disposition and your willingness to be subjected to such an order, I requested an assessment by Corrections Victoria of your suitability for such an order. The report received from the assessing officer on 31 March 2015 was to the effect that you are suitable for such an order. It was recommended that any CCO include conditions requiring community work, treatment and rehabilitation (mental health), supervision, and participation as directed in offence specific gambling programs.
29On the material before me, it is clear that you have turned your life around. You have stopped gambling, found stable employment, reduced your drinking, engaged in counselling, expressed remorse, maintained a solid relationship with your partner and family and have insight into the stressors which may result in relapse. You pleaded guilty to the charges on the plea indictment at an early opportunity and have demonstrated remorse. You are a youthful offender and I consider that you have good prospects of rehabilitation.
30In the circumstances on the plea indictment, I consider that the sentencing considerations of just punishment, general and specific deterrence and rehabilitation can be achieved by a sentencing option other than that of an immediate term of imprisonment. That is, by the imposition of a Community Corrections Order.
31In relation to the charge of armed robbery on the trial indictment, notwithstanding that the matter went to trial, the trial was exceptionally short and even in the absence of a discount for a plea, and notwithstanding the seriousness of the conduct comprising the armed robbery, I consider in the interests of justice and your ongoing rehabilitation that the matters outlined above in the previous paragraph militate in favour of making a similar disposition for this offence.
32Would you please stand.
33On the seven charges on the plea indictment, you are convicted and sentenced to a four year Community Corrections Order and 150 hours of unpaid work with conditions of supervision, participation in offence specific gambling programs as directed, mental health treatment as directed and an exclusion condition forbidding you from attending any gaming or gambling venues which will be drafted with the assistance of counsel shortly.
34On Charges 1 and 2 of the trial indictment, you are convicted and sentenced to a four year Community Corrections Order, 200 hours of unpaid community work with conditions of supervision, mental health treatment as directed, participation in offence specific gambling programs as directed and an exclusion condition forbidding you from attending any gaming or gambling venues.
35In addition to the conditions 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 four years from today – nor 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 officer. You must report to the 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 where you live or work within 48 hours of that occurring, and finally, you must obey all lawful instructions from and directions of community corrections officers.
36Do you understand the conditions I have imposed and the general terms that apply?
37OFFENDER: Yes, Your Honour.
38HER HONOUR: Before you consent to the making of such an order, you must understand that the contravention of any condition attached to the Community Corrections Order, except for a contravention of a direction by the Secretary itself, is an offence punishable by three months' imprisonment. Contravention of a Community Corrections Order also carries with it the prospect that you will be brought back before me and resentenced for the original offences. Do you consent in those circumstances to the imposition of an order?
39OFFENDER: Yes.
40HER HONOUR: In those circumstances - just take a seat.
41MR HEVEY: Your Honour has not made any apparent orders as yet, and I don't know whether they’ve been officially sought, if not, I do so.
42HER HONOUR: Yes.
43MR HEVEY: The values of the telephones that were stolen.
44HER HONOUR: Now some of those - are you in a position to assist here?
45MR TOMLINSON: I might be, Your Honour.
46HER HONOUR: I'm not sure whether - wasn't some of the material recovered? I'm not sure if there were compensation orders sought. Were there compensation orders sought?
47MR TOMLINSON: They haven't actually been sought, I don't think.
48MR HEVEY: Well if they haven't been, Your Honour, I do so seek, and I will arrange for the paperwork this morning.
49HER HONOUR: All right.
50MR HEVEY: But it's my understanding the phones were not recovered, especially McKibbon and Hudson which are the two on the trial indictment, and each of those boys effectively saved up for their own phones, so they're out of pocket $800 each for the standard price for these sorts of phones.
51HER HONOUR: Yes.
52MR HEVEY: There's effectively the six telephones valued at - round figures - $800 each, and then there's the $350 which was paid over by Cash Converters for one of the phones. Now that may have been recovered, that phone, but I'm not sure whether it was sold or not, Your Honour. But I'm going to seek a global order for the amount of $5,150 by way of restitution. That's for the six phones. And in the event that any of that material has been recovered, Your Honour, I'm sure that my instructors will properly allow for that and reduce ‑ ‑ ‑
53HER HONOUR: All right.
54MR TOMLINSON: If I could just approach Mr Pettingill to get some instructions on that, Your Honour.
55HER HONOUR: Yes. You said six phones, Mr Hevey, but it's eight phones, isn't it? Six for the ‑ ‑ ‑
56MR HEVEY: No, with respect, Your Honour ‑ ‑ ‑
57HER HONOUR: The six includes the two of McKibbon and Hudson.
58MR HEVEY: It does.
59HER HONOUR: Yes, that's all right, I just wanted to make sure.
60MR HEVEY: The five on the first plea - four on the first plea indictment, one of those was sold, so 3,200 for the phones, then 350 for the money given for one of the phones, then 1,600 for the two on the trial indictment.
61MR TOMLINSON: I can indicate, Your Honour, that will be consented to. There's no issue in relation to that, save for making sure that those phones weren't actually recovered.
62HER HONOUR: He doesn't pay twice. Yes, of course.
63MR HEVEY: Yes.
64HER HONOUR: All right. Now in terms of drafting the orders, what we'll do is perhaps just produce a draft that we've got thus far. What's the term for the general - the restitution order? Are there separate orders? Is it likely - I've forgotten as to whether they're like a forensic sample or does there not - are they the triplicate orders? The restitution orders are the triplicate orders, aren't they? All right.
65Would it be appropriate if we get Mr Pettingill to sign the community corrections orders and then we can produce the other orders afterwards in chambers?
66MR TOMLINSON: Certainly.
67MR HEVEY: Thank you, Your Honour. I'm grateful for that.
68HER HONOUR: What we'll do is we'll circulate them to you for your approval and then I'll finalise them afterwards if that's convenient. Is that a good idea?
69MR HEVEY: I'd be grateful for that, Your Honour.
70HER HONOUR: In terms of the residual condition, at the moment it just reads, "The offender must not enter any gambling or gaming venues". Is that convenient? I think that's sort of the standard exclusion clause ‑ ‑ ‑
71MR HEVEY: I think that's the - yes.
72HER HONOUR: ‑ ‑ ‑ but there is some issue as to whether or not it's specific enough. But frankly, we're not going to itemise every gambling or gaming venue in Victoria, so ‑ ‑ ‑
73MR TOMLINSON: No, I understand that.
74MR HEVEY: No. I think the only proviso normally is, Your Honour, that a lot of the gambling venues of course are contained in licenced premises, so sometimes the question comes up as to whether they can enter the front bar but not go into the gaming room, and I think it's the gaming part.
75HER HONOUR: I think that must be taken as being exactly what it means, that if you enter the front bar, Mr Pettingill, you can't go to the gaming section and that's really what this is intended to cover. Hopefully that won't cause you any difficulties.
76With those caveats - and we will provide you with the draft remaining orders later on today.
77MR HEVEY: Thank you, Your Honour.
78HER HONOUR: We'll just have Mr Pettingill sign this.
79MR HEVEY: The only other matter I meant to - I'm sorry, Your Honour ‑ ‑ ‑
80HER HONOUR: Yes, that's all right.
81MR HEVEY: ‑ ‑ ‑ was to clarify that you've ordered two periods of unpaid work.
82HER HONOUR: Yes.
83MR HEVEY: I assume they've not being stated to be concurrent, that they will be cumulative?
84HER HONOUR: That's right.
85MR HEVEY: Thank you.
86HER HONOUR: That also assists because they're completely overlapping apart from the number of hours community work, but that reflects the two different discrete sets of offences.
87MR HEVEY: Thank you, Your Honour.
88HER HONOUR: Thank you.
89We might just stand the matter down so that you can leave and the other matters can organise themselves. Thank you very much, Mr Hevey, for your attendance.
90MR HEVEY: Thank you, Your Honour.
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