Director of Public Prosecutions v Pira

[2019] VCC 608

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02160

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAN PIRA

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March & 9 April 2019
DATE OF SENTENCE:	2 May 2019
CASE MAY BE CITED AS:	DPP v Pira
MEDIUM NEUTRAL CITATION:	[2019] VCC 608

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – plea of guilty – assist offender in the commission of armed robbery – difficult childhood – daily use of methamphetamine – no relevant prior convictions

Legislation Cited:     Crimes Act 1958; Sentencing Act 1991
Cases Cited:            
Sentence:                  A term of imprisonment of 55 days 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J Malobabic	Solicitor for Public Prosecutions
For the Accused	Ms Y Geneva	Fitzroy Legal Service

HIS HONOUR:

1Jan Pira, you have pleaded guilty to one charge of assisting an offender, for which the maximum penalty is a term of imprisonment of five years.  The offender, Steven Kilpatrick, had committed the offence of armed robbery.

2I turn to the circumstances of the offending.

3On Thursday 19 April 2018, you were asked by your then partner, Ms Vella, to drive her, Mr Hodgson and Mr Kilpatrick to get cigarettes.  At approximately 10.45 am, the car stopped outside the Woodville Park Shopping Centre in Hoppers Crossing.  You asked Mr Kilpatrick to get you some cigarettes, and after he got out of the car, you drove the car to the back of the shops.

4Mr Kilpatrick entered The Gift Shop, immediately produced a sawn off double barrel shotgun and pointed it at the store attendant, who was the only person present in the store.  He demanded cash and was given $800.  Mr Kilpatrick then ran from the store through the back door to your waiting vehicle and you drove off.

5Once in the car, he produced the cash for you and the other occupants to see, and gave the gun to Mr Hodgson.  You drove to Mr Hodgson’s parents’ house and parked the car out the front while he disposed of the gun.  Whilst waiting, Mr Kilpatrick counted the money, saying that there was $200 each.  Mr Hodgson returned to the vehicle after about 15 minutes, you drove the car to Altona.  You and Mr Hodgson told Ms Vella not to say anything about the events of that morning.

6At approximately 11.35 am, police randomly intercepted your vehicle and identified the occupants.  You were advised that the vehicle was unregistered and you were not permitted to continue driving the vehicle.  Shortly afterwards, police identified that the vehicle had been involved in the armed robbery committed that morning.  Mr Kilpatrick and Ms Vella were arrested upon their return to the vehicle, and you were arrested at the Altona RSL, a short distance away.

7You answered ‘no comment’ to questions put to you by police in the record of interview on 19 April 2018.  A further interview was conducted on 2 May 2019 after police had located the gun used in the commission of the armed robbery.  In that later interview, you admitted to driving the vehicle, but denied any knowledge of the armed robbery occurring.

8You were remanded in custody for this matter on 2 May 2019 before being released on CISP bail on 21 May 2019.  You were again remanded in custody on 1 March 2019 and released on bail on 9 April 2019, thus you have accrued 59 days by way of pre-sentence detention.

9The matter proceeded as a contested committal in the Magistrates’ Court in October 2017 before a plea of guilty was entered on 26 November 2018.

10I turn now to your personal circumstances.

11You were born on 11 February 1988 in New Zealand and you are now 31 years of age.  You were 30 at the time of the offending.

12Your father committed suicide when you were three years of age, and your mother was tragically killed in a train accident a year later.  After your mother’s death, you were separated from your two siblings and lived with your aunt.  You were frequently physically assaulted by family members and also report being sexually abused by two male family members.  No charges were laid.  Your aunt died when you were seven years old and you were subsequently placed with various foster families until the age of 16.  You had not previously had any contact with your siblings, although I am told you have very recently made contact with your brother, who lives in Melbourne.

13You completed year 9 in New Zealand and left school at 15 years of age.  You worked various casual jobs after leaving school.

14You met your ex-partner, Mr Walker, in 2008 when you were 20 years old and he was 19 years your senior.  Your daughter was born on 17 January 2010 and your son on 7 January 2011.  You cared for the children whilst Mr Walker worked in road construction.  You moved to Australia with Mr Walker and your children, first to Perth in 2011 and then to Melbourne in 2013.  In both cities you worked in a customer service role at a supermarket.

15Your relationship with Mr Walker was emotionally and physically abusive.  You first separated in 2017, however the relationship continued sporadically until early 2018.  You left your job in early 2017 due, I am told, to the stress of your relationship with Mr Walker.  You remained the full time carer of your children after the separation up until 16 January 2019 when you were remanded in custody for further offending.  Your children currently reside with Mr Walker’s sister in New Zealand.

16You report a significant history of drug use.  You began using cannabis at age 10; your use declined when you became pregnant with your first child in 2010, but you began using again in 2018.  You began using methamphetamine in 2011 and you were using daily at the time of this offending.  You report that Mr Walker introduced you to methamphetamine, and that you were using it as recently as 2018, after you were released on CISP bail.

17You have one prior conviction of driving whilst suspended and possessing a prohibited weapon at Werribee Magistrates’ Court on 19 March 2018, for which you received a fine.

18I turn to the submissions of counsel.

19Ms Geneva, on your behalf, pointed to your plea of guilty and the utilitarian benefit that such a plea brings in saving the community the time, trauma and expense of a trial.  She submitted that your plea of guilty was also indicative of your remorse.

20She pointed to the report of Jeffrey Cummins, clinical psychologist dated 15 February 2019 (Exhibit 3JP), which detailed your personal history and confirmed symptoms of an adjustment disorder primarily related to your abusive relationship with Mr Walker.  Mr Cummins noted your ongoing distress at being separated from your two children and assessed you as low risk of committing a violent offence.

21Ms Geneva submitted that whilst you did not have any long-term housing arrangements, you would engage with support organisations and that you had resolved not to go back to Mr Walker.  She submitted that your prospects of rehabilitation were good, that your children are strong protective factors, and that a community based disposition would best serve your rehabilitation.

22Ms Geneva’s ultimate submission was that a community correction order was the appropriate sentencing disposition.

23Ms Malobabic, on behalf of the prosecution, submitted that whilst this was serious offending, a community correction order was within range in light of your personal circumstances and limited prior criminal history. 

24I turn now to the seriousness of the offending.

25Ms Pira, this was serious offending, as can be seen by the maximum penalty imposed by Parliament of five years’ imprisonment.  The criminal courts of this state take firearm offences most seriously.  Whilst you have denied any knowledge that Mr Kilpatrick was planning to commit the armed robbery, by virtue of your plea, you admit that you assisted in the concealment of the firearm used in the commission of the armed robbery. 

26Ms Pira, your childhood was evidently one of loss, trauma and abuse, one that no child should have.  You have endured an abusive relationship with the man who introduced you to methamphetamine.  Whilst I accept that you have remained drug free in custody and that you are motivated to engage in treatment for drug abuse and regain the care of your two children, your prospects of rehabilitation are clearly dependent on your ability to stay drug free in the community. 

27On the plea I was informed that you were also facing charges in the Magistrates’ Court for offending committed subsequent to these matters, and so this matter was adjourned for the Magistrates’ Court matters to finalise and a community correction assessment.  When the matter returned on 9 April 2019, I was informed that you were sentenced by the learned magistrate on 3 April 2019 to a community correction order of 18 months’ duration.

28I am acutely aware of your long-term goal of moving back to New Zealand and that you do not currently have any long-term housing arrangements in place. I am told you are currently living with an aunt until 20 May 2019, when your aunt will move back to New Zealand.  You are currently on a waiting list for a bed in residential rehab, but there has been no indication as to when a bed might become available.

29Whilst both counsel were agreed that a community correction order was an appropriate sentence in this matter, I had indicated as a preliminary view to counsel at the plea that I was concerned as to whether a community correction order could provide you with sufficient support and structure given your lack of housing and employment. 

30Ms Pira, in sentencing you, I must have regard to a range of different factors.  I must give effect to principles of both general deterrence and specific deterrence, that is, I must deter others from behaving as you did and I must deter you from any repeat of such behaviour.  I must express the community's denunciation of your conduct and I should also promote, if possible, your rehabilitation.  I must take into account the effect of your crime upon the community, and I must have regard to current sentencing practices and the maximum penalties imposed by Parliament.  In short, my task is to try to balance your personal circumstances with the circumstances of your offending.

31Notwithstanding all of the matters to which I have referred, in my view, the offending is so serious that only a custodial term is appropriate.  However, I intend to pass a sentence that will give you the best possible chance to further your rehabilitation in the community.

32If you could stand up please, Ms Pira.

33On charge 1, assisting an offender, you are sentenced to a term of imprisonment of 55 days.

34Pursuant to s.18(4) of the Sentencing Act 1991, I declare that you have served 59 days of the sentence I have passed upon you and I direct that this be entered into the records of the Court.

35Clearly my intention, counsel, is that Ms Pira not serve any further period of imprisonment, it is time served.

36The prosecution have applied for a forensic sample order and I will make that order.  You will need to attend at Werribee Police Station in the near future to provide a sample of DNA.  I am required to tell you that when the time comes, should you refuse to provide the sample, then police officers are required to use such force as is reasonably necessary in order to take the sample.

37Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, a term of imprisonment of eight months would have been imposed.

38Ms Pira, it seems to the Court that you are at a crossroads.  It is most important that you apply yourself.  Your children need their mum and their mum needs to be drug free.  The court is not so ignorant as to imagine that that is easy, but it is certainly a simple solution.  Magistrate Zebrowski has placed you on a community correction order and it seems that your initial response has been very good, very enthusiastic.  If a place in rehab should come up, you should grab hold of it and keep hold of it, with all your ability and all your strength.

39Thank you counsel for your assistance in this matter.  I will stand down.

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