Director of Public Prosecutions v Pistrin

[2018] VCC 320

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-17-02116

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICHARD PISTRIN

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	21 March 2018
DATE OF SENTENCE:	21 March 2018
CASE MAY BE CITED AS:	DPP v Pistrin
MEDIUM NEUTRAL CITATION:	[2018] VCC 320

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr D. Ewart	Tyler Tipping & Woods

HIS HONOUR:

1Richard Pistrin, you have pleaded guilty to one charge of armed robbery and one charge of prohibited person carrying an imitation firearm.  Those crimes carry penalties of 25 years and ten years respectively.

2You pleaded guilty in the ultimate having denied the matters to police and I accept that you must get the utilitarian benefit of that plea of guilty.  Remorse is very problematic and that is supported by the psychiatric material that has been provided on your behalf.

3What is of some significance though is that it seems to me that had you put thought into this you may well have been able to defend it on the basis that somebody else had had that equipment and you got it from them or something along those lines.  So I do give you the benefit of a plea of guilty in terms of furthering the interests of justice.

4You do have a significant criminal history and most concerning me, albeit in the Children's Court you have two prior convictions for armed robbery.  As I calculate it, for one of those you received a maximum of three years which would indicate it was a pretty serious sort of offence.

5You have other prior convictions including one of apparently running over a witness for giving evidence against you for which you received 18 months with a six month minimum.

6I am told that you were able to complete that parole period and that gives me some confidence at least that ultimately you may be able to rehabilitate and reduce the risk of your reoffending which that risk seems at the moment to be pretty high.

7A summary of the offending is that at the time of the offending you were 26 years of age.  On 25 March 2017 at around about 9 o'clock at night, you took an imitation firearm to a BP service station in Traralgon.  At that time there were two people working behind the counter.

8You ran into that service station wearing black shoes, full length blue overalls, black tactical gloves with white writing on the back of the hand and a black skeleton face mark with lens mesh covering the eyeholes.  You were armed with an imitation black assault rifle which you pointed at the complainants during the robbery.

9The imitation assault rifle is a very realistic one.  Indeed the people behind the counter would not have known if they were about to be blown away or what was about to happen.

10I have been shown photographs of the gun and also the mask you were wearing.  To be quite frank, Mr Pristine, it is hard to imagine doing an armed robbery with a more frightening mask than that.  It is clearly designed to terrify rather than simply disguise and adds to the seriousness of what you have done.

11In any event, the people behind the counter were terrified of you, even though there is no victim impact statement before me, that is obvious.  You were given cash and coins.  The emergency button was pushed.  You then aimed the firearm at one of them and demanded a packet of Winfield Blue cigarettes which you were then given.

12You were aggressive and as I have already indicated, the complainants did not know whether the firearm was real or not or whether it was going to be fired or not.

13The incident was captured on CCTV footage.  I do not need to look at that to understand the terror of the circumstances such as this cause.

14You left the store and went to a vehicle and drove away.  Some days later you were found in Queensland in Maryborough and the police searched, found the imitation rifle and the black skeleton face mask in the car.

15You were apparently released on bail in Queensland with a summons.  You obviously came back to Victoria where you were arrested.  You chose not to answer questions and told police you did not know why you were being interviewed.

16On that same day a search warrant was executed at your address.  Found were what would appear to be the same tactical gloves with the white writing.  Also found were a number of cardboard boxes for imitation assault rifles and pieces of imitation firearms.  What that is all about, I have got no idea, but it does not exactly put this robbery into an innocent connotation.   Other material were seized and it is of no real concern to me.

17It is in my view a serious, in fact a very serious example of armed robbery and it is hard to see how one could be carried down in more frightening circumstances.

18Of course the application of general and specific deterrence apply as well as denunciation and appropriate punishment. 

19Having read the report of Dr Cunningham in terms of your circumstances I think this is also a situation where community protection must play a very significant part in the sentence which I impose.  A gaol sentence of significant proportion is the only available option here in my view.  I looked at matters personal to you in terms of determining the length of that sentence.

20The report of Dr Cunningham which I will make Exhibit 1, if I have not already, indicates that you, as it said, are 27.  Your parents separated when you were two or three.  You describe a significant trauma around the age of three of a home invasion at the house. 

21You have been brought up alone by your father and you saw him being held down and cut with knives which continues to distress you.  I would have thought that if there was a post-traumatic stress disorder involved in all of this, Dr Cunningham would have said so but it seems to me that that is a likely sort of scenario.

22You told Dr Cunningham that you have always been a loner and that you had no serious relationships and no children.  You have over the years had serious drug problems from a young age and that has caused, to a large extent, mental health issues and that has made stable employment very difficult for you.

23At least you were open with him.  You told him that you become distracted, socially anxious, suspicious and paranoid.  Concerningly you describe that you have an uncle who suffered from schizophrenia and that you stated that he experienced a different form of reality.  You said that you always tried to gain the experience or retain the experience of your uncle by experimentation with drugs.

24You have been treated at the Flynn Psychiatric Ward for psychotic episodes and suicide attempts.  You have previously been treated with injectable anti-psychotics.  You are now administered olanzapine in gaol and, to your credit I suppose, you are owning up to this, even when medicated you still hear voices from the television.  You can hear other people's thoughts.  The TV sometimes mocks you and that things can get, "quite evil, satanic and dark".

25You reported that as a form of altered reality state and you have periods where you believe you should kill yourself and enter another body. 

26Disturbingly you told the doctor that you continue to have a desire to use drugs and explore different forms of consciousness.

27You present with a psychotic disorder, he said, in the context of drug abuse and you are likely suffering from a substance induced psychotic disorder with paranoid delusions, auditory hallucinations and depressive symptoms.

28He said at the time of this you were suffering from a psychotic illness and that your motivation was to go on a spiritual journey to Queensland.  You were going to travel from city to city destroying everything and you would eventually commit suicide in Queensland and needed the money to get there.

29You are disconnected from any understandings of remorse in these circumstances and you told him that the offence still feels unreal and the victims continue to feel like they are not real. 

30He says:

"In my opinion, Mr Pistrin's mental illness is severe.  He presents as an ongoing risk in the community whilst he continues use of drugs and remains untreated for mental health.  He would require psychological and drug and alcohol intervention in the community."

31He then spoke about talking to your aunty who pretty much confirmed his views and what you had already told him.

32That is a pretty bleak picture, Mr Pistrin.

33This is a situation where, whilst I understand the difficulties of all of this, that the principles in Verdins are not attracted because the mental state is clearly drug-induced.  I would have thought there is probably post-traumatic stress in all of this but that is not the medical opinion that is before me.

34What it comes down to is, I have to impose appropriate sentence bearing in mind the protection of the community.  Even though you are medicated you are still having these thoughts and even though you are having those thoughts, all I can simply say to you is that if your use of drugs to achieve a different reality is going to result in the sort of sentence that you are going to get today, it will be much larger in the future if it ever happened again.  That is a decision you are unfortunately going to have to make.

35Your prospects of rehabilitation are really up to you and I think they are probably pretty bleak and the prospect of you reoffending has to be regarded as high if you continue to use, and you have indicated that you still want to.

36But doing the best I can in these circumstances, on the charge of armed robbery, six years.  On the charge of possess the firearm, 12 months.

37Six months cumulative gets you six and half and a minimum term of four and I will leave it up to the parole board to decide whether you are well enough to be released then.

38As I understand it, this is your third conviction for armed robbery but as I understand the legislation, armed robbery is not a serious offence within the serious offending legislation, so you are not a serious violent offender for my purposes and I make that clear that I understand that.

39I declare that 336 days to be reckoned as having been served under this sentence. Pursuant to s.6AAA of the Sentencing Act say that but for your plea of guilty I would have sentenced you to be imprisoned for a period of nine years with a minimum term of six.

40There is no other orders I have to make?  No.  All right, yes, thank you.

‑ ‑ ‑