Director of Public Prosecutions v Platten

[2024] VCC 1612

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

Case No. CR-24-01135

Indictment No. P12278196

DIRECTOR OF PUBLIC PROSECUTIONS

v

BLAKE PLATTEN

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	16 October 2024
DATE OF SENTENCE:	16 October 2024
CASE MAY BE CITED AS:	DPP v Platten
MEDIUM NEUTRAL CITATION:	[2024] VCC 1612

REASONS FOR SENTENCE

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Catchwords:              Armed robbery x1; ‘Cash Guys’ outlet. Three person team, driver remained in car, 2 who enter with weapons; some planning. possession of a drug of dependence; disadvantaged background; Bugmy; youth; Mills; Azzopardi; 20 at time of offending, 21 years of age at time of sentence; Short prior criminal history; on two CCO’s at time of offending; early plea.

Cases Cited:Bugmy v The Queen [2013] HCA 37; R v Mills [1998] 4 VR 235; Azzopardi v The Queen [2011] VSCA 372; DPP v Drake [2019] VSCA 293

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr E. Ritli	Office of Public Prosecutions
For the Accused	Ms E. Strugnell	Victoria Legal Aid

HIS HONOUR:

1Blake Platten, you pleaded guilty earlier today to one charge of armed robbery and one charge of possession of a drug of dependence, being methylamphetamine.

2The maximum penalties are correctly set out in the opening that has been placed before me.  The Crown accept that the lower penalty provision applies in the case of the drug matter, and as I am satisfied on the balance of probabilities that that possession was not for any purpose connected to trafficking, I accept that concession; that is, that the lower penalty provision is applicable. That charge, the charge of possession of methylamphetamine, is the least of your worries and I will scarcely mention it again. The armed robbery is obviously far more serious and is punishable by a 25 year maximum prison term. It is what is described in the Sentencing Act as a ‘Category 2’ offence. That means that in the absence of one of the exceptions set out in the relevant provisions of the Sentencing Act, a prison term is required and not one in combination with a community corrections order. Your counsel was explicit in submitting to me that none of those exceptions arose here. I agree, and so I will say nothing more about those quite complicated legislative provisions, as none of those exceptions arise in this case.

3Your counsel concedes that the only available disposition in this case is a prison sentence with a non-parole period.  Plainly, that submission is correct.

4You were born in 2003.  You are now 21 years of age.

5You have a short criminal history comprising only two appearances. You were on two community corrections orders at the time of the offending.  Ms Strugnell told me of some time that you had spent in custody in the lead-in to the imposition of each of those community corrections orders.  They were imposed back in June and then October of 2023.

Facts

6Let me turn then to the factual basis of sentencing.  In a way it is unnecessary because we can see the factual basis out on that screen in the footage that is available to me, but I will set out the factual basis.  The prosecutor, Mr Ritli, opened this case to me this morning, you will recall, by reading a written summary of prosecution opening which was dated 6 September 2024. I marked that as Exhibit A on the plea. Some CCTV footage has been tendered on the plea and the depositions contained stills from that footage and also some other relevant photographs.

7Your counsel, Ms Strugnell, made it clear that this was an agreed factual statement, so I see no point in restating all of the agreed facts in these my sentencing reasons. I will sentence pursuant to the agreed document as well as that footage which has been placed before me.

8I will provide then only a brief summary of the offending, and that really is so that anyone who might access these reasons will have some understanding of the serious nature of the armed robbery that you have committed, and hence my reasons for passing the sentence which I will soon pass upon you.

9The agreed summary discloses that a silver Nissan Pulsar was stolen some time between 18 and 19 October 2023. You do not fall to be sentenced in relation to that theft. You are not charged with that. I mention it only as the car was then employed in the armed robbery which took place on the afternoon of Monday 23 October. The target of that armed robbery was the Cash Guys outlet in Langhorne Street, Dandenong. It is a type of pawn shop, as I understand it, similar to the Cash Converter franchises. There was a team of three people in that car comprising you, a person said to be your cousin Derek Duggan, and a third offender, to this point not identified. At around 4.45pm – nothing hangs on the timing - the car did a U-turn and mounted the kerb and drove along the footpath stopping directly outside the front door of the Cash Guys outlet. There were some pedestrians observing what then took place, and it is pretty clear from that footage that they were very much startled by what took place in broad daylight. Your cousin, who it is alleged was the driver of that vehicle, remained in the vehicle. You got out from the front passenger seat and your offsider got out from the rear driver's side passenger seat. Your offsider was wearing a ‘devil mask’ and was armed with a hammer and screwdriver. You were armed with a hammer. The footage that has recently been played shows what you did before entering the store. Obviously the hammers were applied in relation to the glass window and door. You in fact entered the store, each of you, and you smashed the glass display cabinets at the front entrance and stole a large number of jewellery items and put them in the bag that you were carrying. They had a retail value of a touch over $25,000. An employee, seeing what you did, armed himself with a wooden rocking horse and approached you and your co-offender, trying to scare you away. Your co-offender lunged at him with the hammer and that employee, Mr Sekuloski, lost his footing and fell backwards and the horse fell down upon him.

10You and your offsider were in the store for some 75 seconds and then exited and went back to the car which then hurriedly drove away along the footpath. The car made its way a property on Gwenda Street, Dandenong, which was an address which lay to the rear of the Comfort Hotel. As I understand it from the summary, you got out and tried to open the rear gate to the hotel to no avail. You got back in and the car drove off, returning a handful of minutes later at which time the three of you then left the car and jumped the rear fence into that hotel and entered Room 7.

11A search warrant was executed at the Comfort Hotel a few days later.  This is on 27 October. You were present and searched and a small quantity of methylamphetamine was found in your pocket, hence Charge 2 on the indictment. A number of items connected to the robbery were found in your bedroom including the red bag and the hammer. Most of the stolen property remains unrecovered.  There were a handful of rings that were, as I see it from the photographs, found within the boot of the car.

12You were arrested and taken for interview and you resolutely denied having any role in, or any knowledge of, the armed robbery. You admitted possessing the ice.

13Your co-accused, Mr Duggan, ran a contested committal and his matter is listed for a case assessment hearing later this month. Heaven knows why given the quality of the footage. The third offender remains uncharged. It follows then that there is no issue of parity of sentence here as you are the first person to face sentence.

14You have been in custody since 27 October 2023 when you were arrested, a period of 355 days.

15The agreed summary sets out a chronology of the matter before the court with the many listings.  They included applications for bail and also committal mentions.

16So much then for really what is only a brief summary of your offending.  As I have said, I will sentence pursuant to the more detailed agreed statement, the written statement which was read out aloud, together with the CCTV footage marked as part of that same exhibit, and the still photographs available to me within the depositional material.

17I will turn then to the impact of your crime.

Victim impact material

18In committing this offence, you were entering another person’s workplace. This was very plainly from the footage, a frightening, fast moving and confronting event.  

19There is an impact statement from Mr Sekuloski, who was one of the people within that store. He has been impacted by your crime. He was the person who we see lose balance and fall to the ground.

20The impact statement was read aloud by the prosecutor this morning and there is really no point in me setting it all out in my reasons. I do pay regard to the impact of your crime. His motivation and work performance were affected and he describes any noise from outside triggering memories of your crime. He has been anxious, and his GP is preparing a mental health plan. He has suffered from Post Traumatic Stress Disorder. He has relived the event and he panics when he does. At the time of writing the impact statement, and that is recently, it was only in September, he had not returned to work at the Cash Guys. He has continued with treatment with a psychologist. Though he fell over in the course of the armed robbery, he is relieved that he was not struck with the hammer or struck with the screwdriver. His loss of balance and the very slight hurt occasioned in that fall, which he describes in the impact statement, has no impact at all upon my ultimate sentence, given the setting of that fall.

21There has however been real financial stress caused to him.  He was a casual staff member; he did not get sick leave. He has used most of his savings. He has felt distant from important people in his life. In short, your crime has had, and regrettably continues to have a sizable impact upon him. As I say, I note the impact statement was dated from September of this year, so he is describing these things almost a year down the track.

22I am required to take into account, as I do, the impact of your crime.

In Mitigation

23Ms Strugnell appeared on your behalf to conduct the plea earlier this morning and she relied upon a written outline of submissions dated 7 October 2024.

24She filed a neuropsychological report from Mr Mathew Staios which related to past offending which was dealt with in June of last year, together with a more recent psychological report from Ms Amy Brandler.

25Ms Strugnell placed before me some course completion certificates including one from Kangan TAFE.  There was also a letter from ACSO relating to your participation in the ReStart program and the support that they could offer upon your ultimate release. She also filed a comprehensive remand history that was marked Exhibit 5 on the plea.

26In the written materials supplemented by oral submissions that she made, she placed before me ample detail as to your family, educational, relationship, drug and mental health history. She also made some submissions about your criminal history before the Courts.

27She made some submissions as to the objective gravity of the major offence, being obviously the armed robbery, and the weight to be given to the various purposes of sentencing.  She submitted that there were some positive prospects of rehabilitation conditional upon a variety of conditions being established and met.

28In what was an excellent and thorough plea conducted on your behalf, Ms Strugnell relied upon the following matters in mitigation:

·your early guilty plea;

·the presence of some remorse;

·your youth; and

·your disadvantaged background, attracting the principles from the case you heard discussed of Bugmy v The Queen[1]);

[1]Bugmy v The Queen [2013] HCA 37 (“Bugmy”)

29It was a realistic and sensible plea in which she conceded that which had to be conceded; the seriousness of the armed robbery and the fact that a prison term was inevitable here, and one with a head sentence of a dimension requiring the fixing of a non-parole period. 

Prosecution

30The prosecutor, Mr Ritli, had himself filed some written sentencing submissions that were dated 14 October 2024.  The written document contained submissions as to the nature and the gravity of the offending, see paragraphs 6-7. It also dealt with matters of sentencing principle and they relevant purposes of sentencing in this case. The Crown were perhaps less ‘upbeat’ as to your future prospects of rehabilitation and pointed to the speed of reoffending following being admitted to the October 2023 community corrections order. The prosecution written and oral sentencing submissions were actually quite uncontroversial. I will not set them all out. There really was no serious dispute as between the parties in this case. The Crown fairly conceded the value of your guilty plea and the existence of some remorse in your case. They conceded the relevance of your youth and took no issue as to your having a disadvantaged background enlivening the principles from the case of Bugmy. It was really just a matter of what weight was given.

31The Director of Public Prosecutions was calling for a head sentence with a non-parole period but so much had already by that point been readily conceded by your own counsel as being inevitable in this case.

32The prosecution did place before me a handful of cases, examples of other sentences imposed by other judges upon other offenders, and none of those cases were truly comparable and none of them really assisted me. It seemed to me reading them that there were differences all over the shop.

Background

33I will deal with the various matters raised before me by the parties in one moment.  Firstly though, I will deal briefly with your background.  Briefly as I see no point setting out your background in any great detail in these my reasons.  It is spelt out in the written submissions placed before me as well as in the various reports that have been filed on the plea.  Some of those authors plainly had access to Youth Justice bail reports and those reports, unlike many others, are in fact based upon source materials derived from the Departmental (Department of Health and Human Services) file. So it seems to me that the evidentiary foundation exists for the submissions that have made as to your having had a disadvantaged background. It is not a matter simply of you saying that. There is plainly support for that and the Crown, as I understand it, accept that proposition in any event.  I will return to that issue in a short moment.

34To your background then, at least by way of an executive summary.  In a nutshell then, you were born in June 2003. You turned 21 a few months ago. You were only 20 at the time of the offence. You were born in Australia. You were the second of two children.  You had no contact at all with your father and have had no contact with your mother since you were 13. I think she tried to make some sort of contact with you at some point, but you were not prepared to engage in.  When you had lived with your mother, she had re-partnered on a number of occasions and as I understand it some of those partners were abusive. You were placed into the care of the Department when your mother relinquished you, as she had done to your older half-brother at a similar age. There had been, as I understand from the materials, six child protection notifications leading into that period.  You then had a number of residential care placements, some of those were in secure units as you absconded from many placements. As is often the case, you, in that setting, mixed with peers with similarly dysfunctional backgrounds.  You maintain contact with an aunt and your brother's best friend.  Support was provided this morning and again this afternoon by three members of the Gerin family. You had lived with Jason Gerin pursuant as I understand it to a Child Protective Order at one point when you were in your early teens. I am told that they will make accommodation available to you up in Ballarat when ultimately you are to be released.

35Given that background that I have described, it is not that surprising that there was fragmented education. You attained only Year 7 level and you were expelled in Year 8.

36You do not function at a high level as the reports make clear.

37Drugs of dependence have been a big issue for you from a very early age and again that is not at all unusual in such a setting as described in your personal background.

38You have a sparse history of employment.  You did work in a cheese factory for about six months. You have no dependents and the report speaks of one relationship that you had had with someone that you had met in a residential care placement some years back.

39You have a short criminal history. It is made up only of two appearances in relation to a multitude of offences, obviously consolidation of a number of offences, but none of those offences in the past are anywhere near as serious as the present offending. You do not fall to be sentenced a second time for any of those past crimes obviously enough.  There will be a resentencing exercise no doubt down the track in relation to each of those orders which are in breach.  It is however a feature of aggravation that you were on the community corrections orders, one of which was imposed really only a couple of weeks before the commission date of the matters I am dealing with. The other was imposed in June of last year.

40There were various periods which you had spent on remand prior to each of those matters being finalised in the Magistrate's Court. Inevitably, in each case when the Court came to deal with you, the time that you had spent in custody leading into that sentence would have been taken into account by that Court, in making judgments as to the actual sentence to impose upon you. It is inescapable that the court would have been told of that time on remand.  Of course, it could not be formally reckoned as time served as the Magistrate ultimately did not impose a prison sentence and so could make no
s18 declaration. Your counsel advised me of that sum total, but it was not a straight period in one hit, there were a number of different remands.  But she made it clear that she was not submitting that that period could in any way be regarded as ‘dead time’ and taken into account in that way. Still I do not ignore it. It is the fact that you spent that lengthy enough time in custody at that young age leading in now to the time you have been continuously in custody following your arrest on 27 October of last year.

41It is a quite unusual feature of this case it seems to me, that there is no history before the Children's Court.

42You have been doing what you can to improve yourself whilst in custody, which is to your credit.

43So look, that is only really a very brief summary of your background.  Of course, there is far more detail contained in the two expert reports. 

44I accept that background as placed before me. There was much dysfunction in your early and developmental life and into your adolescence.  No contact with your father, unpleasant or negative contact with your mother's partners, then rejection by her leading onto residential care, with all that that involves. There was fragmented education and limited opportunity and really the absence of support and guidance from parental figures. None of this was of your choosing.  No one would choose those things.  You had no say in these matters at all, it just happens to be the background that was served up to you, a most unsatisfactory one.  So yours was an unstable and dysfunctional upbringing with few decent role models and some pretty bad influences along the way.  Your background was in my judgement unenviable and no doubt these things all do have a role to play in the faltering trajectory of your life. I do take it into account, your disadvantaged background pursuant to cases such as Bugmy and Herrmann[2]. Your counsel referred to another case of Drake[3] which applies the same principles. I could as easily cite a dozen other recent cases which deal with this issue.

[2]DPP v Herrmann [2021] VSCA 160 (‘Herrmann’)

[3]DPP v Drake [2019] VSCA 293

45An offender's circumstances and their experience during their childhood and formative years must be considered in the sentencing process. It is not just a matter of some historical curiosity that you had this background. It is of course well recognised that the effect of social disadvantage does not diminish with time. Taking these sorts of matters into account is really the sign of a humane society. The disadvantage is not required to be profound for these principles to have application. No doubt there are some who have worse backgrounds than you have had. But there are very many of course who have far better backgrounds. Your background though was disadvantaged, of that I have no doubt. It did not really adequately prepare you for adult life. A background of disadvantage, as you experienced, is likely to have a profound and lasting consequence, as it no doubt has had in your case.  It leaves its mark.  The experts comment on the impact upon you of the sort of background that has been described.  There is no need to demonstrate a causal connection between the background and the offending and nor was Ms Strugnell seeking to establish one here.  She made it plain that she was relying on the general approach referred to by the Court of Appeal case of Herrmann. 

46I do accept those submissions.  I give full weight to your background in the way that that phrase is employed in these cases to which I have referred.  There is undoubtedly, amongst other things, some real reduction in your moral culpability and a moderation of punitive purposes. However, your background is not going to alter overnight. It is your background, it remains with you, and it must be taken into account when I make judgments, as I must, as to your prospects of rehabilitation in the future and also your risk of reoffence.

47Your counsel made it clear that drugs have been a major issue for you for many years.  No doubt you were disinhibited by drug use to a degree, and the major crime I am dealing with was probably motivated at least in part by the desire for money associated with your drug use.  Drug use, however, is not mitigatory in this case, as your counsel conceded on the plea. She was explicit in disavowing any reliance on the Lacey[4] or McKee and Brooks[5] line of authority.  

[4]R v Lacey [2007] VSCA 196

[5]R v McKee, R v Brooks [2003] VSCA 16

48You have been in custody now on these matters for almost a year and that is the longest period you have ever been incarcerated. You have done some courses and programs as Exhibit 4 makes plain, and of course that is a positive. You have been working as a billet. I treat that as a positive as well.  I am told you are drug free. One of the experts speaks of your expressed desire to alter your life for the better. You have participated in the ReStart program and there will be some support upon your ultimate release including that provided by that organisation and also such as can be provided by the Gerins.

Guilty Plea

49I will now turn to some of the other matters raised on the plea.  The first of those matters is your guilty plea.  You have taken this early responsibility for your crimes by pleading guilty when you did. I will treat it as a plea at the earliest time. It is very important that you have pleaded guilty and at that earliest stage. 

50Your victim, and other witnesses for that matter, have in your case been spared the experience of cross-examination in both the Magistrate's Court and up in this court.

51As a result of your guilty plea, the time, and the cost and the effort of a hearing in the Magistrates' Court or a trial up in this court has been avoided.  Witnesses have not been required to give evidence in your case.  You have no control over the way the other case is conducted.

52You have facilitated the course of justice in these various ways, and you must be rewarded for doing so.  You also of course made admissions in relation to the possession of the drugs, and I take that into account in your favour.

53So I take these various matters into account in mitigation.

Remorse

54Ms Strugnell argued that I should find that there was some actual remorse here.  She pointed to the fact that you have pleaded guilty at the earliest stage, and it is true that a guilty plea is often, but not always, indicative of some remorse.  She directed me though to statements as to the presence of remorse in the report of Ms Brandler. Mr Staois' report predates the crime so it can cast no light at all on the presence or otherwise of remorse for this crime. Your account to Ms Brandler to a degree at least understates the extent of the planning engaged in this crime. This crime has none of the hallmarks of something occurring in the 'heat of the moment'. There was plainly some planning here.

55I am however satisfied on the materials placed before me that there is actually some remorse present here and I take that into account in mitigation.

Youth

56I turn now to your youth.

57You were 20 years of age at the time of the offending.  You are still only 21.  You are a youthful offender and one with not too much history before the courts.

58I do accept that your youth is of real importance to my task. 

59I do take into account those principles as set out in the cases cited by Ms Strugnell, cases such as Mills[6] and Azzopardi.[7] 

[6]R v Mills (1998) 4 VR 235 ('Mills').

[7]Azzopardi v The Queen [2011] VSCA 372 ('Azzopardi').

60Young people are not fully developed.  They can and often do make very poor decisions without necessarily considering the consequences. They are less set in their ways and they are viewed as being more amenable to successful rehabilitation.

61The law generally treats youth as involving some reduction in culpability and as leading generally to some moderation of the punitive purposes of sentencing, including the need to deter and to punish.  There is, generally speaking, a stronger focus on rehabilitation and less weight devoted to punishment.  This all makes perfect sense because as I said in the course of the plea, the successful rehabilitation of a youthful offender actually serves to protect the community. The community needs no protection from an offender who is rehabilitated, and that is more likely to take place in the case of a young person, especially a young person where their habits are perhaps not so firmly entrenched.

62We as Judges are also very much awake to the corrupting influences which exist within a prison setting.

63However, the weight to be given to youth will necessarily vary from case to case.  Sometimes, of course, there is no choice but to send even a youthful offender to prison.  That is the position here as is readily conceded by your counsel. You are also not a youthful first offender committing some minor offence.  You are now 21 years of age, you were 20 years old at the time, and you were on two community corrections orders designed to lead you away from offending. The second scarcely had time to operate such was the speed with which you reoffended. You have chosen to commit an armed robbery and not a low level one by any stretch of the imagination. The armed robbery that I am dealing with represents a sizable escalation in seriousness over and above the matters in your short criminal history.

64The fact is, the more serious the crime, the less weight can be given to youth and to rehabilitation, and that is simply because more weight must be given to other purposes of sentencing, including things such as community protection, deterrence and punishment.  I do not lose sight however of your youth in my task.  I do accept that it is of real importance in the sentencing task. Your criminal history is not such that youth loses its gloss or importance. Rehabilitation is very important here.

65I apply these principles from these cases to my task.

The reports

66I see no need to set out slabs of text from the two reports that have been placed before me. I take them into account in the way contemplated by your counsel. They were not in any way being relied upon as establishing any of the Verdins principles. Your counsel was explicit in disavowing the operation of any of those 6 limbs from that case. Still, they are useful in setting out your background and the disadvantage flowing to you from that background. I have spoken already of my Bugmy allowance which is very much founded on what I see within those reports. The reports set out your level of functioning and they deal with aspects of your personality traits and also the diagnosis’ that have been made. Though not rising to the level of Verdins[8] I take into account those matters relating to your functioning and personality and the diagnosis’ made in a non-Verdins fashion. The more recent report also deals with your attitude to this offending and your expressions of hope and desire for a different and better life. I take into account the reports in your favour. Each report comments on your rehabilitative needs.

Rehabilitation

[8]R v Verdins [2007] VSCA 102 (“Verdins”)

67It is to rehabilitation that I now turn.  I have dealt with some of these matters already when dealing with aspects of your background and the importance of youth.  You are still a very young man and with youth, understandably comes the strong hope for change.  Your criminal history is not such as to cause the Court to throw up its hands in despair. There is not a suggestion of this sort of conduct being entrenched. Nor any suggestion that you are revelling in the offending that you have committed.

68It is true that you had those two community corrections orders and true that you did not comply with them. But it is a short sharp criminal history and it seems to me, plainly there is a road back for you. I observed earlier this morning that it would not be unusual to see a very lengthy Children’s Court history indeed for one with your background and yet there is none. That is surely a positive. You have been doing courses and programs in custody and you are working. I am told you are drug free. Though Mr Staios who saw you last year speaks of your limited motivation to change and your having limited insights, Ms Brandler says that more recently you are expressing some desire for change, and I really have no reason to doubt that you do hope to change your life. There could be no joy at all in living the sort of life that you have been living over the last few years. The issue for me though is whether you can change. I do not know but I certainly hope that you can and I certainly am not going to write you off and say that you cannot. I believe you can be reclaimed but it is really going to take work and effort from you.  No one else can do the work, it has to be you.  That is for you to get back onto the right tracks. Only time will tell if you are prepared to make the effort. You probably will not even know at the moment whether you will be able to.  But the test will come as it so often does upon your release from custody. In the meantime keep doing what you can do to maximise your prospects.

69As to risk of reoffence, it is very hard for me to make any sort of precise judgment. Of course it will depend on the steps that you take. That risk of reoffence will of course heighten if you cannot alter the way you live, that is surely obvious.

70Hopefully though, you can make real change in your life.  You were not served up a very good hand in life the way in which you were brought up.  You have had those disadvantages.  You have to take real steps to bring yourself back onto the tracks.  I do accept your counsel's submissions that you have some positive prospects of rehabilitation, but they will be very much conditional upon stable accommodation, mental health treatment, abstinence from illegal drug use and distancing yourself from anti-social peers. These are all big ifs. I can only be guarded at this point but if you can do those things, then I would rate your prospects as being favourable. It is obvious that your rehabilitative prospects will rise very significantly if you can take those positive steps. If you slip back into drug use and socialising with anti-social peers, you will have very limited prospects of rehabilitation indeed. You are not locked into that miserable future, Mr Platten. You are still such a young man. Stable accommodation, a job, a trade, relationships, a useful contributing life, these are all things that can still be achieved by you. It is just not too late for you. You will be in prison and you will be surrounded by people, old lags that have been coming back and forth to prison for 10 years.  They were once like you, probably hoping that they would not come back.  Do not put yourself in that position.  But really the ball is in your court.  So take those things that are being offered up to you by the ReStart program and the Gerin’s and do whatever you can do in the meantime whilst in custody, to maximise your prospects.  Because you can alter the trajectory of your life.  You cannot change the way your background was served up to you, but you have got a choice about what exists in the future.

The Offences

71I have already briefly summarised the offending earlier in these reasons and the agreed summary goes into far greater detail.  I have got the footage and I have got the stills.  The footage really does speak for itself. This was a
fast-moving, alarming crime by armed offenders who plainly had engaged in some decent preparation for this crime. It was a team effort with a stolen car, a driver, gloves and a bag and disguises and weapons. Your counsel told me that gloves could be seen in some of the stills. Roles had obviously been assigned. It did not just all happen spontaneously or impulsively.  It is conceded by your Counsel that this offending is objectively serious, being committed in daylight on a soft target and with some planning. See para 3 of the outline.  The duration was the duration. It is not mitigatory that you were only there for 75 seconds.  No doubt you hoped to be in and out as quickly as you could. 75 seconds is not too brief an interaction when confronted with an armed offender with a hammer. You were in company for this armed robbery. Both members of the entry team had weapons.  

72I do not accept that there was the inevitability of apprehension at all. One member of the team has not been charged.  Once apprehended, there was the inevitability of a finding of guilt, that much is for sure.  You were arrested.  You initially denied any role.  Whatever is said as to that limited duration, it has had a sizable impact upon someone going about their paid employment.  He was only one of the people within the store. We can see the panicked movement of the other member of staff who was present, and we can see the presence of a customer within the outlet. We can see in that recent footage which I have played prior to commencing these reasons, the various pedestrians outside the outlet who fled across the road.

73This was brazen and frightening offending.

74Each party made submissions as to where this armed robbery sat on the spectrum of offence seriousness. Was it mid-level or was it upper mid-level? Or somewhere else on the spectrum? These assessments are very much subjective. Different judges might assign different adjectives to describe the same offence. There is just no mathematical precision in this exercise and it seems to me it is far better to examine what you did, how the crime was committed, than to expend much effort in trying to find the right adjective to describe it.  One thing is for sure though; this was no low-level example of the crime of armed robbery. Your counsel was not for one moment making that suggestion.

75As I said in the course of the plea earlier this morning, some soft target armed robberies occur without much thought at all; sometimes a chance meeting on the street and the opportunistic demand made to a stranger for a phone or a wallet with a weapon obtained at the scene perhaps moments before. Others have more planning with an entry to a retail outlet that has been selected, be it a shop or convenience store or petrol station or very rarely these days, a bank or building society. Yours was a fair distance removed from what is commonly seen. That is, where a person enters a retail outlet, makes a demand to the person, often enough in a petrol station or a 7-Eleven, a person who to some extent has some protection afforded by a counter or a screen or security wires. This was a brazen offence committed in daylight and under the gaze of staff and members of the public who were plainly taken aback by what was taking place. There was a getaway car driven onto the footpath. Hammers were carried, wielded and used. The workers in this outlet were not in that way protected. Mr Sekuloski grabbed the rocking horse to protect himself. You were smashing the cabinets with a hammer. Your offsider, part of the same team and with the same purpose, brandished the hammer in his direction as we can see from the arm raised in the footage.

76You were on two community corrections orders at the time. 

77Armed robbery is an inherently serious offence. This example of armed robbery falls comfortably at the mid-range viewed objectively in my assessment.

78The drug matter is of course far less serious, as I said earlier. You used drugs, had for some time, and had some in your possession on the day that you were arrested. It was not a large amount and as I have said, I am satisfied that the lower penalty provision applies here.  

Purposes

79I have to consider a number of purposes of sentencing.  One of those purposes is your rehabilitation.  I must pay regard to those prospects of rehabilitation. Indeed, as I hope I have made plain, your youth, your background and the relatively short criminal history dictates the importance of giving real weight to that sentencing purpose.

80Rehabilitation, though obviously very important here, is however not the only purpose of sentencing.

81I am required to punish you justly and proportionately.  

82I must also denounce your conduct.  This was serious offending; it was quite outrageous offending really and I must denounce your conduct. 

83I have to give some weight to specific deterrence here given the offence, the nature of it, and the chronology of escalation, with this armed robbery occurring whilst on two community corrections orders.  Specific deterrence relates to the need to deter you from offending in the future.  I must deter you from ever offending in this way again.  There is some moderation to be had by virtue of your youth, your background and the limited criminal history. Plainly it would be a more significant purpose, far more significant, if you were older or had more history and relevant history before the courts but you do not. Community protection is yet another purpose of sentencing, and for the same reasons, I believe that the weight given to that purpose can be moderated here. Again though, I cannot ignore that purpose altogether. Community protection must be given some weight, just not the weight that it would command for an older offender or one with a more significant criminal history or one with a less disadvantaged background.   

84There is however also the need to adequately reflect the principle of general deterrence.  That principle relates to the need to deter other people from offending in the future. Your counsel correctly concedes that it is an important consideration for these sorts of crimes.  This court is required to send a message to others in the community who might be thinking of committing the sort of crime that you have committed.  Regrettably, soft target armed robberies are not at all uncommon and enough offenders who commit them are youthful offenders.  Likeminded future offenders must be deterred from offending in this manner. Again though, there can be some moderation owing to your youth and your background.

85I have to pay regard to the maximum penalties. I have already set those out. Twenty-five years is the maximum penalty for armed robbery.

86I have to pay regard to current sentencing practices and the impact of your crimes. I have already spoken of the impact here.

87Current sentencing practices are not a single controlling factor.

88I have looked at the relevant Sentencing Advisory Council online (SACStat) data for armed robbery.  I have also looked at the very recently published Snapshot No. 285 for that offence published by the Sentencing Advisory Council in October.

89The statistics disclose that where prison was imposed there is a large range of sentences imposed, as would be expected to be the position.  Those sentences span sentences of less than a year to sentences falling between 12 years and less than 13 years.

90I have reviewed the sentences for the offence of armed robbery, those summaries as contained on the Judicial College of Victoria sentencing site (case summaries), both summaries of matters dealt with in the Court of Appeal and matters dealt with at first instance in this court.

91I have looked at the cases that I was referred to by the Crown. I have said already that I was not assisted by those cases. There were very many differences including differences in age and experience before the Courts. So, many different matters in aggravation and mitigation.  They give me no guidance at all.

92Statistics have inherent limitations. All the details which would explain the reasons for a particular sentence are omitted from statistical data.

93As to other cases, no amount of looking at other cases or the statistics can ever provide the answer to my sentencing task in a given case.  Sentencing is not some mathematical or statistical task. That is not what I am doing. I am exercising a discretion, a sentencing discretion, sentencing you for your crimes, taking into account the matters in mitigation and aggravation in your case. This case. No cases are ever identical nor are any offenders ever identical.

Totality

94I have taken a last look at the orders that I intend to make, and I have done that to guard against a crushing outcome and to ensure that the total effect of my sentences is commensurate with your overall criminality here. In fact, I have concluded that I will not even impose a prison term on the drugs matter. I do not believe a prison term is even warranted on that charge, so there is no issue of then considering the extent of cumulation or concurrency in relation to the lesser sentence.  

95Prison is a disposition of last resort. That has always been the position, hopefully it always will be. Your counsel concedes there is simply no other option here. That a prison sentence and one of a dimension requiring the fixing of a non-parole period is warranted in this case, and I agree with that submission.

96Given the sentence that I will impose, I am required as a matter of law to fix a non-parole period. I will provide for a decent gap, a very decent gap actually between your head sentence and the non-parole period and that really is in recognition of your youth and the hope that you may yet be rehabilitated.

97Whether you are released on parole of course is not something I am allowed to even consider.  That will be exclusively in the hands of the Adult Parole Board. Really it is between you and them, though you would be wise to maximise your prospects by doing everything that is asked of you.  I will provide these reasons to the Adult Parole Board.

Disposal order

98There is a disposal order sought in this case.  There is consent to the making of this order.  Just so you understand, it is the forfeiture of the screwdriver, and the hammer, and the drugs, that is about it, the various hammers. Pursuant to the provisions of s78 of the Confiscations Act I forfeit to the State the property referred to in that Schedule.  I direct that it be held and dealt with in the manner contemplated by the signed order, which I have announced in an abbreviated form.

99I will have you stand up now, if you would.  I am sorry to have taken so long to get to this point but I will pass sentence now upon you.

Sentence

100On Charge 1, of armed robbery, on that charge you are convicted and sentenced to 42 months or three and a half years' imprisonment.  That will be the base sentence.

101On Charge 2, possession of a drug of dependence, as I say I do not believe a prison sentence is even warranted in relation to that matter, so on that charge I am going to convict and fine you the sum of $400.

102It follows then that the total effective sentence is that three and a half year term imposed on the first charge.

Non-parole period

103What I am going to do is, I am going to fix a period of 21 months during which you will not be eligible for release on parole.

Section 18 pre-sentence detention

104You have already served 355 days of this sentence by way of the pre-sentence detention and that declaration will be entered into the records of the court.

Section 6AAA

105I have taken into account your guilty pleas.  I have told you that I have reduced your sentence accordingly.  If you had pleaded not guilty and been found guilty of these offences following a trial before a jury, I would have convicted and sentenced you to five and a half years' imprisonment.  I would have fixed a non-parole period in that setting of four years.

106Just grab a seat then for a moment, Mr Platten, and I will see if there is anything else that I need to attend to.

107Anything else at all?

108MR RITLI:  Nothing further, Your Honour.

109HIS HONOUR:  Nothing else?

110MS STRUGNELL:  Nothing further, Your Honour.

111HIS HONOUR:  All right, well look I will get these sentencing remarks back from the Victorian Government Reporting Service and once I have got them, I will revise them and make them available to the parties.  But you have an understanding as to the nature of the sentence at least, Ms Strugnell, and I am assuming you will go down and see your client this afternoon?

112MS STRUGNELL:  I will do.

113HIS HONOUR:  All right, well you will go down and speak to him and give him advice in terms of the sentence that was imposed and his rights in relation to it.  Well that completes the matter then.  I am sorry it has been a long day for you all but it seemed to me it was probably better to finalise the matter in this setting and that is what I have done. 

114So Mr Platten, you can head back downstairs.  Ms Strugnell will come down and have a chat to you about what has occurred here today and your rights in relation to what I have done.  Thank you.

115I have signed that formal order and as I say, once revised I will make the sentencing remarks available to you each.  Thank you for your assistance.

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