Director of Public Prosecutions v Porter

[2017] VCC 1234

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00297

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK ANDREW PORTER

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	3 April 2017
DATE OF SENTENCE:	2 June 2017
CASE MAY BE CITED AS:	DPP v Porter
MEDIUM NEUTRAL CITATION:	[2017] VCC 1234

REASONS FOR SENTENCE
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Subject:  Armed robbery
Catchwords:
Legislation Cited:  

Cases Cited:R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269

Sentence:2 years and 6 months imprisonment; 16 months non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Moran
For the Accused	Ms M. Casey

HER HONOUR: 

The charges

1Mr Porter can remain seated.  Mark Andrew Porter, you have pleaded guilty to one charge of armed robbery.  The maximum sentence for armed robbery is a sentence of imprisonment of 25 years.

Circumstances of offending

2The circumstances are set out in the prosecution opening, which will form part of this sentence.  In summary, the facts are, that your co-accused, Fiona Leigh Graham, advertised sexual services in return for money on a website.  The complainant, James Hind, contacted her, and on 24 July 2016 arrangements were made for him to meet her in Geelong at the front of the Vue Apartments in Brougham Street.

3Ms Graham drove to that meeting location in your grandfather's white Ford Falcon sedan. You were seated in the rear passenger seat of the vehicle.  James Hind was collected at about 10.30 pm and as that vehicle drove off, he realised that you were seated behind him in the vehicle.  He became fearful, because he had not been aware that anyone else, other than Ms Graham, would be in the vehicle.  He was informed that you were her brother, and you were just being dropped off at North Shore.

4The armed robbery took place after Ms Graham parked the car in the grounds of the old Flinders Peak Secondary School.  You asked James Hind if he had any drugs.  He produced a small amount of ice, which you smoked.  You then got out of the vehicle and walked around to the passenger side.  You opened the front passenger door and stated to Hind that you just wanted to shake his hand to say goodbye.  However, instead of shaking his hand you produced a small syringe and held the syringe up to his head as though you were going to jab him with it.  You demanded that he give you his wallet, and you threatened to stab him with the needle.  You made threats to kill you and to slice his face up.

5James Hind gave you his wallet and you grabbed his mobile phone.  You got back into the car and started searching the wallet.  In the meanwhile, Ms Graham had started the vehicle and she drove off towards Geelong.  You became agitated when you realised there was no money in Hind's wallet, and you continued to threaten to stab and kill him.

6Ms Graham drove to a Westpac ATM at the Corio shopping centre, where unsuccessful attempts were made to withdraw money from the ATM.  During this time, Mr Hind was extremely anxious and distressed because of your behaviour, and he could not recall his PIN number.

7On the third occasion an attempt was made to withdraw money, you were unsuccessful again. James Hind used this opportunity to run away towards the security guard at the shopping centre. He was taken inside, and the police were called.

8Although he received no physical injuries, it was clear that James Hind was extremely shaken by what occurred.  His wallet and mobile phone were stolen, and he left his skateboard in the vehicle. However, it was the psychological effect, the traumatic effect of the experience that most affected him. This was made clear by the victim impact statement.

9You were arrested on 28 July.  The wallet was recovered in the vehicle.  When interviewed by the police, you admitted you had been present at the Westpac ATM at the shopping centre, but you denied committing the robbery.

Personal circumstances

10Turning to your personal circumstances, they were contained in the psychological report from David Ball, and the court was also in receipt of a neuropsychological of Mr Jackson.

11You were born on 23 December 2017.  You are 39.  You have, one older brother.  Your father was a truck driver. You told Mr Ball that your father was never there.  He died in a car accident en route to your 15th birthday.

12Your parents apparently used to fight a lot. You ran off when you were 15 and lived on the streets.  You attended school to year nine and had difficulties throughout.  You have, however, always worked in low or unskilled jobs. You have two children, Jacob who is 19 and Angel who is aged 15.

13You have a longstanding polysubstance dependence, using drugs such as cannabis, heroin, amphetamine, methamphetamine and GHB.  You have a criminal history which reflects your problems with drugs, as your priors are largely for dishonesty and possession of drugs, other than an assault police back in 2012.

14You explained this particular offending in the context of losing your job.  You told Mr Ball that you had been clean for six months.  You got a job, but after your boss became aware of your criminal record, you were sacked.  You went down to a drug dealer's house and bought ice, and you went downhill from then.

15At the time of your offending, you were using or you were affected by meth and GHB.  You expressed regret and remorse for your actions.

16Mr Ball described you as a low-functioning, socially isolated man with an impairment in your capacity to exercise good judgment.  He referred to the fact that you had suffered from depression, and there had been suicide attempts.  He said that your test results suggested that there could be an acquired brain injury. It was for that reason that we had the neuropsychological assessment carried out, and I will return to this shortly.

Defence submissions

17In the meanwhile, in respect to your offending, the defence submissions were that your offending was in the lower range of the offence of armed robbery, and for the following reasons: 

·the weapon used was a syringe, and although it had potential to cause harm it was of a different nature to a knife or firearm;

·while this weapon was produced and threats were made, there was no physical injury;

·the victim was not the usual soft target;

·your offending was that of an amateur;

·you did not use a disguise; and you used a vehicle registered to your grandfather; and

·the value of the property taken was low.

Prosecutors submissions

18The prosecutor in her closing submissions, submitted that your offending was more in the middle range for this type of offence.  Although it could not be described as sophisticated, you took advantage of a victim who was seeking sexual services, and used that to lure him into the situation.  Although no knife or gun was used, a syringe was used and the victim was extremely distressed because of the circumstances of your offending.

Sentencing remarks

19In mitigation of your offending, your counsel relied on the following matters: 

·your cooperation with the police when you were arrested at home;

·your plea of guilty at the earliest opportunity at the committal mention;

·your remorse, which you had expressed to Mr Ball and you expressed to the court in a letter;

·the hardship that you were suffering because of your two children, having to make alternative living arrangements while you were in custody;

·the fact that your mother was unwell and her health deteriorated while you had been in custody;

·the fact that you were assessing drug programs while in custody and you had been selected as a peer for other prisoners;

·the fact you had a limited prior criminal history, largely for possession and drug offences;

·that you had always been employed;

·that you had spent 53 days at MRC during the 23 hour lockdown regime.

20While your counsel relied on Mr Ball's support to submit that the principles in Verdins case applied to reduce your moral culpability, you heard me say earlier that I did not accept his submission.  This is because, the neuropsychological report written by Mr Jackson found no evidence of a cognitive impairment disorder or of impulse control, which would be a strong causative link to your offending behaviour.  In his opinion, it was much more likely that your poor executive skills in the community and acting on the spur of the moment, were due to substance use rather than an organic disorder of control. I accept his opinion.

21While I do not accept that Verdins applies to this case, I accept all the other mitigating matters referred to by your counsel.  You have received an appropriate discount for your plea of guilty, which I accept is a genuine reflection of your remorse.  I accept that you are suffering hardship because of your concern for your kids and for your mother, and I accept that you are trying to do something about your drug habit while in custody.

22However, I do not accept your counsel's submission that a community corrections order is within range.  While your offending probably can be described as being at the lower end of the middle range, there is no doubt about the terror Mr Hind would have felt during this ordeal.  General deterrence and specific deterrence have to remain important sentencing considerations in a case such as this, and I have to balance those considerations with all the mitigating factors referred to by your counsel.

23In these circumstances, I am going to impose a sentence as follows, if you please stand up.

24On the charge of armed robbery, you are sentenced to two years and six months' imprisonment, and I fix a non-parole period of 16 months.  In fixing the non-parole period I have taken into account your efforts to rehabilitate yourself while in custody.  I have taken those matters into account in particular.

25But for your plea of guilty, you would have been sentenced to four years, to serve two years and four months.

26I declare 279 as time served.  You may sit down.

27Yes, are there any other matters?  The compensation order was by consent, was it?

28MS CASEY:  That's right.

29MS MORAN:  Yes, Your Honour.  There were orders for a forensic sample as well.

30HER HONOUR:  Isn't there already a forensic sample for this gentleman?  It always surprises me when people come with a number of priors.

31MS CASEY:  I can just check, Your Honour.

32HER HONOUR:  Can you check?

33MS MORAN:  I think actually it was checked on the last occasion, and there wasn't.

34MS CASEY:  Mr Porter indicates he's been profiled on a number of occasions, so perhaps the informant can make the enquiries, and if it hasn't been done ‑ ‑ ‑

35HER HONOUR:  Yes, all right.  I will sign the orders if it has not been done, but I would be very surprised, given his priors.

36COUNSEL:  Yes.

37HER HONOUR:  And I do not want to cause unnecessary work when it has already been done, because this means officers have to keep going to these prisoners and taking the swabs and it takes time, and they could be using their endeavours in a better way than doing this if it has already been done.

38MS CASEY:  Thank you, Your Honour.

39HER HONOUR:  But I will make it, if it has to be.

40MS MORAN:  We'll check, and we'll be in contact if he's not on the database.

41HER HONOUR:  Yes, all right.  Is there anything else?

42COUNSEL:  No, Your Honour.

43HER HONOUR:  No.  Yes, you can take the prisoner down.  Thank you.

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