Director of Public Prosecutions v Pownall, Matthew
[2013] VCC 577
•7 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BAIRNSDALE
CRIMINAL DIVISION
Case No. CR-12-02033
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW POWNALL |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Bairnsdale | |
DATE OF HEARING: | 7 May 2013 | |
DATE OF SENTENCE: | 7 May 2013 | |
CASE MAY BE CITED AS: | DPP v Pownall, Matthew | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 577 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Fitzgerald | Office of Director for Public Prosecutions |
| For the Accused | Mr P Murphy |
HIS HONOUR:
1 Matthew Peter Pownall, you have pleaded guilty to an offence of armed robbery, committed on the 10 May of last year wherein you were armed with a knife. The maximum term of imprisonment for that offence is 25 years and you have admitted to a number of prior convictions which include, amongst others, offences of armed robbery for which you were sentenced to terms of imprisonment in April of 2001.
2 The prosecution has read into the court record this morning and tendered as Exhibit "A" a summary of facts which, as I understand it, are not in dispute and which form the basis upon which I approach the assessment of the seriousness of this offending conduct.
3 In addition the prosecution has tendered two victim impact statements, that of the direct victim of your crime and that of another shop assistant who was present at the time that the offence was committed.
4 Needless to say, as you yourself have indicated in your draft letter to your victims the event was likely to have caused them a good deal of fear and distress. It is plain from the victim impact statements that that has been the case and there is no doubt as in most of the cases of this kind that there is a lasting impact, emotional impact on the victims of offences of this kind.
5 You were disguised with a balaclava and you brandished a knife to your two victims in circumstances which you intended at the time to put them in fear and which, indeed, did have that result and enabled you to make good your escape with the MS Contin that you were seeking.
6 The offence of armed robbery clearly is a very serious offence. The maximum term of imprisonment for 25 years indicates the seriousness with which parliament regards the offence and as I have indicated in the course of discussion clearly the question of deterring others from committing offences of that kind must be a very significant sentencing objective of any court that has to deal with offences of this kind.
7 The target of your crime, on this occasion, is generally referred to as a soft target. Persons who have the job of keeping shops such as pharmacies deserve some measure of protection from the law and the courts must therefore approach sentencing with a view to deterring others and making clear the denunciation of the court of conduct of that kind as well as punishing you adequately for the offence and deterring you from further offending of that kind.
8 The principles of sentencing also require me to take into account your rehabilitation and to facilitate your rehabilitation to the extent that I can do so consistent with the other competing sentencing principles that have to apply.
9 Your counsel provided me with a number of reports and submitted that the effect of those reports and some of the other matters that he was putting before me was encapsulated essentially, in the final two paragraphs of the letter of Dr Macaulay dated 17 April 2013. Dr Macaulay points out that he had been treating you as your general practitioner for two extended periods.
10 You initially saw him in April 1997 and along with his colleagues he saw you up till 2000. He had seen you a couple of times in 2004. You had been attending regularly since March of 2011 and based on his knowledge of you and your medical history and so on and so forth he says this -
11 "In summary, Mr Pownall has a number of medical issues. He has a chronic pain syndrome following a motor vehicle accident and multiple fractures and associated head injury and requiring narcotic pain relief. This is on a background of previous substance abuse likely aggravated by long term and significant anxiety, depression. In addition he has significant undiagnosed issues with memory loss and learning impairment."
12 Well, I think that that is supported by some of the other reports. Sorry, you are having difficulty hearing me aren't you? Yes.
13 PRISONER: Yes. There is also about four other tests for me to have done.
14 HIS HONOUR: That is all right. You can sit down.
15 PRISONER: Sorry.
16 HIS HONOUR: He goes on in the last sentence to say, "In my opinion these conditions would both singularly and collectively have a significant impact on his ability to make fully informed and rational decisions particularly if under pressure and would also limit his physical capacity to work and maintain employment. They have had a major impact from the majority of his life and are likely to continue to impact on his judgment and capacity for the remainder of his life."
17 Now, it is true that the scientific foundation for what Dr Macaulay says in those two paragraphs is not substantial and on one view the pathway to that reasoning is not spelled out in detail in the materials. However, the materials contained in the reports are supplemented by the evidence of your sister, Kelly Pownall, your older sister and I found her to be a candid and impressive witness. It seems to me that you are a person who suffers from a number of undiagnosed as well as diagnosed impairments, perhaps physical and mental. You will require a good deal of assistance for the remainder of your life. I have no doubt that all of those factors have contributed to your decision to go through with that robbery.
18 Now, I don't have to make formal findings as to the precise reason for your having embarked on that course of conduct and I don't think that I really can on the evidence. Suffice to say that on my overall impression of the material and relied upon by the prosecution and on your behalf I do think that those various impairments, to some extent, have impaired your decision-making processes and therefore, are capable of reducing somewhat your moral culpability for the offending.
19 That said, you still bear significant moral culpability, because you were astute enough to disguise yourself. You armed yourself with a knife and you went through with the robbery for whatever reason in a way that required some consideration and some planning.
20 Now, of course, it can not be suggested that this was carefully planned or that the planning was involved over any long period of time but it was more than merely a momentary lapse and you committed the offences knowing that you had already served terms of imprisonment for offences of that nature. All in all, therefore, your moral culpability for the offending must remain high.
21 As I have indicated targets such as those that you chose need some protection and it is, therefore, necessary to impose a sentence of imprisonment that endeavours to offer that measure of protection to members of the community who might fall within similar categories of potentially soft targets to persons who carry out offences of that nature.
22 There is no doubt you have pleaded guilty to this offence at the earliest opportunity and that is consistent with the other evidence before me that you are remorseful for what you did and I accept that you are.
23 I also give you credit for the plea of guilty on the basis that it saved the State the cost of a trial and the witnesses they inconvenience and the emotional disturbance of having to give evidence about events that would no doubt have caused them to relive the fear that they felt when you were carrying out the robbery.
24 So you're entitled to a discount for the degree to which you have facilitated the course of justice as well as for the remorse which is also consistent with your plea of guilty and there is other evidence of your remorse and I accept that you are genuinely remorseful for what you have done.
25 The offences occurred in May of last year and you have been out of trouble since that time. It's clear that you are fortunate to have the support, not just of your sister but your parents and you will need their ongoing support when, eventually, you are released from the inevitable term of imprisonment that you face.
26 I think that one still has to be guarded about your prospects of rehabilitation and staying on the straight and narrow for the remainder of your life. But if you accept the help that is clearly going to be available to you and make most use of that help then I think your prospects of rehabilitation will be all the more rosy and I think that aids the submission that I can look to a non-parole period - a minimum non-parole period - that is rather less than that which would otherwise be appropriate for this offence.
27 I should say something about the principles that arise in the well-known case in Verdins for the record, at least, so that if this matter is reviewed by another court that they can have some other understanding of what I am saying. I think that the learned prosecutor is right that there is some difficulty with the quality of the evidence in establishing that causal link between the impairments of various kind from which you, it seems to me, clearly suffer and the offending conduct. It is therefore difficult to apply those principles in the terms of the original case or, indeed, as they have been applied in other cases.
28 However, my overall impression and the prosecutor concedes that is that all of these matters are relevant. They do go to the reasons why you have committed this offence. They do point up a vulnerability and for those reasons, as I have indicated, it seems to me that in the instinctive synthesis in which I am required to engage I am required to and, indeed, do reduce your sentence on the basis that your moral culpability is reduced somewhat by all of those factors.
29 I also take those matters into account in reducing the sentence on the basis that I think your vulnerability and the ongoing impairments will make it more difficult for you to cope with the prison environment than for a person who did not have those various impairments.
30 I do not regard the offence as being at the low end of the scale. I think it is perhaps not a useful exercise to measure with any degree of precision where it falls into the category of offences of this kind. Offences of this kind are clearly all too common.
31 Every Judge on this court sees plenty of them in the course of a year. This conduct does not fall into the category of an offence which is carefully planned and carried out mercilessly using weapons in a dangerous way beyond that which you have engaged in and does not involve the causing of actual injury or physical force in the course of carrying out the robbery.
32 Nevertheless, embarking on a robbery of that kind gives rise to a real risk that injury will occur even if not part of the initial planning. It was not possible for you to have determined how others that may have been in the store at the time including your direct victims may have reacted and had they reacted in a less passive way may have resulted in them being injured, even though you may not have intended that when you went into the store.
33 Therefore, I still regard this as being a serious offence and one which requires me to punish you adequately for your offending conduct.
34 PRISONER: (Indistinct)
35 HIS HONOUR: That's all right. Thank you. All right. Taking all those matters into account and doing my best to balance all of those factors I am ready to impose sentence upon you. Would you please stand?
36 For the offence of armed robbery to which you pleaded guilty I sentence you to a term of imprisonment of four years and six months and I order that you serve a period of two years and three months before you become eligible for parole.
37 But for your pleas of guilty I would have sentenced you to a term of six years' imprisonment with a non-parole period of four years. Now there's no presentence detention?
38 MR MURPHY: No, Your Honour.
39 HIS HONOUR: No. All right. I will make the order for disposal in terms of the draft and for compensation of Chemart Pharmacy in the sum of $112.00 in terms of the draft.
40 MR FITZGERALD: If Your Honour pleases.
41 HIS HONOUR: Are there any other orders that I need make?
42 MR FITZGERALD: No, Your Honour.
43 HIS HONOUR: No. Right.
44 MR MURPHY: No, Your Honour.
45 HIS HONOUR: All right. Well, I will sign those orders. You can remove the prisoner. I have signed those orders Mr Fitzgerald.
46 MR FITZGERALD: Thank you, Your Honour. If Your Honour pleases.
47 HIS HONOUR: Yes. Thank you.
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