Director of Public Prosecutions v Pownell, Brodie William

[2013] VCC 335

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION Revised
(Not) Restricted
Suitable for Publication

Case No.                  

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRODIE WILLIAM POWNELL

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JUDGE:	HIS HONOUR JUDGE PUNSHON
WHERE HELD:	Melbourne
DATE OF HEARING:	20 March 2013
DATE OF SENTENCE:	22 March 2013
CASE MAY BE CITED AS:	DPP v Pownell, Brodie William
MEDIUM NEUTRAL CITATION:	[2013] VCC 335

REASONS FOR SENTENCE
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Subject:  Armed Robbery
Catchwords:             
Legislation Cited:    
Cases Cited:            
Sentence:                 3 years imprisonment with 18 month non-parole period

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D. Hogan	Office of Public Prosecutions
For the Accused	Mr N. Power	Fitzroy Legal Service

HIS HONOUR:

1       Brodie William Pownell, you have pleaded guilty to one charge of armed robbery.

2       The offending occurred in the early hours of 17 October 2012. The circumstances were opened by Ms Hogan for the prosecution. A written "Summary of Prosecution Opening" was tendered.

3       In short, you held a knife approximately 20 centimetres from the stomach of a female worker at a "Pie Face" outlet in the city and demanded money. You obtained between $350 and $400. You told the victim you would not hurt her and said sorry on your way out.

4       You were arrested in St Kilda some hours later. You made immediate admissions stating, "Yes, I fucked up earlier. I'm sorry."

5       During a formal interview you told police that you had been robbed of heroin you had been given to sell and committed the armed robbery because you were desperate and fearful for your life if you did not have cash for the person who gave you the heroin. You emphasised that no matter what you "would never have touched that poor lady".

6       You are 32 years old. Your parents separated when you were about two. You remained with your mother who re-partnered. You had a poor relationship with your step-father and felt unwanted.

7       

You made little of your schooling although you attended until the end of

Year 10.

8       You have a good work history.

9       You have a long history of drug abuse. You began smoking cannabis aged 16. Within a couple of years you were using LSD, ecstasy and amphetamines regularly on weekends. You also, but rarely, smoked heroin in your late teenage years. In your mid twenties, however, you "stopped party drugs and started heroin" to use your words.

10      In 2009 you spent time at Odyssey House but relapsed using cannabis and alcohol at first, and then heroin in 2011. You have used benzodiazepines infrequently and you began using "ice" a couple of weeks before the current offending. You also have a history of alcohol abuse.

11      A psychiatric report from Dr Nicholas Owens and a psychological report from Carla Lechner were tendered. Ms Lechner noted that your offending is "inextricably linked" with your drug problem, both in terms of supporting your habit (and/or debts) and adversely affecting your judgement.

12      You have a two year old daughter, who is with your former partner. You have shielded your daughter from your drug addiction but hope to rebuild your relationship on release from prison.

13      Your mother, her father and a step-sister attended court to support you. Work and family support will be available for you on release.

14      Your counsel, Mr Power, emphasised your remorse. I accept that you are highly remorseful. Both experts confirm your remorse. I accept that you are deeply ashamed and empathise with your victim.

15      You were frank with police from the outset. You did not apply for bail recognising that you deserved to be in prison and that it can be used to further your rehabilitation. You detoxified in prison and have undertaken a number of courses to facilitate your rehabilitation, including drug and alcohol, mood and anger management courses.

16      You have concentrated on improving your physical health by getting fit in prison and have addressed your spiritual well-being by developing an interest in, and dedicated significant time to, Buddhism and meditation.

17      Your counsel submitted that you are at the cross-roads. He may be right. It is not uncommon for long term drug users to successfully turn away from drugs in their early thirties. However, as noted in discussion, drug rehabilitation is difficult. Accordingly, whilst I am impressed by your attitude and progress and will do what I think is permissible to encourage your further rehabilitation, I am guarded about your prospects.

18      Importantly, you have no prior convictions. You had been fined, without conviction, in 1999 for hindering police and being drunk in a public place but these matters are of no real significance.

19      You were engaged in other offending in 2012. You were involved in a drug and alcohol fuelled incident in January that resulted in charges of assaulting and/or hindering police for which you received a 3 month prison sentence, wholly suspended on 6 March 2013 in the Magistrates Court.

20      Additionally, you were involved in an incident on 5 October 2012 at a Salvation Army needle exchange facility which led to charges, including threatening to inflict serious injury. You told Dr Owens that this offending occurred "as a direct result of using illicit drugs and alcohol." You were also dealt with for this offending on 6 March 2013 and were sentenced to 4 months' imprisonment wholly suspended by the magistrate.

21      You were on bail for both of the sets of offences, just referred to, at the time of the current offending. You were released on bail for the latter offending less than 2 weeks before the current offending. The current offending cannot be said to be an aberrant and isolated incident of criminal behaviour in the setting of your drug addiction. The additional offending is relevant to your rehabilitative prospects.

22      You pleaded guilty at the first opportunity. You must benefit from this. Your plea saves time, expense and the need for witnesses to give evidence. I also accept that it is reflective of remorse which, as already stated, was demonstrated during and immediately after your offending and has continued.

23      The prosecution submitted that a total effective sentence of between two and a half years and four years' imprisonment with a non-parole period of between 18 and 30 months was appropriate. Your counsel submitted that a shorter non-parole period of between 5 and 12 months should be imposed. My precipitate suggestion during discussion on Wednesday that the range may have been between two and three years was, on reflection, insufficient as a first impression range.

24      However, balancing matters as best I can, you will be convicted and sentenced to 3 years' imprisonment. I fix 18 months as the period you must serve before being eligible for release on parole. I fix this period to encourage your current termination to rehabilitate and avoid substance abuse.

25      You have served 156 days of pre-sentence detention. This is to be reckoned as time already served under the sentence I have imposed.

26      Had you not pleaded guilty, I expect I would have sentenced you to about 4 years' imprisonment and fixed a non-parole period of at least two and a half years.

27      I will make the disposal order sought as well as the order for the taking of a forensic sample. My reasons for the latter will appear in the order. You must understand that a police officer may use reasonable force to obtain the sample. The sample will be by way of buccal swab, that is a scraping from the mouth.

28      Anything that I have overlooked or got wrong that counsel can identify?

29      MR ROPER:  No, Your Honour.

30      MS HOGAN:  No, sir.

31      HIS HONOUR:  All right. I will leave the Bench.

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