Director of Public Prosecutions v Prado
[2014] VCC 1345
•21 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-14-01038
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ULYSIGFRIED PRADO |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 August 2014 | |
DATE OF SENTENCE: | 21 August 2014 | |
CASE MAY BE CITED AS: | DPP v Prado | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1345 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J. McWilliams | Office of Public Prosecutions |
| For the Accused | Mr K. Reynolds | Leanne Warren & Associates |
HER HONOUR:
1 Ulysigfried Prado, you have pleaded guilty to one charge of robbery and one charge of trafficking in a drug of dependence on Indictment No. D1265689. You have also agreed to a summary charge of failing to answer bail being dealt with by this Court and have pleaded guilty to it.
2 The maximum penalty for robbery is 15 years’ imprisonment and for trafficking in a drug of dependence 15 years’ imprisonment. The maximum penalty for failing to answer bail is 12 months’ imprisonment.
3 It is not necessary to recount in great detail the facts of this matter as they are on transcript, the matter having been opened by the prosecutor (Exhibit A) and discussed during the course of your plea hearing.
4 I turn to a brief summary of your offending.
5 You were 35 years of age at the time of your offending and 36 years of age at sentence.
6 In the early hours of Wednesday 26 June 2013, you and Daniel Chilcott separately attended Westend Hotel, Sunshine. At the hotel you played the poker machines. You were there with another male and a female.
7 While you were at the venue the complainant spoke to you.
8 During the course of the morning you approached Mr Chilcott and asked if he “puffed ice”. Mr Chilcott indicated he did and you provided him with a small amount of methylamphetamine as a sample.
9 At about 5.00am the venue closed and Mr Chilcott attempted to cash out the money from his machine. As the venue had closed he was instead provided with a voucher that could be redeemed for cash when the venue re-opened. The value of the voucher was $102.80.
10 As Mr Chilcott was leaving he spoke with you. You were still there with your male and female friends. There was a brief conversation about Mr Chilcott buying some ice from you and he got into the back of the car that you were travelling in. You also got in the rear seat whilst your male companion got into the driver’s seat and female into the front passenger seat.
11 Once in the car you and your male companion made demands for money from Mr Chilcott. You said, “Give me all your money or I’ll fucking kill you”.
12 Mr Chilcott told you he did not have any money, and you and your friends began making threats towards him to hand over his money. Mr Chilcott was in fear that you and your companions would use force to take his belongings. Mr Chilcott tried to get away but the door of the car would not open from the inside. There was a short struggle as Mr Chilcott tried to get away, with you and he exchanging punches to the head during this struggle.
13 Once Mr Chilcott was subdued you patted down his pockets looking for his wallet. Mr Chilcott was in fear and pulled out his wallet, which you took and passed to the female in the front seat. There was no cash in the wallet but there was the redeemable $102.80 value voucher, which was taken by your female companion. You continued to pat down Mr Chilcott, and demanded more money from him. He said he did not have any cash but that he had money at home. The driver started the car and began to drive out of the car park with Mr Chilcott still in the rear seat. As the car you were in drove towards the car park exit, Mr Chilcott and you again began to struggle on the back seat. The car stopped, you opened your door and got out of the car. Mr Chilcott also took the opportunity to get out of the car and ran to his car, which was parked in the car park. He drove home and contacted police.
14 You ultimately, later that morning, gave the voucher to an associate, Alejandro Dologmanding, in payment of a debt you owed.
15 That same night, Mr Dologmanding attempted to cash the voucher at the Hotel. Staff were aware of the robbery earlier that day and when the voucher was presented contacted police, who arrived shortly thereafter. As a result of information received from Mr Dologmanding, you were arrested and interviewed. CCTV footage corroborated the account of Mr Dologmanding regarding your involvement.
16 It is clear from the Prosecution opening, that the prosecution have not proceeded on the account given by Mr Chilcott regarding your offending. The prosecution case is consistent, primarily, with your account in your record of interview. I am aware of this.
17 You participated in an interview with police, admitted you were present at the Hotel on the night, and that you had previously provided some ice to Mr Chilcott that night. I note that was information not then known to police, that is, you volunteered that drug transaction.
18 You claimed however, Mr Chilcott got into the car at the end of the night and voluntarily handed over the pokies venue voucher to your friend, as payment of a debt. You denied any threats or use of force when questioned in the interview, although have now acknowledged exchanging punches with Mr Chilcott, as stated in the Prosecution Opening.
19 You have admitted a very troubling and relevant criminal history.
20 Your first court appearance was on 5 July 1994. Thereafter you had appeared at court, on my brief calculations, on 10 occasions prior to your offending before me, the most recent being at Sunshine Magistrates’ Court on 13 March 2013. Your offending history has included use, possession and trafficking drugs (heroin), dishonesty offences, charges of armed robbery, multiple charges of robbery, assault, intentionally damaging property and driving offences, just to mention a few.
21 Particularly relevant when sentencing you was your appearance at Melbourne County Court on 12 November 2002, on two charges of armed robbery, for which you received a sentence of four years’ imprisonment with a non-parole period of two years.
22 Particularly relevant is your appearance at the Sunshine Magistrates’ Court on 14 November 2006 on seven charges of robbery, where you were sentenced to three years and six months’ imprisonment with a non-parole period of 30 months. You appealed that decision to the Melbourne County Court on 2 February 2007, and were re-sentenced to 42 months’ imprisonment with a non-parole period of two years.
23 On 7 May 2009 you were again before the Sunshine Magistrates’ Court on a charge of robbery and sentenced to nine months’ imprisonment.
24 You then appeared at Sunshine Magistrates’ Court on 11 October 2011 on a charge of robbery, and were sentenced to 12 months’ imprisonment to be served by way of an Intensive Corrections Order.
25 On 13 March 2013 you were before the Court for breaching the Intensive Corrections Order, and the breach was proven. You were ordered in relation to that robbery charge to serve the unexpired portion of 261 days. Also on that same date, you were sentenced on a number of other charges, including intentionally damaging property, driving offences, theft from a shop, theft, possess dangerous article in public, assault with a weapon, traffick heroin, theft of a motor vehicle and dealing with property suspected of being the proceeds of crime. For that offending you were convicted and placed on a Community Corrections Order for 18 months, with conditions of unpaid community work. Your offending before me breaches that Community Corrections Order.
26 You have pleaded guilty to the three charges before me, and you are entitled to have that fact taken into account in your favour and I do so. The community has by your pleas of guilty been spared the time and cost of a trial and witnesses, in particular Mr Chilcott, have not been required to give evidence upon your trial.
27 Further, I take into account in your favour that you intimated early your intention to plead guilty to these charges. This matter proceeded by way of hand-up brief on 11 June 2014. I accept that prior to that date you offered to plead guilty to trafficking methylamphetamine, consistent with your admission in the record of interview. In that regard I received further written submissions from Ms Kennedy, Solicitor acting on your behalf (Exhibit 8), confirming your plea of guilty to the trafficking charge which was indicated at the earliest opportunity, being prior to the Committal Mention on 28 November 2013.
28 It was not until 11 June 2014 that discussion occurred between those representing you and the prosecution regarding the offence of robbery. Prior to that the prosecution had charged you with armed robbery. Your offending resolved to a plea of guilty to robbery on that date, prior to the committal hearing proceeding on that date. I do note however, the prosecution does not now allege the presence of any of the weapons suggested by Mr Chilcott.
29 In your record of interview I accept you volunteered to police your trafficking offending. Regarding the robbery, you minimised your involvement, effectively saying the victim was intimidated by your co-offenders and that you were present when that occurred. You placed yourself at the scene of the robbery, and have now pleaded guilty to robbery. I note again the prosecution did not proceed on the basis of Mr Chilcott’s account in many respects.
30 You are entitled to a sentencing discount by reason of your pleas of guilty and the stage at which each was indicated. I have reduced your sentence accordingly.
31 In the circumstances I accept your plea of guilty indicates some remorse for your offending. However, I am concerned about whether or not this is indicative of true remorse given your repeated similar offending over a number of years. I note also in that respect that your offending dealt with on 14 November 2013 involved offending on six separate dates between 13 and 21 October 2006 (two of the robberies occurring on 14 October 2006).
32 Your previous charges of robbery, I was told, in brief involved ‘street robberies’, ‘bag snatching’, with force used or threatened to achieve the robbery.
33 I note the troubling similarity of your prior offending to that before me, and that those robberies were committed by you also whilst under the influence of drugs and to obtain money to purchase more drugs. I have however not sentenced you on the basis this foresight of drug use/offending was an aggravating feature.
34 I was told something of your personal history and circumstances in a Report from Mr Jeffery Cummins, Clinical & Forensic Psychologist, dated 4 July 2011 prepared relevant to other prior offending. Mr Reynolds, who appeared on your behalf at your plea, submitted that history remained accurate.
35 From Mr Cummins’ Report, you came to Melbourne from the Philippines with your parents at the age of 4 in 1982 and, since then had lived in Melbourne.
36 Your parents had never separated and as at the date of that Report, both your parents were employed. Neither of your parents have been in any trouble with the law. Neither had any mental health history.
37 You then described your mother as being supportive of you, although your father’s support was, in essence, you said, when you were drug-free. You did not have any siblings. I note your parents were in court to support you during the plea hearing before me.
38 You attended St Paul’s Catholic Primary School in Kealba to Grade 6, then the Catholic Regional College in North Keilor to Year 10. You transferred to the Catholic Regional College at Sydenham for Years 11 and 12, successfully completing Year 12. You left school when you were 18.
39 After leaving school you had a number of casual jobs, including work as a machine operator, a forklift driver, and landscaper.
40 You described to Mr Cummins being introduced to heroin when 15 years of age through associating with older males.
41 Mr Cummins referred to an earlier period of imprisonment during which you had completed a 48-hour drug program, from which you were released in July 2010. I discussed with Mr Reynolds, during the course of the plea hearing, your attempts at rehabilitation in the past and most recently, although such having not been sustained for any length of time. I shall return to that shortly.
42 Following release from custody in July 2010, you instructed Mr Cummins between August and December 2010 you were continuously employed at that time as a landscaper.
43 It would appear however from at least 2010 you and your then partner, Natalie, often argued and from your instructions to Mr Cummins, Natalie had an alcohol problem and Nurofen dependency. In an attempt to reconcile your differences, you both attended Relationships Australia in Sunshine, late December 2010 or early January 2011 for counselling. However, you told Mr Cummins by that time your relationship had broken down and you had left the home where you had been living with her. You then became depressed and relapsed into heroin use. I note your relationship with Natalie remains “off and on”.
44 At the time of Mr Cummins’ report in 2011, you said you had not worked since December 2010.
45 You told Mr Cummins that in May 2011 you completed a 20 day residential withdrawal unit program run by the Salvation Army in Corio, and had a Naltrexone implant inserted by a general practitioner.
46 Again, I note there have been times when you attempted to do something about your drug use, however you have not been able to maintain your abstinence.
47 Reference was made to you having been diagnosed with Hepatitis C approximately 10 years prior to Mr Cummins’ report, and reference to you having taken anti-depressant medication over the prior five to six years. At the time of Mr Cummins’ report you were prescribed Avanza.
48 You said you had never been hospitalised in a psychiatric hospital nor been suicidal. At the time of Mr Cummins’ report you were attending with Ms Rebecca Kenny, Psychologist, under a Mental Healthcare Plan provided by your GP.
49 In 2011 you were optimistic you could reconcile with your partner, Natalie, however, most recently, as I have noted, you advised Mr Reynolds that that is most unlikely. I accept that such is distressing to you as I understand there is a child of your relationship and that you had effectively adopted Natalie’s other two children.
50 You described to Mr Cummins your drug use involving smoking cannabis from ages 14 to 18, smoking heroin when 15, and injecting at age 16.
51 You had multiple intravenous heroin addictions before stopping, only to relapse in early 2011, using up to half a gram of heroin daily.
52 You were, at the time of Mr Cummins’ report, optimistic about remaining drug-free. Sadly, your abstinence has not been maintained.
53 At the time of examination by Mr Cummins, you did not present as having an antisocial personality and, in his opinion, it was unlikely you had any personality disorder. You did not speak in an antisocial manner or in an anti-authoritarian manner, or present as having an attitude problem or paranoid. You presented at that time of normal and average intelligence.
54 At interview with him you acknowledged feeling depressed about how you had, at that time, wasted your life through heroin dependency. Unfortunately, on the material now before me you have further recently wasted your life by using methylamphetamine.
55 Mr Cummins noted in his report you had remained drug-free between July 2010 when released from custody to January 2011. Relationship difficulties at that time with Natalie led to relapse into your then heroin addiction.
56 At that time, Mr Cummins considered your prospects for long-term rehabilitation were “reasonably favourable”. Unfortunately, as it has turned out, his assessment was optimistic. You have not been able to be abstinent from drug use.
57 I was also given an earlier Report from Ms Rebecca Kenny, Psychologist, dated 24 April 2012. You attended with her for psychological counselling, commencing on 30 June 2011 and attending at that time on a fortnightly basis. She said you were compliant with appointments and counselling. At that time, it was noted you had issues regarding your partner and such was a destructive relationship causing you stress and anxiety, resulting in your relapse into drug use. Ms Kenny noted your use of a Naltrexone implant had not prevented you from using other substances. You ceased sessions with her in December 2011.
58 I was told you most recently returned to custody, on remand for the offences before me, following your failure to appear at court on 26 May 2014 (the charge of fail to appear currently before me). That date was the first listing of the Committal Mention. As a result of your failure to attend, a warrant was issued and the committal relisted for 11 June 2014. As I understand it, you were arrested on 1 June 2014 and had been in custody since that time.
59 Prior to your return to custody I was told you had made some recent attempts at rehabilitation, attending Windana following being bailed for the offences before me, in 2013. You attended Windana for assessment on 11 October 2013 and were admitted on 16 October 2013.
60 You remained at Windana for 10 days undergoing detoxification and were then involved in inpatient therapy for approximately two weeks. Following that, supported accommodation was arranged for you by Windana.
61 I was given further information in the recently filed written submission from Ms Kennedy regarding your time at Windana in addition to the instructions that you have given your previous counsel, Mr Reynolds. Following your acceptance into the supported accommodation program on 11 October 2013 the first phase of the Windana support accommodation comprised a 5 week stay in the Phase One House, which consisted of living in a group house and actively participating in a variety of groups on Monday through to Friday. You then entered the second phase of the program which comprised of living in a share house and engaging with weekly Case Worker contact.
62 You participated in the Drug Withdrawal Unit for detoxification from 24-27 March 2014 and in a second detoxification program from 24-29 April 2014.
63 Also before me there was a Report from Tim Linnett, Case Worker, Windana Support Service, dated 29 October 2013, who confirmed you were assessed for entry into Windana supported accommodation program on 11 October 2013 and admitted into the program on 16 October 2013. As at the date of that report, you were meeting the requirements of the supported accommodation program.
64 There was also a report from Beau Robertson, Psychologist, Windana Drug and Alcohol Recovery, dated 3 February 2014, who had been seeing you in his capacity as psychologist since 1 November 2013, prior to your recent remand. He described you as having shown a commitment to abstain from substance use and having engaged in psychological treatment. You had expressed a strong desire to re-enter the workforce to provide financial support to your family. You had shown insight into factors precipitating your past use of substances and had expressed a resolve to avoid substance use in the future.
65 Also before me were a number of urine analysis results, negative for illicit drug use, specifically approximately 36 results for the period 17 October 2013 to 30 January 2014. This abstinence and your recent efforts at rehabilitation are to your credit.
66 I was told you did not remain with Windana, rather left prior to 31 May 2014 in yet another attempt by you to reconcile with Natalie and to facilitate contact with your daughter and other two children. That did not work and, as I have previously noted, you have also instructed that that relationship is not viable.
67 The history of your drug use, your attempts at rehabilitation yet relapse into drug use was consistent and supportive of Mr Reynolds’ submission that at best I would have guarded optimism regarding your ability to be rehabilitated. I remain concerned about your ability to remain drug free, and whilst you continue to use drugs you are likely to continue to offend and I am sure you are well aware of that. There remains in my opinion a real likelihood of you re-offending in a similar manner in the future, that is, by committing offences of trafficking drugs and robbery if you do not remain abstinent.
68 Mr Reynolds submitted you had tried to remain abstinent from drugs, however, had not been able to achieve that long-term. You had tried but not succeeded. He submitted that you had tried, putting you in a better position than someone who failed to try in the first place. Of course, I acknowledge that.
69 Regarding your rehabilitation prospects, I do have real concerns. Your prior criminal history for similar offending and ongoing drug use does not give me real confidence at all in your ability to be rehabilitated. However, you have made some efforts and every effort is to your credit.
70 Although one can never give up hope of your eventual rehabilitation, there is little before me to suggest there is any great likelihood of that long-term. However, in fixing an appropriate sentence I must take into account your rehabilitation prospects as they may be.
71 An outline of written submissions was prepared by your counsel for the purpose of your plea hearing (Exhibit 7).
72 Mr Reynolds relied principally in mitigation of your sentence on your plea of guilty at an early opportunity. I acknowledge this as previously stated.
73 Mr Reynolds also submitted you answered questions and outlined your version of events in the record of interview. Whilst that was so, you also minimised your involvement in relation to the robbery charge.
74 Addressing some of Mr Reynolds written submissions, I accept any planning of this offending was brief. For the sake of completeness, I do not regard the location of this offending, being the car park at Westend Hotel, as an aggravating feature as discussed with Mr Reynolds.
75 I am aware no weapons were involved and that the prosecution no longer rely on any suggestion that weapons were involved in the commission of the offence, such, of course, being reflected in the charge that is before me and not one of armed robbery.
76 Mr Reynolds conceded the impact upon Mr Chilcott of your offending was relevant, and that is correct, see s5 Sentencing Act 1991. In his statement Mr Chilcott stated that he was “terrified they were going to hurt me”. I note again, however, that statement by him was in the context of his allegations that weapons were presented to him which, of course, is not the prosecution case.
77 No victim impact statement was before me.
78 Mr Reynolds relied upon your willingness to nominate the co-offenders involved in this offending. I was advised no-one else had been charged. You named two potential co-offenders, one being Caleb Haddara. I was advised that whilst that person existed, the information obtained by police was insufficient for any charges to be laid, relevant to this offending. Regarding alleged co-offender “Joanne”, there was insufficient or information evidence to locate and/or charge her.
79 Mr Reynolds submitted you should be given “credit” for naming your co-offenders, as I understood his submission, leading to a reduction in the sentence to be imposed. However, any weight to be given to you naming the alleged co-offenders in the circumstances I have just described, in my opinion, is minimal.
80 Mr Reynolds submitted regarding the offence of trafficking in a drug of dependence, such was equivalent to “street level” trafficking. That that offending did not go on for an extended period of time and that you made admissions to it without being asked, all of which I am aware. Your offending involved the supply of a small amount of methylamphetamine and an offer of methylamphetamine for sale. Your offer for sale was the basis of your plea to the charge. I accept the submissions that have been made by Mr Reynolds in that regard, however, of relevance and I do note, you do have two prior court appearances for drug trafficking, albeit heroin on those occasions.
81 Turning to disposition, Mr Reynolds submitted the only appropriate disposition was one of imprisonment. He accepted your offending required denunciation, specific deterrence, general deterrence and the need to protect the community. I agree.
82 He urged that you would benefit from supervision on parole, hopefully you do.
83 He handed to me some current sentencing practices and also referred to the decision of R v Wei Tang[1]. As I discussed, it is very difficult comparing cases factually and also relying upon statistics for specifics other than general guidance as to past sentences. The factual circumstances vary enormously from case to case, as do all matters in mitigation and personal to an offender. Again, in that regard I also must note you do have relevant prior history for offences of robbery.
[1] [2009] VSCA 182
84 Mr Reynolds was not submitting the principles in R v Verdins & Ors[2] applied when sentencing you. On the material before me, such was an appropriate concession.
[2] (2007) 16 VR 269
85 Mr McWilliams, who appeared for the prosecution on your plea, submitted your repeated offending of a similar nature for the purpose of obtaining money for drugs was relevant when assessing your prospects of rehabilitation. Further, that there was a need to protect the community from you when sentencing.
86 The prosecution submission was that the appropriate disposition was a significant period of imprisonment.
87 Mr McWilliams referred to your prior and relevant criminal history, including nine prior charges of robbery and other offences of armed robbery, all in furtherance of your drug addiction. Further, he noted your breach of a previous Community Corrections Order.
88 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence which is of considerable importance in a case such as this.
89 Specific deterrence is also an important relevant consideration when sentencing you, as you have a lengthy and relevant prior criminal history, in particular, as I have said many times, a disturbing history of multiple offences of robbery and also armed robbery but of course you are not before me on an offence of armed robbery, I am well aware of that.
90 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. This concerns me on the basis of your continued re-offending whilst on drugs, or when relapsing from periods of abstinence back into drug use, such having been a pattern in the last few years of your life.
91 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
92 On Charge 1, you are convicted and sentenced to 3 years’ imprisonment.
93 On Charge 2, you are convicted and sentenced to 4 months’ imprisonment.
94 On Summary Charge 5, you are convicted and sentenced to 2 months’ imprisonment.
95 Charge 1 is the base sentence and I direct that 1 month of Charge 2 be served cumulatively upon Charge 1 and 14 days of Summary Charge 5 be cumulative upon Charge 1.
96 For clarity, the orders for cumulation are upon each other and upon the base sentence. That results in a total effective sentence of 3 years, 1 month and 14 days’ imprisonment and I direct that you serve a period of 22 months before you are eligible for parole.
97 I have, in imposing what I regard as a lengthy parole period, attempted to encourage and reflect your most recent efforts at rehabilitation, in particular most recently at Windana.
98 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty following a jury verdict, I would have sentenced you to a term of imprisonment of 5 years and set a non-parole period of 3 years and 6 months.
99 Pursuant to s18(4) Sentencing Act 1991, I direct you have spent 81 days in custody by way of pre-sentence detention up to and including yesterday, which was 20 August 2014, and I direct that that be entered into the records of the Court.
100 I do not believe any other orders were sought.
101 MR McWILLIAMS: No other orders sought and I checked the PSD, Your Honour, and that's the calculation I have too up until but not including today.
102 HER HONOUR: Yes, it is up to yesterday, 20 August 2014. I do not think there are any other matters or any other orders. Ms Kennedy, were you able to calculate or have not you had a - - - ?
103 MS KENNEDY: No I agree with 81 days, Your Honour.
104 HER HONOUR: The PSD is correct.
105 MS KENNEDY: Yes, Your Honour.
106 HER HONOUR: Very well, then no other orders to be made, Mr Prado, thank you very much, if you could leave, thank you. Thank you both.
107 MR McWILLIAMS: As Your Honour pleases.
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