Director of Public Prosecutions v Provenza

[2015] VCC 1000

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-15-00179
CR-15-00957

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY PROVENZA

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JUDGE:	HIS HONOUR THE ACTING CHIEF JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	12 May 2015 and 24 June 2015
DATE OF SENTENCE:	22 July 2015
CASE MAY BE CITED AS:	DPP v Provenza
MEDIUM NEUTRAL CITATION:	[2015] VCC 1000

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – plea of guilty to one charge of armed robbery and one charge of attempted robbery – summary charges – possess prohibited weapon without exemption – fail to store cartridge ammunition in manner provided

Legislation Cited:     Crimes Act 1958 (Vic), Criminal Procedure Act 2009 (Vic), Control of Weapons Act 1990 (Vic), Firearms Act 1996 (Vic), Sentencing Act 1991 (Vic)

Cases Cited: Boulton v R [2014] VSCA 342; R v Lacey [2007] VSCA 196; R v Williscroft [1975] VR 292; R vHunter [1987] VicSC 194; R v Baldwin (1988) 39 A Crim R 465; R v Nagy [1992] 1 VR 637; R v Bouchard (1996) 84 A Crim R 499; R v McKee [2003] VSCA 16; DPP v Wathen [2015] VCC 849; R v Verdins [2007] VSCA 102

Sentence:                 Convicted and sentenced to a Community Corrections Order of 4 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper (Plea) Ms S. Pattison (Sentence)	Solicitor for the Office of Public Prosecution
For the Offender	Ms K. Blair	KCI Lawyers

HIS HONOUR:

1This plea began on 12 May of this year.  On that day, Mr Roper appeared on behalf of the DPP and Ms Pattison appears today.  Ms Blair has appeared throughout on behalf of Mr Provenza.  Mr Provenza is now aged 31, having been born on the 21st day of December, 1983.  These crimes took place when he was aged 30.  He is a war pensioner by occupation and resides in Florence Street, Mentone.  The first Indictment, No.E13744700, relates in time to the events that happened in Cheltenham Road, Keysborough at the Chemist Warehouse.  As I say, in fact, as it turns out, the second Indictment related to matters at Priceline which took place a week beforehand.  However, given that the matters were presented before the Court in such manner, I will proceed accordingly.

2Armed robbery, for which the weapon used was a knife, is an offence against s.75A(1) of the Crimes Act 1958 (Vic). Of itself, it is demonstrably a very serious offence. The views of the community are reflected in the fact that Parliament has prescribed, as the maximum period of imprisonment, which may be imposed for such an offence, 25 years. Self-evidently, but for a number of offences such as murder and certain drug offences, the period of imprisonment imposed for armed robbery is one of the highest in the statute.

3In addition, pursuant to s.145 of the Criminal Procedure Act 2009 (Vic), Mr Provenza pleaded guilty to two summary offences; one was to the possession of a prohibited weapon, which was an offence against the Control of Weapons Act1990 (Vic), the second was a crime of failing to store cartridges appropriately, being a licenced person in regard to one's obligations under the Firearms Act 1996 (Vic). These were detected after Mr Provenza had been arrested.

4Insofar as the circumstances of the offence of armed robbery are concerned, Ms Blair accepted that the summary in the prosecution opening as to the circumstances on the 8th day of November, 2014, appropriately represented the criminality.  As I said before, this armed robbery was effected upon the business known as the Chemist Warehouse at Cheltenham Road in Keysborough.  Obviously, anyone who knows the area, not very far from Florence Street, Mentone.  As I said, the date of this occurrence was the 8th day of November, 2014.

5In Exhibit A, being the Crown opening, the background to Mr Provenza arriving at the premises, to him stopping in a four wheel drive with his hazard lights on, with him getting out with thick gloves on, placing a plastic bag over the rear registration, all of these things being observed and finally walking off, leaving the engine running, with the hazard lights on. 

6The victim really of the robbery, I suppose, is technically the Chemist Warehouse, but the actual victim, was a person called Tim Lin. 

7There were various observations made of Mr Provenza being in the store.  At paragraph 7, it is reported that Mr Provenza walked down an aisle, looking around the shop.  The victim, Tim Lin, was working behind the dispensary counter at the rear, this is the victim of whom made the victim impact statement.  Mr Provenza walked towards the back of the store and covered his face with a black balaclava.  He then walked up to Lin behind the dispensary counter and produced a knife which he held in front of him towards Lin and indeed one sees that on the CCV footage which was played to this Court and is Exhibit B.

8Mr Provenza, remarked to Lin, "Where's the DD safe?" - DD being dangerous drugs - and there was conversation in regard to that.  The safe key was obtained.  The safe was opened.  Once it was opened, Mr Provenza asked, "Where's the OxyContin and Xanax?"  That was identified, a bag was obtained and into that bag were placed four or five boxes of OxyContin and five bottles of Alprex.  There was some further discussion.  Mr Provenza then left and as has been remarked in the opening, saying to the victim, "Thank you" in those circumstances. 

9There were various statements of witnesses who had seen the car.  Indeed, one person had removed the plastic, taken note of the registration, turned the car off and in fact attempted to remove the keys from ignition, but was unable to do so. 

10Mr Provenza came back after the armed robbery, got in the car and then ultimately sped off.  As I say, the plastic bag having been removed, another witness was able to obtain the number, and yell that out in order for it to be recorded.

11The analysis as to the loss, that is, the true value of the medications, was a figure of $405.  The victim Lin was in shock, having had the knife pointed next to him and that he was scared of being hurt.  However, he did not sustain any injuries.  I have read Exhibit C, which is the victim impact statement signed by Mr Lin of the 7th day of May, 2015, and as I remarked, during the first hearing, it seemed to me that there was nothing exaggerated about those comments and that the feelings expressed by Mr Lin were the natural feelings that would be expressed by a victim in these circumstances.

12It is of course a very scary experience to undergo such a process when you are otherwise carrying out your normal occupation.  It is just that issue that is one of the factors that is responsible for the heavy penalty being imposed by Parliament, the need to protect persons going about their normal tasks and ensure they are not prevailed upon in such a manner. 

13

There was various investigations undertaken and as a result of those investigations, Mr Provenza was apprehended on the Monday,

10 November, at approximately 2.12.  His premises were then searched when the items that I have already referred to were located. 

14In regard to the record of interview conducted on that day, full admissions were made in regard to the Chemist Warehouse armed robbery.  When asked for his reasons, Mr Provenza said he had no reason, and it was completely random as to why he went there.  He admitted driving the car and that he had a black switchblade knife with him.  He expressed in the record of interview remorse.  He stated that it was an act, as far as he was concerned, of desperation and referred to such, not by way of excuse but as to the reason why he was seeking the drugs on that day. 

15As I said, I have already indicated the maximum penalties involved.  There is of course no pre-sentence detention and insofar as the ancillary orders, I have already I think signed the disposal order and forfeiture order and I do intend to sign a forensic sample order.  It is deemed by me, given the seriousness of this matter, that such is an appropriate order to sign and Mr Provenza, that means that you must subject yourself within a reasonable period to an analysis of your DNA material, full details of which will be explained to you.  I would comprehend there would be no difficulty about you doing that and I should tell you, however, should you not do it, there is power for me to compel you to do it.

16During the first hearing, as I said, on 12 May, the Court was advised that there was a further matter, which had in fact, occurred earlier in time. It was seen by me, and agreed to by counsel as appropriate that this Court deal with both matters. I thank the legal representatives for all the work that was involved, as a result thereof, a further Indictment was filed in this Court, No.E11723945, which contained within it a charge of attempted robbery. This is pursuant to s.321M of the Crimes Act 1958 (Vic), a charge for which the maximum penalty prescribed is one of ten years.

17The matter was adjourned to 24 June of this year.  The circumstances were quite similar except of course that this time the attempted robbery took place in regard to the Priceline organisation on the first day of November 2014.  Again, as agreed by Ms Blair, there was consent to the reception as Exhibit D, by this Court, of the Crown opening as representing the agreed facts of this crime. 

18Mr Provenza, of the same age and same address and occupation on this earlier date of 1 November, went into the Priceline store located at 373A Clayton Road, Clayton.  Again, an area not all that far away from his residential home.  He approached a person working there by the name of Ong.  He was wearing a top with the hood over his head but his face was visible, told her that he wanted keys to the DD safe, that he had a gun and he padded his right front pants pocket.  No gun was actually seen.  He was told by her that he did not have the keys.  He was then taken to the store manager who also told him they did not have the keys.  He was told there were no such drugs and as a result he left the store, police were called. 

19The circumstances in regard to this came about after the apprehension and his own presentation by himself at Box Hill, as I have already recorded, where he underwent a Record of Interview.  He in fact said, and there seems to be no dispute as to why this would not be correct, that he did not remember the incident due to the personal issues that he was struggling and he advised the police on that occasion in regard to this event that he was suffering post-traumatic stress disorder and again the addiction and referred to his service in the Army.

20He said in regard to those circumstances that having seen the photos, he acknowledged it was him but said he did not remember it, and acknowledged he was running away from Priceline as shown on some photos.  He again gave the full details of his background.  He said this, as recorded at paragraph 13 of the opening:

"When that came in, I wasn't able to…cause my tolerance had…over five years my tolerance has gone so high, so ridiculously high that…I wasn't able to continue what I needed, with the upkeep of painkillers and sleeping tablets that I needed to function and it threw me into despair.  I didn't know what to do."

21He said further:

"I do not remember this from my memory but from what I've seen I did do it.  I feel very remorseful for the people I may have traumatised or harmed and that's all I want to say."

22Clearly that plea in itself, given the circumstances, can only be classified by the Court as a very valuable plea.  There was no victim impact statement filed. 

23The plea of Ms Blair was conducted firstly by the filing of a submission which became Exhibit 2 for which I help thank her, helpfully on p.4 of that submission was a chronology insofar as Mr Provenza was concerned. 

24The history of Mr Provenza insofar as the Army was set out by Ms Blair, him having joined the Army in November of 05.  He was a person who was a regular in the Army and was a person who was committed to such life.  His service record was tendered which became Exhibit 5 which demonstrated that he had indeed served this country in both Timor and Afghanistan.  He was involved in October of 06 in Timor in body identification matters which, as I understand the diagnoses and the analysis of his current mental state, do play a part in the post-traumatic stress disorder that he ultimately suffered. 

25Mr Porvenza subsequently also served in Afghanistan.  His particular details are set out in his service records, however, tendered at Exhibit 11 is the details of the Battle of Derapet  which was part of his tour of Afghanistan, a battle very well-known which caused deaths of Australian persons and was a significant battle.  Indeed, one of his own friends was killed.

26In that month in which the Battle of Derapet occurred, Mr Porvenza was also injured.  The full details of that history are best set out by the document, Exhibit 6, which is the document prepared by the orthopaedic surgeon, Mr Skelley, for the Department of Veteran's Affairs.  Insofar as this injury is concerned, it occurred during his period in Afghanistan in 2010.  The doctor refers to the mechanism of injury as follows.  “He stated he was injured when he was on infantry patrol in Afghanistan, somewhere in August 2010, when an improvised explosive device, known by the Army as an IED, detonated close by and he was thrown up in the air.  He did not lose consciousness but was stunned for a short time.  He managed to get back on his feet, continued the patrol at the end of the mission.  On return to base, he reported a hurt back and ringing in the left ear to the base medical officer.  The base medical officer prescribed OxyContin for his pain.” 

27As to subsequent progress and specialist treatment, it is clear that he has continued and did continue to take on OxyContin for his back while he continued to serve in Afghanistan.  He finally returned to Australia in November 2010 when he saw an Army doctor who took X-rays of his back.  They demonstrated apparently a prolapsed disc and a fractured coccyx.  His pain continued and he was ultimately discharged from the Army on 12 January 2011.  I point that he was discharged because of his medical condition in circumstances where he had been a person who had intended to make the Army his life. 

28His pain apparently had continued in such a manner and the pain continued after being discharged despite the prescription of a number of treatments, in particular the continuation of OxyContin.  That I think sets out the details of the original injury. 

29He was ultimately, as I said, discharged on 12 January 2011, which was an administrative discharge.  He was given what is known as a white card.  He was not of a TPI criteria apparently.  He was further given a payout pursuant to the regulations that relate to persons who have so served and been injured, and apparently that sum has been invested by his parents.  He, because of his injuries, unfortunately has found and continued to have found difficulty insofar as carrying out work and in such a situation it cannot be underestimated that in the report that I have referred to of Mr Skelley, who was a consultant orthopaedic surgeon, having assessed Mr Provenza, at p.4 of his report, provided the following assessment to the Department of Veteran Affairs under the heading, 'Summary and Assessment'.  This report is dated 3 September 2012.

"Mr Provenza is a 28 year old man who sustained multiple injuries, including an injury to his lower back during active combat duty when deployed in Afghanistan in August 2010.  Since then, he has suffered chronic pain in his lower back and leg.  Subsequent investigations include MRI scans which suggest his pain is due to soft tissue injury including injuries to L4-5 and L5-S1 discs in his lower back."

30The X-rays conducted at that time showed L4-5, L5-S1 disc disease, however the MRI conducted at that time did not show any X-rays of the lumbosacral spine and the doctor or the surgeon was unable to confirm the alleged fracture of the coccyx.  Again, under 'Summary and Assessment', Mr Skelley remarked that Mr Provenza was diagnosed with a post-traumatic stress disorder which was having a significant effect on the severity of his back injury.  This medical opinion, provided by a specialist consultant orthopaedic surgeon, is important in analysing the history of Mr Provenza, in particular, that such was occurring well prior to the happening of these offences. 

31Continuing under the word 'Prognosis', the surgeon said that he considered the prognosis poor, that Mr Provenza would continue to have chronic back symptoms which would be difficult to control with non-operative treatment.  However, he did not think there would be a surgically treatable problem in the back.  When asked precisely what was the diagnosis Mr Skelley said:

"He suffers a soft tissue injury to the lumbar spine.  In addition, he may have had a fractured coccyx but I don't think this is responsible for the pain now." 

32Mr Provenza also suffers from post-traumatic stress disorder, which was of course outside the expertise of the orthopaedic surgeon, which affects his back injury.  Insofar as his employability, the surgeon stated to the Department that Mr Provenza is incapacitated for all work.  Further, insofar as the future for his condition, the surgeon stated that he thought it was unlikely that further treatment would decrease the impairment of which Mr Provenza was suffering.  Insofar as the answering of the question as to what particular condition was preventing the return to work, he said:

"I do not think there will be improvement in the pain levels and that this will require him to undergo ongoing treatment with OxyContin which would prevent him returning to further work." 

33The interesting thing is that despite that report and diagnosis sent to the Department of Veteran Affairs, after a trip overseas in 2013 to Brazil apparently where he was hoping for employment which was unsuccessful, he in fact reenlisted in the Army in September of 2013.  It then became apparent unfortunately that he was not satisfactory from a medical point of view to be a member of the Army and he was subsequently discharged in November of 13. 

34The medicine list that he was on, in particular when he was at one stage placed in a ward for psychiatric assistance for veterans was tendered at Exhibit P.  He had ongoing issues insofar as addiction was concerned leading up to the week these crimes were committed, brought about by a combination of his physical pain and his post-traumatic stress disorder. 

35The next report tendered was the consultant psychiatrist Mr Walton, Exhibit 7.  This report was tendered for the purposes of this hearing.  It is a report dated 6 May 2015 and I think is a very important report insofar as this case is concerned.  Mr Walton took the history, and of course he was well aware of the criminal history of Mr Provenza, his time in the Army and of the matters that I have spoken about as to treatment. 

36In regard to the year 2014, Mr Walton, at p.2, remarks:

"In the months leading up to the offending, Mr Provenza was being managed on a reducing does of methadone but he was not able to cope with that without supplementing that with illicit heroin of around 1 gram three times a week.  He was suffering more or less constant symptoms of narcotic withdrawal." 

37Subsequent to the criminal events, Mr Walton noted that Mr Provenza had entered the formal drug rehabilitation program at the Raymond Hader Clinic.  I will refer to the comments of Damian La Peyre, who gave evidence in this matter, shortly.  Mr Walton noted the personal history, the family support that Mr Provenza has, and undertook a mental analysis of Mr Provenza.  His opinion provided to this Court was that Mr Provenza would attract the psychiatric diagnosis of chronic post-traumatic stress disorder and parallel depressive disorder.  Those psychiatric conditions being complicated by drug addiction.  The latter, currently in remission.  While of course noting that there was no formal defence presented in regard to such diagnosis, he said at paragraph 2:

"That said, while it is hardly unheard of for narcotic addicts to perpetrate armed robberies upon pharmacies, this man's circumstances do impress as being at least somewhat atypical in that he developed his narcotic tendency in a context of having sustained physical and psychiatric injuries while performing military service and, despite the desperation associated with his narcotic withdrawal symptoms at the time of the offending, he specifically avoided stealing cash, his seemingly simply wishing to acquire medication to offset his withdrawal symptoms."

38Mr Walton opined that it is likely that Mr Provenza's capacity to exercise proper social judgment at the time was compromised by his parallel depression.  Mr Walton thought that Mr Provenza impressed as straightforwardly remorseful, if I might say so, consistent with the statements made in the record of interview.  Mr Walton noted that Mr Provenza had now applied himself to appropriate drug rehabilitation and was now receiving proper psychiatric treatment, both of these interventions being reported as beneficial.  Mr Walton concluded from a psychiatric point of view that there was "a fairly close nexus between his psychiatric problems and the offending."  He also made comment as to the impact upon Mr Provenza of immediate incarceration.

39As to prognosis, Mr Walton said in relation to Mr Provenza’s mental health and recidivism, they were guardedly favourable.  Mr Walton thought that Mr Provenza had in these circumstances taken significant steps towards rehabilitating himself regarding the drug addiction and there had also been some improvement in his mood with appropriate psychiatric treatment.  Therefore, he opined, that it follows to the extent that such factors were relevant to the offending, that reversing them should lower the risk of recidivism.  The lack of previous offending he thought was reassuring.  Such is not precisely correct, but the prior was of such minor nature that I do not take it into account in this matter, albeit a dishonesty matter.

40The indications are that Mr Provenza is suffering from a treatment responsive depression.  His recovery will certainly be enhanced if he manages to remain illicit drug free.  There probably will be residual symptoms in the long term, especially if he has enduring pain.  In order to - and again, post criminal activity, but in order to seek assistance, Mr Provenza went to the Raymond Hader Clinic to which I have already referred, Mr Damian La Peyre gave evidence as to such.  The particular updated reference that I want to refer to was Exhibit 10A, Mr La Peyre also gave evidence to this Court.  At p.2 of the report of 25 June 2015, Mr La Peyre said that the Raymond Hader Clinic provides abstinence based residential and after care programs designed to treat individuals with substance dependence disorders and other coexisting behavioural and psychiatric issues.  On 30 December, Mr Provenza was admitted to the Raymond Hader Clinic Residential Rehabilitation Treatment Program, located in Geelong.

41I will not set out the details of what such treatment involved.  Mr La Peyre said that while in treatment, Mr Provenza had maintained total abstinence from all addictive substances, including alcohol, this was supported by regular and random routine drug screening that has consistently turned up negative results for drugs and alcohol.  I specifically asked Mr La Peyre, when he was giving evidence, what that meant.  He said that during the period in which Mr Provenza was in the residential treatment program, drug screening took place at least twice a week and he had between 45 to 60 drug screens, random drug screens, and all of those were positive, in the sense that they did not record any readings.

42Mr La Peyre said that subsequently Mr Provenza has been in outpatient treatment by way of transition at the Raymond Hader Clinic premises at Commercial Road.  He is also assisting and giving assistance to other persons with similar afflictions at the Geelong clinic.  Mr Provenza signed up for ongoing treatment for the next 12 months, he is living at Moonee Ponds in the transition centre conducted by the organisation, he has been there for three months and will do a further three months, and as part of his recovery will need, and will get, specialist counselling for his post-traumatic stress disorder.

43By way of summary, Mr La Peyre said:

"Mr Provenza has achieved a consistent success throughout his time in residential treatment and is currently 183 days abstinent from all substances on the day of writing this report.  In the context of the complex nature of Mr Provenza's comorbidity regarding his PTSD diagnosis and substance dependence disorder, it is not uncommon for a number of relapses to occur before long term abstinence can be achieved.  At the time of writing this report, Mr Provenza has not relapsed since entering the Hader Clinic which is supported by the negative UDS results.  It is the writer's opinion that Mr Provenza will have to continue to participate in long term treatment to have success in address the diagnosis of significant PTSD."

44Mr La Peyre further said that:

"During the time of his treatment, Mr Provenza has displayed a commitment to the program which is demonstrated by his participation in all aspects of the program.  He has expressed a willingness to do whatever it takes to remain abstinent from alcohol and other substances and he displays attributes such as honesty, motivation and willingness."

45I should also point out that there was indeed an earlier report, Exhibit 10, from the Hader Clinic which provides further details as to the actual treatment concerned, I do not need to go into that any further.  Exhibit 11, insofar as the history of Mr Provenza was concerned, provided precise details which I found of particular interest for people who do not fully understand what the battle involved but a precise history of the Battle of Derapret.

46In addition, tendered insofar as the background that I have referred to were Mr Provenza’s record of Army service, Exhibit 3, the awards flyer and a photograph of his medals with the relevant annotations.

47Insofar as the submissions of Ms Blair were concerned, as I said, they were made orally, and pursuant to the document, Exhibit 2.  Essentially the submission to the Court was that given the particular history of Mr Provenza, this is a case which is exceptional to the degree that despite the commission of such serious offences, a sentence can be imposed which does not involve immediate imprisonment. 

48The plea went firstly to the circumstances of the offending.  Ms Blair noted that on neither occasion, although there was an attempt in the actual armed robbery to put a headgear on, there was no real disguise, there was a knife produced on the first occasion, but no gun actually produced in the attempt, that the violence was essentially at a low level.  However, in saying that, one cannot underestimate the feelings of a person confronted with a knife.  Certainly in regard to the attempt, when told there were no drugs, he willingly left the store and he had no memory of it. 

49I think it is suffice to say that the particular circumstances of the offending were to say the least, unique.  The manner in which the locations were sought seems to have been random.  There seems to be no planned pattern as to the carrying out of the offending in each instance and indeed, as is demonstrated, they were carried out in a manner where it was certain that Mr Provenza would be arrested eventually.

50The analysis of course of the gravity of a matter is done objectively.  I assess, in both instances, the objective gravity is of the lower order.  That is not in any way to say it is not serious.  Such is by way of comparison to the types of crimes that we hear in this Court. As to the analysis, there was in my understanding of the prosecution's submission, no dispute in that regard.

51In Ms Blair's plea, there was stress made in regard to a number of factors.  The first as to the plea of guilty and the particular circumstances to be taken into account in regard to s.5(2)(e) and in particular now s.5(4C) of the Sentencing Act 1991 (Vic). The assistance to the police when apprehended, the valuable plea in regard to the attempt, the fast tracking of the armed robbery charge, the expressions of remorse made at the time of the Record of Interview, and the confirmation of the same by the medical witnesses, the utilitarian benefits of the plea, in particular in this case where we managed to get both matters on at the same time. The fact that there are no priors - apart from a minor dishonesty matter in 2004, certainly no offences in Mr Provenza's background for offences of this seriousness.

52In looking at the offences themselves, the background to the offences is that Mr Porvenza was in the throes of mental disorder, as indicated by the psychiatrist.  The offending all occurred within the one week and resulted from an addiction, which can be traced back to injury received while Mr Provenza was in active military service on behalf of this country, and the subsequent treatment.

53As I indicated, certainly as far as I am concerned, this is the first time this Court has had to deal with offences with such a background. From what I understand, in regard to the psychological impact of our military incursions, on behalf of the Australian people, in both Timor and Afghanistan, it probably will not be the last. 

54It is obvious that the injury, the addiction and the medical consequences thereof, suffered while in military service, were well in place prior to these criminal offences occuring.  What was stressed by Ms Blair was the issue of rehabilitation.  I have already referred to the treatment in the Hader Clinic, and I will not go over it again. 

55Mr Provenza is currently drug free and has been so since December 2014, and I refer to the matters that I spoke about in regard to Exhibit 10A and the evidence of Mr La Peyre.  It is clear, given the problem, that there is need for ongoing support, treatment and supervision and that Mr Provenza fully understands that. 

56Mr Porvenza has support in the community from both his parents and his partner.  I have been impressed by the statements of his parents and his partner, set out in Exhibit 8, and together with the evidence of Mr Walton and the orthopaedic surgeon, to which I extensively referred, provide, I find evidence of an excellent prospect of rehabilitation.  However, one should not blind one's self, as each of those reports indicated, Mr Provenza, you are really at a crisis in your life.  If you do not take the steps as prescribed for you, there will not be any second chances. 

57There was no issue that the first consideration of the Court, given the seriousness of these crimes, must be a period of immediate imprisonment.  However, essentially the submission, as I have already indicated, of Ms Blair, was that in this particular case, the circumstances being of such an unusual nature, that in particular, looking at the provisions of s.5(4C), there is in this exceptional case, an alternative and that appropriate punishment could be affected by the imposition of a Community Corrections Order.

58It was further submitted that in this exceptional case the very important considerations of general deterrence, denunciation and just punishment can be met by a Community Corrections Order.  And further, that such punishment would be in the interest, of not only the community, but Mr Provenza by way of ongoing treatment being provided, monitored and supervised, pursuant to the conditions of a Community Corrections Order. 

59Given such plea I called for a Community Corrections assessment report.  That report was tendered as Exhibit E and I do thank Ms Olga Perifanos, for providing that report, in the time that she did.  It is noted that the accused was assessed by the community correction officer, having attained and looked at all the material provided by this Court. The officer determined Mr Provenza suitable for such an order.  It was noted particularly that he had now been substance free for over four months, that he now manages his pain with regular exercise, that he is living in supported accommodation, and that his long term goal is to be able to work with returned veterans as a counsellor.  Such of course is totally dependent on him ridding himself of the addiction that led to this criminality. 

60The guideline judgment of Boulton v R [2014] VSCA 342 ‘Boulton’ was referred to in submission.  The final submission was that I could, after having balanced all relevant factors, to which I have referred, impose a single Community Corrections Order upon Mr Provenza.

61In response, Mr Roper on behalf of the Crown noted the Community Corrections assessment report and the comments of Mr Walton.  On the issue of moral culpability Mr Roper referred to R v Lacey [2007] VSCA 196 ‘Lacey’, and the analysis in that case where crimes are committed as a result of, and with a background of ongoing painful medical conditions.  Mr Roper submitted, in the particular circumstances of this case, that the sentence option put by Ms Blair would be within range. 

62The imposition of such a sentence should clearly be identified as unusual.  That comes about essentially from the following proposition.  For far too many years than this community would care to remember, certainly at a time prior to my coming to the Bench, this community has been beset by the curse of drug addiction, and the criminal consequences thereof.  The fundamental principle that governs sentencing for armed robbery and/or attempted robbery as set out by the Court of Appeal, on many occasions, is that given the maximum penalty prescribed, Parliament has indicated the serious nature of such offences.  As I have already remarked, such is the highest maximum penalty that is provided under the Sentencing Act 1991 (Vic), but for that of murder and certain particular drug offences. This is so because of the view of the community concerning armed robberies.

63As I say, this has been expressed for many, many years.   Indeed if I go back, prior to our current Court of Appeal, to the days of the Court of Criminal Appeal and to R v Williscroft [1975] VR 292, a case decided prior to the increase of the maximum penalty to the current 25 years. In that case, Adam and Crockett JJ said this at p.302, insofar as armed robbery cases are concerned:

"It seems clear that by and large the Courts consider that aggressive and rapacious conduct so violates the community's fundamental values and imperils the average citizen's sense of security and confidence in law as to require those engaging in such conduct to suffer in requital for the harm they do to others."

64A further similar statement was made in R vHunter [1987] VicSC 194 ‘Hunter’, to which I will also refer for other purposes.  Again an unreported determination of the Court of Criminal Appeal, handed down on 25 May 1987.  The Court of Criminal Appeal, which was made up of the then Chief Justice Sir John Young and Murphy and Brooking JJ, one would hesitate to contemplate a stronger Court.  The Court said at p.5:

"The crime of armed robbery is a very serious one which not only deprives innocent victims of their property but also puts them and others in fear for their bodily safety.  The crime thus combines elements of an offence against the person with elements of an offence against property.  It is also very prevalent in our community.  Parliament has indicated its view of the gravity of the offences by fixing the maximum penalty of imprisonment at a term of 25 years.  It is therefore incumbent upon the Court to impose condign punishment and this has generally been done."

65It is important to remember those sentiments and those guiding principles when determining what is an appropriate sentence for a person who has committed that very crime of armed robbery and is also before the Court for the crime of attempted robbery. 

66The end result of an analysis by me of the authorities dating from that time that I have just referred to, that is, 1975, is of course that a non-custodial sentence as sought by Ms Blair could only be given in circumstances which are exceptional.  Circumstances such as an armed robbery being committed because a person is drug addicted are rarely considered mitigatory, or rarely mitigatory to the extent that would lead to a person not being sentenced to a period of immediate imprisonment.  Such has been long established.

67I refer firstly to R v Baldwin (1988) 39 A Crim R 465 ‘Baldwin’, another decision of the Court of Criminal Appeal, comprising Acting Chief Justice Crockett with Judges Gray and Southwell, again a Court of some standing.  There is a significant difference insofar as the terms of your case, Mr Provenza, and Baldwin, apart from the time, it being August 1988, it involved armed robberies, 14 armed robberies carried out in the same manner as you did, with the use of a knife.

68The general principles were detailed in the judgment of Crockett ACJ on p.2:

"I believe that the principles, as I understand them, that are applicable as to govern the propositions to which I have just referred are those from Fox and Freiberg," which he then goes on to quote Fox and Freiberg, 'Sentencing in the State of Victoria', at paragraph 12.503 where it was stated:

"It has often been put in a plea in mitigation that robbery was actuated by a craving for drugs rather than avarice.  The offender felt compelled either to steal drugs directly by robbing a pharmacy or to rob other persons in order to obtain funds to purchase illicit drugs.  Such pleas are usually unsuccessful unless since the date of the offence the offender has been cured of his addiction or alternatively the promise of rehabilitation is so great as to displace deterrence as the primary consideration."

69Suffice to say that in that case, Mr Baldwin did not escape immediate imprisonment, the Court not being so satisfied of the promise of rehabilitation. 

70I then refer to Hunter, the reference to which I have already given. I should add in that particular case, again quite different to you, Mr Provenza, the Court was considering 22 counts of armed robbery. However, as to the principles that I am considering, the Court of Appeal said, at p.6:

"The fact that the offences were committed to obtain money to feed a drug habit does not of course excuse the crimes, nor render them less heinous.  Indeed, many members of the public might regard the purpose of the robberies as aggravating factor.  It would not be right for the Court to do so.  It is sufficient for present purposes to say that although it is a relevant factor to be taken into account, it is not a mitigatory factor.  It is a relevant factor because the Court must assess the prospects of rehabilitation of the offender and in the case of many crimes committed for the purposes of obtaining money for drugs, the prospects are not encouraging."

71This matter was more recently considered in the case to which I was referred by the learned prosecutor, Lacey, which is a determination made by the current Court of Appeal on 17 September 2007, again comprised of an equally strong Court of Vincent, Redlich and Habersberger. In considering this issue, at paragraph 12, the whole Court said this, in contradistinction to the reference I have just made in Hunter:

"There is clear and binding authority that in Victoria drug addiction may constitute a significant mitigating factor."

72They went on to quote a case of R v Nagy [1992] 1 VR 637 where McGarvie J had said insofar in regard to such a factor:

"The regard that is to be paid to this factor depends upon the circumstances but there is no legal restriction on the extent of the allowance which can be made for it in determining a sentence."

73The Court further considered R v Bouchard (1996) 84 A Crim R 499, and then
R v McKee [2003] VSCA 16, [12] to [13] where Buchanan JA summarised the situation as follows:

"The motive for the commission of the crimes was the appellants' need of money with which to buy heroin to feed their addiction.  According to the Court of Criminal Appeal in New South Wales it has been "said on countless occasions that addiction to heroin is not to be considered as effective reduction of what would otherwise be an appropriate sentence".  While the existence of an overwhelming physical craving may explain the commission of a crime to obtain money to purchase heroin to still the craving, the courts' refusal to take it into account may be due to the view that the decision to begin to use drugs is said to be voluntary and the commission of crimes to feed the addiction is a likely consequence of that choice."

74There is then discussion as to the issue of voluntariness.  The Court, having considered all those authorities went on to say the following:

"The offender's addiction will only call for mitigation of punishment where it is established on the balance of probabilities that there was a link between that addiction and the commission of the offence." 

75It further said at the next paragraph:

"To adopt the words of the Queensland Court of Appeal, addiction in this case is a factor that helps the offender: "to the extent of showing that his descent into the crime in question was a secondary consequence of desperation produced by a human weakness rather than by a primary choice.""

76Albeit, again in a case involving more numerous offences of four charges of armed robbery and one charge of robbery, these authorities were analysed by my brother Parrish in DPP v Wathen [2015] VCC 849, where imprisonment and a Community Corrections Order of three years was imposed, the imprisonment amounting to the period of that Mr Wathen had spent on remand.

77It is not for me to apologise to you, Mr Provenza, for going through the authorities to such a degree.  You should understand that to take such a step, as the Court is being asked by your counsel, is wholly unusual, as I said, is reserved only for exceptional cases. 

78Having considered all of the material, I do come to the conclusion that firstly on the principles of R v Verdins [2007] VSCA 102 ‘Verdins’, there is the necessary connection in this case.  As the Court said in Lacey, the offender's addiction will only call for mitigation where it is established on the balance of probabilities there was a link between that addiction and the commission of the offences.

79I have no doubt, and I find on the balance of probabilities, that while on war service on behalf of this country, the injuries that you suffered during that war service and the consequences of the treatment thereof was the precipitating factor behind these offences.  I have no doubt of that connection.

80In the terms, that I have just referred to of the Queensland Court of Appeal, I have no doubt, that your descent into the commission of two of the most serious crimes that you could commit, was a secondary consequence of your desperation produced by human weakness, rather than a primary choice. 

81The real struggle I have had, as to whether I should consider your case exceptional and therefore not impose immediate imprisonment, is whether I am satisfied at this stage that your rehabilitation is to such a degree that in all the circumstances the primary sentencing considerations of punishment, deterrence and protection of the community should be ameliorated firstly because of the moderation caused by my findings in regard to the Verdins principles, and secondly by my satisfaction of the degree to which you have rehabilitated.  I cannot, upon the evidence and having given consideration to the principles I have explained, come to a conclusion that your rehabilitation has been effected.  No person could, it seems to me. 

82It might be said that your rehabilitation is at a far too early stage or degree for an allowance to be made to the degree that is sought in this matter.  However, in forming a final conclusion, I think it would be inappropriate not to look at the totality of your circumstances.  Those circumstances begin with your service on behalf of this country where this injury was incurred and where the consequences brought about by the pain and the treatment that you thereafter received created the basis for the desperation that led to these crimes.  I have no doubt, having considered all of the facts, that I can be satisfied of that. 

83As I said, the issue that I have struggled with is should I conclude that the evidence as to your rehabilitation is such that I should accede to the submission of Ms Blair.  As I also said, in coming to such a conclusion, it has been necessary to look at the totality of the injury and its consequences, to understand that injury and its consequences, suffered while your served your country.  It is also necessary for the Court to bear in mind that the crimes in question, as I have found, have occurred, not by way of primary choice made by you, but as a secondary consequence of those injuries and the desperation that resulted from them.  I do not know whether the words ‘human weakness’ are appropriate, but produced as a consequence of the injuries and treatment that you have suffered.

84The evidence before me as to rehabilitation is impressive.  The evidence before me as to your character and background is impressive.  There is positive evidence as to the steps taken to date.  You have gone through an intensive period and have been subjected to independent random analysis as to the success of such treatment.  I have finally, after much consideration, and taking into account all the evidence and principles of law which are of such importance, concluded that I can faithfully, in this very rare case which I deem to be exceptional, find that immediate imprisonment in your case is not necessary.  I do so because I am satisfied that the promise of rehabilitation in your case is so great as to replace deterrence as the primary consideration of sentencing. I am satisfied because of the principles involved, and given the positive Community Corrections assessment report, that a Community Corrections Order can be imposed for all offences in this case. 

85Ms Blair, before I do so, I would want you to talk to your client about this.  It is totally pointless for me to do this if he is going to be back here in six months having not overcome his craving.  I will do it because I have a positive appreciation of his character, of his family, of his service to the country and the steps he has taken to effect rehabilitation to this day. 

86But I only do so after he understands that the CCO I have got in mind will be for a period of four years.  There will be a work component of 200 hours to be performed over that period.  That he be subject to supervision.  That he be subject to mental health assessment and drug treatment assessment, hopefully which will all be conducted under the Raymond Hader Clinic or in conjunction with it and that he is full aware that should he breach during the period of four years in the sense that either by way of failure to adhere to conditions and/or more importantly by, well, I suppose really these days it is not more importantly because you can be breached which you need to explain to your client for a failure to comply with the conditions.  But also more importantly if he happened to commit any further criminal offences, then he would come back and get the full wrath of the Court.  I need you to talk to him and make sure he understands all of those factors.

87Yes, well if you would stand, please, Mr Provenza. 
Mr Provenza, you will be convicted of all of the charges, of the charge of armed robbery on Indictment 1 and the two summary matters and the charge of attempted robbery in Indictment 2. Pursuant to the provisions of s.41 of the Sentencing Act, I order that for all of those offences, you be sentenced to a community correction order.  The term of that community correction order be for a period of four years.  The usual conditions will apply and those conditions of course most importantly refer to the fact that you will not commit a criminal offence during the period of the next four years that is punishable by imprisonment.  I would hope you never commit a criminal offence again, much less just the four years and I am pretty sure, if my assessment of you is correct, then you can rid yourself of this addiction that led you to the position, that that will be the position.

88In addition to that, you will be subject to supervision, pursuant to the provisions of s.48E and pursuant to s.48D(3)(a), to assessment in regard to your drug problem and rehabilitation there from hopefully and successful rehabilitation and s.48D(3)(ii), your treatment of your ongoing mental issues. It is necessary to tell you that you have to report to the Broadmeadows Community Corrections Centre which details will be given to you in the document within the next 48 hours and as I indicated, I made a forensic sample order under s.464zf of the Crimes Act 1958 (Vic) which you would also have to subject yourself to.

89I would hope from the remarks I have made you would realise that given the serious nature of your criminality, you are a very rare case to walk out here through that door and not that door.  Do you understand that?

90OFFENDER:  Yes, Your Honour.

91HIS HONOUR:  It would not be - and certainly would not give me any satisfaction if you came back before me subsequently and I have to send you through that door.

92You go essentially from this Court with the hope of the whole community, given your service on behalf of the country that you can effect appropriate rehabilitation. You have been given that opportunity.  It would be a great tragedy if you let not only your family down but in this instance, but the country down.  Thank you. 

93OFFENDER:  Thank you, Your Honour. 

94HIS HONOUR:  Yes, do I need to say anything further?

95MS PATTISON:  Nothing further, Your Honour. 

96HIS HONOUR:  Yes, good luck, Mr Provenza. 

97OFFENDER:  Thank you, Your Honour.

98HIS HONOUR:  Yes. 

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