Director of Public Prosecutions v Purcill

[2016] VCC 1203

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-01233

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRETT MICHAEL PURCILL

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2016
DATE OF SENTENCE:	17 August 2016
CASE MAY BE CITED AS:	DPP v Purcill
MEDIUM NEUTRAL CITATION:	[2016] VCC 1203

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Ballek	Office of Public Prosecutions
For the Offender	Mr B. Nibbs	Valos Black & Associates

HIS HONOUR:

1Brett Michael Purcill, you have pleaded guilty to the following charges on Indictment number G10473632.

2Charge 1, Armed Robbery, this offence has a maximum penalty of 25 years' imprisonment. 

3Charges 2, 3, 4 and 5 are all charges of Obtaining Property by Deception.  Each of these charges has a maximum penalty of ten years' imprisonment. 

4You also have admitted your prior criminal record which I shall refer to later in dealing with your personal circumstances.

CIRCUMSTANCES OF OFFENDING – CHARGE 1, ARMED ROBBERY

5At approximately 3.55 pm on Wednesday 20 September 2015, Ms Subrata was standing next to her car which was parked on St Kilda Road opposite the National Gallery of Victoria.  She had her ten month old son with her and had taken him from his pram and placed him in the rear seat of the car.

6At this time, you were walking nearby.  You saw Ms Subrata at her car and began walking towards her.  Ms Subrata was unaware that you were walking towards her and continued to place the items into her car. 

7Ms Subrata was about to close the door of her car when she was suddenly confronted by you.  You came straight up, stood very close to her and said "Don't scream, give me your wallet, your phone, everything and don't scream".  Whilst you were saying this you discretely revealed a knife to Ms Subrata.  The knife had a blade on it approximately eight to ten centimetre in length.  The knife was inside your jacket. 

8Ms Subrata immediately froze in fear for her own life and for her son's life.
 After pausing for a moment she then handed you her purse, which you grabbed from her hand.  Her purse contained her ANZ bank card, numerous personal cards and $20 in cash.  She told you, in a panicked tone, that she did not have a phone.  You replied "That's alright" and walked off across St Kilda Road in the direction of the National Gallery.

9Realising she was now out of immediate danger, Ms Subrata then cried out for help.  She saw a family nearby and told them that she had been robbed at knifepoint.  The father of that family yelled towards you and you ran off towards Southbank.  A short time later Ms Subrata called police and reported the incident.  She gave a physical description of you, including the clothes that you were wearing.

CIRCUMSTANCES OF OFFENDING – CHARGE 2, 3 & 4,

10On the same day as the armed robbery approximately half an hour later, at 4.27 pm, you entered the 7-Eleven store on Punt Road, Windsor.  You made three separate pay-wave transactions using Ms Subrata's bank card.  The purchases were for two packets of cigarettes valued at $71.98, four energy drinks valued at $12 and another two packets of cigarettes valued at $71.98.  CCTV footage from cameras inside the store clearly show you in the store making those purchases.

CIRCUMSTANCES OF OFFENDING – CHARGE 5

11After you left the 7-Eleven store you went down the road to Cellarbrations liquor store on Punt Road, Windsor.  CCTV footage from that store showed you using Ms Subrata's bank card to purchase, via pay-wave, a case of bourbon and cola cans valued at $99.  Before leaving the store, you have discussed home delivery services with the store attendant and wrote your name, phone number and email address on a piece of paper, which was retained by the attendant and later provided to the police.  This last piece of offending is a clear example of how amateurish your offending was on this day.

12In the meantime, police spoke with Ms Subrata at the scene of the armed robbery and asked her to contact her bank to see if her bank card had been used.  The transactions at the 7-Eleven store and Cellarbrations were detected and police attended these stores.  Investigators obtained the CCTV footage and the piece of paper from the liquor store.

13Later enquiries by police revealed that you had left Victoria on 2 October 2015 and had travelled to Cootamundra, New South Wales.  Police executed warrants at your New South Wales address and a hired shed at Cootamundra and located the knife and clothes you wore during the armed robbery and subsequent incidents as well as personal cards belonging to Ms Subrata.  You were not placed in custody nor extradited from Victoria at that time.

14It was not until Sunday 14 February 2016 that New South Wales police arrested you in Junee, New South Wales and took you to the Wagga Wagga police station where you were interviewed in relation to these events.  In the course of that record of interview you made partial admissions.  You stated as follows:

·You were living in a squat in St Kilda using heroin at the time of offending.

·You denied committing the armed robbery.

·It was you in the stills from the CCTV footage from the 7-Eleven and the Cellarbrations stores.

·The other male in the stills was a Danny Rogers, a male who had previously assaulted you.

·You had no recollection of being there at the time because you were "off your head" the whole way through.

·That Danny Rogers was standing behind you and was probably armed with a pistol or a knife.

·You vaguely remembered buying the liquor which you did for Danny who was waiting outside the shop. 

·That Danny gave you the card and told you to Paypass with it.

·That Danny was a psychopath who had threatened to kill you.

·You could not explain why the victim's cards ended up in your possession in Cootamundra, New South Wales.

15You have been in custody since your arrest in New South Wales on 14 February 2016, which is a total of 185 days not including this day.  You initially denied committing the armed robbery.  You blamed a person who you named as Danny Rogers.  After police obtained photographs of Danny Rogers it was then that you changed your denial. 

16These charges were booked in for a contested committal on 14 July 2016. 
You resolved the matter on that day to a plea hearing to be heard today, 17 August 2016.  Your victim was not required to give evidence at the committal hearing.

IMPACT ON VICTIM

17Your victim, Zeneta Subrata, filed a Victim impact Statement dated 14 August 2016.  The Victim Impact Statement was not read in open court at the request of Ms Subrata.  Your counsel has shown you the Victim Impact Statement.  It is Exhibit B on the plea.  Ms Subrata stated that for the first two months after the offence she was too scared to leave her home.  She dropped the contact with her friends.  Now she states that she is wary of strangers in the street, vigilant and cautious when in public.  That is an understandable reaction from her. 

PERSONAL CIRCUMSTANCES

18You are now 37 years old.  The time on remand has been your first time in prison.  You have given different histories about your parents to your counsel and Robert Leardi, psychologist. Mr Leardi's report dated 15 August 2016 is Exhibit 1.  Your father was in the navy until you were about 11 years old and then he came home and worked as a truck driver.  Your mother worked as a switch board operator.  You have a younger sister.  The present position with your family members is that you have limited contact with them.  You state that when growing up you enjoyed firm but fair support from your parents. 

19Your education at prep through to Grade 6 was done at Nowra East Primary School.  You then attended St John's in Nowra up to Year 10.  You report having difficulties with reading and writing but you were good with numbers.  As you went further up the grades your discipline declined at school as a reaction to being bullied for being slow and overweight. 

20You left school after Year 10 and have basically been in constant employment in many different labouring type jobs including factory hand, truck jockey, carpet laying, fencing, landscape gardening, commercial cleaner and a welder.  It is clear that you were a self-motivated and hardworking person up until 2010 - 2014. 

21You are the father of five children, as I understood it from the reports, with three different mothers.  The youngest two children were with your wife, Lynette.  Lynette died of a heroin overdose in the Gatwick Hotel in 2014.  You have no ongoing direct relationship with any of your children in the sense that you are not caring for them.

22Your life has been marked by substance abuse and you commenced abusing alcohol when you were 13 years old.  You have used amphetamines, methamphetamines or “ice”, and heroin right up until the time of this offending.  At the time of the offending you were living in a squat and using heroin.

23You have told Mr Leardi that you were sexually abused when you were approximately eight years old.  Mr Leardi notes there is no independent verification of that offending.  Mr Leardi has assessed you as a high risk of experiencing severe problems from drug abuse.  Mr Leardi has noted the presence of schizotypal personality traits but does not find thought disorder or delusional disorder.  Mr Leardi has also noted the presence of depressive personality traits, anxiety symptoms and post-traumatic stress disorder symptoms. Currently, you are prescribed 250 ml of Seroquel and 45 mg of Avanza daily and these medications have assisted you with your symptoms. 

24The death of your wife, Lynette, was a pivotal event in your life.  You have spiralled deeper into drug addiction and were effectively homelessness.  It was in this state that you committed the offences that bring you to the Court on this occasion. 

25You have, over your life journey, amassed a criminal history across Queensland, New South Wales and Tasmania.  On 3 September 2001 at Nowra local court, New South Wales, you were convicted of common assault and sentenced to nine months' imprisonment which was wholly suspended.  This Court hearing also dealt with contravention of apprehended domestic violence order.  On 18 August 2014 at Cootamundra you were placed on a bond for assault occasioning actual bodily harm.  There are ten other court appearances for driving related offending and one charge of possess drugs.

26It is clear from the history to Mr Leardi and your criminal history, you have moved from State to State and within the States over a long period of time.  It is an indicator of an unsettled life on the background of long term drug abuse.  It is also a result of your availability to work in a variety of labouring type employment.

SENTENCING CONSIDERATIONS

27The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and the protection of the community.  In sentencing you, I must have regard to a range of factors, such as the seriousness of your offences, your culpability for them, your personal circumstances and those of your victim.  I am required to balance the interests of the community in denouncing your criminal conduct, with the interests of the community in seeking to ensure, as far as possible, you as an offender are rehabilitated and reintegrated into society. 

28Further to that, you have pleaded guilty.  You have pleaded guilty at a relatively early stage in these proceedings.  The plea was indicated before the contested committal was conducted on your behalf.  Your plea of guilty has the utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of court and police resources to deal with other matters.  Your plea vindicates the public confidence in the legal process set up to protect the community.  You have, by your plea, relieved your victim from giving evidence against you.  It facilitates some closure for her as a victim of your offending.  The plea of guilty is also a demonstration of your remorse.

29The charge of armed robbery is a serious offence.  General deterrence is an important consideration in sentencing for that offence.  The importance of general deterrence is affected by the circumstances of the commission of the crime and the factors personal to you as the offender.  The aggravating features of your armed robbery offence are as follows:

1)The obvious vulnerability of your victim.

2)Ms Subrata was in the process of placing her young child in the car on the side of the street when you attacked her.

3)The level of fear raised by the proximity of the weapon to Ms Subrata when you showed it to her.

4)The randomness of your attack in broad daylight on a public street; and

5)The prevalence of the handbag snatch type robberies or armed robberies leading to community disquiet over that type of offending.

30On the other hand there is a level of amateurishness to your offending in total.  I am specifically referring to your leaving your name and email address for home delivery at the Cellarbrations store.  You must have known the stores were covered by CCTV.  The connection of the CCTV and the bank records for Pay-wave transactions can only lead the authorities to you.  Further, at the time of your initial arrest you still had the same clothes, the knife and the personal papers from the victim despite having moved interstate.

31You Counsel submitted that the appropriate sentence in this case is a combination of imprisonment for time served and a CCO for rehabilitation in respect of mental health and drug addiction treatment.  He also submitted that perhaps a slightly longer term in prison and CCO to assist with your rehabilitation was the appropriate course to take.

32The prosecution submitted that the totality of your offending calls for an immediate term of imprisonment.  I have previously referred to the maximum penalties set out in each of the offences by parliament.  The prosecution submitted that the considerations of general and specific deterrence and denunciation were to accorded full weight given the circumstances of your case.  The prosecution ultimately submitted that a term of imprisonment and a CCO was within the range but the term of imprisonment had to be substantial.  I accept that the considerations of specific and general deterrence combined with the denunciation of these offences are very significant in sentencing you. 

33I have regard to current sentencing practices in respect of armed robbery, the circumstances of this particular offending by you and your prior criminal history.  A term of imprisonment is the only appropriate sentence.  In respect of the four charges of obtaining property by deception, a degree of concurrency is appropriate to give effect to the principles of totality and the nature of offending in this case.  I have considered the imposition of a CCO in respect of your rehabilitation.  I have assessed your prospects of rehabilitation as only fair and that the closer supervision under parole would be more likely to increase your rehabilitation success upon release from prison.  The Adult Parole Board can also assist you in obtaining accommodation, drug rehabilitation and to continue what has already commenced as your mental health treatment.

34Mr Nibbs on your behalf submitted that Verdins case applied to your sentence.  I do not accept there is any evidence to establish a connection between your offending and the symptoms as opposed to the diagnosis of a mental disorder.  The fact that you were under the influence of heroin at the time of offending is not a factor in mitigation of the offence.

35I do accept that your symptoms, as described by Mr Leardi, will make your time in custody more burdensome than for a person of normal mental health.  I note, however, that your symptoms have been ameliorated by your current medication regime.  That is a good thing. 

36In your relevant prior criminal history there are the two matters of violence in 2001 and 2014.  I was told they were in the context of a domestic violence setting.  That does not lessen the significance of those prior convictions. This is your first custodial disposition and to date it has had a salutary effect on you.  You have expressed some empathy with, or for, your victim. 

WOULD YOU STAND PLEASE

37On the charge of armed robbery, you are convicted and sentenced to 18 months' imprisonment.  That is the base sentence. 

38On Charge 2 of obtaining property by deception, you are convicted and sentenced to one month imprisonment. 

39On Charge 3 of obtaining property by deception, you are convicted and sentenced to one month imprisonment.

40On Charge 4 of obtaining property by deception, you are convicted and sentenced to one month imprisonment.

41On Charge 5 of obtaining property by deception, you are convicted and sentenced to one month imprisonment. 

42I order that the base sentence for armed robbery of 18 months and the one month sentence in Charge 2 and the one month sentence in Charge 5 be served cumulatively upon one another.  That is a total effective sentence of
20 months' imprisonment. 

43I order a non-parole period of 12 months' imprisonment. 

44Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty I would have sentenced you to a period of three years’ imprisonment with a minimum non-parole period of two years' imprisonment.

45I declare that you have served 185 days pre-sentence detention not including this day and that is to be deducted administratively from your sentence. 

46I have signed the orders requested under s.464ZF of the Crimes Act.  I am just informing you, Mr Purcill, that the authorities, that is the prison authorities can take a sample, which is a swab, from the inside of your mouth to obtain that DNA sample.  If you do not comply with their request they can use reasonable force in order to obtain it. 

47I have also signed the disposal order which was sought by the Crown and consented to by yourself. 

48Is there anything else?

49MR BALLEK:  No, Your Honour.

50MR NIBBS:  No, Your Honour.

51HIS HONOUR:  Mr Purcill, when you transfer to general population you make the most of any opportunity you get into the drug rehabilitation that will help you get to your minimum parole date.

52OFFENDER: Yes, sir.

53HIS HONOUR:  Thank you, you can remove the prisoner.  Thank you both for your assistance today.

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