Director of Public Prosecutions v Radnell

[2020] VCC 228

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

AT BALLARAT
CRIMINAL JURISDICTION

CR 19-01961

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW RADNELL

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Ballarat
DATE OF HEARING:	3 March 2020
DATE OF SENTENCE:	5 March 2020
CASE MAY BE CITED AS:	DPP v RADNELL
MEDIUM NEUTRAL CITATION:	[2020] VCC 228

REASONS FOR SENTENCE
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Subject:  Robbery
Sentence:  3 years imprisonment with a nonparole period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nibbs
For the Accused	Mr V. Peters

HIS HONOUR:

1After a trial lasting less than two days, you, Andrew Radnell have been convicted of the crime of robbery, the offence which has a maximum penalty of imprisonment for 15 years.

2Your offending occurred on 24 February 2019.  You were arrested and remanded in custody where you have remained since 25 February 2019, and you have served 373 days by way of pre-sentence detention.

3The circumstances surrounding your offending, and which lead me to having to pass sentence upon you, may be briefly summarised as follows.

4Late in the evening on Sunday 24 February 2019, the victim in this matter,
Mr Henry McAlister, was at his home in Redan watching television.  McAlister is a disability support pensioner; his grandchildren were asleep upstairs in his home.  He was accompanied by his dog, Lucy.

5Around 9.30 to 10 pm, you knocked on the rear door of McAlister's house.  Although not close friends, you were both known to each other.  McAlister knew you by the name of Andrew but could not immediately remember your surname.  Later, he located you on Facebook and he was able to supply police with your full name and a picture of you. 

6You told McAllister that you had missed the last train from Wendouree to Frankston, and you asked if you could stay the night.  McAlister invited you into the home but said that he could not accommodate you as his grandchildren were asleep upstairs.  When you arrived at the house you were hot and sweaty, and you told McAlister you had been running.  The two of you watched television for a while, and you asked for a glass of water, and you were invited to help yourself. 

7Soon after you approached McAlister from the side as he sat on the stool watching the television.  You punched him in the side of the face, and you told him that he would have to part with some money.

8McAlister told the jury that soon after, you produced a kitchen knife from somewhere and demanded money.  He said that you grabbed his dog and threatened to harm it, and you moved as if you were going to go upstairs where the grandchildren were.  McAlister initially gave you $50 but as you continued to threaten him, he said he gave you another $300, which he had said he had obtained when he went to the supermarket.  It was not disputed that you robbed McAlister of $350.

9You did not give evidence, and there was no record of interview of you in evidence.  The evidence given by McAlister was largely not challenged, save for alleged inconsistencies in his evidence, given by way of a signed statement on the night offending, which was compared to evidence he had given at committal, and which was further compared with evidence given in this trial.

10At trial, you pleaded not guilty to a single charge of armed robbery.  The only issue was whether at the time you robbed McAlister, you were armed with a knife.  The jury acquitted you of that charge, and convicted you on the alternative charge of robbery, which was not contested by you, or your counsel, Mr Peters.  The jury were obviously not satisfied beyond reasonable doubt, that you possessed the knife at the time of the robbery.

11You were committed for trial after a contested committal on 26 September 2019.  You had offered to plead guilty to a charge of robbery prior to committal, but that offer was rejected by the prosecution.

12For the purposes of sentencing, I treat you as having offered to plead guilty to a charge of robbery at the earliest possible opportunity.  By your offer to plead guilty, you clearly were accepting of responsibility for your crime, and you were willing to advance the administration of justice.  Had your offer been accepted, you would have saved the time and cost of a trial.  Further, the offer to plead guilty to robbery, having been rejected by limiting the trial to one issue, namely whether or not you were armed with an offensive weapon, you considerably reduce the time of the trial.  All of this is in your favour and in my judgment, you are entitled to reduce sentence, and this will be reflected in the sentence that I will shortly pass.

13Further, because your offer to plead guilty was rejected, you have had this matter hanging over your head for longer than it ought to have been, resulting in delay in resolution of this matter.  I have taken that fact into account in passing sentence.

14Your offending is a serious example of what is a serious offence.  You robbed a pensioner in his own home at night.  You took the opportunity offered to you when you were invited into the home, to assault and rob Mr McAlister of $350.  You clearly put him in fear.  He said that as a result of you hitting him in the face, cutting his lower lip, he felt concussed and incoherent.  Violence was your means of threat, in order to obtain the $350.  In my judgment, your offending does not fall to be judged at the lower end of this kind of offence, which was submitted by your counsel.  Clearly, it does fall within the most serious of cases either.  But it is a serious example of robbery in all the circumstances, for which you bear full responsibility.

15In sentencing for offending of this kind, the court must have appropriate regard to deterrence, both general and specific, denunciation, and the need to protect the public.  I also must have regard to your prospects for rehabilitation, which because of your history of offending I regard as being poor.

16I turn to some matters relating to your background history.  You are aged 36 and you were aged 35 at the time of this offence.  I was told and accept that the offending occurred when you were addicted to the drugs ice and cannabis.  That explains the offending somewhat but does not excuse it in any way.

17You have admitted a number of prior convictions from seven previous court appearances between 2018, aged 25 and April 2018, aged 34.  Your prior convictions are of a mixed kind, including driving offences.  Relevantly though in 2008, you were convicted of unlawful assault.  In 2010, you were convicted of intentionally causing injury and aggravated burglary, possessing an offensive weapon.  In 2017, you were convicted again of unlawful assault and wilfully damaging property.

18On 5 April 2018, you were again convicted of unlawful assault, and contravention of a family violence intervention order.  On the same day, you were dealt with for breaching an earlier imposed community corrections order.  The court imposed the combination sentence of four months' imprisonment, and a further community corrections order.  The result of all this according to the LEAP report relating to you, is that at the time of this offending, you were actually subject to two community corrections orders.  That is an aggravating feature of your offending.  Your counsel submitted I should consider a further community corrections order, in combination with time served by you.  In my judgment, such a disposition is out of the question.  In my view, such a disposition will not achieve all of the purposes of sentencing in the circumstances of this case.

19Your counsel tendered a breach report prepared in relation to you, having breached the community corrections orders.  It shows that after your release from custody on 4 May 2018, having served four months in custody, you completely disengaged from Corrections, and you completed none of the unpaid community work ordered.  It was the opinion of the authors of that report at the time that,

'Mr Radnell continues to present as a high risk of further offending and presents as a risk to the general wellbeing and safety of the community'.

20You were one of three children.  When you were aged 11, your mother died suddenly aged 36 from a cerebral aneurism, and not long after, your father passed away from cancer.  You were effectively orphaned.  You were taken in by neighbours where you lived in a caravan for two years, before completing your schooling after Year 7.  You worked on the neighbour's dairy farm.  You wanted to do an apprenticeship as an electrician, but you did not have money to enable you to complete a certificate at the Ballarat School of Mines.  For two years, you worked at Ballarat car radio in the field of an auto electrician.

21At aged 15 you met Mariana, with whom you enjoyed a relationship, that produced three children now aged 12, twins, and a 15 year old.  The relationship is said to have been difficult and it ended.  The children are now well-cared for by your former partner's sister.

22You then had another relationship with a woman, Ashly, with whom you started a successful cleaning business, which employed two people.  This relationship also produced three children, however, the youngest child died aged two days, and that sadly triggered events that led to a breakup of the relationship.

23I was told and accept that your life fell into a state of decline after this relationship breakup.  You turned to drugs, and your offending has occurred in the context of drug abuse.  I was told you have abstained from drugs in prison, whilst serving pre-sentence detention.  I was told your time in gaol has caused you to reflect, and has motivated you to abstain from drugs, and you want to contribute to the lives of your five children.

24I was told and accept that your time in custody has been difficult.  You were assaulted by another prisoner through no fault of your own, resulting in a fractured eye socket and losing three top teeth.

25I have no doubt that you have had a difficult life, being effectively orphaned from a young age.  There have been glimpses of hope, that you can have a good life, but those glimpses have been extinguished by drugs.  Like so many other unfortunate offenders, who have had their lives ruined by drugs, your prospects for rehabilitation depend entirely on you ridding yourself of them.  I said earlier, I think your prospects for rehabilitation are poor.  They are at best guarded. 

26Your counsel submitted that the time you have served is within the appropriate sentencing range for your offending.  I do not accept that submission.  Alternatively, he submitted time served be fixed as a non-parole period.  I also do not accept that submission.  In my opinion, you will have to serve further time in prison, before being eligible for parole because of your past criminal history, and because of the seriousness of this offending.

27On the charge of robbery, you were convicted and sentenced to a term of imprisonment of three years.

28I direct that you serve a minimum term of two years, before being eligible for parole.

29I declare there has been 373 days of pre-sentence detention, relating to the sentence passed this day, and direct that 373 days be reckoned as having been already served, be entered into the records of the court, and be deducted administratively.

30For the purposes of s.6AAA of the Sentencing Act 1991, had it not been for your indication that you would plead guilty to this charge before committal, I would have imposed a sentence of five years' imprisonment and fixed a non-parole period of three years and four months, had you gone to trial on the charge of robbery.

31Any questions arising out of that?

32MR NIBBS:  No, Your Honour.

33MR PETERS:  No, Your Honour.

34HIS HONOUR:  Would you remove Mr Radnell, please.

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