Director of Public Prosecutions v Rand

[2021] VCC 1462

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01614

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN RAND

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JUDGE:	Her Honour Judge Hawkins
WHERE HELD:	Melbourne
DATE OF HEARING:	22 September 2021
DATE OF SENTENCE:	1 October 2021
CASE MAY BE CITED AS:	DPP v Rand
MEDIUM NEUTRAL CITATION:	[2021] VCC 1462

REASONS FOR SENTENCE
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Subject:

Catchwords:              

Legislation Cited:      

Cases Cited:

Sentence:                  

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APPEARANCES:	Counsel	Solicitors
The Director of Public Prosecutions	Ms L. Dawson	Office of Public Prosecutions
For the Accused	Mr P. Teo	Gallant Law

HER HONOUR:

1Nathan Rand, you have pleaded guilty to one charge of armed robbery and one charge of theft.

2You have also admitted your prior criminal history.

Circumstances of your offending

3The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 6 August 2021, the accuracy of which you accepted through your counsel.  

4At the time of your offending, you were 44 years of age and had no fixed place of address.

5On Sunday 2 May 2021 at approximately 2 pm, you contacted your ex-partner Debbie MacFadyen and told her that you were going to use her vehicle to rob a service station.  You had been separated from her for approximately 10 months, but intermittently stayed in her garden shed.  She told you not to be so stupid. Unfortunately you chose not to take her advice.

6Shortly thereafter, you attended the Caltex service station located at 168 Surf Coast Highway Grovedale.  You were driving Ms MacFadyen’s silver Daewoo.

7You pumped $30 worth of petrol into the vehicle.  You then entered the service station and approached the front counter.  You were readily identifiable as unshaven with a goatee beard, wearing a light blue T-shirt with a 'Nautique' motive and grey track pants.  You produced an uncapped syringe with some liquid in it and demanded money from the attendant, stating, 'give me the money.'  The victim replied, 'you should be giving me money for the fuel.'  You pointed the syringe at her and kept repeating, 'give me the money.'

8You then stated, 'don’t even try to push the button, just give me the money.'  In fear, she handed over a quantity of $20 notes totalling approximately $160 (Charge 1 – armed robbery).  You then left the store in the silver Daewoo and drove south on Surf Coast Highway towards Waurn Ponds.  You made no attempt to pay for the fuel (Charge 2 – Theft).

9This incident was captured on CCTV footage.  Ms MacFadyen told investigators that you had borrowed the vehicle, and also about the phone call she had with you on the previous day.

10At approximately 3:45 pm, you were observed near Ms MacFadyen’s address and arrested.  Your room was searched with your permission and police located the light blue Nautique T-shirt and the grey track pants worn during your offending.

11On the way to the police station, you became unresponsive and passed out.  You later complained of breathing difficulties and told police you took a crystal substance which you thought was methamphetamine, but that the effects did not feel like normal methamphetamine.  Police took you to hospital for treatment.

12The following day at Geelong Police Station during your interview, you made full admissions in relation to the armed robbery and theft of petrol at the Caltex service Station on 2 May 2021.

13You were charged the following day and pleaded guilty at committal mention on 30 July 2021.

Maximum Penalties

14The maximum penalties for the offences with which you are charged are:

Charge	Contrary to	Maximum Penalty
1. Armed Robbery	Section 75A of the Crimes Act 1958 (Vic)	Level 2, 25 years imprisonment
2. Theft	Section 74(1) of the Crimes Act 1958 (Vic)	Level 5, 10 years imprisonment

15In this instance, you do not fall to be sentenced for the armed robbery charge as a Category 1 or 2 offence because you were not armed with a firearm, the victim did not suffer an injury nor was the offence committed in company with one or more other persons.

Nature and Gravity of Offending

16Armed robbery is an inherently serious offence.  It causes great harm to those directly affected and great disquiet in the wider community.  Service Station attendants are all too often the innocent victims of such offending.  The very high maximum penalty for this offence is the clearest indication of how seriously it is to be viewed.[1] Current sentencing practices to which I have had regard, also reflect that such offending will typically attract an immediate term of imprisonment.[2]

[1] See for example: Lord v R [2018] VSC 52.

[2] See for example: DPP v Cox [2017] VCC 1794; DPP v Aldcroft [2019] VCC 1697; DPP v Foster [2019] VCC 1102.

17Mr Rand, yours was an unsophisticated armed robbery.  You made no attempt to disguise yourself, made no verbal threats of violence, did not use actual physical violence and the extent of your preplanning was to obtain and partially fill a syringe with vegetable juice.  The use of a syringe as a weapon does cause significant fear of infection in the minds of many victims.  You waved the syringe towards the victim whilst making the demands for money.  She was a convenience store worker, a 'soft target.'  Denunciation of such offending and protection of the community are both relevant sentencing considerations in your case.

18The victim declined to make a victim impact statement.  However, in her statement to police she stated that the incident made her feel very nervous and that she was scared that you would take all the hard earned money and use the syringe to hurt her.

19You do not have a prior criminal history of similar offending.  This escalation in behaviour is clearly linked to being intoxicated following a two-week 'bender' on methamphetamines.

20All things considered, your offending sits somewhere near the lower end of the range for an armed robbery.

21Whilst you ought to be punished only to the extent justified by the factors I will traverse, general deterrence must be given significant weight in these cases, as well as specific deterrence to you given your escalation in offending.

Personal Circumstances

22You were born in 1977 and you were 43 years of age at the time of your offending. You have no children.

23Your upbringing was marked by family violence and this has led to a limited relationship with your family during your adult life.[3]

[3] Report of Psychologist, Sandra Cokorilo dated 10 September 2021 – Exhibit 4.

24You have been with your current partner for 18 months, and I note that she remains supportive of you and was due to appear on the link today.  However your recent incarceration has placed great strain on that relationship, but despite that, she remains supportive of you and is willing to permit you to return to live with her upon your release.

25You had a strong work history up until you sustained a workplace injury in January 2018.  You are currently in receipt of WorkCover and unable to gain employment in the previous types of physical work that characterised your 20 year employment history.

26You commenced drinking alcohol at age 15 and have drunk in substantial and problematic quantities since the age of 18.

27You first started using methamphetamine following your workplace injury and your subsequent loss of employment.  You used daily until the period of detoxification in early 2019.  You relapsed in early 2020 and intermittently binge-used ice from that point.

28The report of psychologist Ms Cokorilo (Exhibit 4) indicates diagnoses of post-traumatic stress disorder, major depressive disorder, generalised anxiety disorder, alcohol use disorder and stimulant use disorder.  Your substance addiction is thought to have developed as a form of self-medication in response to your inadequately treated conditions.  Your development of PTSD has resulted in an emotional dysregulation which has impaired your ability to rationalise and make good decisions.

Prior Criminal History

29Your criminal history is relatively limited.  You were placed on an adjourned undertaking in October 2019 for family violence offending which included the threat to inflict serious injury and criminal damage.

30Your criminal record notes that at the time, you had completed a six-month residential drug and alcohol withdrawal program and were on a mental health care plan at the time.  Unfortunately, this was insufficient to sustain you and prevent you from relapsing into drug abuse.

31Your two earlier matters involved dishonesty offending in 2011 and 2012.

Aggravating or Mitigating Factors

32Your offending is somewhat aggravated as it occurred whilst you were on an adjourned undertaking to be of good behaviour.

33You did however demonstrate immediate remorse for your actions through your full and frank admissions you made in your record of interview immediately following your arrest.

34Your genuine remorse is also evidenced in the report of Ms Cokorilo who states:

“[You] appeared genuinely embarrassed and remorseful about [your] offending conduct which [you] described as 'disgusting' and 'terrible', volunteering that 'it is horrible what I put her through' acknowledging the likely impacts on the victim. [You] reported [you] [remain] 'baffled' and in disbelief that [you] could commit such an act. [You] made no attempts to in any way minimise [your] offending behaviour.'

35Ms Cokorilo further states, '[you] appeared sincere in [your] expression of remorse for [your] offending behaviour, and empathy for the victim.'

36You have written a genuine letter of apology to the victim.  You acknowledge the harm she must have suffered.  You have also written a letter of apology to the Court which appears to be a genuine and sincere expression of your remorse.  You outline your time in custody in a program-based unit, Everton at Ravenhall Correctional Centre, as being a very humbling experience.  You outline that you have had no contact visits from your family, but have benefited from the programs available to you in the custodial environment.  I note that this is no mean feat in the COVID environment and the effect that it has had on the experience of being in prison during the last 12 months or so.

37You express a genuine commitment to remain drug-free on the outside.  It is clear from Ms Cokorilo’s report and your past experience of attempting rehabilitation that you would benefit significantly from support upon your release from custody to make good that commitment to remain drug-free.

38You pleaded guilty at the earliest possible opportunity at the committal mention of this matter.  In so doing, you avoided the need for a trial, saved witnesses the stress of giving evidence in court and avoided the use of scarce public resources that would have otherwise been spent in conducting a trial.  I place significant utilitarian value of your plea of guilty in this case.

39The Court of Appeal has recognised the adverse effects of the COVID-19 pandemic upon the justice system.  In Worboyes’ case,[4] the Court of Appeal stated, 'a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances.  A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.'  Accordingly, you are entitled to an actual and palpable amelioration of your sentence.

Prospects for Rehabilitation

[4] [2021] VSCA 169.

40Ms Cokorilo is of the view that, 'at the time of offending [you] [were] not able to think clearly, make calm and rational choices and appreciate the wrongfulness and consequences of [your] conduct. It is likely [you] would have exerted more control over [your] behaviour had [you] not been intoxicated with methamphetamine.'

41In relation to your risk of reoffending, she concluded, '[your] risks are considered moderate; on the basis of [your] limited priors; history of polysubstance and alcohol abuse; psychosocial adversity, including unemployment and financial hardship; limited supports; emotional and personal factors, including poor self-regulation and low coping resources; and positive attitude towards intervention.'

42Ms Cokorilo’s opinion is that your mental health issues would likely be exacerbated by a further period of imprisonment unless you are properly supported.  She opines that you are unlikely to receive the specific treatment you require whilst in custody and that makes it likely that your mental health may deteriorate further should you spend a great further period in custody. 

43She further states, that despite treatment in custody, you continue to present with symptoms of post-traumatic stress, anxiety and depression which would likely make prison a more onerous experience for you than an offender without your conditions.

44Your counsel conceded that the materials do not draw the required nexus between the mental issues suffered by you and your offending for the application of other Verdins’ principles,[5]  as it is clear that your acute drug intoxication was the key factor in your offending.  However, I accept that indirectly there is an association, as your state of intoxication relates to a range of problems from your mental illness and personal history which are relevant in sentencing, and I propose to moderate your sentence accordingly.

[5]R v Verdins [2007] VSCA 102.

45Drug and alcohol abuse is central to your offending.  You have previously completed lengthy periods of inpatient treatment.  Unfortunately, you have lapsed back into substance abuse when you have returned to the community.  You find work to be an extremely important support to leading a drug-free life.  Given the significant permanent physical injuries you sustained in a workplace injury, you correctly identify that you will need to find a new suitable fulfilling career path to keep you away from negative influences.

46This has been your first time in custody.  You have used it productively.  The sentence I will impose today is structured to both punish you for your offending but to also provide you with therapeutic options not only to supervise you but to guide your long-term rehabilitation.

47Given your prior history, your prospects of rehabilitation must be considered guarded.  However, you appear to be motivated to change and at the age of 44 you must really pursue this desire to entrench long-term abstinence from alcohol and illegal drugs.  If you can avoid significant relapse, I consider your prospects of rehabilitation to be potentially more optimistic.

48I have had regard to current sentencing practices for the offences with which you are charged.

49I note that the purposes for which a Court may impose a sentence include punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.[6]  In sentencing you I must have regard to a range of matters such as the seriousness of your offending, your culpability for it and your personal circumstances. 

[6]Sentencing Act1991 (Vic) s 5.

50I must also balance the interests of the community in denouncing criminal conduct, with the interests the community clearly has in seeking to ensure as far as is possible, that offenders are rehabilitated and are reintegrated into society.

51Just punishment and protection of the community also assume importance.

52Ultimately the Court must impose a sentence which is proportionate to the gravity of the offence, considering the circumstances.

53When sentencing an offender for multiple offences, the Court must ensure that the aggregate term it imposes is a just and appropriate measure of the total criminality involved.  There must be appropriate relativity between the totality of all criminality and the length of the sentence.

54Pursuant to s16 (1) of the Sentencing Act 1991, every term of imprisonment must also be served concurrently unless otherwise directed by the Court.

Community Corrections Order Assessment

55You have been assessed by Community Corrections as posing a high level risk of reoffending.  However, you described that you would be able to live at the Grovedale residence with your partner and her children upon your release, and that you have a supportive social network.  You acknowledged that you would need to make an active effort to stay away from negative peers.  You are committed to prioritising your obligations on the order.  Ultimately, you have been assessed as suitable to be placed on a Community Corrections Order ('CCO').

Sentence

56In conclusion, given the substantial mitigatory factors demonstrated by you, including your significant remorse, your plea of guilty in the pandemic and your readiness to embrace therapeutic interventions, in my view the principles of general and specific deterrence; denunciation and protection of the community, can be adequately achieved by the imposition of a sentence of imprisonment combined with a CCO upon your release from custody.

57I consider that if you continue with your genuine approach to embracing treatment and staying clear of drugs and alcohol following your release, your risk of re-offending is considerably lower than that which is assessed by Corrections. However, it will take your commitment to following through and making good the promises which you have already given.  The sentence I am imposing today is designed to support and assist you to achieve those goals. 

58Nathan Rand, I sentence you as follows:

59On Charge 1 (armed robbery) you are convicted and sentenced to 10 months' imprisonment.  This is the base sentence.

60On Charge 2 (theft) you are convicted and sentenced to three months' imprisonment.

61These terms are to be served concurrently.  That is, the total effective sentence is 10 months imprisonment.

62On Charge 1 and 2 you are also convicted and sentenced to a Community Corrections Order of 18 months.  The order will commence upon your release from imprisonment.

63I am obliged to explain the order, and Mr Teo, given that we are appearing over the link I am hoping to obtain your client's consent to be placed on such an order over the link. I will give you an opportunity to speak to Mr Rand after I complete the explanation, if you need to, okay?

64MR TEO:  Thank you, Your Honour.

65HER HONOUR:  There are a number of core conditions that will apply to your CCO Mr Rand:

·        You must not commit an offence punishable by imprisonment during the period of this order.

·        You must report to, and receive visits from a community corrections officer, during the period of the order.

·        You must report to the Geelong Community Corrections Centre at Level 5, 30A Little Malop Street, Geelong within two working days after your release from custody.  If you do not, you will be in breach of the order. You must be sober and not under the influence of drugs at every attendance.

·        You must let a community corrections officer know within two clear working days of changing your address or your job.

·        You must not leave Victoria, except with the permission of Community Corrections.

·        You must comply with any lawful direction given by Community Corrections, that is necessary to ensure you comply with the order.

66There are a number of additional conditions which apply specifically to you:

·        You must be under the supervision of a community corrections officer for a period of 18 months.  That means that you are required to be supervised, monitored and managed, as directed.

·        You must undergo any assessment and treatment (including testing) for drug abuse or dependency (s.48D(a)).

·        You must undergo any assessment and treatment (including testing) for alcohol abuse or dependency (s.48D(b)).

·        You must undergo any mental health assessment and treatment and that may include psychological, neuro-psychological, psychiatric or treatment in a hospital or residential facility (s.48D(e)).

·        You are to be subject to judicial monitoring by this court so that I can review your compliance with this CCO.

67If you contravene or breach this order by committing further offences, you can be charged and sentenced to a term of imprisonment for the breach.

68You can also be re-sentenced for the offences that are before me.  In other words, I would re-sentence you on the charges that are currently before me and you could in that circumstance, be sentenced to a further term of imprisonment. 

69Furthermore, if you fail to comply with any direction of a community corrections officer, as part of this order, you can also be fined.

Pre-Sentence Detention

70Pursuant to s18 of the Sentencing Act 1991, the period of 152 days (not including today) of presentence detention is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered into the court record.

Section 6AAA Declaration

71Pursuant to s6AAA of the Sentencing Act 1991, had you not pleaded guilty and been found guilty after trial, I would have sentenced you to a term of 18 months imprisonment with a non-parole period of 12 months.

72I make the disposal order sought by consent.

73You are directed to appear before me for Judicial monitoring on 9:30am on 2 May 2022.  Let me explain to you about what I expect from you at Judicial Monitoring. 

74At that hearing, I will receive a report from Community Corrections telling me how you are going on your order.  I expect to hear that you are making the most of this opportunity and building on the gains you have made in custody.  You should expect that I will ask you directly to tell me how you think you are going, and also what personal goals you have set yourself to remain drug-free.  I will be asking that of you directly.  You will not be able to hide behind your counsel.  I would expect you to be able to talk quite frankly with me about the good things that you have done and maybe the struggles that you have had.  I have got every confidence Mr Rand, that you will be able to make a go of this.  You are at the point in your life where you are demonstrating that you know what is wrong. If you can manage to stay clear of drugs and alcohol and be completely abstinent, I am quite confident that you will be able to make a positive path for the rest of your life and steer clear of offending.  So I look forward to  hearing positive things about how you are going when you come back before me next year.

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