Director of Public Prosecutions v Roberts

[2024] VCC 1022

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00766

DIRECTOR OF PUBLIC PROSECUTIONS

v

JESSE ROBERTS

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	5 July 2024
DATE OF SENTENCE:	5 July 2024
CASE MAY BE CITED AS:	DPP v Roberts
MEDIUM NEUTRAL CITATION:	[2024] VCC 1022

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence

Catchwords:  Armed robbery – intentionally cause injury – prohibited person possess imitation firearm – accused pistol whipped the victim

Legislation Cited:  Criminal Procedure Act 2009; ss 145 and 242

Cases Cited:DPP v El-Sheikh [2021] VCC 1218; DPP v Richards [2021] VCC 1796; DPP v Sudmeyer & Anor [2017] VCC 783; DPP v King [2021] VCC 150; DPP v Cheaib [2019] VCC 235; DPP v Chol [2016] VCC 299; DPP v Erkaya [2017] VCC 1341

Sentence:Convicted and sentenced to three years’ and 10 months’ imprisonment with a non-parole period of two years’ and 6 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Piggott	Office of Public Prosecutions
For the Accused	Mr R. Backwell	Rolfe Criminal Law

HIS HONOUR: 

1Jesse Roberts, on 2 July 2024 at the County Court of Victoria sitting here in Melbourne you pleaded guilty to the following charges:

·On Indictment No.P10239410.1B, that is the plea indictment, Charge 1, a prohibited person possessing imitation firearm.  This charge has a maximum penalty of 10 years' imprisonment.

·On Indictment No.P10239410.1A, the trial indictment, Charge 1, armed robbery, that charge has a maximum penalty of 25 years' imprisonment.  Charge 2, intentionally cause injury, that charge has a maximum penalty of 10 years' imprisonment.

2You consented to two related summary charges which were before the court pursuant to ss145 and 242 of the Criminal Procedure Act 2009. You pleaded guilty to the following related summary charges:

·     Charge 17, possess cartridge ammunition without a licence.  This charge has a maximum penalty of 40 penalty units.

·     Charge 22, possess a prohibited weapon which was a flick knife.  This charge has a maximum penalty of two years.

3You admitted your prior criminal record.  You have had seven prior court appearances commencing the day after your 21st birthday and your last appearance was 1 September 2022 at the Werribee Magistrate's Court.

4Your prior criminal activity involves offences of property damage, threats to inflict serious injury, theft, assault, driving offences and drug offences.

5At the time of these offences you had been at liberty from your last sentence for just two months and you were serving a CCO with supervision and therapeutic conditions for drug and mental health issues or drug treatment.

6You have been in custody on remand for these charges since your arrest on 1 February 2023.  You have served to this day 520 days of pre-sentence detention.

The circumstances of your offending

7The background of this offending is that you knew Mr Pisano, your victim.  You met in Fulham prison when you were both serving a sentence there.  The offending on the indictment occurred on 23 January 2023.  In the period leading up to the offending you were in communication with Mr Pisano about buying GHB from him for approximately $1,000.  You agreed to meet Mr Pisano for the purpose of that drug transaction.

8On 23 January 2023 you picked up Mr Pisano from Keilor Road.  You then attended in a silver or some witnesses describe it as a black Ford Focus.  You were accompanied by another male who was the driver of that car.  You sat in the front passenger seat.  Mr Pisano did not know the other male and the other male did not speak with Mr Pisano.

9After the collection of Mr Pisano, you and the other male drove to Safeway in Niddrie.  You told Mr Pisano that you needed to go to Safeway and Mr Pisano said he would go along with you in order to get a drink.  You directed the other male to park the car in the underground car park at the Niddrie shopping centre.  The car went into the underground car park and was parked.

10As Mr Pisano went to get out of the car you have bolted or quickly got around to the front passenger seat to where he was seated in the rear of the car.  You have then said 'stay in the car cunt'.  Mr Pisano initially thought that you were joking.  You have then grabbed him by the collar of his T-shirt and his necklace.  The chain on the necklace broke.

11Mr Pisano then got out of the back seat of the Ford Focus and pushed past you.  As he was pushing past you he had been expecting that you were joking however, Mr Pisano then saw that you had a gun in your hand.  He saw that the gun came from your hip area.  It was a dark matt grey 0.9 millimetre, as he described it. Mr Pisano saw you holding the handle and saw the barrel of the gun itself. 

12You then whacked Mr Pisano across the head with the whole side of the gun.  You caught him off guard, so he tried to back away.  You then went after Mr Pisano and hit him with the butt of the firearm straight in the middle of the forehead three or four times.  You have then kept trying to rip Mr Pisano's bag from him.  He was not going to let his bag go.

13You have then grabbed Mr Pisano and the bag and threw him on the ground.  You then dragged Mr Pisano across the floor of the car park and slammed his head into the concrete pillar, also onto a car, during the course of the fight between you.  You have taken the bag from him and then stomped on Mr Pisano in the process.  You have stomped on Mr Pisano's head, his neck and his rib area.  The other male stayed in the car the whole time.

14The bag that you took had a variety of personal items from Mr Pisano, including a Samsung Galaxy phone, some keys, a garage remote control item, his wallet with ID, and jewellery.

15You then ran back to the car with that bag and its contents and got into the passenger seat and the car was driven away.

16Police attended at the scene a short time after the robbery.  Mr Pisano was taken from the scene by ambulance to the Royal Melbourne Hospital.  He was discharged the next day.  He was treated for a 3‑4 centimetre gash to the centre of his forehead.  Mr Pisano gave a statement to police whilst he was in hospital that night on 23 January 2023.  The police were then looking for you.

17At approximately 3.30 pm on 1 February 2023, police attended at the Manor Lakes Central Shopping Centre where you had been observed entering McDonald's restaurant at the corner of Manor Lakes Boulevard and Ballan Road in Manor Lakes.  Police confirmed your identity and indicated that they were the police.  You were then arrested.

18In initial conversations with the police you advised that you had a fake gun in your bag and the police located that item in the bag.

19At approximately 5.15 that same day, inside your blue/grey overnight bag, police located a small black zip bag which has a Marigold branding.  Inside it was a set of Ford car keys, a garage fob, a Medicare card in the name of Ben Pisano, an orange-handled key, a Worksafe card, and a pensioner's card in the name of Ben Pisano, a Bunnings trade card, bank paperwork in the name of Ben Pisano and a small note with some writing on it. 

20These items were photographed and seized by the police and then placed in an evidence bag.  As part of the investigation, police photographed a series of text messages between yourself and Mr Pisano which occurred between 10 and 23 January 2023.

21On 1 February 2023 you participated in a record of interview with the police.  During the record of interview with police you stated that the arrangement between you and Mr Pisano was to buy drugs from him.  The text messages between you and Mr Pisano confirm your meeting was for a drug deal of approximately $1,000 for GHB.

22In the course of the record of interview you stated that Mr Pisano started hitting you whilst you were in the front passenger seat of the Ford Focus.  Mr Pisano was in the back seat.  You told police you thought Mr Pisano was setting you up to rob you of the $1,000.  You denied that you had tried to take things from Pisano.  You claimed that you were fighting Mr Pisano because Mr Pisano had already attacked you.  You denied stomping on Mr Pisano, but admitted punching him.  You stated that you had a replica gun which you used to hit Mr Pisano.

23You have been on remand, as I have said before, for these charges since your arrest on 1 February 2023.  You have served 520 days of pre-sentence detention up until today.

24Near the end of the record of interview you answered Question 537, which appears at depositions 342 and this is your answer to the police:

“Nah.  I suppose it's pretty much, it's a fight that got a bit out of hand and probably now I'm gonna do a coupla years for it, you know but……”

25You knew exactly what was going happen. 

Personal circumstances

26You are now 28 years of age.  At the time of the offending you were 26.

27You have reported to Ms Cidoni, a forensic psychologist, that you were three year old when your biological father died of a heroin overdose.  At the same time as that occurred, your mother was also unconscious but she had survived.  You were present at that time.  So you know what can happen with drug use.

28Your mother re-partnered with your stepfather, Mick, who was a boat builder.  You have three younger half-brothers and two half-sisters aged 12 and 26.  As I understand it, you also have an older half-brother as you describe him, who is currently in Fulham prison.  Your younger half-brothers and sisters, have no contact with the criminal justice system.

29You were born in Werribee.  Due to your stepfather's occupation of being a boat builder you moved homes on a number of occasions due to his work.  You described your mother and stepfather as functioning alcoholics.

30Your education was fractured due to the family moving around from home to home.  You attended four separate primary schools including Werribee, Bellbridge, Boronia and Yawarra primary schools.  You were expelled from Wantirna secondary school at Year 7.  You had been bullied and teased about your red hair and you retaliated with violence, leading to your expulsion.  You felt aggrieved by the unfairness of this result, as the school had not done anything about you being bullied.

31You then moved to Galvin Secondary College where you remained there until Year 10.  You were expelled from this school after throwing a table at the vice principal. You then attended an institution known as Create Up for your Year 11 year and finally left school.

32Your work history is relatively short.  Your first job was as a concreter for some six months.  You then worked for Bevchain, a beverage importer.  This work was factory and logistics type work, which you did for approximately two years between the ages of 20 and 22.  You have not worked since that time.

33As a 15-year-old, you moved out of your family home, you couch surfed and lived with mates in the Werribee area, Ashburton and Wantirna.  You have had three relationships.  You have a daughter from your relationship with a woman by the name of Ebony.  The drug scene saw the end of that relationship.  You have no contact or relationship with your daughter who on my calculations will be approximately eight to nine years of age at this time.

34Each of your relationships have been in the context of ongoing drug use.  You have had a long-term history of alcohol and drug abuse.  The context of the commencement of your substance abuse is from your parents, older brother and your uncles.  You have used pills, heroin and cocaine.  As early as a 15-year-old you commenced use of methamphetamine.  You continued use of that drug until you were incarcerated.  In about 2021 you commenced your use of GHB on a daily basis.  This was the drug you were seeking from Mr Pisano at the time of your offending in this case.

35In summary the last four or five years of your life up to this offending had been immersed in the drug world, with breaks punctuated by periods in custody.  You have been assessed by Ms Cidoni as having a high risk of violent reoffending.  Ms Cidoni diagnoses you as suffering from PTSD symptoms and anti-social personality disorder.  Ms Cidoni attributes your difficulties to your personal history of negative exposure from your family members and peers.  Ms Cidoni opines this explains your behaviour.

36Whilst in custody you have worked in the kitchen and staff dining area.  You have accumulated a large number of certificates for engaging in appropriate programs whilst you have been in custody.  They were Exhibit 3.

37You are prescribed anti-psychotic and mood stabilising medication. You are also prescribed 128 mil per day of buprenorphine.  Whilst you are in custody you need to reduce the amount of that drug, so that when you are finally released from prison you will be in a position to be truly drug free, but that is a matter for you.  Only you can do that.

Sentencing considerations

38The basic purpose for which a court may impose a sentence of just punishment, deterrence both specific and general, rehabilitation and 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 offending, your culpability for it, and your personal circumstances. 

39I am also 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, that you as an offender are rehabilitated and reintegrated into society.

40I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly, but not exhaustively, to the kind of sentences imposed in comparable cases and the statistics for those sentences at the time.  I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another.

41The learned prosecutor relied upon a number of cases about current sentencing practices. They were the cases of Richards, Sudmeier, Giagole, Erkai, King and El Sikh.  The sentences in those cases vary between three years and one month as a head sentence for armed robbery with a non-parole period of 22 months to two years and three months with a one year and two month parole period.

42The prosecutor submitted that it was appropriate as a sentencing disposition of a head sentence with a non‑parole period.  Your counsel in his submissions and before me today, conceded that that was the only appropriate sentence.  I see this offending as more serious than the ones in the cases referred to by the prosecutor.

43You have pleaded guilty to these charges.  Your plea of guilty was indicated at a late stage.  Your plea does have the utilitarian value of allowing for 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 the court and police resources to deal with other matters, even though it was a late plea.  Your plea vindicates the public confidence in the legal process set up to protect the community.  Your plea has also meant that Mr Pisano did not have to give evidence again, including the bystander witnesses, I will refer to them, were spared the experience of giving evidence and reliving these events again. 

44Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your part.

45The charge of armed robbery has a maximum sentence of 25 years' imprisonment.  This maximum sentence clearly indicates the seriousness that that type of offending is held by the community through its legislated maximum.  The maximum sentence of 10 years' imprisonment for the other offences on the indictments also are indicative of the seriousness of the offending.

46In this case, the seriousness of the offending which forms the three charges on the two separate indictments, is reflected in the following factors:

1) This was a planned armed robbery.

2) The armed robbery occurred in the supermarket car park where innocent members of the public were present.

3) The armed robbery occurred in the day time where there is a high likelihood of members of the public being present and as in fact there were.

4) The armed robbery occurs in circumstances of a drug deal between yourself and Mr Pisano which had been organised.

5) An imitation firearm was used by you to assault Mr Pisano.

6) When Mr Pisano was down and incapacitated you stomped on him.

7) You were the aggressor at all times in this criminal activity or criminal event.

8) At the time of the offending you were serving a court ordered community corrections order and I note you had only been out of custody for two months.

9) At the relevant time you were a prohibited person from possessing an imitation firearm.  I accept that this factor is one of the charges on the indictment, but it is also an aggravating feature of the armed robbery and the assault charge.

10) The summary charges are offences on the day of your arrest so they are separate offences at a separate time.

47You have relevant prior convictions for assault and violence.  You resort to violence or a threat of violence to get your way, as you have done in this offending.

48You have now served 520 days pre-sentence detention.  Your time in prison has had you classified as an essential working prisoner.  I trust that this means you are rehabilitating yourself in prison, as opposed to becoming part of the prison fabric within the prison community.  I accept you have a less than ideal family start, that is clear.  In a small part, this lessens your moral culpability for this offending.

49You have descended into the depths of the drug world to the extent that your moral compass has been obliterated.  Your self-induced intoxication or need for illicit substances is not an excuse or a factor which ameliorates your criminal culpability.  It is your upbringing and family circumstances that reduces your moral culpability to that small extent.

50The three offences on the two indictments occur on the same day and in the same criminal transaction.  The degree of cumulation for those offences is to be moderated so as to comply with the sentencing principle of totality.  I take into account your diagnosis by Ms Cidoni of Post Traumatic Stress Disorder.  I do not accept that your Post Traumatic Stress Disorder is to the extent of enlivening the principles outlined in Verdins case.  Your counsel did not submit Verdins principles are applicable in this sentencing process.

51The sentencing considerations of general and specific deterrence, protection of the community, just punishment and denunciation of your criminal behaviour result in the only appropriate sentence is a term of imprisonment with a fixed non-parole period. 

52I assess your prospects of rehabilitation as poor, given the level of your drug use over a long period of time in combination with your past offending.  You are still a young man.  At your age, you are at the tipping point, that is the way I would describe it, the tipping point of either rehabilitating yourself or you giving up and returning to prison for longer and longer sentences by reoffending.  If the Parole Board grants you parole you should take the opportunity to turn your life around.  That ultimately is a matter for you.  Would you stand please.

53On Indictment No.10239410.1A, on the charge of armed robbery and the charge of causing injury intentionally, you are convicted and sentenced to an aggregate sentence of three years and six months.

54On Indictment No.10239410.1B, a person in possession of an imitation gun, you are convicted and sentenced to six months' imprisonment.  I order that three months of that sentence be served cumulatively upon the sentence I have just imposed in Indictment No.10239410.1A.

55In related summary offences, Charge 17 which is possessing the cartridges, you are convicted and fined $200. 

56In respect of Charge 22 of the related summary offences, which is possessing a prohibited weapon which is the flick knife, you are convicted and sentenced to three months' imprisonment.  I order that one month of that sentence be served cumulatively upon the sentence in Indictment 10239410.1B and Indictment 10239410.1A.

57That is a total effective sentence of three years and 10 months' imprisonment.

58I fix a non-parole period of two years and six months.

59But for your plea of guilty I would have sentenced you at the end of a trial to five years with a three year and four month minimum.

60I declare you have served 520 days pre-sentence detention in respect of the sentence I have imposed.

61I sign the forfeiture and disposal orders.

62Does that cover everything?

63MS PIGGTT:  Thank you, Your Honour, yes it does.

64HIS HONOUR:  Thanks.  Mr Backwell, is the arithmetic right?

65MR BACKWELL:  Yes it is, sir.

66HIS HONOUR:  All right, thank you.  So that finishes that, Mr Roberts.  As I said during the course of this sentencing process, you are a young man.  You have got your life in your own hands.  You want to take this opportunity to turn it around otherwise that revolving door downstairs will really mean something for you.  You'll keep coming back and you'll keep going back.  It's a matter for you.

67Thank you, you may remove the prisoner.

68Thank you for your assistance counsel.

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