Director of Public Prosecutions v Roberts, Campbell Patrick
[2013] VCC 258
•6 March 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Unrestricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02201
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CAMPBELL PATRICK ROBERTS |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 6 March 2013 | |
CASE MAY BE CITED AS: | DPP v Roberts, Campbell Patrick | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 258 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | ||
| For the Accused |
HER HONOUR:
1 Campbell Patrick Roberts, you have pleaded guilty to one count of attempted robbery contrary to s.321M of the Crimes Act 1958. The maximum penalty for this offence is 25 years imprisonment.
2 You have also pleaded guilty to one count of recklessly cause injury to Lynne Liu contrary to s.18 of the Crimes Act 1958. The maximum penalty for this offence is five years imprisonment.
3 Ms Bye of counsel on behalf of the prosecution has tendered and read out in open court a summary of the case that is brought against you, this is Exhibit 1. You have admitted the truth and accuracy of that summary and I sentence you on the facts as set out in that document as amended by the prosecution.
4 The offences relate to an incident which occurred on Saturday 1 September 2012. You entered a convenience store around 6.15 pm wearing a grey striped jumper and a hood over your head. Your mouth was covered with a black fabric. The store owner was sitting at a computer at the side of the store, his wife, mother-in-law, three year old daughter and baby son were in the residence attached to the store. You went straight to the counter and leaned over towards the main register. When the owner approached you, you showed him the bladed scissors that you had concealed in your sleeve. The owner called out to his wife who entered the store holding the baby. She saw you moving the scissors back and forth, she gave the baby to her mother who took him back into the residence. You said something to the owner he did not understand.
5 You tried to jump over the counter. The owner picked up a knife from the store sandwich bar. You ran to the other end of the counter. The owner hit the knife several times against the counter and you jumped back. The owner's mother-in-law gave him a metal broom handle. He pushed you off the counter with it but you grabbed it. He grabbed another stick and tried to hit you but you used it to hit him to the side of the head. This is the basis of Charge 2.
6 You then jumped over the counter. The owner grabbed you and he tried to drag you away from his wife and the door to the residence. As he did so, he pulled down the fabric that you had over your face. You broke free and tried to run to the side of the counter where the owner's wife was, he grabbed you again and you pushed him very hard. You briefly grabbed the knife that his wife was holding and you suffered a small cut near the eye. The entire incident was the subject of Charge 1.
7 You then jumped over the counter and ran out of the store. You fell over in the car park and ran towards McComb Street, Lilydale. You went to the yard of a premises, removed your hoodie and the material across your face and then walked across Cave Hill Road.
8 You were arrested by police and taken to the Lilydale police station where you were interviewed. You admitted being in the store earlier that day to buy cigarettes but denied the offending. Police were able to identify you from the store surveillance cameras. When apprehended, you were still wearing the jeans depicted on the CCTV footage from the store. Further, the footprints of your runners were matched to those found on the store counter. You had a small cut in your eye and injuries consistent with being hit with the broom handle and falling over in the car park. The striped jumper was recovered from the bushes near the premises in McComb Street and the scissors were located on the floor of the shop. Finally the victim identified you from a photo board.
9 You have been in custody since your arrest on 1 September 2012. On 12 September 2012, you were sentenced for other matters including breach of a suspended sentence and combined custody and treatment orders. You have received a total effective sentence of 17 months with a non-parole period of 11 months. You are currently serving that sentence and your earliest release date was 19 June 2013. You have served 11 days pre-sentence detention on the current charges. Under 14(1) of the Sentencing Act, I will need to impose a new non-parole period today.
10 Robbery is a serious crime. It is prevalent in our community. You chose a soft target and showed your attention to back your demands for money with violence. You brandished your scissors at the shop attendant and despite his several attempts to deter you, you met his resistance with further violence. In your agitated state which resulted from the consumption of alcohol and Xanax and your symptoms of withdrawal, you posed an additional danger to the occupants of the store. In cases such as these, principles of deterrence, both general and personal denunciation and condemnation, protection of the community and just punishment are powerful sentencing considerations. This is a serious example of such a crime. I note also that you were on bail at the time these offences were committed although not for crimes of violence.
11 Your actions have had a profound effect on the victim. The store owner suffered shortness of breath, nausea and back pain as a result of the assault. He was taken by ambulance to hospital and discharged later that night. In his victim impact statement Mrs Liu stated that he suffered in the back of the waist for about a month after the incident and could not bend or do his usual range of jobs at his store. He took medication and also had treatment from his family at home. He lost six hours of business income over the weekend of the incident. You damaged their custom made bain-marie in the shop when you stood on it and damaged the clothes being worn by the shop owner. The attempted robbery made the owner upset for a long time and worried about his family's safety especially for his mother-in-law. She is still worried about them after she returned to China, said Mr Liu. After the robbery the owner installed a new alarm system costing about $3000.
12 In her victim impact statement tendered as one of the other exhibits, Mrs Liu stated: "Since the crime happened I feel nervous most of business time. I can't relax and I am easy to be frightened even by bigger voice. The bad memory is such a nightmare for me. It makes me sad and upset every time I think about it, I can't enjoy the life and be really happy anymore. That's not fair for my family and my children, I was seriously hurt emotionally. Since my mum saw the crime she keeps worrying about the safety of my family until now which makes me feel guilty. The crime destroyed my life and also my parents' life."
13 Your solicitor Mr Smurfthwaite made a plea in mitigation on your behalf in which he turned to a number of documents. These included psychological report by Mr Geoffrey Cummins dated 15 February 2013 which is Exhibit A. A final progress report from the Magistrates Court in relation to the Credit Bail Support Program dated 12 April 2012 which is Exhibit B. A report from the Windana Therapeutic Community dated 13 July 2012 which is Exhibit C. A letter from a Shane Grasio of Windana dated 27 February 2013 which is Exhibit D. And a letter of apology to the court from you dated 28 February 2013 which is Exhibit E.
14 Your solicitor properly conceded that the only appropriate disposition was an immediate term of imprisonment.
15 I turn to the matters advanced in mitigation. Your background and personal circumstances are set out in full in Mr Cummins' report and I accept his evidence which may be briefly summarised. You are 34 years old and were 33 at the time of the offences. You had a difficult family life, your father was an alcoholic and physically violent towards you when he was drunk. You were sexually abused by a male family friend for a period of three years until he moved out of the area but you never reported this offending. Your parents separated when you were 15. You were expelled from different schools at the age of 13 and then at 15 shortly after your parents separated. You left school in Year 10 and completed a Certificate IV in Business at TAFE. You have had no further education. You have lived with your mother only intermittently since then for limited periods of time. You are close to her but she has been getting tired of your repeat offending. She works as a nanny and has suffered depression for the past ten years. You have limited contact with your father and your two sisters.
16 You were introduced to heroin at the age of 16 and began using heroin intravenously. You also became a regular drinker around that time and had been a chronic alcoholic since around 2000 with a preference for spirits. You have tried other drugs intravenously but have not become addicted to them however you have often binged on Xanax, Valium, Serepax, and Rohypnol. You have undergone residential drug and alcohol detoxifications at Windana in St Kilda on three occasions, each lasting about four months. The first was around 1998, the second was when you were in your early 20s, the third was between February and June 2012. On each occasion you were evicted from the community because you used illicit drugs or alcohol or non-prescribed prescription medication. On the last occasion, you along with a few other residents used magic mushrooms found on a rural property there.
17 However the report from Windana indicates that on the last occasion you had gained some benefit from the program and were participating in sessions building self-esteem, dealing with some parental and family issues, and your repressed emotions, and learning some human relationship skills. You also returned negative urine drug screen tests during the time you were a resident there.
18 You immediately contacted the service after your discharge and sought actively to re-enter the program. However this process takes time and there is a mandatory delay when you have previously been discharged from the program due to use of drugs on the property. Prior to your arrest you had been actively travelling to attend the peer support and recovery groups based at the St Kilda site.
19 You have had limited employment in hospitality but were last employed about five years ago. The longest period of employment you sustained was for about six to eight months. Your employment history is fragmented because of your chronic substance abuse. You do not hold a driver's licence.
20 You have had a number of short term relationships and have a five year old son from one of those relationships who lives in Perth with his mother. You have little telephone contact with him.
21 Your drug abuse has been chronic and you have experienced periods of remission only for relatively long periods at times when you have been in prison or in a residential treatment facility such as Windana.
22 I note that on 21 June 2011 you were sentenced for other offences and were then released on 17 August 2011 with 211 days remaining on a suspended sentence which had been imposed upon you. You remained at Liberty until 1 September 2012 except for two periods on remand in August 2011 and October to December 2011. Upon your release in August 2011 you had planned to live with a friend. Unfortunately his house burned down prior to your release and therefore you had no stable accommodation. You were staying with friend and occasionally sleeping rough. This affected your ability to participate in the combined custody and treatment order which had been imposed in June 2011. You became demoralised and started using heroin again, abusing alcohol, and re-offending.
23 On 6 December 2011 you were released on bail in relation to some outstanding matters on condition that you complete the credit program. I note that you did complete it. While undertaking the program, you made contact with Windana and entered a residential program there on 22 March 2012. Unfortunately that was the time that you consumed the magic mushrooms that you found at the grounds of the facility which of course was a breach of house rules and resulted in you being discharged from the program on 11 June 2012 with some other inpatients.
24 After being asked to leave the Windana residential program in June 2012, you were homeless and depressed. You had been bailed by a Magistrate on 13 July 2012 to attend another rehabilitation program but were unable to comply with the program's conditions because of your heroin addiction and the fact that the program did not provide detoxification or access to medication and did not permit smoking. So you left the program.
25 Between June and September 2012 you were then in fairly parlous circumstances without stable accommodation, living either with friends or in cars which you stole or sleeping rough. You were depressed and using heroin and alcohol.
26 On the day of the offences you had been in telephone contact with Windana seeking to re-enter the residential program and were told that you had to wait at least three weeks. You told Mr Cummins that on the day of the offences you had not had any heroin for a few days and were in withdrawal. You then ingested Xanax and alcohol and were feeling physically unwell, so unwell in fact that when arrested your trousers were soiled from your bowel contractions. However you were also disinhibited by the Xanax and alcohol, you were only thinking about obtaining money to buy heroin and alcohol. You went straight to the till in the shop hoping to get money without incident. When there was resistance, you produced the scissors you were hiding up your sleeve. You accept that this is a serious example of an attempted armed robbery with some features of aggravation in that it occurred inside the shop where an infant was present.
27 You have an extensive criminal history dating back to 1998 relating to your chronic drug abuse. That history consists mainly of dishonesty offences, handling stolen goods, theft from a motor vehicle, burglary, and a few heroin possession charges. The weapon usually involved in the commission of the theft and burglary offences were the scissors that you used to break into cars. However your history shows your disregard of any opportunities shown given to you. For example you breached the terms of your suspended sentence on three occasions in 2002, 2003, and 2006. You also breached an intensive corrections order in 2006. You have been sentenced to immediate terms of imprisonment on 13 occasions.
28 I note that despite of this lengthy offending history, prior to the current offences you had no previous charges for violence or assault or attempted armed robbery. Although this is your first dishonesty offence associated with violence, the current charges mark a worrying escalation in your offending.
29 You pleaded guilty at the earliest opportunity at the committal mention on 28 November 2012. In determining the weight to be given to your plea of guilty, I take into account the following factors, the timing of your plea, your entitlement to a statutory discount because of your plea. I accept that your plea indicates remorse. You have avoided the cost and inconvenience of a trial and had spared the witnesses the inconvenience and ordeal of giving evidence and finally there is great social utility in that plea of guilty.
30 You have a long history of depression and over the past 15 years you have been prescribed various anti-depressant medication however you ceased taking that medication because it made you feel too lethargic. Mr Cummins concluded that you probably have a borderline personality disorder which is integrally related to your history of alcohol and opiate dependency. He felt that you presented as being severely depressed and that although not currently suicidal, should have your mental health closely monitored. You will find the term of your imprisonment more onerous because of your depression. However there was no evidence of a causal nexus between your depression and the commission of the offences. I do accept however that on the day of the offences you were suffering physical symptoms of withdrawal and were under the influence of alcohol and Xanax.
31 In relation to remorse, I accept that you are very remorseful for your actions and have apologised to the court and through the court the victims for your behaviour.
32 In relation to rehabilitation I note unfortunately that thus far you have been unsuccessful in your attempts to overcome your addiction. I note however that you have in the past meaningfully engaged with residential rehabilitation programs such as those offered by Windana. You are still a relatively young man and I note that as recently as April 2012 you are reported to have successfully completed the credit bail program. I also note in the reports from Windana that you have remained engaged with that facility and keen to participate in a further residential rehabilitation program. In spite of multiple admissions to such residential programs however, you have continued to return to drug use. Mr Cummins noted that your prognosis with respect to returning to abusing heroin and alcohol is very guarded and recommended that when released you considered being prescribed Ampral and Naltrexone.
33 Your prior criminal record including your disregard for the dispositions designed to address your personal and offending behaviour cannot be ignored. While your prospects for rehabilitation cannot be regarded as hopeless, at present they are far from promising.
34 In sentencing you today, I pay regards to principles of totality and proportionality. I note that you have been in custody since 1 September 2012 of which 14 days have been spent in police cells and that only eight days of this time is referable to pre-sentence detention on the matter that I am dealing with today. Balancing all of these factors I have no alternative but to impose a term of imprisonment.
35 Would you please stand.
36 On Charge 1 attempted armed robbery, you are convicted and sentenced to 27 months imprisonment. On Charge 2 reckless cause injury, you are convicted and sentenced to 12 months imprisonment.
37 In determining whether to order any period of cumulation and if so how much, I must take into account that the two charges are discrete even though they were committed on the same day. They involve offending of such gravity and total concurrency would fail to do justice. I must be careful however to avoid double punishment and I must pay regard to principles of totality and proportionality and avoid imposing a crushing sentence.
38 Taking into account all relevant factors, I consider that it is appropriate to order some period of cumulation. I therefore direct that three months of the sentence imposed in respect of Charge 2 be served cumulatively upon the sentence imposed on Charge 1 the base count. That results in a total effective sentence of two and one half years imprisonment. The total effective sentence is that of 30 months to be served concurrently with the sentence currently being served.
39 As required by s.14(1) of the Sentencing Act, I must fix a single new non-parole period which will commence from today's date. In fixing the non-parole period, I have made allowance of a non-parole period under which you will be eligible for release at the end of June 2013. I fix a single new non-parole period of 18 months.
40 But for your plea of guilty I would have sentenced you on Charge 1 to three years imprisonment and on Charge 2 to 18 months imprisonment. I would have directed that three months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed in respect of Charge 1 the base charge. This would have resulted in a total effective sentence of four years and three months with a non-parole period of three years. I direct that the sentences that would have been imposed but for your guilty plea be entered in the record.
41 I declare that a period of 11 days if that is correct, 11 days pre-sentence detention is to be reckon as time served in the sentence that I have imposed on you and deduct it from the sentence that you will have to serve.
42 Are there any other matters that I need to make reference to in order to complete this sentence?
43 COUNSEL: No, Your Honour.
44 HIS HONOUR: All right. Thank you.
45 COUNSEL: There was the disposal orders though, Your Honour.
46 HER HONOUR: All right, I think I have already signed those orders.
47 COUNSEL: I think they were signed - yes, at the plea.
48 HER HONOUR: All right, so I simply - I need to refer to those. Formally I simply - well, I have already made the disposal orders that were relevant and signed those.
49 COUNSEL: Thank you, Your Honour.
50 HER HONOUR: All right just bear with me just a moment while we prepare the orders. We will just adjourn briefly while they are prepared, thank you.
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