Director of Public Prosecutions v Robinson

[2018] VCC 92

IN THE COUNTY COURT OF VICTORIA

AT GEELONG

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

CR-17-01171

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE ROBINSON

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Geelong
DATE OF HEARING:	1 February 2018
DATE OF SENTENCE:	7 February 2018
CASE MAY BE CITED AS:	DPP v Robinson
MEDIUM NEUTRAL CITATION:	[2018] VCC 92

REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – armed robbery and associated obtain property by deception charges – early plea of guilty – co-operation with police – full admissions to offending – lengthy prior criminal history – immediate custodial sentence imposed.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D Maguire	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr P Bloemen (Plea) Ms H Russell (Setence)	Stary Norton Halphen

HER HONOUR:

1       Luke Robinson, you have pleaded guilty to one charge of armed robbery and four associated charges of obtain property by deception.

2       The offending concerns an armed robbery that took place on 12 March 2017 involving victim, Zahra Rezaee.  Having robbed Ms Rezaee of her bag, you obtained her wallet, money, two Commonwealth Bank of Australia credit cards and a Westpac Bank debit card that you then used to obtain grocery items to the value of $222.75 from Coles, Belmont, food items to the value of $6 from Hungry Jack's, Belmont, property to the value of $127 from Kmart, Belmont and property from 7-Eleven, North Geelong totalling $57.98.

3       Mr Robinson, your offending is serious and that is reflected in the maximum penalties that are prescribed by law, and they are 25 years’ imprisonment for armed robbery and ten years’ imprisonment for obtain property by deception.

4       You were now aged 23. You were 22 at the time of the incident, so you are a relatively youthful offender.

5       You admitted a prior criminal history that is extensive.  Your prior criminal history commenced when you were a child aged 13, with your first appearance being recorded at Geelong Children’s Court on 7 February 2008, and the last appearance at the Geelong Children’s Court being recorded on 9 May 2013.  In total, there were 21 appearances in the Children’s Court.  Thereafter, there are some seven appearances recorded in the adult jurisdiction, with appearances recorded at the Magistrates' Court that span a period from 5 February 2014 to 13 October 2016.

6       Of particular relevance, as a child, you have prior court appearances in respect to armed robbery in 2009 and 2010, dishonesty offending and also offences involving violence against the person.

7       On 13 October 2016 at Geelong Magistrates’ Court, you were convicted of intentionally cause injury, false imprisonment, threat to inflict serious injury, contravene a family violence intervention order, unlawful assault, make threat to kill and beat an animal, for which you received an aggregate term of imprisonment of 116 days, to be followed by a one year Community Correction Order with special conditions involving supervision, treatment for mental health, and offending behaviour programs, together with some unpaid community work.

8       Your current offending therefore breaches that order and is an aggravating factor.

9       You have yet to be dealt with in respect to that contravention of the Community Correction Order.  There are some further outstanding offences that remain to be dealt with by the courts, that involve charges of burglary, theft and drive whilst suspended.

10     In the past, I noted that the courts have afforded you a degree of leniency and it is unfortunate that you did not take up the opportunities that were granted to you.

11     There have been a variety of sentencing dispositions imposed, including without conviction, adjourned undertakings, probation, youth supervision orders, youth justice centre orders, fines, community correction order and imprisonment. 

12     There have been a number of occasions in the past where you have been dealt with respect to breaches of court orders, including contravention of a Community Correction Order (2016), breach a Probation Order (2010), breach of Youth Supervision Order (2010). 

13     I shall now proceed to sentence you in respect to the indictment on the basis of the summary of the prosecution opening on the plea hearing. 

14     On Sunday 12 March 2017 at approximately 2.30 pm, you were with an unnamed female associate.  The two of you had travelled to a local shopping strip in Detroit Street, Corio, on a motorbike. Your female associate remained with the motorbike during the incident.

15     You were wearing a full face motorcycle helmet and you were in possession of a small jemmy bar.  You saw Ms Rezaee walking along the street on the footpath outside the supermarket.  She was carrying a small bag.  As she was walking along the footpath, you ran towards her and attempted to grab the bag that she was holding.  She initially resisted and you pushed her.  As a consequence of which, she fell to the ground, striking her head on the ground.  You then ran off with her bag.

16     I have viewed CCTV footage that showed the final stages of the armed robbery.  You are seen clearly holding a jemmy bar in your hand at the time of snatching the bag, and those facts constitute Charge 1, armed robbery.

17     Once the bag was in your possession, you ran off to a nearby street and left the scene on the motorbike with your unnamed female associate.  She was arrested with you on Wednesday 15 March 2017 and has since been dealt with in the Children’s Court in respect to obtain property by deception charges only, for which she received a Youth Supervision Order.  Having regard to your different ages and charges, there is a need for there to be a disparity in the sentence to be recorded in respect to your offending.

18     Following the incident, Ms Rezaee reported suffering minor pain that did not require ongoing medical treatment.  Her wallet contained $100 cash, two Commonwealth Bank of Australia credit cards and a Westpac Bank debit card.

19     The four charges of obtaining property by deception relate to you and your female associate using her cards between 12 March 2017 and 13 March 2017 at the various places identified, namely Coles, Hungry Jack’s and Kmart, Belmont and 7-Eleven, North Geelong. You obtained the various property that I detailed earlier.  The total value of the property obtained was $413.73, and none of the items purchased or the bank cards have been recovered by police.

20     On your arrest, you were taken to the Geelong Police Station where you were formally interviewed and during the interview, you made full admissions. 

21     You told police that you had $5 on you at the time of your offending and you were waiting outside the shops thinking of robbing a laundromat for change because you had the crow bar with you. 

22     You saw the victim approach the footpath and went towards her and grabbed her purse whilst you had the crow bar in your hand.  You said when grabbing for the purse, you, “Pushed or bumped the woman, and she fell and hit her head." 

23     You said to police that you did not mean to push the victim.  Instead, you bumped her and you apologised after she fell. 

24     You told police you used the monies to buy cigarettes and drinks, and that you used the victim's card at the 7-Eleven, North Geelong, and that you used $100 cash in the purse to buy marijuana.  You also admitted attending Kmart and Coles, Belmont, to buy clothes, food and camping equipment, and that the victim’s cards were used to purchase those items.  You said you probably attended Hungry Jack’s, Belmont, shortly thereafter to obtain some food.  You said that you threw the victim's cards away somewhere.

25     Mr Robinson, your victim, Ms Rezaee, has suffered greatly as a consequence of your actions, and that is reflected in the Victim Impact Statement that was read at the plea hearing by the learned prosecutor.

26     Ms Rezaee is originally from Afghanistan and is a recent arrival to Australia.  She is now living in Geelong.  She experiences real issues with being fearful all the time as a consequence of your offending, and this extends to her even being fearful in her own home.  She fears going out alone and for a month after the crime, she did not even leave her house.  She now leads a very secluded life and is fearful of strangers.

27     Sadly, the victim states that she does not consider that her fear will abate and will remain with her for a lengthy period of time.  Her reaction is understandable, given the circumstances of your offending.

28     Therefore, her experience following your robbery of her, has impacted greatly upon her life and her experiences of life settling here in Australia. 

29     Physically, her head was very sore as a consequence of the fall and she took pain relief for about a month.  Fortunately, she has been able to recoup all her financial loss through the aid of others.

30     Procedurally, your matter proceeded by way of straight hand-up brief on 9 June 2017.  At the first committal mention, you pleaded guilty. 

31     I have noted a delay in the hearing of this plea due to matters beyond your control and I have taken that into account.

32     You have been on remand since 15 March 2017, and 329 days of pre-sentence detention is to be declared.

33     You are now 23, and you were 22 at the time of your arrest.  You were born in Geelong and are the third of seven children born to your parents.  You have experienced a difficult and disrupted childhood.  Your parents separated at some stage during your childhood, after which, they re-partnered and they each have had two more children.  You have not met any of your step-siblings.

34     Your upbringing has been characterised as one of constant trauma, neglect and instability. 

35     Your life has been punctuated with witnessing multiple incidents of family violence committed by your father against your mother, severe neglect and inappropriate supervision.  At some stage during your life and the life of your siblings, you have all been removed from the care of your parents at various stages. The Department of Health and Human Services have had a real involvement in your life from an early age.

36     You had multiple placements in foster homes from about the age of seven, and lived in residential care on multiple occasions.

37     In the past, you had a five-year relationship with a person known as April, whom you met in residential care, but that relationship ceased in the context of you being violent towards her.

38     You have little by way of formal education, having completed only Grade 5.  At primary school, you were expelled from numerous different schools attributable to serious behavioural issues, with you being described as disruptive and attention seeking in class.  You have never attended secondary school.

39     You commenced a course for the Victorian Certificate of Advanced Learning at Wyndham Community Education Centre in 2014, and whilst you initially progressed well, you did not complete that educational program. 

40     I had regard to the contents of the letter written by Teresa Vizintin, the manager of that program.  Her letter dated 5 August 2014 confirms that you were engaged in a full-time senior secondary program in 2014.  She noted that your attendance and commitment to the program were good and you were described as being a willing, active and positive contributor towards your classes, and you took pride in your schoolwork and projects. 

41     Sadly, you did not complete that program.  You have real difficulties with literacy.

42     You have never been employed in any capacity.  You undertook some volunteer work with Riding for the Disabled when you were aged between 12 and 14. 

43     Your long term connection with the criminal justice system can be attributed in part to your longstanding difficulties with polysubstance abuse.  You commenced abusing alcohol at age 12 and had a significant binge-drinking problem.  At age ten, you commenced smoking marijuana, graduating to heavy use over the years.  Methylamphetamines have also been a feature of your life from about age 20 and you were described as a frequent daily user.  You smoked, but did not use intravenously.  The level of methylamphetamines use was significant at around the time of the offending and you were said to be using 3 to 4 grams of methylamphetamines per day.

44     I accept that the offending occurred in the context of heavy drug use, and whilst that provides a context and an explanation for your behaviour, it in no way excuses your behaviour. I find that your moral culpability is high.

45     You had been released from prison in October 2016 to serve a Community Correction Order.  Following your release, you lived with your mother and initially you were able to maintain abstinence from drugs with her support. You were also compliant with the terms of the order for the first two months following your release from prison.  This changed, however, when you took up with a friend, whom you had met in gaol, who was also a known drug user. 

46     You began to use methylamphetamines again leading to your life spiralling out of control.  Your mother asked you to leave her home and you began living a transient lifestyle on the streets, associated with heavy drug use and the commission of further offending. 

47     On 9 March 2017, a younger brother was sentenced in respect to a manslaughter charge, for which he received a term of imprisonment of ten years, with a minimum fixed of six years and six months.  Your brother’s situation impacted greatly upon you and you began bingeing heavily on the drug ice and were not sleeping.  These were desperate times for you. 

48     Material was provided to the court by way of a neuropsychological report prepared by Susan Carey.  She is a clinical neuropsychologist and her report dated 25 September 2017 has been tendered and the contents have been read and had regard to.  She also had regard to the contents of an earlier psychological assessment performed by Dr Julie Janev, on 23 September 2016, and the contents of that report has also been read and taken into account. 

49     Ms Carey noted that academically, you had very poor skills in terms of literacy, mathematics and crystallised knowledge, and she found mild deficits in verbal fluency, attention shifting, and moderate deficits in verbal abstract reasoning, visuoconstructional skills and impulse control.  Severe deficits were evident in new learning of information likely to be secondary to attentional difficulties.

50     She noted the earlier diagnosis confirmed by Dr Janev in 2016 of post-traumatic stress disorder, cannabis use disorder, stimulus use disorder and antisocial personality disorder. 

51     In addition, she considered that her assessment revealed a specific learning disorder in reading, written expression and mathematics of moderate severity.  She confirmed an acquired brain injury of mild severity associated with a number of risk factors, including chronic heavy cannabis use, recent heavy use of methylamphetamines and a history of multiple mild traumatic head injuries. 

52     She considered that your cognitive impairments, together with substance use history, is consistent with a diagnosis of substance-related acquired brain injury and she considered that you have longstanding learning and behavioural difficulties that occur in the context of an unstable childhood, including exposure to violence and substance abuse, together with poor academic engagement.  You also demonstrated features consistent with attention deficit hyperactivity disorder. 

53     She considered there was a partial relationship between your cognitive impairment and current offending behaviour.  Her view is that it moderated your moral culpability to a small extent. 

54     When she saw you, you had been incarcerated since mid-March 2017, and she noted you had not experienced a decline in your mental health, nor did you report any psychiatric phenomena. 

55     She considered you to be at low risk of experiencing a decline in your mental health in custody and overall, she considered there were a number of aspects of custodial placement that you may find more arduous than would be the case of a person without your cognitive and psychological difficulties.  However, these potential challenges could be ameliorated with the appropriate adaptations that she outlined in her report. 

56     A copy of her report will be provided to the correctional authorities for their assistance in making appropriate adjustments for you whilst you are in custody. 

57     She recommended that you engage in modified drug and alcohol counselling, and having regard to your significant and extensive prior criminal history, that is strongly recommended for the future so that you will be best supported when you ultimately return to the community.

58     As discussed with your counsel, Mr Bloemen, during the course of the plea hearing, I do not consider that there is evidence to establish a causal link between the offending behaviour and the conditions as described by Ms Carey so as to enliven the Verdins principles. 

59     However, I have had regard to her findings and also the findings of Dr Julie Janev from 2016 in a general sense when formulating the appropriate sentence.

60     I further had regard to the majority High Court decision of Bugmy v The Queen.[1]  The effects of your background of significant deprivation does not diminish over time or with repeated offending and have been given full weight in formulating the sentence that I am about to impose.

[1](2013) 302 ALR 192.

61     Mr Bloemen put a number of matters in mitigation, which I accept.

62     I accept that you pleaded guilty at the earliest possible stage in these proceedings.  The plea was entered at committal mention.

63     Your plea has real utilitarian value.  By your plea, you have avoided the cost and inconvenience of a trial being conducted and in particular, you spared the victim the ordeal of having to come to court and give evidence at your trial.  You have facilitated justice and a discount in your sentence will be applied accordingly.

64     I consider that the plea of guilty is an indication of some remorse on your behalf and an acceptance of responsibility for your wrongdoing. 

65     I have noted, since your remand, that you have been drug free.  There is no evidence placed before the court concerning the results of any drug screen tests.  I accept the explanation offered by Mr Bloemen that you find it difficult to provide urine samples for screening because of personal embarrassment.  It has now been revealed that you were the subject of some inappropriate sexual misbehaviour in the past, and that makes it difficult for you to accept the presence of others whilst being asked to provide a sample. 

66     You have been in custody for some time and your weight has increased from 60 kilograms to 99 kilograms.  Your physical condition has much improved since you incarceration.

67     Unfortunately, because of the delay in the court listing your plea hearing, considerable time has now elapsed and that has impacted upon your ability to avail yourself of the various programs to address your offending behaviours in custody.  You are keen to have drug and alcohol counselling.  You commenced one-on-one counselling recently and you have established a level of rapport and trust with your practitioner.  You are keen to explore that further.

68     It is difficult for this court to assess your prospects of rehabilitation.  However, I remain optimistically guarded.  Your ultimate rehabilitation will be determined on the basis of whether you can live in the community and remain drug free.  Sadly, you do not have any support such as accommodation or prospects of employment upon your ultimate release.

69     It is incumbent upon the correctional authorities, whilst you remain in custody, to direct you to programs that will enable you to address your literacy and numeracy issues to enable you to complete at least a basic level of education.  There is a real need to focus on you developing life skills to assist you with independent living and also, to have some employment skills so as to equip you for the future. 

70     Significantly, there is a real need to address your underlying offending behaviours with programs directed at addressing psychological issues and alcohol and drug dependency issues and offence behaviour.

71     I noted the submissions of Mr Bloemen in relation to the difficulties you have experienced recently whilst kept at Port Phillip Prison.  There have been two incidents, during one of which you were assaulted and the other concerned a threatened assault.  No evidence was led concerning those incidents.

72     You are now held at Melbourne Remand Centre in a protection area away from the mainstream prisoners, and your time in custody has been hard being so isolated.

73     I accept, by reason of your personal circumstances and your current confinement, that your time in custody is going to continue to be isolated. 

74     Ultimately to enhance your prospects of rehabilitation, you will require assistance following release to ensure your transition into the community is one that has a real chance of being successful.  You need secure accommodation and efforts should be made to address further treatment and support in the community.

75     Both your counsel and the prosecutor, Mr Maguire, submitted that an immediate term of imprisonment to be served was the most appropriate disposition,  having regard to the gravity of the offending, your antecedents and plea of guilty.

76     In sentencing you, I have had regard to the circumstances of your offending.  The charge of armed robbery is a serious offence, which is reflected in the very high maximum penalty, and I consider this to be a serious example of this offence.  General deterrence is important.  You attacked a vulnerable lone female whilst she was present at a busy shopping centre.  She was entitled to be able to feel safe when she was attending such a place in broad daylight in a public place.  There is a need to ensure that a message is sent out to anybody who considers this type of offending – that is, handbag snatch type armed robberies – that they will face stern punishment when apprehended.  Such violence is a matter of significant public concern.  You also need to be specifically deterred from future offending.   

77     Overall, I consider that you did make a decision to rob this person at the last minute  The offending was opportunistic.  However, there was a degree of planning involving you having a motorbike as a means of escaping readily nearby, and you also had the weapon, that is, the jemmy bar on your person.  I noted that you did not brandish the weapon at the victim.  However, it was clearly available in your hand at the time of the commission of the offence.  You did use a degree of violence when you forcibly snatched the victim’s bag and ran off.  You were effectively disguised by wearing the full face helmet at the time.  As I stated earlier, the offending was committed in breach of a Community Correction Order, which is an aggravating feature.

78     All in all, having regard to the purposes for which a sentence must be imposed, namely just punishment, deterrence, both general and specific, denunciation of your actions and the protection of the community, I consider the only appropriate sentence to be imposed is a term of imprisonment to be immediately served.

79     The sentence I am about to impose will be an aggregate sentence having regard to the fact that the charges effectively arise out of the same series of events, and I consider that such a sentence is appropriate.  I have had regard to the principles of totality and proportionality.

80     I now ask that you stand please, Mr Robinson, and I will announce the formal court orders.

81     In respect to the one charge of armed robbery and the four charges of obtaining property by deception, you will be convicted and sentenced to an aggregate term of three years’ imprisonment, and I fix a non-parole period of 18 months’ imprisonment.

82 Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a sentence of four years’ imprisonment with a non-parole period of two and a half years.

83     I declare that you have served 329 days pre-sentence detention and direct that that be deducted administratively from your sentence and the fact of the pre-sentence detention noted in the records of the court.

84 Finally, I make the order for the taking of a forensic sample, pursuant to s464ZF(2) of the Crimes Act 1958.  Having regard to the circumstances of the offending, I consider that such an order is in the public interest and I make the order accordingly.  I note that you have consented to the order.

85     The only thing I need to do now is to tell you, Mr Robinson, that if at the time of the taking of the forensic sample you do not consent to that, that is, you do not consent to the taking of a sample using a cotton bud inside your mouth, that the police may use reasonable force to enable a forensic sample to be taken, and that would be by a blood sample.

86     That concludes that matter.  I do not think there are any other ancillary orders that I need make?  Other than the forensic order, the taking of a forensic order.  I will provide those orders for the Crown.

87     All right, we can adjourn this matter.

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