Director of Public Prosecutions v Robinson

[2016] VCC 2068

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-16-00868
CR-16-00869

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK ROBINSON
EDWARD ROBINSON

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2016 and 15 December 2016
DATE OF SENTENCE:	16 December 2016
CASE MAY BE CITED AS:	DPP v Robinson
MEDIUM NEUTRAL CITATION:	[2016] VCC 2068

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:              Sentence – aggravated burglary – intentionally cause injury

Legislation Cited:     Criminal Procedure Act 2009 (Vic), Sentencing Act 1991 (Vic), Crimes Act 1958 (Vic)

Cases Cited:DPP v Meyers [2014] VSCA 314, Hogarth v R [2012] VSCA 302, Ibbs v R [1987] HCA 46, R v Verdins (2007) 16 VR 269, Muldrock v R [2011] HCA 39, Boulton v R [2014] VSCA 342, DPP v Borg [2016] VSCA 53, McGrath v The Queen [2015] VSCA 176, Hutchinson v The Queen [2015] VSCA 176, DPP v Bowden [2016] VSCA 283, Hasan v The Queen [2010] VSCA 352, Hudson v R [2010] VSCA 33

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms P. Marcou (Plea) Ms K. Maikousis (Sentence)	Solicitor for the Office of Public Prosecutions
For Accused Mark Robinson	Ms E. Clark	Stary Norton Halphen
For Accused Edward Robinson	Ms M. Myktowycz	Lethbridges

HIS HONOUR: 

1Mr Mark Robinson and Edward Robinson, stay there, you both will have been aware of a number of arguments being put to me in regard to what I should do with you and how I should sentence you.  Those matters have taken some time to consider and as a result it is necessary for me to pronounce upon those propositions in delivering your sentences.  The purpose of that, most importantly, is so that both of you know the reasons why I pronounce the sentence I am about to, and also that such is recorded publicly for the purposes of either consideration by other Courts, or for historical purposes.  So I will ask you simply to remain seated while I go through the reasons for your sentences.  At the end when I am to pronounce sentence, I will ask you each to stand up. 

2In this matter both of Mark Robinson and Edward Robinson, pleas were entered by both Robinsons to separate Indictments.  Ms Marcou appeared in the plea, and Ms Maikousis appears today, on behalf of the DPP. 

3Mr Mark Robinson is 26, was born on 25th day of November 1989 and is a carer for his mother, and pleaded guilty to four charges in Indictment F13103726.  Ms Clark appeared on his behalf, both on 1 August, yesterday and appears today. 

4The four charges in that Indictment are firstly Charge 1, a charge of aggravated burglary.  Indicative of the seriousness of that charge is the fact that the penalty prescribed by Parliament is a maximum penalty of 25 years imprisonment. 

5The second charge was the possession of a firearm while a prohibited person, for which the maximum penalty is one of 10 years imprisonment. The third charge was one of intentionally causing serious injury, an offence against s.17 of the Crimes Act 1958, for which the maximum penalty prescribed is one of 10 years imprisonment.  The fourth charge was a charge of possession of a drug of dependence for which the maximum penalty prescribed by Parliament is one year.

6As to Mr Edward Robinson, he is aged 29, was born on 21st day of January 1987, is a labourer and pleaded guilty to three charges in Indictment F13097958.  Ms Mykytowycz appeared on his behalf throughout these proceedings.  The charges were firstly aggravated burglary, pursuant to the same section and having the same maximum penalty as I have already indicated for his brother. 

7The second charge in the Indictment was intentionally cause injury, again under the same section and having the same maximum penalty.  The third charge is one of storing a firearm in an insecure manner while unlicensed.  The maximum penalty prescribed for that offence is four years imprisonment. 

8Edward Robinson pleaded guilty, pursuant to s.145 of the Criminal Procedure Act 2009 to a summary firearms charge, which has a maximum penalty of 40 penalty units.

9Insofar as the circumstances surrounding those crimes, Exhibit A was tendered which was the prosecution opening for plea dated 25 July 2016.  Such opening related to both Indictments.  The more serious crimes in those Indictments emanated out of the relationship between Edward Robinson and Victoria Petrellis. 

10The victim in this matter was one Walter Gorlin, aged 50 who resided at 12 Wickham Road Greenvale.  All of the assaults, if I use that as a generic term, upon him happened on 2 September 2015.  The major charge, being the aggravated burglary to which both the Robinsons have pleaded guilty, has the following features: such was motivated by the grievance of Edward against the victim, which related to the alleged affair with the victim and his partner,  whom I have just referred to.  In his record of interview, at question 117, Edward Robinson said insofar as that grievance was concerned, that is the suggestion that there had been improper sexual contact, and indeed a rape of the girlfriend by the victim: "I need to speak to him".  At question 148 he said:  "I was gunna punch his face out if he raped her".

11It is clear, as I said yesterday to his counsel, that Mr Edward Robinson was both the instigator and provocateur of these crimes.  Edward was the person who decided to take the law into his own hands, investigate this allegation and act in the manner of a vigilante.  Then having assayed the scene, so to speak, and realised that there was someone home when he first went to the property with his girlfriend, he then went away and recruited his brother to help in the escapade.  

12This attack was undertaken at 9.30 pm at night, when the victim was at home with his family.  Indeed his twins were outside the home when both of the Robinsons arrived.  Both accused entered, insofar as the burglary element of this crime is concerned, with intent to assault as set out in the Indictment, that is intent to assault the complainant. 

13In regard to Mr Mark Robinson, he entered the premises with a loaded sawn‑off shotgun.  Having entered, the victim was then assaulted very shortly thereafter by Edward by way of kicking and punching, it would appear that the victim apparently stood up for himself quite well in that altercation.  Seeing the altercation taking place between the victim and his brother, Mark Robinson then subjected the family of the victim, and the victim, to the terror of the discharge of a shotgun within the premises.  This aspect being the aggravation of the aggravated burglary charge, insofar as Mark Robinson is concerned, which does not concern his brother. 

14The plea so far as Edward was concerned, I am advised, was settled on the basis that Edward is said to have been unaware of his brother having had such sawn‑off shotgun in the car, as remarkable as such may seem.  In the circumstances, I can only say that I consider that a very generous concession made by the prosecution.  However, I make it clear that in sentencing, I am bound, insofar as Mr Edward Robinson is concerned, to sentence on the basis, that he was unaware of the shotgun being in the possession of his brother, indeed was unaware of it until it was fired within the house.  Apart from the impact, that is emotional impact and shock indicated in the victim impact statement, of the firing of that gun, the actual physical impact of such is seen in Exhibit B, the photos, in particular photos 23 through to 25, where the actual results of the shotgun and the pellets being fired into the ceiling can be observed.

15The final part of this attack occurred when the altercation between the victim and both Robinsons progressed out on to the front lawn.  Whether it was because the victim was doing well defending himself, I'm not sure, but at that stage Mr Mark Robinson assaulted the victim by hitting the victim’s head with the butt of the shotgun. 

16In considering this aggravated burglary, I note that such has the characteristics, as detailed in regard to aggravated burglaries in DPP v Meyers [2014] VSCA 314. Firstly, it was clearly grievance driven. Secondly, it involved a confrontation within the victim's own home, being the person against whom the grievance was held. Thereafter, following the entry, it was accompanied by violence perpetrated both in and outside the house.

17In understanding and appropriately sentencing for the aggravated burglary, it is important to remember the statement of the Court in Meyers at [71], that the factors that I have detailed herein being factor 5, the assault by Edward, factor 6, the possession of the gun which lead to the discharge and 7, the assault outside the home are not aggravations which I relate to the aggravated burglary, and nor do those matters make up any element for which punishment can be imposed, in the sense that they occurred after the happening of the aggravated burglary. Those matters were clearly set out, as I said in [71] of Meyers. 

18Insofar as the analysis of the aggravated burglary, and the part played by each of the Robinsons, to which I will come to later, generally you could have no better example of what the Court of Appeal, in Hogarth v R [2012] VSCA 302, described as confrontational, aggravated burglary.

19In Hogarth, the Court of Appeal analysed a home invasion aggravated burglary. In particular at [52] was reference to a report presented by the Sentencing Advisory Council entitled, ‘Aggravated Burglary ‑ Current Sentencing Practices’. That was a report of the Sentencing Advisory Council of June 2011.

20At [54] the Court of Appeal said: "The defining characteristic of the ‘confrontational’ category was entry 'in the context of a dispute with or grievance against someone in the premises'." That was a quote from the report.  “This was by far the most common type of aggravated burglary, accounting for almost half of the cases reviewed by the Council.  This category included cases such as ‘drug run‑throughs,’ (where there is a pre‑existing dispute arising from illegal drug dealing and the offender breaks into premises to confront the other party and to take or damage property)”, which is not relevant here, “and vigilante actions (for example, where the offenders seeks to punish the victim because of a belief that the victim has done something wrong).”

21At [56] the Court of Appeal went on to say, when looking at sentences and noting the relevant recent increase in the maximum penalty prescribed by Parliament: "It must be recalled that the stated intention of the increase in the maximum penalty was to 'send a message' that 'home invasion‑style offences … will not be tolerated'.  Sentencing practice as described by the Council"  which was analysed by the Court of Appeal in this decision, "would seem not to have met that objective.".

22The Court of Appeal continued at [62]: "It follows, in our view, that current sentencing for this form of aggravated burglary can no longer be treated as a reliable guide, and sentencing Judges should no longer regard themselves as constrained by existing practice.  The necessary change in sentencing practice for confrontational aggravated burglary will evolve over the course of decisions in individual cases." 

23In accordance with the determination of the High Court in Ibbs v R [1987] HCA 46, it is necessary for this Court to define, where you have a statutory offence such as this, by an analysis of the circumstances as to where such a crime sits on what was described by the High Court as the scale of heinousness. In regard to both charges of aggravated burglary, that is both charges against the Robinsons, and noting that the charge is aggravated itself insofar as Mark Robinson is concerned by the firing of the shotgun, I assess the heinousness of the culpability in regard to both Robinsons at somewhere between mid‑range and high.

24Each accused, subsequent to the aggravated burglary, assaulted the victim, Mr Gorlin: Edward by kicking and punching him, Charge 2 insofar as Edward's Indictment is concerned, and Mark as I have already said by hitting the victim's head with the butt of the shotgun, Charge 3.

25Insofar as the victim is concerned, the Court had the benefit of seeing the photographs tendered, which indicated the injuries he received.  Further, as was agreed by both counsel, the injuries received by the victim were summarised by the learned prosecutor in the opening at paragraph 27.  Some of the injuries included, to the head, “left parietal region of the scalp, an injury 6 centimetres long which had been closed with three staples and sutures.”  It would appear that was the result of the injury inflicted by the butt of the rifle.  “Inner aspect of the right ear bruising and dried blood; outer aspect of right ear purple bruising, and bruising, redness and abrasions to the face." 

26It would appear, though I don't have any clear information on this, but from the victim impact statement certainly the victim has recovered well from the physical consequences. 

27Insofar as the victim impact statement itself is concerned, Exhibit E, it seemed to me that nothing contained therein, as written by Mr Walter Gorlin, was inappropriate or unreasonable.  He is aged 50 years of age, he said, "Home has always been a safe haven, a place where once the family could feel safe." 

28On p.3 of the victim impact statement Mr Gorlin said: "Having a sawn‑off shotgun held to your head in front of your child and have the gun go off and having the loud," it says 'load' but I assume it means loud noise, "ringing through your ears and going into a state of shock, not knowing if the side of your head is missing, is an experience I can't put into words and I relive the event every night.  I have been to cancelling,” I assume he means counselling, "and am seeing a psychologist who has diagnosed me with a severe case of trauma.  I suffer from anxiety and paranoia…. My wife suffers every day, scared to be home alone."

29Insofar as the physical impact he said, "I suffer from severe headaches from being hit over the head with the butt of the sawn‑off shotgun."  He said he has constant neck pain, sensitivities on his left hand and pins and needles throughout the left side of his head.  As I said, apart from that, it would appear that whatever the physical injuries were, he's recovered pretty well. 

30Mr Gorlin speaks of the financial impact, being the necessity because of the consequences of the attack, to fit a security system to the home, as he says, "to try and reinstate a sense of security in our own home".  He says on p.8 that he suffers from sleep issues and a feeling of insecurity, "I constantly feel fatigued due to the lack of sleep, due to the nightmares and have no energy to go out and socialise with friends and family like I once did before this brutal home invasion." 

31As I say there was no suggestion by any counsel that there was anything inappropriate about these reactions, as expressed by the victim.  What I have read indicate, I think, that his reactions, are consistent with what one would expect of a person who went through an experience such as this.

32Insofar as the antecedents of the prisoners, Mr Mark Robinson has a number of prior offences.  I should add, nothing as serious as this.  He has, however, been to gaol on a number of occasions.  Indeed he'd only been released some one month prior to this offending.  He was sentenced approximately five months before, on 1 May 2015, to a period of six months gaol.  His release date from that sentence was 12 August 2015, barely a month before these offences were committed. 

33Generally Mr Mark Robinson’s prior history shows drug type offences and inappropriate possession of weapons.  In November 2012, he was convicted of trafficking in amphetamine and given a one month suspended sentence.  In October of 2014 he was convicted of breaching a suspended sentence, and also convicted of breaching offences, being a further charge related to family violence and possession of prohibited weapons.  Mr Mark Robinson was given an eight month sentence of imprisonment of which three months was to be served immediately and five months was suspended.  Then the suspended sentence was breached again by a further breach of family violence orders, when he was given the six months in May of 2015.

34Edward does not have any priors.  He has charges previously, to which he pleaded guilty on 10 January 2013, however no convictions were recorded against him, such related to drug and weapons matters. 

35I make it clear that in referring to the priors of Mr Mark Robinson he doesn't come up before me for resentencing.  That's not the way it works.  However, when a person has significant priors, when a person's been to gaol and one month later, goes and commits serious offences such as these, the analysis generally of the antecedents relates to what steps can be taken and what sentence should be passed.

36Both pleas took place over a period of time.  That unfortunately came about because when the original plea was conducted on 1 August it was determined, pursuant to the propositions put to the Court and in particular the mental condition of Mr Mark Robinson, that a report should be obtained under s.80, insofar as a potential Justice Plan is concerned.  I accepted that submission of Mr Mark Robinson's counsel, unfortunately that meant a necessary delay.

37The plea resumed yesterday, with the benefit of additional documentation and I heard further aspects as to the plea from all counsel. Tendered yesterday was Exhibit F, the Justice Plan insofar as Mark Robinson is concerned, dated 13 December 2016, Exhibit G, the client overview, Exhibit H, which is the statement required under s.83B of the Sentencing Act 1991 as to Mr Mark Robinson being a person subject to a disability, Exhibit J, the pre‑sentence report dated 14 October 2016.  Finally, Exhibit K, which was the suitability report in regard to the community corrections order in regard to Mr Edward Robinson dated 1 August 2016.

38As to Mr Mark Robinson, Ms Clark provided the Court with an outline of submissions, Exhibit M3.  Ultimately, yesterday, she submitted as follows: firstly, that the circumstances in this case fell within the principles set out in R v Verdins (2007) 16 VR 269 and that all of such principles apply to her client, Mark Robinson. That given the applicability of those principles, the normal considerations for sentencing being denunciation, punishment and deterrence, which are particularly appropriate for charges of aggravated burglary, need to be moderated.

39The second proposition put by Ms Clark was, that while there was no issue of the need, given the seriousness of the totality of offending relating to her client, for a period of immediate imprisonment, she submitted that a combined order pursuant to s.44(1) of the Sentencing Act 1991, being a period of imprisonment and a community correction order, was appropriate.  Mr Mark Robinson having now spent 469 days in remand, the proposition put was that such approximate 16 months should be the period of immediate imprisonment, to which should be added a community correction order.

40As I say in support Ms Clark relied upon her written submission, Exhibit M3.  She further relied on the report of the psychologist Dr Aaron Cunningham, dated 26 July 2016, Exhibit M1.  In particular the determination at p.3 that the full scale IQ of Mr Mark Robinson as assessed was 64, being within the range of 61‑69.  As Dr Cunningham had noted, on the basis of this score, Mr Robinson would qualify for disability support services.  Clearly from the documents tendered from Forensicare today and the certification, such is confirmed. 

41Further insofar as the Verdins arguments, Ms Clark relied in particular upon the summary and opinion expressed on p.4 of that report.  Firstly in the second paragraph of the Summary and Opinion Dr Cunningham said this, "In my opinion Mr Robinson's post‑traumatic stress disorder was precipitated by his experience of a home invasion.”  These were circumstances that involved his mother.  It was apparently that matter, and the failure to have same appropriately treated that leaves him, as described by the Dr Cunningham, as presently hyper-vigilant and with an aspect of his personality being difficulty in trusting people. 

42The second aspect of the argument of Ms Clark is in the third paragraph of Dr Cunningham’s summary on page 4, being as follows, "On the basis of psychometric testing, Mr Robinson was assessed in the extremely low range, his thinking and reasoning ability were in the bottom 1% of his age peers.  He presents with general impairment and thinking and reasoning relative to his peers.  In my opinion, Mr Robinson would have an impaired understanding of the consequences of his actions and would be prone to impulsive behaviour relative to his peers.  His abuse of drugs would aggravate his impairments in judgment.  In my opinion, Mr Robinson's intellectual impairment and drug abuse would have impaired his judgment with respect to his offence, behaviour and their consequences." 

43Dr Cunningham gave evidence and was cross‑examined.  In cross‑examination he agreed that despite the impact upon Mr Robinson’s life of the PTSD, such in fact had no relationship to the offending on this night.  In regard to the intellectual deficits, Dr Cunningham’s evidence was that having such a general mental deficiency impacts, in the sense of effecting the manner in which you make a decision, that is such a person is more prone to impulsive behaviour. 

44In cross‑examination Dr Cunningham stated that, albeit Mark Robinson’s deficiencies, there is no doubt that Mr Mark Robinson was well aware that what he was doing was wrong and was aware of the consequences.  However, his intellectual disability can be linked to understanding and explaining why he became involved in such criminality, in the sense as referred to in Meyers at [61] and [62]. I find, that although these matters go to mitigation and reduction of culpability, it could not be said that Mr Mark Robinson had no real sense of what he was doing, as explained in Meyers. Insofar as analysing this type of behaviour, by a person with such disability, Ms Clark referred me yesterday to the general analysis by the High Court in Muldrock v R [2011] HCA 39, [50] to [54].

45Given his intellectual disability, the opinion of Dr Cunningham, and indeed upon the Forensicare documents tendered today, I accept that at the time of the offending such intellectual disability of Mark Robinson played a role in diminishing his capacity for rational judgement.  No doubt, such also explains why he so willingly, and impulsively, went off on such escapade with his brother. Hence his criminal culpability for such offending is reduced.  As explained in Verdins, such a determination leads to the need for a moderation of the normally implicit need for a sentence which affects punishment, general deterrence and denunciation of crimes of this sort.

46I also accept that his PTSD would impact upon him in regard to any prison sentence imposed, and that he may therefore be vulnerable, that is more vulnerable than the normal person sent to prison while in prison.  As to Charge 2 and 3 of which he faces, Verdins principles also seem to me to lead to the need for a moderation of the effecting of the principle of general deterrence.  Balanced against such, of course, must be the notation of his prior offences, for being in possession of prohibited weapons, requiring one to look more closely at the need for specific deterrence in regard to such crimes.

47It should be pointed out that in regard to Mr Mark Robinson's priors, he has no priors for actual violence, albeit a breach of a family violence orders and convictions for stalking and uttering threats to kill.  Having accepted the need for such moderation, such must of course be balanced against an assessment of the objective criminality of these crimes, which is as I have already said in regard, in particular to Charge 1 and 2, in the high range.

48Further, insofar as her plea was concerned, Ms Clark stressed the attempts at rehabilitation that her client has made, and took me to the series of certificates, for the courses that he's undertaken while in prison.  Ms Clark asked me to apply the appropriate discount in sentencing for the plea of guilty, the furthering of justice of such, and the utilitarian benefits brought about by same. 

49Ms Clark further put that I should also accept, and I do, that the plea in particular, in regard to the aggravated burglary, should be seen as a valuable plea.  It is to be noted that there was no forced entry here.  As best I can understand, one of the twin sons, who was outside when the Robinsons appeared, was asked where his father was.  According to the son, he then came in to his father and said someone wants to see him.  It was, at or about the time of this discussion, that the Robinsons both entered the premises, by pushing their way into the home, despite an immediate reaction from the victim.  This scenario seems to be confirmed from the statement of the son, Joel and the witness Mr Mirdana.  Clearly as to the first element of an aggravated burglary, it could have been foreseen that this circumstance as to trespassing could have been canvassed at a trial.  It seems to me, therefore that the submission put to the Court that this should be classed as a valuable plea in regard to both Robinsons must be accepted.

50Insofar as Mark Robinson was concerned, Ms Clark pointed out the difficulties he's had while being in custody.  The particular difficult conditions that he has endured following the recent riots at the prison, in particular the 23 hour lockdown that he has endured, such seems to me to be an intolerable period.  It is put to me that such lockdowns were effected from April of 2016 and lasted for a period of seven months. 

51As I said by way of final submission, taking all of those matters into account Ms Clark said that the time spent by her client in gaol should be seen by the Court as sufficient, and such should in fact be the period of immediate imprisonment that should be imposed by way of a combined imprisonment/ community correction order.

52The prosecution in answer submitted that an order under s.44(1) of the Sentencing Act 1991 was within range, but that the immediate imprisonment, served to date, was not sufficient. It was submitted further that the period of imprisonment should be closer to the maximum allowed under s.44(1), albeit that the prosecution was keen to indicate that it was not trying to suggest to the Court any particular range or period of imprisonment.

53Coming then to Edward Robinson, the matters put by Ms Mykytowycz, in the original plea were tendered to the Court, Exhibit E6.

54It was noted that pursuant to s.145 of the Criminal Procedure Act 2009, Mr Edward Robinson asked the Court to take into account and pronounce sentence in regard to the summary charge which I have described.

55Counsel was at pains to point out that Edward’s prior history should be seen as effectively nil.  He has no convictions at all, and the matters that I have referred to took place some time ago in 2013.  Insofar as Mr Edward Robinson's offending, Counsel was at pains to stress that he had no part in entering into the premises with the shotgun, that particular form of aggravation was not part of his Indictment. 

56However it was Edward, by his own investigations into his relationship, and use of somewhat dubious technology, who instigated this escapade, which led to this brutal attack on the victim’s home.  Because of his grievance, Edward had gone and collected his brother to assist him when he'd seen that there were persons at the home.  I accept that Edward received some salutary punishment.  He apparently, as a result of the victim looking after himself, ended up with black eyes and a split eyelid.  I note the consequences thereof as recorded in the photographs which I have perused again, being Exhibit E1.

57Edward Robinson was, since being remanded, subsequently bailed on 3 March 2016.  He has been involved in full‑time work since that time, I have read the confirmation of that, Exhibit E2.  He has involved himself in a Men's Behaviour Change Program, Exhibit E3 while not necessarily relevant to a charge of aggravated burglary, such is obviously important in regard to the more general aspects of his relationship, and the lack of trust, which was the background to these crimes.  No doubt much of what he has learnt has been of assistance, I note the general comments set out in that report.

58Edward Robinson self‑presented for four urine samples, set out in Exhibit E4, which were negative.  He has undergone counselling for drug and alcohol, as set out in Exhibit 5, and further has appeared to reconcile with his partner, who still supports him.  She has been present in Court and has given the Court a letter to that effect, Exhibit E6.      As I said his pre‑sentence detention to this date amounts to 183 days or approximately six months. 

59Ms Mykytowycz submits that he was remorseful from the start, as he indicated in his record of interview; that his plea should be seen as a valuable plea (I have already made that determination in regard to both offenders), that given his lack of priors, the steps he's taken since being given bail, he should be seen as a person with good prospects.  His Counsel made particular comparisons as to role and criminal history, not only to his brother, but to Bowden [2016] VSCA 283, in particular at [58].

60Counsel pointed to the difference in the elements of aggravated burglary, between the plea made by her client Edward and that of the brother, and also the particular difference being that the aggravation, as I have already remarked insofar as Mark was concerned, being the entering the premises with the weapon.  The element of her client's aggravated burglary, being that he was aware upon entering that a person was present.  Having looked at all those matters the Court was asked to accept, given the relatively young person that I was sentencing, that there were very good prospects of rehabilitation and in support of that, she noted the positive suitability report as to a community correction order, tendered as Exhibit K

61In response, which I have confirmed this morning with the solicitor for the OPP, the prosecutor submitted, on behalf of the Director, that an order under s.44(1) would be within range insofar as Edward Robinson is concerned.

62Taking into account all those submission, the objective analysis of the culpability involved in both Indictments, the subjective factors and personal factors of which I have rehearsed relevant to both of the accused, I have considered the prosecutor’s submission anxiously.

63Despite such submission, that as to both prisoners an order under s.44(1) is within range, I do not consider such course appropriate by way of sentencing in regard to either prisoner. I consider that the seriousness of the objective criminality of their offending is such that a sentence involving a community correction order would not be just, nor appropriate, in all the circumstances.

64In that regard I want to refer to the analysis of community correction orders by the Court of Appeal in Boulton v R [2014] VSCA 342, and DPP v Borg [2016] VSCA 53. In Borg at [104] there was particular reference to [113] to [115] of the guideline judgment, which is as follows, "In short, the CCO offers the sentencing Court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him/her."

65At [106] of Borg the Court said: "At the same time the Court made clear that, whatever the conditions attached to a CCO, its punitive effect could never be equated to that of imprisonment, which is uniquely punitive because of that feature which distinguishes it from all other forms of sanction, namely, the complete loss of liberty.”

66Then at [108] of Borg the Court said: "The essential character of the sentencing Court’s task remains unchanged.  As the Court explained in McGrath v The Queen [2015] VSCA 176, nothing said in Boulton altered the principle of parsimony, which has always been a fundamental sentencing principle under the Sentencing Act 1991 … A sentencing Judge has always been obliged to impose the least severe sentence necessary to achieve the purposes of sentencing. That obligation is enshrined in s.5(3) and (4) of the Act which oblige the Court not to impose a sentence of confinement unless it considers that 'the purpose or purposes for which the sentence is imposed' cannot be achieved by a sentence that does not involve confinement ... Plainly enough, the availability of the option of a CCO does not mean that the imposition of a custodial sentences is presumptively erroneous.”

67Further at [109] the Court referred again to McGrath where the Court of Appeal had endorsed what was said in Hutchinson v The Queen [2015] VSCA 176 [53], a determination made by Priest JA (with the concurrence of Ashley JA): "It should not be thought that Boulton offers a 'Get Out of Jail Free' card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed. One of the purposes for which a sentence may be imposed is, of course, 'to punish the offender to an extent and in a manner which is just in all of the circumstances'.  There will be cases — indeed, many cases — where, having regard to the seriousness of the offending, a CCO will be insufficiently punitive to satisfy the need to punish the offender in a manner which, in all of the circumstances, is just."

68I rehearse those statements because, as I have just stated I find upon principle and analysis of these crimes, in regard to both Edward and Mark Robinson, that the objective criminality of the charges, in particular the aggravated burglary charges, and the intentional infliction of injury charges, is too great to allow for the disposition sought by both counsel, despite the concession made by the prosecution in regard to both prisoners. 

69I was yesterday handed the decisions of Meyers [2014] VSCA 314 and DPP v Bowden [2016] VSCA 283 and I have indeed, perused same. In regard to prior cases and prior circumstances and indeed sentencing statistics, I want to refer to what the Court of Appeal stated in Hasan v The Queen [2010] VSCA 352 at [44]: "An examination of comparable cases will then assist the Judge to make an objective assessment of the range of sentences applicable in cases where the gravity of the offence is of a similar nature to the particular offence for which the offender is to be sentenced; but the limitations of this exercise must be borne in mind."

70At [52] they further stated as follows and referred to what was said in another Court of Appeal case, Hudson v R [2010] VSCA 332 where they quoted from [27] to [29] thereof as follows: "The selection of a sentence involves the exercise of a judicial discretion which is informed by the circumstances in which the offence was committed and the character, antecedents and conditions of the offender … A general overview of sentences imposed for offences of a similar character will play a part in informing the “instinctive reaction” when a Court is asked to consider whether a sentence is inadequate or excessive … 'Like' cases can only, at best, provide a general guide or impression as to the appropriate range of sentences. In that context it has been said on many occasions that “comparable cases” can only provide limited assistance to this Court. They may however be used in search of unifying principles." .

71The sentences in regard to both of the Robinsons must, of course, be determined upon the actual circumstances of the offending, a consideration of the maximum penalties imposed and of the general sentencing principles and specific provisions set out in s.5 and 6 of the Sentencing Act 1991.  Having given such consideration, and taken into account the maximum penalties in regard to these crimes, I pronounce sentence as follows: 

72Mr Mark Robinson if you stand, please.  On the first charge of which you are facing of aggravated burglary you will be sentenced to a period of imprisonment of five years. 

73On the second charge being a prohibited person in possession of a firearm, a sentence of two years. 

74On the third charge of intentionally causing injury, a period of imprisonment of 18 months and the fourth charge of the possession of methamphetamine, a period of three months. 

75Using the first period of imprisonment of five years as the base sentence, I would order that six months of the period of imprisonment imposed in regard to Charge 2 and in regard to Charge 3 be served cumulatively upon each other and upon the base sentence making a total effective sentence imposed on you of six years imprisonment.

76I declare that the period of which you must serve prior to being eligible for parole is a period of four years.  I note the agreed pre‑sentence detention which you have served is 470 days, and I declare such as service of the sentence just imposed and order that a declaration to such effect be noted in the records of this Court. 

77Mr Robinson I want to make this clear to you so that you understand the effect of your plea, given the totality of your criminality, you pleading guilty entitles you to a discount and it is necessary for me to make sure you understand that.  Parliament has prescribed that I tell you what I would otherwise have sentenced you to, had you not pleaded guilty and I can indicate to you that the total effective sentence I would have otherwise sentenced you to is not six years but would have been eight years.  The minimum period I would have sentenced you is not four years but five years and four months, so it is important that you understand the difference to your sentence that has come about from your plea of guilty.  In layman's terms therefore, as far as you are concerned it is six years on the top, four years before you are eligible for parole less the 470 you have already served. 

78I have signed the disposal order and I make those orders in regard to both.

79Yes you can take a seat, Mark.

80Mr Edward Robinson.  Mr Robinson the determination of the appropriate sentence for you, given the matters put to me by your counsel has not been easy.  It has been necessary to discriminate your criminality from the type of aggravation that was involved in your brother’s crimes.  However, the Court also had to take into account that you were the instigator in that matter.  You were the person acting with animus, and with the desire to take vigilante action to pursue your aims insofar as the victim was concerned.  It was also necessary to balance the reduced finding of culpability that I have made due to your brother's intellectual disability, which does not apply to you. 

81In such circumstances I have determined that in regard to the first charge, you will be sentenced to a period of imprisonment of five years. 

82In regard to the second charge of intentionally cause injury, a period of imprisonment of twelve months and in regard to the firearms matter, a period of imprisonment of six months.  Utilising Charge 1 as the base sentence, I order that six months of the sentence in regard to Charge 2 be served cumulatively upon the sentence imposed in Charge 1 making a total effective sentence of five and a half years imprisonment passed on you. 

83The period that you must serve prior to being eligible for parole is three years.  Insofar as the summary matter is concerned, I impose upon you a fine of five penalty units, and we'll talk about when that might be paid. 

84Insofar as a period of imprisonment, I declare that 183 days that you have served to date be deemed service of this sentence and a declaration to that effect be noted in this Court.  Insofar as you are concerned, I make an order under 464ZF which allows the authorities to take a forensic sample in your regard and I should warn you that it is necessary for you to consent to that because otherwise they can drag you back here and have me make an order.  I also grant the disposal order that's sought. 

85Again, Mr Edward Robinson, it is necessary for me to indicate to you what your plea of guilty, the impact that that had, Parliament requires under s.6AAA of the Sentencing Act for me to set that out clearly.  I indicate to you that had you not pleaded guilty, the head sentence I would have given you is seven years and four months not five and a half years.  The minimum I would have given you is four and a half years not three years.  It is important for you to understand that difference.  

86Any other matters I need to attend to in that regard? 

87MS MAIKOUSIS:  Just one Your Honour in relation to the disposal orders that you mentioned in respect to both accused, was that also forfeiture orders?

88HIS HONOUR:  I'm not sure whatever you wanted me to make.  I have only noted disposal.  Is there forfeiture too? 

89COUNSEL:  Yes.

90HIS HONOUR:  Forfeiture and disposal, sorry.  Have I signed them all? 

91ASSOCIATE:  Yes, Your Honour.

92HIS HONOUR:  Well I make forfeiture and disposal orders.  Yes any other matters that I need to attend to?  No.

93COUNSEL:  No, Your Honour.

94HIS HONOUR:  Yes remain I have got to sign this forensic sample order. 

95It gives the Court no pleasure to sentence anyone to gaol especially for a significant sentence.  I wish you both well.  The prisoners can be taken away.

96OFFENDER MARK ROBINSON:   Fuck you, fucking rat wait until I get out, you fucking dog (addressed to female in Court).

97HIS HONOUR:  I don't quite know what to make of that outburst, anyway I will let it go.

98All right I will stand down.

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