Director of Public Prosecutions v Robinson
[2022] VCC 230
•3 March 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-18-02553
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL ROBINSON |
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JUDGE: | HER HONOUR JUDGE CHAMBERS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 February 2022 and 3 March 2022 |
DATE OF SENTENCE: | 3 March 2022 |
CASE MAY BE CITED AS: | DPP v Robinson |
MEDIUM NEUTRAL CITATION: | [2022] VCC 230 |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Guilty plea to the offence of being a prohibited person in possession of a firearm – serious offending involving the discharge of a loaded firearm – victim shot in the stomach - not known who discharged the firearm – significant delay enabling the demonstration of strong prospects of rehabilitation –general deterrence, community protection and denunciation remain relevant
Legislation Cited: Firearms Act 1996
Cases Cited:Berichon v. The Queen [2013] VSCA 319 ; Worboyes v. The Queen [2021] VSCA 169; Bugmy v. The Queen (2013) 249 CLR 571; R v. Renzella [1997] 2 VR 88; R v. Merrett (2007) 14 VR 392 at [35]
Sentence:148 days’ imprisonment imposed followed by a two-year community correction order - 148 days of pre-sentence detention reckoned as already served
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Caruso (plea and sentence) | OPP Victoria |
For the Accused | Mr C. Thomson (plea and sentence) | Tony Hannebery Lawyers |
HER HONOUR:
1Mr Robinson, following a sentence indication given by me, you have pleaded guilty to one charge of being a prohibited person in possession of a firearm contrary to s5(1) of the Firearms Act 1996. The maximum penalty for this offence is 10 years' imprisonment or 1200 penalty units. You were a prohibited person pursuant to s3 of the Firearms Act 1996, as not more than five years had expired since you were subject to a community correction order with a supervision condition attached to that order.[1]
[1]On 7 May 2014, you were sentenced for the offence of being a prohibited person in possession of a firearm to a two-year community correction order, subject to supervision.
2At the time of the offence, you were also known by the name Michael Thompson or 'Tally'. The charge arises in circumstances where you were in a vehicle with another male at Hoppers Crossing on 4 June 2016 when Thomas Kalay, also known as 'TJ', was shot with that firearm during the course of an altercation with you and the other male. It is not known who discharged the firearm.
3You were born in October 1979 and were 36 years of age at the time of the offence. You are now 42 years old.
Circumstances of the offending
4I turn to the circumstances of your offending. A summary of prosecution opening was tendered on your plea, dated 24 February 2022.[2] This is the agreed basis upon which you are to be sentenced. In summary, the circumstances of your offending are as follows.
[2]Exhibit A
5On the weekend of 28 May 2016, you borrowed an unregistered motorbike from a friend of yours, Daniel Stark. Soon afterwards, you told Stark that the motorbike had been stolen. You subsequently learnt that the person who may have the bike was a person known as ‘TJ’.
6On 4 June 2016, you and Stark spoke together on the phone. At about 12.30 pm, Stark drove his blue WRX Subaru Impreza to your house. At around 1.30 pm, the two of you left in the Subaru and drove to an address in Hoppers Crossing. This address was Pana’s Performance Wheels and Tyres, where Thomas Kalay, or ‘TJ’, was working.
7Kalay had met you in the past and you knew as 'Tally' or 'Touli'. After speaking with you, Kalay and his fellow workers, Sadeh Haddara and Adnan Haddara, picked up items, including poles, and walked towards you. In response, you left the workshop. You were followed by Kalay for a short distance, who then returned and spoke to Stark about his motorbike. Kalay agreed to return the bike. Stark then left the workshop, driving his Subaru and picked you up.
8After you and Stark had left, Kalay and his fellow workers got into vehicles to follow you. Kalay was in the front passenger seat of a white utility or a truck being driven by Adnan Haddara. Another car, a Toyota Yaris, was driven by another male, Mahmoud El-Haouli, with Sadeh Haddara in the front passenger seat.
9Kalay and his co-workers located you down the road, where you were seated in the passenger seat of Stark's blue Subaru. When the car stopped, Kalay got out of the vehicle and confronted you, holding a machete. Following this, there was a confrontation between Kalay and his co-workers, and you and Stark.
10You were struck to the head by a cricket bat by either Adnan or Sadeh Haddara. At this point, you remained in the passenger seat of the Subaru and Stark was most likely in the driver's seat.
11Relevant to the charge, you were also in possession of a .38 calibre firearm while seated in the Subaru with Stark. During the confrontation, Kalay was shot in the stomach. The bullet that was discharged travelled through either the window or the open side door of Stark’s Subaru. As stated, it is not known who discharged the firearm. The possession of the firearm during this altercation is the subject of the single charge of prohibited person possessing a firearm.
12On 4 June 2016, you arrived at the home if Grant Plymm at about 5.30 pm after having first attended the workplace of another male, Aaron Burnett. Both observed you to have a cut above your eye. You told Burnett you had been assaulted by a group of people on the other side of Old Geelong Road. You told Plymm you had got into a fight. You stayed at Plymm's house until 10 June 2016, when you were arrested by police.
13A box of .38 Winchester ammunition was found in the centre console of Stark’s vehicle by investigating police The bullet retrieved from the victim was later analysed and found to match the ammunition located in the Subaru. Stark was also arrested, and the car seized for forensic examination. Mr Stark is now deceased. [3]
[3]His evidence was ruled inadmissible on 16 September 2019.
14CCTV footage from inside Pana’s Performance Wheels and Tyres captures the events within and outside the workshop, but not the shooting.
15Particles of gunshot residue located on Daniel Stark's hands and from inside the Subaru were analysed. The residue was determined to have originated from the discharge of a firearm from within the vehicle or from relative proximity to the interior of the vehicle. Forensic testing of the blood swab taken from inside the Subaru was linked to you. The firearm was never recovered.
Procedural history
16You were arrested on 10 June 2016 and committed to stand trial on
3 May 2017. Sadeh Haddara and Adnan Haddara refused to give evidence, as did Mahmoud El-Haouli. Daniel Stark was killed in a motor vehicle collision in early 2017. Another witness, Aaron Burnett, is also deceased. You were granted bail on 4 May 2017.17A trial listed for 19 February 2018 was adjourned due to the failure of Kalay to attend. His evidence was then pre-recorded in March 2018. A trial listed for
29 January 2019 was also vacated.18A further trial listed for 27 January 2021 was unable to proceed due to the impact of COVID-19 on jury trials. On 13 April 2021, I refused the application made on your behalf for a permanent stay of the proceedings. A further trial listed for 19 October 2021 was also vacated due to COVID-19.
19Then on 18 February 2022, the prosecution discontinued other charges on a separate indictment. You entered a plea of guilty to the one charge of possessing a firearm following a sentence indication given by me on
24 February 2022. The prosecution accepts the significant delay in this matter arose through no fault of yours.
Gravity and nature of the offence
20The objective gravity of the offence of being a prohibited person in possession of a firearm is reflected in the maximum of 10 years' imprisonment fixed by Parliament.
21In Berichon v The Queen,[4] Redlich JA observed:
“The conduct of a prohibited person in possession of an unregistered firearm may be placed in one of two broad categories of seriousness. Those categories have been discussed in R v Graham, and Armstead v The Queen. The first category of cases are those where the conclusion is not open that the possession of the firearm is associated with some ongoing criminal activity. Sentences of a low order of imprisonment are usually appropriate unless the previous criminal history of the offender warrants a more substantial sentence proportionate to the gravity of the offence.
The second category of cases are those where the evidence enables the conclusion that the possession is for the purpose of criminal activity or a specific criminal purpose, more severe sentences are then usually in order. Such sentences will be appropriate where the firearm is, for example, possessed in the context of a criminal activity to provide security or as a means of enforcement.
The prior convictions of the offender in conjunction with circumstantial evidence may also enable the conclusion to be drawn that the possession is for some unlawful activity.”
[4]Berichon v. The Queen [2013] VSCA 319 at [26]
22Here, the possession of the .38 calibre firearm as a prohibited person was a clear violation of the firearms law. However, I accept the prosecution submission that your possession of the firearm on this occasion is difficult to categorise. It does not fall within the lowest category, but nor does it clearly fall within the second category of being associated with ongoing criminal activity. Nonetheless, the seriousness of the offending is reflected in the fact that the firearm, clearly loaded, was in the vehicle at the time of this altercation and was discharged in the context of that altercation.
23Relevant too is that the sentence must reflect the fact that you also had a prior conviction for the offence of being a prohibited person in possession of a firearm.
24As stated, the fact the firearm was used to shoot the victim in the stomach is significant to the circumstances in which the firearm was possessed.
25To be clear, you are not being sentenced for having used or discharged the firearm or for causing injury to the victim. It is, however, relevant to my assessment of the gravity of the offence that the victim was shot with the firearm you had in your possession in the Subaru during the altercation in Hoppers Crossing. The firearm was never recovered.
26I consider this to be a serious instance of the offence of a prohibited person possessing a firearm whilst bearing in mind it is not known who discharged the firearm. In such a case, the sentencing considerations of community protection, general deterrence, and denunciation remain relevant to the sentence to be imposed.
Personal Circumstances
27I turn now to your personal circumstances. These are set out in some detail in the psychological report of Sandra Cokorilo, dated 27 August 2021.[5] During your childhood, you were exposed to significant family violence. You never met you biological father and were raised by your mother. Your mother had a number of partners who were physically violent, towards both you and your mother. You report an incident to Ms Cokorilo where one partner stabbed your mother and beat you until you were unconscious, after which you self-harmed and had to be resuscitated by paramedics.
[5]Exhibit 1.
28Your mother was forced to relocate under police protection to escape the violence of this particular perpetrator. You then left the family home at the age of 15 to live with friends and with your mother, intermittently. You experienced periods of homelessness, including sleeping in car until you turned 27, at which time you met your current partner. You had a close relationship with your mother until she passed away in 2010.
29As a child, you disliked school and began to act disruptively from Grade 4. You were expelled from high school before completing Year 8. You were referred for psychological counselling through child protection services but did not persist with this support. Since leaving school and until recently, you had unstable employment due to drug addiction, having held more than 30 jobs over the past 20 years working as a concreter, plasterer, and in hospitality.
30You met your current partner when you were 27 years old, and together you have three children, age 7, 15, and 18. Your partner also has two adult daughters from a previous relationship. Beyond that relationship, you have a few, but not many, close friends. You have a criminal history dating back to 2001, primarily for driving and dishonesty offences, and for possession of drugs of dependence.
31Relevantly, on 7 May 2014, the County Court sentenced you on appeal to a two-year community correction order for the offence of being a prohibited person in possession of a firearm.
32You have a history of recreational drug use from the age of 18. By the time you were arrested in June 2019 for subsequent drug relating offending, you were using up to three and a half grams of methamphetamine daily.
33Prior to your arrest, you had made two suicide attempts. You were subsequently bailed, subject to compliance with the CISP program in
October 2020. Since that time, you have secured full time employment as a supervisor with a civil construction company and remained a valued and trusted employee. You report that your time on remand in 2019/20 allowed you to establish abstinence from drugs and to remove yourself from antisocial influences.
Mental health
34Ms Cokorilo states you now have a stable mood and improved functioning since ceasing drug use. Nonetheless, your responses to psychometric testing undertaken by Ms Cokorilo's in August 2021, led her to conclude that you suffer from a post-traumatic stress disorder resulting from your exposure to family violence, recurrent episodes of a major depressive disorder with a history of suicide attempts, a generalised anxiety disorder, and a substance abuse disorder that is now in sustained remission.
35Ms Cokorilo concluded that your dysfunctional background, characterised by chronic family violence, maternal alcoholism and drug abuse was 'a form of complex trauma that impacts on regulation, information processing, and behavioural control'. She notes that you never received treatment for your post-traumatic stress disorder. Ms Cokorilo opines that it is likely your substance abuse developed as a maladaptive mechanism to cope with the emotional distress resulting from your childhood trauma.
36In her report, Ms Cokorilo notes that since successfully completing the CISP program, you have remained abstinent from drugs, but sensibly recommends that you receive ongoing psychological treatment and drug supports to prevent relapse.
37You have now been employed by the Victoria Civil Group for over a year. Your employer has provided a reference in which he indicates he is aware of your past criminal history, but remains supportive of you, stating that you have a strong work ethic and have become irreplaceable to his business.
38Other references provided by family friends who have known you a long time state you have completely changed since your release from prison, that you are determined not to reoffend, and are now focussed on the job you enjoy, and on rebuilding your relationship with your family and friends. You have not offended and have no charges pending since your release from custody in October 2020.
Sentencing submissions
39Whilst acknowledging the objective seriousness of your offence, your counsel highlighted a number of significant matters that operate in mitigation of your sentence.
40First and foremost is the issue of delay. It is now over five years since this offending in June 2016. Previous trial dates were vacated through no fault of yours. This is a significant delay in the conduct of these proceedings for which you bear no responsibility.
41Undue delay is relevant to sentence in two ways. First, I accept that having these serious criminal charges hanging over your head, not knowing what may happen, has been a source of stress and anxiety for you. The delay has, in effect, been a source of additional punishment. Secondly, a period of delay may serve to demonstrate progress towards rehabilitation.
42You were arrested on 19 June 2019 and remanded on charges of drug trafficking. As discussed, you were released on CISP bail on those charges in October 2020. You have subsequently been sentenced for trafficking in a drug of dependence between 15 May 2019 and 18 June 2019. On 25 January 2022 you were sentenced to an aggregate of 12 months' imprisonment, followed by an 18 month community correction order. In imposing that sentence, the sentencing judge noted that since being released on bail, you have remained drug free, obtained and maintained employment, and have not reoffended. That remains the case today.
43Notwithstanding your prior criminal history, I am satisfied that the period of delay has served to enable you to demonstrate strong prospects of rehabilitation. Of course, much will depend on your ongoing motivation to remain drug free and to accept treatment for your diagnosed mental health issues. I am satisfied that the need for the sentence to operate as a specific deterrent is lessened, although it is not extinguished, given your prior conviction for the same offence.
44Your plea of guilty attracts a sentencing discount. By your plea, you acknowledge responsibility for your offending. The utility of your plea in saving the community the cost and time associated with a trial is only heightened at this time due to the impact of the pandemic on jury trials.[6] I have given weight to your plea in the sentence I imposed.
[6]Worboyes v The Queen [2021] VSCA 169
45On your behalf, you counsel also submitted that your background of significant trauma and disadvantage should be taken into account, particularly noting the connection drawn by Ms Cokorilo to that background and your mental health conditions, including post-traumatic stress disorder, a major depressive disorder, and generalised anxiety disorder.
46Consistent with the authority of the High Court in Bugmy,[7] I accept and have given weight to these considerations. I have also had regard to your co-existing mental health issues and history of substance abuse.
[7]Bugmy v The Queen (2013) 249 CLR 571
47Moreover, subsequent to this offence, you served a total of 477 days in custody, notably during a period when the conditions of custody were more restrictive due to the pandemic. You were sentenced to 12 months' imprisonment, in combination with an 18- month community correction order on 25 January 2022. The prosecution accepts that 112 of those days held on remand are available to be taken into account in a broad fashion when sentencing you for this offending pursuant to Renzella[8] principles.
[8]R v Renzella [1997] 2 VR 88
48Ultimately, your counsel submitted that no further time in custody was warranted for this offending, and that the relevant sentencing considerations could be met by the imposition of a community correction order. The prosecutor agreed with this sentencing submission. I accept the joint position of counsel.
49As state by His Honour Maxwell P in R v Merritt,[9] in referring to the Court of Criminal Appeal of Western Australia in Duncan v R:
'Where prior to sentence there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail as to possibly destroy the results of that rehabilitation.'
[9]R v Merrett (2007) 14 VR 392 at [35]
50Taking these matters into account, I consider the paramount sentencing considerations of general deterrence, denunciation, and community protection can be met by the imposition of a combination sentence of imprisonment and a lengthy community correction order.
51You have been assessed as suitable for a community correction order, notwithstanding a history of non-compliance in your past. It is reported that you have engaged well with your current order to date. I consider that such an order will balance the relevant sentencing considerations with the need to promote and cement your ongoing rehabilitation.
Sentence
52Accordingly, balancing these matters, whilst having regard to the maximum penalty for the offence of prohibited person possessing a firearm, you are convicted and sentenced to 148 days' imprisonment, followed by a two-year community correction order with conditions of supervision, 150 hours of unpaid community work, drug and mental health assessment and treatment, and to engage in offence specific programs as directed. I intend at least initially that your compliance with the community correction order be subject to judicial monitoring before me in line with the recommendation made by Corrections.
53Pursuant to s18 of the Sentencing Act 1991, I declare that 148 days of pre-sentence detention be reckoned as already served. To be clear, no further time in custody is to be served. The community correction order commence with effect from today.
54The length of the community correction order I have imposed is designed to maintain your support in the community, thereby enhancing your prospects of rehabilitation and the community protection which will naturally follow.
55In addition to the conditions that I have imposed, there are standard conditions of the community correction order. First and foremost, you must not commit any other offences punishable by imprisonment during the life of the two-year order. You must report within two working days of today to your nearest community corrections office. You are required to advise your supervising Corrections officer of any change of address of where you are living and working, and you must do so within two clear working days.
56It is a term of all community correction orders that you must submit to visits as directed, and you must obey all instructions and directions of your Corrections officer. You are not able to leave the State of Victoria without the prior permission of your supervising Corrections officer.
57In my view, this order presents you with a further chance to continue to change your life in a positive fashion, provided you take up that opportunity and the supports that will be made available. You should be aware the order can be breached if you do not comply with either the conditions of the order or if you offend whilst it is in place. If you do, you will return before me for breaching the order. I may have to re-sentence you on the charge, and I may have to re-sentence you for breaching the order.
58Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, the sentence I would otherwise have imposed is a term of two years' imprisonment with a non-parole period of 14 months.
59I make the disposal order sought by the prosecution, noting it is not opposed on your behalf.
60Mr Robinson, can you hear me clearly again?
61OFFENDER: Yes, I can, I heard you.
62HER HONOUR: You consent to the community correction order on the conditions I have just outlined?
63OFFENDER: Yes, I do, I consent.
64HER HONOUR: Thank you. Mr Thomson, I am proposing the date of 1 July at 9.15 am for judicial monitoring; is that suitable? Mr Thomson, sorry, I could not hear your response.
65MR THOMSON: Your Honour, suitable for me and I believe for Mr Robinson, as well.
66HER HONOUR: Thank you. Do counsel have any questions or require clarification in relation to the sentence I have imposed?
67COUNSEL: No, Your Honour.
68HER HONOUR: Thank you both. We will now adjourn court, thank you.
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