Director of Public Prosecutions v Robinson
[2020] VCC 872
•17 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 19-02346
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL ROBINSON |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 June 2020 | |
DATE OF SENTENCE: | 17 June 2020 | |
CASE MAY BE CITED AS: | DPP v ROBINSON | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 872 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Malobabic | |
| For the Accused | Ms D. Lamovie |
HER HONOUR:
1 Paul Robinson, you have pleaded guilty to two charges of Theft, one charge of Armed Robbery, one charge of Make Threat to Kill, one charge of Obtain Property by Deception, one charge of Handling Stolen Goods, two summary charges of Unlawful assault and one charge of possessing ammunition without a permit or licence.
2 These offences occurred in August 2019 in the main with two co-offenders, Jack Wild, who has a trial listed for these matters on 17 May 2021 and a third co-offender who has not been identified. The offending is as follows:
3 At approximately 6 pm on 12 August 2019, Mr Scott Kirkwood parked his 2012 Lexus sedan on the street outside his East Malvern address. His vehicle was valued at $15,000. Between that time and 7.30 am on 13 August 2019, the Lexus was stolen by unknown means.[1] That is Charge 1 - theft of a motor vehicle.
[1] Charge 1 - Theft
4 At approximately 3 pm that day you were seated in the rear passenger seat of that stolen vehicle as it entered the BP service station at 208 Waverley Road, Mount Waverley. Mr Wild was seated in the front passenger seat and the third co-offender was driving.
5 Mr Wild filled the vehicle with $56 worth of petrol and drove off without paying for the fuel.[2] You waved at the security camera as the car drove away.
[2] Charge 2 - Theft
6 At approximately 3.35 pm, you and your co-offenders parked directly outside the Relax massage business at 19 Hampshire Road in Glen Waverley.
7 The victims, 56-year-old Ms Amy Lin and 19-year-old Ms Chingying Chianglin, were working inside.
8 It is unclear why that business was chosen, but chosen it was. You and your companions remained in the vehicle for approximately five minutes before walking into the massage business through the front door. You all had hoodies on with the hoods up over your heads, and you were each wearing disposable green gloves.
9 The events inside those premises are detailed in the prosecution summary of opening which you have accepted. They lasted approximately six minutes but that must have seemed like a lifetime to those two women.
10 The premises were searched, including you or your co-offenders variously going to the back of the premises and behind the reception area. You and your co-offenders repeatedly demanded money. You were armed with knuckledusters and your co-accused Wild with a meat cleaver.
11 Fifty-six-year-old Ms Lin, who was the owner of the salon, was physically stood over. Repeated demands were made of her for money. It is apparent there was a language barrier. Apparently frustrated by her responses you and your co-offenders became increasingly agitated and violent.
12 Several times she made attempts to get to the front door but was variously stopped by one of you. At one stage you were searching behind the reception counter and she was standing behind you. You hit her to the face and said, ‘Shut the fuck up you’. On one attempt to get to the front door she was grabbed by Wild. You approached and struck her to the head. Wild dragged her to the middle of the room, grabbing her by the neck and pushing her to the ground. Later, she was told to go the back of the premises, but having failed to respond she was then dragged by her neck by Wild. She resisted, putting her feet against the wall and Mr Wild stomped on her legs and the third offender threatened to smash a mirror over her head.
13 She again made her way to the front door but you stopped her from leaving. Your co-offender grabbed her by the neck, again pushing her to the couch.
14 Later, the mirror was smashed over her head, covering her in glass and causing a laceration to her head and left hand. She felt pain and was trembling and screaming.
15 Ms Lin was pleading with you and your companions and told you she would give you the money she had.
16 Several times during these events you made threats towards Ms Lin. One stage, you said 'Shut the fuck up, cunt, or I'll fucking kill you. I fucking mean it, cunt.' Later, after she had attempted to leave, you said, 'You shut your fucking mouth, cunt. Shut the fuck up or I will, swear to God, I will fucken kill you.' And later when your co-offender said, 'Smash her, there's more money here, stab her,' you said, 'Stab her, fucken stab her now.' Those statements are rolled up into the one charge of Threat to kill.
17 In a final act of humiliation to your victim, you took two eggs from her small bar fridge and threw them at her. That act, along with the assaults I have described[3] committed by you and in concert with your co-offenders, form the basis of the unlawful assault charge against her.
[3] In paragraphs 12-14
18 Nineteen-year-old Ms Chianglin was made to get on the ground and knelt throughout most of the ordeal. At one stage, you grabbed her by the hair and pulled her to the middle of the room. At another point in time she stood up in fear and you punched her to the top of the head. Towards the end of these events, you approached her where she knelt on the floor, stood very close to her and said, 'You’re pretty cute, aren't ya?' before touching her on the side of her head. Soon after, the third offender told Wild to smash a chair over her head. Wild picked up a white wooden chair and smashed it directly onto Ms Chianglin's head, causing a lump. Those acts committed by you and your co-offenders form the basis of the unlawful assault charge against her.
19 The massage rooms, rear area of the business and reception area were all searched by you and your co-offenders. You went through Ms Lin’s handbag and took cash, her driver's licence, Medicare card, and her ANZ, NAB, Commonwealth and Westpac bank cards. Her mobile phone and her house keys were also taken by you or your companions.
20 One of you searched through Ms Chianglin’s bags and took her Gucci wallet, about $600 cash, bank cards and her iPhone 7.
21 All three of you left the massage business and drove off in the stolen Lexus.
22 The offending was captured on CCTV footage which was played during the plea.
23 Ms Lin was taken by ambulance to the Monash Medical Centre where she was treated. She received a 2 cm long laceration of the scalp, superficial abrasions to both hands and a laceration of the palm muscles, 1.5 mm deep. She later told police that she feared she would be killed.
24 Ms Chianglin told police she felt very scared because that was her first day working at the massage business.
25 Your offending continued. At 4 pm, you and Mr Wild entered The Wines on Poath store in Hughesdale where you used Ms Lin’s stolen credit card to purchase $84.50 worth of alcohol and cigarettes. That is the charge of obtaining property by deception.
26 Sometime between 4.15 pm and 9.30 pm on 13 August, Ms Lin’s home address in Reservoir was ransacked. There was no forced entry. Cash, designer bags and passports in her name and her housemate's names were taken. The meat cleaver used by Mr Wild during the armed robbery was located in her home.
27 There is no evidence that you were involved in that burglary however when you were arrested about a week later, numerous passports and documents in the name of Ms Lin and her massage business name were located, along with documents in the name of her housemate. That is the charge of handling stolen goods. Those items were located in your work van.
28 You and Mr Wild were arrested in an unrelated matter on 14 August 2019. Both of you had outstanding warrant. You were searched and found to be in possession of 0.3 g of Methamphetamine, and the knuckledusters used in the armed robbery were in your left shoe. You were charged and bailed before being ultimately arrested on these matters on 23 August 2019 at your workplace.
29 Police searched your storage facility in Scoresby and located a box containing 24 12-gauge shotgun shells. You are not the holder of a firearm licence for that category of ammunition. That is the summary charge of possessing cartridge ammunition without a permit or licence.
30 You were interviewed by police and initially denied the offending. You ultimately did make admissions.
31 You claim that you met your co-offenders at the pub on the day of the armed robbery and they invited you to join them in this offending, as backup. While that explanation is dubious, there is no other evidence before me as to the origins of the plan to commit this offence and I draw no conclusions about it.
32 It is trite to say that this is serious offending. Parliament has seen fit to impose a maximum penalty for armed robbery of 25 years' imprisonment. Where, as here, it is committed in company, it must be met by a term of imprisonment.
33 General deterrence, just punishment and community protection are at the forefront of sentencing here.
34 Ms Lin has provided a victim impact statement outlining the effects of your offending on her. She says, 'I always feel scared.' She is suspicious when a customer enters her shop. She has had to reduce her opening hours because she is too afraid to be there in the evening. She has lost some of her staff who do not want to work in the premises, and customers who do not want to go there because of your offending. She says she had to close the shop for three days afterwards 'to recover myself from the horror'. That has all caused her financial hardship. She is a divorced woman with no other financial support. It is apparent that she has stoically had to try to continue working in a place full of the memories of your offence against her and her young staff member.
35 She says she has trouble falling asleep, with images of these events appearing in her mind. She suffers nightmares and anxiety. She is hypervigilant, and has trouble going out alone. She says simply, yet powerfully, 'I find myself delirious sometimes.'
36 In assessing the objective gravity of this offence, it is clearly serious. It was committed by three adult men on a venue which was likely to and did have female workers. There was some premeditation as demonstrated by the use of gloves. You wore your hoodie in a way to act at least as a partial disguise.
37 Two of you were armed with weapons likely to induce fear of harm. They were in fact used to threaten and intimidate those women. The two women were vulnerable. They had limited English and Ms Chianglin was a recent immigrant from Taiwan. Money and personal property was stolen.
38 The prosecution rely on the entirety of the events inside the premises to found the armed robbery charge.
39 Beyond the armed robbery there are additional acts by you as I have described which constitute the Threat to kill and the unlawful assaults. While mindful of the need to be cautious against doubly punishing you, those acts do constitute additional violence towards two women who were already succumbing to your demands. They were unnecessary and gratuitous acts given you had already achieved your aim of extracting money and belongings from them. Both women were assaulted with objects that is the mirror and the chair and were injured as a result. The threats were made while weapons were being brandished and in already frightening circumstances. Counsel conceded the threats are a serious example of that offence. In my view, those additional acts of threat to kill and unlawful assaults do warrant some cumulation.
40 Similarly, your possession of belongings from the burglary committed on the home of Ms Lin on the same day of the armed robbery is reprehensible. That woman, already traumatised by the events in her business, was confronted by the fact that persons linked to those events had entered her private home and looted it. The fact that her home had been identified and specifically targeted must have left her feeling extremely anxious and fearful. While there is no evidence that you were involved in that burglary and you will not be sentenced for any part in it, your possession of items, which you must have known had come from the home of your armed robbery victim, must warrant its own distinct punishment. In other words, there must be some cumulation in those circumstances.
41 Theft of the car while in the scheme of this offending is minor, is a discrete act. It is an invasion of that person's private property. It causes inconvenience and loss to the owner. It too warrants modest cumulation.
42 Your counsel sensibly conceded that this offending must be met by a term of imprisonment. Indeed it must. The courts on behalf of the community cannot tolerate this type of violence.
43 You admitted your role in these events and pleaded guilty at the earliest opportunity – that is about two months since the offending. That is a significant factor in your favour. It is particularly important where there is offending such as this. It must have been reassuring to Ms Lin in particular that one of the offenders had been detained. It saves her and Ms Chianglin the additional trauma of giving evidence and being cross-examined about such a difficult experience. It saves the court and community the cost and time of a trial. You receive the full benefit of that plea.
44 I do accept you have made expressions of remorse for your offending. Those are contained in reference letters written by a number of people close to you, and in psychological reports. I accept that you have now taken responsibility for your actions and you have demonstrated some level of remorse. This offending is certainly out of kilter with your previous offending in terms of its scale and seriousness.
45 The details of your personal history are outlined in the psychological report of Mr Jeffrey Cummins, along with a number of references from those close to you. They were outlined during the plea by your experienced counsel. Those materials paint a very different picture of you from the offending I have just outlined.
46 Each of those documents is consistent in describing your early life difficulties, your success at overcoming those to obtain apprenticeships and employment, your battle with addiction and your efforts to seek help, as well as your role as a loving father. They speak with one voice of their hope and view that you have the capacity to be a contributing member of the community.
47 You are now 31 years of age. At the time of these events, you were 30. You were raised in Melbourne. Your parents separated when you were approximately one year old. You have had no relationship with your father and that has clearly been a source of resentment and difficulty for you.
48 Your mother formed a relationship with the next door neighbour. He and his two sons, both older than you, moved to live in your house. You did not get on well with your stepfather or his sons. You felt abandoned by your own father and you resented the fact your stepfather would take his boys away camping or on activities without including you.
49 As the youngest, you were picked on and frequently subjected to physical abuse by your older brothers and stepbrothers. You also suffered teasing from peers because of the circumstances of your mother's relationship with your neighbour.
50 You attended Rowville Secondary College through to Year 8, however you did not pass Year 8. At school you struggled with learning and you were told you had a learning difficulty, although this was never diagnosed or treated. The neuropsychological report of Susan Carey does confirm that some of your cognitive limitations.
51 You had behavioural difficulties from an early age, incurring multiple suspensions. You had socialisation difficulties and had few friends during school.
52 From the age of 13 you began to use cannabis, and by 16 you were using amphetamines on weekends until you were about 23. You left home at around the age of 15. Your cannabis use became daily and you descended into daily smoking of methamphetamine at a rate of 1 g per day from the age of 25.
53 Despite your drug use, you managed to maintain employment over many years. You worked in your stepfather's business, chrome plating for several years in your late teens including completing an electroplating apprenticeship. You later commencing employment with Cool Choice Heating and Cooling based in Doveton, transferring your skills towards an apprenticeship as a mechanical plumber. I will return to this in due course.
54 You have had one significant long term relationship, with a woman called Bridie who you have known for approximately 15 years. You and Bridie were romantically involved for a decade and together you have a five‑year‑old daughter. Bridie along with your mother have been present throughout these proceedings.
55 Bridie is a person with no involvement in the criminal justice system. She is a qualified disability support and community service worker. She says when you met you were an apprentice electroplater and when you commenced your relationship when you had just completed your apprenticeship. She describes your history as I have outlined and in particular makes reference to what she has observed as your mental health issues stemming, in her view, from issues with your father and stepfather. She describes your feeling of not being worthy or good enough.
56 Those comments are echoed in the report of Mr Cummins. He diagnosed you with Major Depressive Disorder of mild to moderate severity and recurrent in type.[4] He says that has been existing since your mid-teenage years and ties it primarily to your feelings about your father and stepfather. Your motivation for cannabis and methamphetamine use seems to have been a form of self‑medication to enable you to cope with feelings of abandonment and rejection.
[4] DSM-5 Code 296.31/296.32
57 Bridie says after she miscarried with your child in 2013 you and she started to have relationship problems. Your mental health declined and it is apparent your drug use increased. Despite that situation you were holding down a job and when your daughter was born in 2014 you became an active and devoted father. However, your drug use continued and around that time you commenced using ice. Your substance abuse ultimately led to the breakdown of your relationship.
58 That occurred in 2015 after a family violence incident and is the first time you appeared in the criminal justice system. Bridie says, 'This was not the Paul I had known and loved in our 10-year relationship. By this stage the drug use was daily and things became out of hand very quickly.' She wrote a letter at the time of your plea asking for assistance with drug rehabilitation. That is the plea in the Magistrates' Court.
59 You were dealt with for assault of her which related to pushing her and for contravening a family violence intervention order. You were placed on a Community Correction Order.
60 After your breakup with Bridie you became homeless.
61 You made a suicide attempt in 2016 but were stopped prior to hanging yourself.
62 You were not permitted to have contact with your daughter or Bridie for a period of time due to an intervention order. However, according to Bridie, you resumed your friendship and regularly visited her and your daughter. She and you spoke many times of trying to get help and with her, you attended community service centres and looked for detox or rehabilitation referrals. She says each time you were told there was a huge waiting list of months or years which was disheartening.
63 During 2016, you had a second relationship with a woman who had her own battle with drug addiction. You both attempted abstinence at various times. That relationship broke down in 2017 which seems in some ways to have been a positive.
64 According to Bridie, you regained employment and obtained a rental property. With her support, you started having your daughter live with you every second weekend, which she describes as a real positive for both you and your child. You were involved in taking her to dance classes and Auskick and you became a parent volunteer at the local football club attending every Friday night. She says she thought all you had turned your life around.
65 However, in mid-2019, you informed Bridie that could not have your daughter at your house because you had started using drugs again. You lost your rental property and ended up in a share house with other drug users. These offences occur in that context. You should be clear however that drug use in no way excuses this type of offending.
66 That recent history is also confirmed by Mr Daniel Voigt. He is the director and qualified mechanical plumber at Cool Choice Heating and Cooling Proprietary Limited. He has known you for 23 years. He employed you first as a labourer and says you picked up the job very quickly and became a valuable member of his team. He describes you as a hard worker with good skills. Through him, you completed the mechanical and general plumbing apprenticeship. He describes that apprenticeship being interrupted by your involvement with drug use and involvement with a criminal crowd. He describes the breakup of your long-term relationship as taking a huge toll on you and your mental state. He says you lost yourself over the next few years, trying on and off to get help.
67 He confirms in 2017 you met up with him and you had a long discussion. You had got yourself off drugs and you returned to work for him. To your credit, you completed your apprenticeship and he says you became an asset to his business. You remained in his employ until you were arrested in 2019. He says he had observed that in about July of that year you started to become unreliable and it was apparent that you are using drugs. You were arrested for this offending at his workplace.
68 Mr Voigt confirms that overall you are hardworking, reliable and trustworthy. On the proviso that you can overcome your drug addiction, he states, 'Paul can become a valued member of our community, our footie and cricket clubs and be the man and father he so desperately wants to be.' He says when that day comes you have a job waiting. That offer of employment is significant.
69 Your successful rehabilitation depends on your ability to withstand that addiction. Ultimately, that is a matter for you. You have been afforded opportunity in the past via court-imposed dispositions and you have not taken up that support.
70 You have a relevant criminal history as I have touched on, though it is limited. Your first matter is in 2015 for the assault of your previous partner and breaching a family intervention order as I described. That was met with a community corrections order. Despite being given a second chance to complete that order you breached it again by way of a burglary and assault which was dealt with in September 2016. You served your only previous term of imprisonment of four months and were given another opportunity to engage with the therapeutic aspects of that order, however you failed to do so. That order was again varied in January 2017. However, it is clear you did not engage with it.
71 In February 2017, you were involved in driving offences including a police pursuit which ended in a crash. You have not been dealt with for those matters nor for the breach of the Community Correction Order. At the time of these events, there was an outstanding warrant for your arrest to answer that breach. Prior to this offending in August 2019, your last appearance for any relevant offending was in 2017.
72 This has been your first significant period of incarceration. It has been occurring most recently in the difficult circumstances brought about by COVID-19. That has included cessation of visitors in circumstances where your mother and daughter were visiting approximately every fortnight. You now have phone contact with Bridie, your mother and your past girlfriend. You have also some phone contact with your Mr Voigt.
73 The current pandemic has also meant the suspension of programs in custody. As such, you are not receiving any psychological or mental health treatment. Prior to their suspension, you had managed to complete several courses. You had also been employed. That is also suspended.
74 Further, you are limited at Port Phillip Prison to four hours per day out of your cell. All those matters along with the threat of the virus entering the prison system are creating a more difficult prison environment. How long that situation will last is anyone's guess. However, the gradual easing of restrictions for the broader community is not currently being reflected in any easing of restrictions within the prison setting. I take into account those circumstances as they have existed for you to date and are likely to exist for at least some short time in the future. According to Mr Cummins, those circumstances are having a negative effect on your mental health, though a report from Ms Carey confirms you are coping as best you can.
75 In assessing both the need for specific deterrence and its relationship to your prospects of rehabilitation, I take into account your limited prior history. I take into account the fact that Mr Cummins assesses you as a moderate risk of reoffending and emphasises the need for you to complete a program such as the violence intervention program.
76 I take into account your past efforts to free yourself of addiction, at times for periods where you were able to get your life back on track to some extent. You are expressing a desire to turn yourself around. Ultimately, that will be a matter for you, but I accept you engaged in courses in custody when they were available.
77 You are currently drug free as evidenced by clean urine screens in custody.
78 You have qualifications and an offer of employment.
79 You have other protective factors in the form of your mother and daughter and your continued friendship with Bridie.
80 Your mother confirms your remorse for these actions and that you have indicated to her that this will be the last time you are in custody.
81 Your successful rehabilitation obviously will hinge on your ability to withstand the lure of drugs and the lifestyle that comes with it. You are expressing a desire to engage in drug rehabilitation whether in the community, in custody or in a residential facility. That will ultimately be a matter for you. You are 31 years of age now. How your future looks is up to you.
82 Your counsel submitted that despite the seriousness of this offending, relevant sentencing principles can allow for a sentence which provides for a significant parole period wherein you can demonstrate your commitment to that rehabilitation. I accept that in circumstances of a very early plea of guilty, a lack of similar prior offending, and the protective factors I have referred to, it is possible to allow for some downward adjustment of the non-parole period so that you can re-enter the community under supervision and with appropriate support in place. In those circumstances, I will order a shorter non-parole period than I otherwise would have.
83 I am mindful of not imposing a sentence which is crushing and I will repeat my comments earlier that while some cumulation is warranted I have been careful not to double punish you.
84 Mr Robinson, I propose to sentence you as follows. I will start with Charge 3 which is the armed robbery charge. That will be the base sentence. On that offence, you are convicted and sentenced to six years' imprisonment.
85 On Charge 1, theft of the motor vehicle, you are convicted and sentenced to six months' imprisonment. One month of that sentence will be cumulative upon the base sentence.
86 On Charge 2, theft of the petrol, you are convicted and sentenced to seven days' imprisonment.
87 On Charge 4, threat to kill, you are convicted and sentenced to two years' imprisonment. Ten months of that sentence will be cumulative upon the base sentence.
88 On Charge 5, the obtaining property by deception, you are convicted and sentenced to four months' imprisonment.
89 On Charge 6, handling stolen goods, you are convicted and sentenced to two years' imprisonment. Six months of that term will be cumulative upon the base sentence.
90 On the charge of unlawful assault against Ms Lin, you are convicted and sentenced to two months' imprisonment. One month of that sentence will be cumulative upon the base sentence.
91 On the charge of unlawful assault against Ms Chianglin, you are convicted and sentenced to two months' imprisonment. One month of that sentence will be cumulative upon the base.
92 On the charge of possessing ammunition, you are convicted and fined $200.
93 The total effective sentence is seven years and seven months' imprisonment. I direct that you are to serve a period of five years' imprisonment before becoming eligible for parole. I declare that you have already served 299 days of pre-sentence detention in relation to this sentence and that that should be reckoned against this sentence.
94 But for your plea of guilty, so if you had not pleaded guilty, the sentence I would have imposed would have been a sentence of nine years' imprisonment with a non-parole period of seven years.
95 I propose to make the disposal order in the terms that it was sought. I will give counsel a moment to just check the calculation if you would and if you need me to reread that, I am happy to do that.
96 MS LAMOVIE: Thank you. There are no issues, Your Honour.
97 HER HONOUR: Thanks very much. Ms Malobabic? Sorry, I think your microphone is muted, Ms Malobabic.
98 MS MALOBABIC: Thank you, Your Honour. No issue with the calculation. Just reminding the court of the disqualification of the licence provision in (indistinct) driver's licence in relation to the theft of a motor car.
99 HER HONOUR: Yes, thanks very much. I did have a note of that and I have forgotten to read it out.
100 In relation to your driver's licence, Mr Robinson, in relation to Charge 1 - that is the theft of the motor vehicle, I am required to cancel and suspend your driver's licence. I do so for a period of 12 months from today. Thank you. Thanks very much, counsel, for your assistance.
101 MS LAMOVIE: As Your Honour pleases. Thank you.
102 HER HONOUR: We will now adjourn. Thank you.
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