Director of Public Prosecutions v Robson

[2018] VCC 936

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02532

DIRECTOR OF PUBLIC PROSECUTIONS

v

DELAIN ROBSON

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	31 May 2018
DATE OF SENTENCE:	21 June 2018
CASE MAY BE CITED AS:	DPP v Robson
MEDIUM NEUTRAL CITATION:	[2018] VCC 936

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords:	Sentence – armed robbery (1 charge) – prohibited person possess a firearm (1 charge) – trafficking in a drug of dependence (1 charge)
Legislation Cited:	Firearms Act 1996; Drugs Poisons and Controlled Substances Act 1981; Sentencing Act 1991; Crimes Act 1958
Cases Cited:	Lord v The Queen [2018] VSCA 52; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41
Sentence:	Convicted and sentenced to 6 years’ and 9 months’ imprisonment with a non-parole period of 3 years and 6 months.  Section 6AAA declaration: conviction and sentence of 8 years’ and 6 months’ imprisonment, with a non-parole period of 6 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Karamicov	Office of Public Prosecutions
For the Accused	Ms E. McKinnon	Furstenburg Law

Pages 1 - 9

 

 

HIS HONOUR: 

1Mr Delain Robson appeared before this Court, and pleaded guilty to three charges in indictment No.H11688090, on 31 May 2018.  Those offences were committed when he was 21.  He is now 22, having been born on 4 June 1995.  The first of the offences is the offence of armed robbery for which the maximum penalty prescribed by Parliament is one of 25 years.  But for the charge of murder, there is no more serious offence in our criminal legislation.

2This particular armed robbery took place, amazingly, at 8.35am on a weekday morning on 20 May 2017, at a milk bar at 37 Alexander Street in St Kilda East.  The victim was the proprietor of the business, Danny Zhou and his victim impact statement was read by me, Exhibit D, dated 17 April 2018.

3Apart from the obvious impact of this upon him, of which there was no dispute by Ms McKinnon, clearly, he showed some bravery in the face of the gun and the threats being presented against him in being able to manipulate himself out of the shop.  The armed aspect of the crime came about from the use of the sawn-off bolt action rifle.

4Mr Robson was accompanied by a co-accused who is unknown - a driver who was located outside the premises.  Mr Robson was clothed with gloves, a bandana and a hoodie.  During the armed robbery, the rifle was pointed directly at Mr Zhou.  The victim was asked initially to put the money in the pillow case and when he indicated some slowness in this regard, further threats with the use of the rifle were made with the accompanying words, "You think I won't fucking shoot".

5The grand total obtained for this serious offence was $500 and a pillow case of cigarettes. Amazingly, in this instance, not only did we have a CCTV but we had the audio, and a transcript of that audio, all of which make up Exhibit B.  I must say that being able to hear the audio shows the drama of the matter if we can use that word.

6What is probably more appropriate is that it demonstrates the full outrage of the crime that was perpetrated upon the victim, the degree of malice, threat, the persistence of such malice and threat by Mr Robson on that day and may well also indicate his state of mind at the time.

7The second charge to which he pleaded guilty is also serious, but certainly not as serious as the first, and that is a breach of s.5(1) of the Firearms Act, for which the Parliament prescribes a maximum penalty of imprisonment of ten years.  He was a prohibited person at the time and, as such, was not permitted to be in possession of a firearm.

8The third charge involved an offence under s.71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981, for which the prescribed maximum penalty is 15 years. Again, obviously, a serious charge. The trafficking in this matter took place in the period 06/05/17 through to 15/06/17, and the drug of dependence involved was amphetamines.

9The trafficking itself was demonstrated by evidence from the person from whom he had obtained the car, but in particular, from the texts, Exhibit C, which demonstrate the trade over such period.  The State was not able to present to the Court the precise value of the trading, the precise volume or the precise number of deals done in that period. However, the texts would indicate daily trafficking, and there is able to be identified from those texts 19 particular messages concerning the sale of drugs. 

10It is somewhat disconcerting for the Court to remark that Mr Robson was only 21 at the time of commission of these three serious offences.  Unfortunately, they were not committed out of the blue.  Since late 2014, but in particular, 2015, he has been beset and subject to the scourge of an addiction to ice.

11Hence his priors.  The first time that he was convicted of any offences were an amalgam, which were committed by him over a period, and I will not identify each of them, but all of the offences were heard before the Melbourne Magistrates' Court and convictions recorded on 28 September 2016, which offences are indicative of the drug-afflicted trafficking milieu.

12Mr Robson received a 70-day prison sentence with a CCO for a period of two years.  Given the date that that was imposed, clearly these offences - serious as they are - breach that CCO.  He has a further conviction recorded in January 2017 of aggravated burglary and theft for which, without particularly knowing the circumstances, but he fortuitously only received a sentence at the time, of some eight days gaol.

13Clearly he was in a particular severe state in his life, and despite the leniency shown by the Magistrates on those occasions, he is now before the Court on these most serious charges.  It is necessary of course to reflect objectively on this crime.  The Court of Appeal recently in Lord v The Queen [2018] VSCA 52, [11], had this to say about armed robbery:

"Armed robbery is a very serious offence.  It causes great harm to those directly affected and great disquiet in the wider community.  The very high maximum is the clearest indication of how seriously the offence is viewed.  As this Court has said repeatedly in recent years, the adequacy of current sentencing for serious offences is a matter of the first importance to public confidence in the criminal justice system".

14Of course, the principles set out in the Sentencing Act, in particular, s.5 and 6, are the matters that must be applied in this case. Individualised justice must be delivered to Mr Robson on the basis of the particular circumstances of this case and the subjective circumstances that relate to him, as detailed by the High Court, most recently, Dalgleish (2017) ALJR 91, 1072, [49].

15Objectively the crimes and, in particular, the crime of armed robbery could not be more serious.  Here was an attack on an innocent shopkeeper on a normal weekday trading day, in the morning.  An attack to obtain almost a pittance when you compare to the risks that Mr Robson was taking with his liberty.  An attack effected with the use of a rifle, that was both grave and gross by way of the threats upon the victim, made in a most determined and sustained manner, as demonstrated by the audio. Again, a soft target was utilised, in company, disguises used and, as I say, objectively this is a - can only be classified as a serious example of armed robbery. 

16In the plea Ms McKinnon tendered written submissions, Exhibit 1.  There is no issue in this case that the plea could not have been made at any earlier time.  And I take that matter into account. Mr Robson is entitled as the result of such plea to an appropriate discount.  Such discount is given by me, and is provided on the basis that it effects justice, is utilitarian and also indicates remorse.  The discussion as to the circumstances of the robbery with Ms McKinnon essentially did not dispute the description that I have already given, except to typify it as the type of offence that happens when people are subject to the impact of drugs, as Mr Robson was at the time.

17Insofar as that addiction, I heard evidence in this regard and such was confirmed by the chronology given to the Court by Ms McKinnon which showed the impact of these drugs upon him.  In particular, where he subsequently gave up his schooling and essentially set out on this life which has led to a situation where we are now before the Court.

18His mother was called.  She gave the Court what can only be described as emotional and poignant evidence.  I was impressed with such.  It was also educational in a way, not that this Court needs much education in this regard, but it was quite specific in the sense of demonstrating to the Court, and hence, to the whole community, the sense of grief upon the downfall of a child who becomes addicted to ice in this way.

19Your mother described you as a beautiful, outgoing, intelligent son, and your descent to the situation that is now before this Court.  To use her words "He fell off the radar", she was able to observe what was happening when you came home.  She observed you trying to detox on his own.  She observed you failing to be successful in that regard.  She noted the physical changes in you.  To use her words it was in effect not her son before her, "He was so far away".

20She finally had his dramatic admission, as to him being an addict, on a Mother's Day.  She continues to offer him support and, in particular, was tendered Exhibit 2 which was an analysis in the Ice Meltdown Project and her description of the circumstances surrounding her son's addiction.  Again, I found that, as did the person involved in the project, particularly illuminating.

21It is clear on the current policy of the Government - a policy of which this court, I might say, has no role - that given the sentence that I will pass in this matter, that the likelihood is that Mr Robson will be deported after he finishes his sentence.  To the extent that that has the impact, I cannot take into account that actual deportation order.  However, I can take into account the impact upon him while in gaol of contemplating such, and the weight on his mind while he is serving sentence.  That matter was expressed and there is no issue, in regard to the letter subsequently sent to this Court by the prosecutor. 

22Mr Robson has now spent 307 days in gaol.  During that time there has been some positive steps.  In particular, the Court is pleased to note the ten random tests taken, all of which have been negative, from June 2017 through to April of this year.  I also note the attempt by you to take various courses, not all of them relevant to overcoming your major problem, drugs, but all indicative of a desire to change your way.

23I also re-read the report of the forensic psychologist, Dr A. Cunningham, the circumstances set out therein, do no more than recount the matters that are before the court.  Although, in particular, is noted the degree of your addiction,  you were up at one stage to 2 grams per day and suggest to Mr Cunningham that you were subject to that degree of partaking of drugs over a period of five years.

24The Court notes, and it has been put to the Court, the social issues, assault issues in your background, and the development of post-traumatic stress disorder, as referred to in paragraph 5 of Dr Cunningham's report.  Those matters of course have no link, in a Verdins sense, to this case, but are matters that need to be taken into account generally.

25I accept not only have you demonstrated remorse by this plea, but that the remorse is genuine, such has been expressed to family and friends. 
Mr Cunningham was concerned about it being somewhat limited, however, it appears to me clearly to be genuine from the evidence from his mother. I think the point needs to be made your prior offences are clearly related to this period in which he has been so subject to the impact of drugs.

26As I said, looking to the future and hoping that this is the last time, certainly in this country and hopefully in any country, that Mr Robson is before a court.  The negative urines are perhaps the first positive sign it is to be hoped that you go on with your anticipated, and desired, studies talked about. The Court of course does not lose sight of the fact that we are still doing - are dealing with a youthful offender - him being still only 22.

27Ms McKinnon stressed the obligations on the Court when dealing with a young offender, especially in the circumstances of all of the crimes essentially being connected with this drug addiction and submitted that there should be appropriate cumulation and a longer than usual parole period.

28In response the prosecutor stressed that there was no option, nor - I should say - was it put by Ms McKinnon that there was any option, but for a period of gaol.  The prosecutor stressed the seriousness of the crimes and I will not go over the matters to which she referred, and the terror caused to the victim.  She stressed the need - given the seriousness of these crimes - for a sentence which effects general deterrence, and punishment to Mr Robson for committing these crimes and also effects specific deterrence in the furtherance of community protection.

29The prosecutor expressed concerns as to the antisocial traits demonstrated in Exhibit 4 and some concerning comments made by him as to his time in gaol.  One would hope those relate, essentially to his youth.  This Court can only be optimistic.  Clearly the tests have been taken - that is the urine tests, as correctly put by the prosecutor, in a very controlled environment and not in the outside where he will be tested.  One would hope that the progress that he has made in gaol is continued thereafter.

30The learned prosecutor submitted that while the prior history, drug impact and his rehabilitation prospects and youth must all be taken into account, they must obviously be balanced with the serious nature of this criminality.  When one is dealing with such a young man, this is obviously a very difficult balance.  Taking all those matters into account therefore.  Mr Robson, I will ask you to stand up please.

31Insofar as the sentences on this indictment are concerned, you will be sentenced as follows.  On the charge of armed robbery, a period of six years.  On the firearms charge, a period of 12 months and on the trafficking charge, a period of two years.  Insofar as cumulation is concerned, albeit, particularly concerned with the actual armed robbery, there is a need for some cumulation as to charge 2 because this is, in itself, a very serious charge.

32The Firearms Act is there to stop people with priors, such as you, from having and carrying rifles.  In those circumstances I intend to cumulate three months of that sentence.  In addition, the trafficking in itself is a serious charge, as demonstrated by the fact that the Parliament prescribes 15 years as the maximum.  I accept and understand the reasons why you were involved in trafficking, however, the evidence shows that you were clearly vigorously so involved.

33I intend, in regard to Charge 2, to cumulate three months.  In regard to Charge 3, to cumulate six months so that the effect of that will be that nine months - each of those will cumulate with each other and with the six years imposed so that the total aggregate sentence imposed will be a period of six years and nine months.  The period that I have decided in all the circumstances, taking into - and being as merciful as I can - that you should serve before being eligible for parole is a period of three and a half years.  It is to be taken into account and I declare that the - I am sorry Madam Prosecutor - and what was that figure?

34MS TULLOCH:  Three hundred and seventy days, Your Honour, 370.

35HIS HONOUR:  That the 370 days that you have served to date, to be declared to be service of this sentence and that this declaration be lodged in the records of this court.  By way of minimum period therefore you have to serve a period of three and a half years, less the 370 days that you have served to date. 
Mr Robson, the Parliament requires me to indicate to you the - what has been the benefit to you of the plea of guilty.

36This is a very difficult requirement because the Parliament prescribes the benefit in regard to one factor only.  In sentencing you, I think as already demonstrated, there are many, many factors that have to be taken into account.  However, in order to demonstrate the benefit to you of a plea of guilty, doing as best I can, the sentence that you would have otherwise been sentenced to is not a period of six years and nine months, but a period of eight and a half years and with a minimum of six years had you not pleaded guilty.

37So that the benefit to you is that your head sentence is six years and nine months and not eight and a half years.  And the minimum period that you have to serve is three and a half years and not six years.  I have signed a disposal order and, Madam Prosecutor, the 464ZF do I have to do that?

38MS TULLOCH:  Yes please Your Honour.

39HIS HONOUR:  And I think I've signed that as well.  Sometimes now police have already got those but I'll do that.  Yes, take a seat for the moment. 
Ms McKinnon, any other matters that I have not ‑ ‑ ‑

40MS McKINNON:   No, Your Honour, no.

41HIS HONOUR:  Yes, well no doubt you'll talk to your client.  No one, especially this Court, enjoys sending a young man to gaol but hopefully if he keeps on improving in the way he has and serves the minimum and is lucky enough to then get paroled, we won't see him again, we hope. 

42Yes, thank you both.  Yes, Mr Robson can be taken down.  I thank the family for their evidence and support.  Yes, thank you.

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