Director of Public Prosecutions v Rodger

[2020] VCC 724

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02511

DIRECTOR OF PUBLIC PROSECUTIONS

v

BOHDAN RODGER

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2020
DATE OF SENTENCE:	28 May 2020
CASE MAY BE CITED AS:	DPP v Rodger
MEDIUM NEUTRAL CITATION:	[2020] VCC 724

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Duckett	Office of Public Prosecutions
For the Accused	Mr S. Andrianakis	Victoria Legal Aid

HIS HONOUR:

1Bohdan Rodger, you have pleaded guilty to one charge of criminal damage, one charge of armed robbery and one uplifted matter of breach of bail.  In these particular circumstances there is also a breach of a CCO which goes back to March of 2018.  You are now 40 years of age and I accept your plea of guilty was made at the earliest reasonable opportunity and I accept there is appropriate remorse. You must also of course get the utilitarian benefit of that plea of guilty.

2Insofar as the matters are concerned I think from the outset as far as the breach of CCO is concerned which is listed from back in March of 2018 I will simply find that breach proved, convicted as charged on the breach and cancel the original sentence and give you a period of imprisonment of two months to be served totally concurrently.

3Insofar as the summary matter is concerned referred to that can just simply be convicted and discharged and that leaves me simply then to deal with the indictment itself, bearing in mind that the two months will be concurrent.

4You do have significant prior convictions and it has certainly involved firearms and violence.  They are matters which have gone on over an extended period of time.  Immediately prior to this sentencing as I understand it you have just completed a 12 months sentence for what amounted to threats and certainly for threats of violence and all those matters are of concern.

5A summary of the offending is at the time you were 39 years of age.  At about 6 o'clock on 30 March 2019 you and an unknown co-offender attended the residence of the complainant, in Churchill.  The residents were awoken by a loud bang.  A Mr Woodward went to see where the noise had come from.  You were there armed with an axe and used it to smash the window next to the front door causing it damage and that gives rise to intentionally damaging property.

6Mr Woodward got up from bed and went to his loungeroom to check CCTV footage and heard another loud bang from the front of the premises.  He ran to the front door and noticed that the window had been smashed and that you were continuing to cause damage to the window.

7You reached your arm through the smashed window and attempted to open the front door.  He told you to, 'Fuck off, I will stab you if you don't piss off'.  You retracted your hand back out of the window and grabbed hold of the axe which you had.

8You made demands for drugs and money.  He responded to you that you were an idiot and he did not have any 'weed', as he put it, and that the police had taken it.  His partner went back to her bedroom and got a small amount of cannabis that was then handed through the window to you and also the sum of $30 and that gives rise to the charge of armed robbery.

9Before leaving the premises you told Mr Woodward that, 'You better not be lying or I'll grab the gun'.  They give rise to the charges on the indictment of criminal damage and armed robbery which carry ten years and 25 years respectively.

10The summary is simple in itself and I do not think I need to go into what I have already dealt with in terms of the breach of the CCO and in terms of the summary of the matter.  Armed robbery is a serious crime and I have heard the victim impact statements of each of the victims that were in the house on that day and they speak eloquently of the fright and ongoing emotional and psychological concerns offending of this sort causes.

11To have somebody come into the house or trying to get into the house in the middle of the night or smash into one end with an axe is a very frightening - extremely frightening matter indeed.  You are not charged with aggravated burglary and I do not sentence you for that but as was indicated during the course of the plea it could have been a serious example of aggravated burglary.

12I accept though that the matter has been resolved sensibly and you obviously get the benefit of that.  It is the sort of situation that calls for the application of general and specific deterrence as well as denunciation and there must be an appropriate punishment.

13You do have a significant criminal history of violence and guns and community protection has to play a part in all this.  The circumstances of it can only be described as terrifying for the people involved and a gaol sentence is inevitable.

14Your counsel submitted on your behalf that a community corrections order would be sufficient in these circumstances but as was indicated during the course of the plea it is my view that with your prior convictions and the seriousness of the offending that that would not be an appropriate sentence.

15A gaol sentence is the only option here and I then look to matters personal to you in terms of determining the length of that particular sentence.  I do not propose to go into great detail with all those matters.  I have a number of materials that have been put before me, a psychiatric report from
Dr Pandurangi, a neuropsychological report of neuropsychologist, Laura Scott, and a CISP program review and they outline your personal circumstances.

16You have now been on remand for some 222 days.  You have a partner and a daughter who is eight years old who apparently remain supportive though I note that the 12 month sentence you had just undergone not long before this involved as I understand it certainly threats or violence towards them.

17Your background was that you saw your father subjecting your mother to frequent physical violence.  You left home when you were 16.  Your parents subsequently separated and you moved back in with your father.  He died from bowel cancer in 2015.

18You have a sister who is married with children and you have no communication with her or have had no communication with her for a significant period of time.  You went to school until Year 10 when you dropped out.  You were apparently good at sport and physical activities but found it hard to maintain focus with studying.

19You have had drug use over a significant period of time.  You smoked cigarettes from around about the age of 13 years of age.  You have used cannabis, benzodiazepines and alcohol from your early teens.  You commenced heroin use at the age of 14 and during your later teens you used amphetamines and other drugs.

20When you were 27 years of age you transitioned from speed to ice which you then used regularly between the ages of 27 and 40 and your criminal history would tend to support that.  Your work history is not great and you commenced a chef apprenticeship when you were 20 but did not complete that.

21You have subsequently worked in various roles in the construction industry and as a concreter.  I accept that you have had severe traumatic experiences over your life and the principles of Verdins I think as was outlined by your counsel certainly play a part here.

22You have had to during the course of your life witness your father's abuse to your mother.  When you were 21 you apparently found Jayden Leskie's body in the dam but I have got little detail on that.  You at one stage found a close friend who had hung themselves and another close friend died of a heroin overdose.  You also had the death of your father.

23I accept that at the time this occurred you were heavily using drugs and that is matter which is going to have to be addressed in the long term.  I think I might have made a mistake with the summary matter.  It is a breach of bail, is it not?  Anyway, I have misread that.  I will deal with that in the event that you will be convicted and discharged.

24I accept as I have indicated that you do have now appropriate remorse and the utilitarian benefit to your plea of guilty.  You have had psychological treatment over the years.  Your behavior over the years has been consistent with an acquired brain injury.  You developed several features of post-traumatic stress disorder and you have suffered from seizures for which you received antiepileptics.

25You have obviously been the victim, if that is the proper expression, of polysubstance abuse over a long period of time and have used drugs to medicate your negative emotional responses.  According to the neuropsychologist's report of Ms Scott, and I take all her medical evidence into account, you do have a neuropsychological profile which is consistent with an acquired brain injury on the background of a probable neurodevelopment disorder.

26There have been previous findings by a psychologist that you suffer from anxiety, depression and post-traumatic stress disorder and they are likely to have contributed to your offending behavior by both direct and indirect mechanisms. Ms Scott also opined that you would find imprisonment less arduous without your condition and there is a concern that your condition would deteriorate in custody.

27You have placed before me a CISP report and I have taken those matters into account.  It is clear that you would be assisted by a comprehensive psychological treatment and it is to be hoped that that can be done in a parole situation.  It can also be argued that a sentence weighs more heavily on you than it would on a person in normal health and the imprisonment that you have undergone and will continue to undergo may have a significant adverse effect.

28You do have ongoing family support and it would appear, though I am concerned about the matters that have preceded this, you have abided by CISP previously according to those reports and it would seem clear that your own circumstances can really only be adequately addressed whilst you are not in custody during the lockdowns in goal and I accept that that is certainly a factor in your situation.  You have done an ice program and it would seem that you have been endeavouring to rehabilitate yourself.

29Your partner and your daughter have been visiting you regularly up until the COVID-19 pandemic occurred and I take into account that you now, as most other prisoners are, undergoing your sentence with a lack of physical interaction with your family and that makes it harder on you than if that were not the case.

30I certainly take that into account.  I take into account that you effectively have been described as in lockdown but you are having at least some assistance by weekly psychology lessons.  The prospects of your rehabilitation are really up to you.  The risk of you reoffending when one looks at your criminal history has to be regarded as significant and it really comes down to whether you upon your ultimate release can get your act together and live a normal life.

31You do have in these circumstances a lot of hurdles to overcome and I certainly take those into account on your behalf.  You have the prospects of a proper life once you are out of custody.  The principles in Verdins, as I have indicted, do play a part here and I have moderated it.

32It was a situation where the circumstances be objective seriousness of the offending is concerned, that is it is a very terrifying concerted attack on one description innocent parties in the middle of the night and must have caused them enormous fear.  The courts must impose sentences that reflect the seriousness of offending such as this and whilst I do have a degree of sympathy for you insofar as your background is concerned and hope that matters can be addressed in the future, there must be a sentence which satisfies objects of general and specific deterrence, denunciation and punishment.

33Accordingly so far as this matter is concerned on the charge of criminal damage a sentence of imprisonment for six months.  On the charge of armed robbery, three years.  I direct that three months of the sentence imposed on the criminal damage be served cumulatively on the armed robbery which gives an effective sentence of three years and three months.

34In all the circumstances I direct that you serve a minimum term of two years before becoming eligible for parole.  I direct that 222 days be reckoned as having been served under this sentence.  Under s.6AAA but for your plea of guilty you would have been sentenced to a period of imprisonment for a period of five years with a minimum term of three.

35I have declared the 22 days?  Yes.  Any other orders I need to make?

36MS DUCKETT:  No, the two orders were made at the last occasion, yes, because they were by consent.

37HIS HONOUR:  I think I made those last time so there is no other orders?

38MS DUCKET:  No other orders, Your Honour.

39MR ANDRIANAKIS:  No, Your Honour.

40HIS HONOUR:  Thanks for that.

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