Director of Public Prosecutions v Russo

[2013] VCC 1065

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

AT MELBOURNE

CRIMINAL DIVISION

Case No.   CR-13-01129

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOEL RUSSO

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	23 July 2013
DATE OF SENTENCE:	26 July 2013
CASE MAY BE CITED AS:	DPP v. Russo
MEDIUM NEUTRAL CITATION:	[2013] VCC 1065

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:    
Cases Cited:            
Sentence:                

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms M. Zammit	OPP
For the Accused	Mr J. Cass	Victoria Legal Aid

HIS HONOUR:

1       Mr Russo, you have pleaded guilty to one count of armed robbery.  The maximum penalty for that offence is 25 years' imprisonment.

2       

I have heard a summary of your offending from Ms Zammit and that summary will be attached to these remarks as Exhibit A.  Briefly, at about 3 am, on

20 March 2013

, you entered the 7-Eleven store in Hoppers Crossing with the intention of committing an armed robbery.  You approached the console attendant, Mr Kanith, whilst armed with a knife, and told him to open the till.  You also told him to open a second till.  Both demands were accompanied by threats to stab him if he did not do what you said.  You took a significant amount of cash and a quantity of cigarettes.  You left the store. 

3       Police attended a short time after and viewed CCTV footage and examined the tills and counter for fingerprints.  Later that day your fingerprints were matched with those found at the scene and you were arrested the following day.  When interviewed by the police you made full admissions.  You took the police to an area where clothing items and the knife were located. 

4       At the time you committed this offence you were on parole. 

5       On 29 June 2012, you were convicted in the Children's Court on a large number of offences, including five charges of armed robbery, two charges of robbery, one charge of attempted robbery and one charge of aggravated burglary.  The court ordered that you be detained for a period of two years and four months in a Youth Justice Centre.  You were granted youth parole on that sentence and released from detention on 4 March 2013. 

6       The commission of this armed robbery, whilst on parole, is an aggravating factor.

7       In addition, you have prior appearances in the Children's Court for armed robbery offences and you have been given previous opportunities by the Children's Court to change your behaviour.

8       Ms Zammit has highlighted other concerning features of this offence:

(1)      The target of this armed robbery was a "soft" target.  The crime of armed robbery committed against a defenceless, isolated person, late at night, is regarded as a serious offence that calls for appropriate punishment in order to deter others. 

(2)      Whilst armed with a knife, you came into close proximity to Mr Kanith.  He felt fearful and threatened by your actions and he was understandably scared that if he did not do what you said, he may have been stabbed by you.

(3)      There was a degree of planning associated with the offence.  When you entered the store you were armed with a knife and you made efforts to disguise yourself.

9       After your apprehension on these offences, you were remanded in adult custody.  Youth Justice, an organisation with a considerable understanding of your circumstances, was concerned about your vulnerability in an adult prison and requested an urgent cancellation of your parole.  On 22 March 2013, the Youth Parole Board cancelled your parole order and you were returned to the Parkville Youth Justice Centre on that day.

10 Mr Russo, this is serious offending that must attract, as your counsel conceded, an order for a significant period of confinement. However, I am satisfied, pursuant to s.32(1)(b) of the Sentencing Act 1991, that you are a young man who is particularly impressionable, immature and who would be subject to undesirable influences in an adult prison. I came to that conclusion after reading the materials that were tendered into evidence by your counsel, Mr Cass. The conclusion was reinforced by the information provided in the pre-sentence report of 23 July this year.

11      You are 19 years old.  You were born on 29 May 1994.  You are a young man who has had a history of extreme environmental deprivation and emotional abuse.  When you were four years old, the Children's Court placed you on a Guardianship to Secretary order.  It is reasonable to assume that you had already suffered harm and abuse prior to the making of that order.  Current child development research points to the negative impact that abuse and neglect in the early years of a child's life can have on a child's future development.  It is likely that your disadvantaged childhood provides some explanation for your current circumstances.  Your childhood and adolescence has been accompanied by unstable living and care arrangements.  You have resided in various foster care placements and residential units since the Guardianship order was made.

12      In 2000, a senior social worker from OzChild Family & Children's Services reported that you had multiple problems often identified in children who have post traumatic stress disorder, including inability to concentrate and hyper vigilance, sleep disorders, irritability, anxiety, physiological hyper activity and behavioural impassivity. You attended a special school in Frankston from 2001 until August 2009 and you were assessed and found to have an intellectual disability, within the meaning of the Disability Act 2006.

13      When seen by Dr Jacobs in 2011, your reasoning skills were around the level of an eight year old.  Your visuospatial and perceptual skills were around the level of a six year old and you experienced significant attention difficulties.  When reassessed in October 2012, you had made minimal if any development in these areas.  I am satisfied that there should be some moderation of principles of deterrence, denunciation and punishment in recognition of your level of intellectual functioning.  The report from Dr Jacobs makes it clear that you have significant problems regulating your behaviour.  An abusive and unstable childhood, in conjunction with your intellectual disability, undoubtedly goes some way to explain this. 

14      

Your abuse of drugs, particularly the drug ice, compounds your problems.  Unless appropriate intensive supports can be provided to you, you are, as

Dr Jacobs recognises, a risk to offend further in the future.  You are currently being managed in the Eastern Hill Unit at Parkville, where you are being provided with extensive supervision.  The progress report from Youth Justice, Exhibit 4, states that this is necessary because your intellectual disability impacts on your ability to act maturely and respond appropriately to social interactions.

15      Your counsel has indicated to me that you have a care team that is meeting regularly to assess your needs.  The team is also working to plan the appropriate supports provided to you upon your release.  Clearly suitable accommodation will be a crucial issue.  It is conceded by Youth Justice that when you were released on parole in March 2013, the placement in St Kilda was not ideal.  I have been advised that a future referral to Perry House is a possibility.  A safe, secure and stable place to live would be an essential requirement to maximise your prospects of rehabilitation, as would engagement in drug counselling and treatment and engagement with Disability Services.  Of course the success of intensive intervention depends, Mr Russo, upon you accepting those supports and working with those who are prepared to assist you.

16      Mr Russo, you have pleaded guilty to a serious criminal offence committed whilst on Youth Parole.  You have prior convictions for similar offending.  It is accepted by your counsel that you must be sentenced to a lengthy term of confinement.  I have already stated that you will serve that confinement by way of detention at a Youth Justice Centre. 

17      In making that decision and in determining the length of time you should serve, I balance the seriousness of the offending and your prior history against these points in mitigation: 

·Your co-operation with the police, your early plea of guilty and your circumstances of disadvantage and intellectual disability. 

·I acknowledge that you are still a young man and whilst I am guarded about your prospects for rehabilitation, I recognise that with appropriate support and supervision you may be able to respond in a better way than you have in the past.

·Youth Justice and Disability Services are clearly aware of your needs and I anticipate they will work in a co-ordinated way to provide you with the intensive support and supervision you will need upon your release back into the community.

18      Finally, I also acknowledge, in considering totality, that your parole has been cancelled and you have been in detention since 22 March this year.

19      Mr Russo, you will be convicted and ordered to be detained in a Youth Justice Centre for a period of 26 months.

20      I make a declaration that you have served one day as pre-sentence detention.

21      

If you had been found guilty after trial, I would have sentenced you to

36 months' detention.

22      There are two ancillary orders sought by the Crown.  I make a disposal order in relation to one knife, one light blue and black jumper, one pair of sunglasses, one blue and white checked long sleeved shirt and one pair of blue denim exchange jeans.

23      I also formally order that you pay to 7-Eleven, Hoppers Crossing, of 1/15 Old Geelong Road, Hoppers Crossing, compensation in the sum of $1,150.  Would you seek a formal stay?  It is probably academic.

24      MR CASS:  Yes, Your Honour, a formal stay.  It would be - - -

25      HIS HONOUR:  Why do not I just allow the formal stay of a month?

26      MR CASS:  Thank you.

27      HIS HONOUR:  Yes, thank you.

28      (Disposal order signed and acknowledged.)

29      (Compensation order signed and acknowledged.)

30      Ms Zammit, are there any other orders that I need to make?

31      MS ZAMMIT:  No, Your Honour.

32      HIS HONOUR:  Mr Russo, do you understand what has happened?

33      OFFENDER:  Yes.

34      HIS HONOUR:  All right, thank you.  Adjourn the court please.

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Exhibit A:

IN THE COUNTY COURT OF VICTORIA   Indictment no. D10808310
AT MELBOURNE  
CRIMINAL JURISDICTION  CR-13-01129

IN THE MATTER OF

THE DIRECTOR OF PUBLIC PROSECUTIONS
v.
JOEL ANTHONY RUSSO

SUMMARY OF PROSECUTION OPENING

__________________________________________________________________________

Date of document:  19 July 2013
Filed on behalf of:  Director of Public Prosecutions
Prepared by  Michelle Zammit
Craig Hyland  Solicitor’s code: 7539
Solicitor for Public Prosecutions  Telephone: [phone]
565 Lonsdale Street  Facsimile:  9603 7570

Melbourne VIC 3000  Reference: 1301703

Introduction

1. The offender, Joel Anthony RUSSO, has pleaded guilty to one charge of Armed Robbery.
2. The offender was born on 29 May 1994 and was 18 years old at the time of the offending.
3. On Wednesday 20 March 2013, the victim, Sumit KAINTH was working as a console attendant at the 7 Eleven store located at 1/15 Old Geelong Road in Hoppers Crossing.
4. At approximately 3.02am, the offender approached the front door to the store which was locked. The victim unlocked the door and the offender entered with his face partially covered by a hooded top and sunglasses.[1]  He also had a back pack with him.

[1] Statement of Sumit KAINTH, pg 12 Depositions

5. The offender walked over the where the potato chips were and then approached the counter. He pulled out a knife with a 25cm blade and started to slide under the security wires holding the knife out in front of him.
6. The victim stepped back into the corner as the offender waved the knife around.  The offender then told the victim to open the till, which the victim attempted to do.  The offender then said, “Open the till or I’ll stab you.”[2]

[2] Statement of Sumit KAINTH, pg 12 Depositions

7. The victim opened the main till and the offender took his backpack off and grabbed cash out of the till and placed it in his backpack.  The offender asked the victim about the other register and said “I will stab you if you don’t open it.”  The victim opened this till as well.
8. The offender then asked the victim where the cigarettes were and told the victim that he did not have much time.
9. The victim told the offender the cigarettes were in cupboards at the back and the offender then opened the cupboards and took a number of cigarette packets before sliding back under the security wire and running out of the store.
10. The offending was captured on the store’s CCTV, which is sought to be played in court.
11. The offending was also witnessed by a citizen who had pulled up in the car park, saw what was occurring and called 000.
12. Police attended the scene shortly after, viewed the CCTV footage and examined the register tills and counter for fingerprints.
13. Later that day, the offender’s fingerprints were matched to those located at the scene.[3]

[3] Statement of Tim ROBINSON, pg 24 Depositions

14. The offender was located by police and arrested on the following day.  After being arrested, the offender was transported to the Dandenong Police Station where a DVD recorded record of interview was initially commenced.  The record of interview was suspended and a search warrant was conducted at the offender’s address. On the way back to the Police Station, the offender directed police to a storm water drain, where clothing items he wore during the armed robbery were located.  The knife and sunglasses were also located in the drain.[4]  Once the offender arrived back at the Dandenong Police Station, the record of interview was re-commenced.  During the course of the record of interview, the offender made full admissions, stating:

[4] Statement of Tim ROBINSON, pg 26 Depositions

·He was at a friend’s house in Werribee (on 20 March) and he “Just went for a walk around.  You know, just bored, you know?  Just looking for drugs, ‘cos there was ice, off my head, looking for money.  And then I seen this petrol station, and I just put on my hat and my glasses, and covered my face, and that, and went in and robbed the place.  And then I got the money and left.” (Q.32)

·He “walked down the big aisle.  I had a knife in my hand, like, up my sleeve.  I walked down the drink aisle, looked around, then I went to the counter.  I put up the knife and I said, “Open the till.”  And then I jumped over the counter, and the guy’s in the corner.  I said, “Open the till.”  I said, “I’m not gonna hurt you, just open the till.”  He opened the till.  And then I put the money in – put the money in the bag – backpack that I had.  Then I went to the other till, put the money into the bag, and then I went to the cigarettes, and then I left.  Then I told him to open the door, and I – that’s when I ran.” (Q.38)

·On the way home (from the armed robbery), he took off his clothing, including his jeans, hat and shoes and put it (and the knife) down a drain (Q.40 & 74);

·He had stolen approximately $850 cash (Q.78);

·He spent the money “on drugs and ice.” (Q.93);

·He had found the knife in someone’s lawn as he was walking past a couple of houses in Werribee (Q.130 & 131)

·He had bought the clothing he wore during the commission of the Armed Robbery from Kmart at Dandenong on the day before, using the $590 he received from Centrelink that day (Q. 137 – 146);

·When asked for his reason for committing the armed robbery, the offender stated, “’Cos I needed money and I just got out of Parkville” (Q.183)

Maximum Penalties

15. Armed Robbery: 25 years imprisonment.

Victim Impact Statement

16. It is understood that the victim in this matter, Sumit KAINTH, does wish to make a Victim Impact Statement however it has not been received as yet.

Plea

17. The offender indicated his intention to plead guilty to the charge on the Indictment at the Committal mention in this matter, held at the Melbourne Magistrates’ Court on 14 June 2013.  The prosecution accepts that the plea was entered at the earliest available opportunity.

Pre-Sentence Detention

18. The offender was on Youth Parole at the time of this offending, having been released from custody on 4 March 2013.  After being arrested on this matter, the offender was remanded in custody.  On 22 March 2013, the offender’s Youth Parole was cancelled and he was returned to a Youth Justice Centre to serve his unexpired parole period.
19. Accordingly, the offender has one day of pre-sentence detention available on this matter.

Breach of Youth Parole

20. On 29 June 2012, the offender was convicted and ordered to be detailed in a Youth Justice Centre for a period 2 years and 4 months, for numerous offences, including five charges of Armed Robbery, two charges of Robbery and one charge of Aggravated Burglary.
21. The offender was granted Youth Parole and was released from detention on 4 March 2013, after serving a total of 171 days in detention.

Antecedents

22. The offender has a number of prior convictions, including 11 prior convictions for Armed Robbery and one prior appearance for Armed Robbery.

Sentence Discount – s6AAA Sentencing Act1991

23. As the offender has pleaded guilty, the offender is entitled a discount upon his plea of guilty on both charges pursuant to s6AAA of the Sentencing Act 1991.

Other Orders

24. A Compensation Order in the amount of $1,150 is sought (being the value of the cigarettes combined with the cash stolen).
25. A Disposal Order in relation to the knife and the offender’s clothing is also sought.