Director of Public Prosecutions v Sage, Ricky and Vinen, Nickolas
[2012] VCC 1890
•21 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01339
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICKY SAGE and NICKOLAS VINEN |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 September 2012 | |
DATE OF SENTENCE: | 21 November 2012 | |
CASE MAY BE CITED AS: | DPP v Sage, Ricky and Vinen, Nickolas | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1890 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – Sentencing – Armed robberies and other associated offences – Youthful offenders – Prior criminal histories – Offending occurred over course of one morning – Custodial Orders made.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Coughlin | Craig Hyland solicitor for Public Prosecutions |
| For the Accused | Mr F. Todd Mr B. Mallick | James Dowsley & Ass Chester Metcalfe & Co |
HER HONOUR:
1 Nickolas Vinen, you have pleaded guilty before me to two charges of armed robbery, one charge of cultivation of a narcotic plant and one charge of criminal damage. In addition you consented to a summary matter being transferred to this court pursuant to s.145 of the Criminal Procedure Act 2009 and you pleaded guilty to one charge of dealing with property suspected of being the proceeds of crime.
2 Ricky Sage, you have pleaded guilty to two charges of armed robbery.
3 I shall now proceed to sentence you both on the basis of the Crown opening that is marked exhibit 1. There was no exception taken to the Crown opening at the plea hearing.
4 In addition you have both admitted criminal records.
5 Nickolas Vinen, you have had two previous court appearances. On 18 December 2009 you were dealt with at the Dandenong Children's Court for multiple offending involving dishonesty offences, offences related to theft of a motor vehicle associated driving offences, burglary, use of cannabis, intentionally damage property, fraudulently using registered labels, criminal damage, possess prohibited weapon without exemption or approval and deal with property suspected of being the proceeds of crime, for which you received a without conviction release on a Youth Supervision Order. That ran for nine months and was effective to 17 September 2010. Part of the conditions of that order was that you were to have alcohol and drug counselling and attend a road-trauma program.
6 On 15 July 2011 at Dandenong Children's Court, Mr Vinen, you were dealt with for theft, criminal damage, fail to answer bail, attempt to commit an indictable offence, armed robbery, attempted armed robbery, affray, contravening a Family Violence Intervention Order, recklessly causing injury, possess cannabis, go equipped to steal for which you were placed on a without-conviction Youth Supervision Order for a period of nine months, to 14 April 2012.
7 I note that the present offending occurred just four weeks after that order expired.
8 The prior charges of armed robbery and attempted armed robbery, are of particular relevance here today in considering what sentence to impose, given that they are of the same or similar nature to the offences for which you are presently before the court.
9 Ricky Sage, you have had five previous court appearances. The first was on 4 March 2012 at Frankston Children's Court to which you pleaded guilty to multiple offences involving some dishonesty offences, burglary, theft of a motor vehicle, theft, use cannabis, criminal damage, without authority entering a private place, going equipped to steal, theft from a shop, unlawful assault, failure to answer bail for which you were placed on probation without conviction for six months with a special condition that you engage with the Youth Support and Advocacy Service during the period of the order.
10 On 25 June 2010 at Dandenong Children's Court you pleaded guilty to a charge of burglary and go equipped to steal and without conviction you were released on a good behaviour bond for a period of six months.
11 On 26 August 2010 at Frankston Children's Court you pleaded guilty to affray, common law unlawful assault, intentionally cause serious injury, recklessly cause serious injury. With conviction you were released on a Youth Attendance Order for 12 months and that was on the basis that you attend Western Region Youth Justice Unit Footscray.
12 On 19 May 2011 you were dealt with, with respect to a breach of that order and the matter was found proven.
13 On 18 June 2011 you pleaded guilty to affray and recklessly cause serious injury and without conviction the matter was adjourned until 16 August 2010, on you entering into a good behaviour bond. By reason of this offending you have breached that bond and are yet to be dealt with by the courts in respect to that.
14 I note that you do have some dishonesty offences and offences of violence in your prior criminal history and that too is of relevance today in my sentencing you.
15 I note you are now both aged 19 and you are considered to be young offenders. Your rehabilitation is of paramount importance and the principles of R v. Mills applies. So the fact that you are young offenders, particularly it is your first time in an adult court, is of primary consideration for the sentencing court and your rehabilitation is considered more important than general deterrence.
16 It is also of relevance that the court ought to avoid the imposition of a disposition that results in you going into an adult prison and that is the basis upon which I am proceeding to sentence you on.
17 The current matters, particularly the armed robberies that you both face, are serious examples of this sort of offending. The seriousness with which our Parliament considers these charges, is reflected in the 25-year imprisonment being the maximum penalty prescribed for that offence.
18 In relation to cultivation of a narcotic plant, the relevant penalty is one year’s imprisonment or 20 penalty units and in relation to criminal damage it is ten years' imprisonment and the summary matter of deal with the proceeds of crime, the maximum penalty is two years' imprisonment.
19 I shall now go on to talk about the circumstances of the offending. It concerns two armed robberies that occurred in quick succession on 16 May 2012. The first armed robbery occurred at the 7-Eleven Convenience Store in Keysborough. You both were disguised, wearing dark balaclavas that concealed your faces, with only the eye area exposed and you were both wearing gloves.
20 Vinen, you were in possession of a metal pole and Sage, you were armed with a screwdriver. You both entered the store and approached the cashier. Mr Abdelmalak was kneeling down, stocking newspapers in a display stand. Vinen, you raise the metal pole above your head and threatened him saying: "Open, open -" meaning the door labelled "Staff Only" to the left of the cashier's desk.
21
He did open the door and then you, Vinen, pushed him into the back of the office while Mr Sage, you removed cigarettes from the cigarette storage area. Vinen, you then shut the door so that you were inside the office with
Mr Abdelmalak. You opened a cupboard under the desk that contained the CCTV recorder and ejected the disk from the recorder. You also attempted to open the fuse-box doors. $530 was located in cash and coins in a cash drawer and you placed that into your pocket. You demanded that Mr Abdelmalak open his pockets. You then left him inside the office. You then both proceeded to go behind the counter in the store and stole money from the cash register and raided the cigarette cabinet taking about 100 packets of Benson and Hedges and Winfield cigarettes and tobacco. You then fled the store. The total amount stolen was $973.60 in cash and 100 packs of cigarettes valued at $2773.60.
22 Mr Abdelmalak was asked to provide a victim impact statement but declined. From having viewed the CCTV footage and read his statement in the depositional material I have no doubt that he would have been very fearful of your actions on that occasion.
23 Approximately one hour later you both entered the BP Service Station Edithvale and again you were disguised, both wearing dark balaclavas and gloves. At that site Ernie Hartlett was stocking the milk fridge when he saw you both enter the store. Mr Sage, you jumped behind the service counter and checked the register while Mr Vinen confronted him, holding a silver wheel brace or crow-bar. You grabbed him by the sleeve, pushed him into the office and told him to get into the back room. You shut the door so that you were alone in the back room.
24 He was in the office for about five minutes, during which time Mr Vinen, you continued to check him. Meanwhile Mr Sage, you stole cash from the register and the safe. Both of you searched the store room and office and removed cash and cigarettes from the front counter area.
25 Mr Vinen, when you asked what was in the drawer in the office, Mr Hartlett replied that there was money in there and you were just to take it. He then put the money in a calico bag. He waved a bar above his head and said, "I should hit you with this," to which he responded, "What's the point, you're getting what you want." You then both fled the store.
26 After you had gone Mr Hartlett noticed that the ATM inside the store had been opened with a key and was damaged and approximately $2,500 was stolen during this armed robbery.
27 A Victim Impact Statement has been filed on behalf of Mr Hartlett, but again, I infer from the particulars of the circumstances of this armed robbery that he would have been in real fear of your actions.
28 At the time, Mr Vinen, you were residing in a unit in Noble Park and on 20 May 2012 police executed a search warrant at that address. They located a hydroponic system in a small cupboard in the bedroom with one light, lighting set, one transformer and a 6-inch cannabis plant. It was accepted by the Crown that the plant was being used for personal use. Police also located one set of Victorian number plates in the bedroom and a further two sets of Victorian number plates and two Victorian registration trader plates were found in the garage. Police also located a number of items that were related to the robbery, including the metal pole, a grey hooded jumper, a beanie and the jerseys worn at the time of the robbery. Benson & Hedges cigarette packets were located inside a 7-Eleven plastic bag in the bedroom and a packet of Winfield Red tobacco and a packet of Holiday cigarettes were also located in a box in the kitchen.
29 On an occasion after the execution of the warrant you were interviewed in relation to the armed robberies. Vinen, you made admissions in relation to the 7-Eleven Keysborough. On the following day, you, when questioned about the armed robbery at the BP Edithvale and the criminal damage to the cell door you told police you could not remember the armed robbery. You told them you were growing the cannabis for your own personal use. You told them you probably stole the trader plates located at the top of the wardrobe and probably obtained some of the registration plates located in the garage.
30 Mr Vinen, whilst being held in custody in a holding cell at Dandenong, you became abusive and you were seen to throw an object that sounded like a metal door at the cell door. Police subsequently observed some paint scrapings on the door and damage caused to the cell door was valued at $100.
31 Mr Sage, you were interviewed at the Dandenong Police Station on 20 May 2012. You had difficulty remembering details and vaguely recalled attending the BP service station Edithvale and remembered yelling at someone for stuff. You admitted that you had been threatening and acknowledged that you were armed with a crow bar, but told police you could not remember anything in relation to the 7-Eleven store Keysborough. You told them you attended there and the general circumstances and that you were aware that you would be holding somebody up. You did not know why you had committed the armed robberies. You said that you stole some of the cigarettes for some money and that you had given some of them away. You told the police you need money to buy the drug ice.
32 Gentlemen, both these offences are very serious examples of this type of offending and there are a number of aggravating features to it. Both armed robberies were executed and planned in company. On both occasions you were armed and took steps to disguise your identity. You executed the armed robberies at a time when it was likely the attendants were operating solo and in the early hours of the mornings and thus were vulnerable targets.
33 In sentencing you there is both a need to emphasize general and specific deterrence.
34 I shall now deal with the mitigating factors, and I will firstly refer to Mr Vinen. Mr Mallick, on your behalf, pointed out a number of mitigating factors and I accept them. Your matter was resolved early at a committal mention. You therefore entered a plea of guilty at the earliest stage and that has been taken into account in your favour. By your plea you accept the wrongfulness of your conduct. You have shown some remorse, and you have spared the witnesses the trauma of having to give evidence on your trial and saved the State the expense of the trial. You have facilitated justice and your sentence will be discounted accordingly.
35 Further, you have written an apology that was tendered on your behalf and you explained to the court that you were probably at your lowest ebb when these crimes were committed. You were heavily addicted to ice, Xanax and cannabis. You were without employment; you had lost your job a month or two before, and you were in dire financial straits. I accept those factors may have led to your offending, but in no way does it excuse your offending.
36 You acknowledge, Mr Vinen, that you now have had time to reflect and you have had some 185 days in presentence detention. I note you have been held in an adult setting at the Melbourne Remand Centre and that you have been in protective custody.
37 In your written apology you state you want to apologise to the victims of the crimes and you are motivated to seek help for your drug problems and are committed to a rehabilitation program and counselling. You say that the arrest and your time in gaol has meant that it is a real wake-up call, and that is what you needed.
38 You come from a very supportive extended family who have been present in court throughout the plea hearing. I note your maternal grandmother, Ruth Vinen, and your father and uncles were present. You have a partner, Jade, with whom you have two sons, Jack, aged 2 and Jordan aged 6 weeks. I note that your partner is now residing in Warragul.
39 I have read the report of Mr Bernard Healey, the clinical psychologist, and I have taken into account everything he says about your background and history. I do not propose to go through that in any great detail other than to say I accept that you come from a difficult family, your early life has been plagued by problems associated with your parents' addiction to the drug heroin. You left home at an early age, aged 16, and you formed a relationship with your girlfriend, Jade, soon thereafter. You now acknowledge you have responsibility for her and the children and that you need to focus on the future to strengthen those relationships.
40 You have a long history of poly substance abuse and have been using since age 12. You have in the past used heavily cannabis, ecstasy, Xanax, and the drug ice. You left school during Year 8 and have very limited work experience as a concreter. He, Mr Healey, tested you and said you had an IQ of 78 which places you in the seventh percentile where 93 per cent of people your age would do better, and he recommended a residential program to assist you to address your serious drug issues.
41 Mr Mallick on your behalf highlighted your youth and the difficulties you have experienced in the past having regard to your family background and also the problems you have experienced following the first experience of being in gaol on remand in an adult custodial setting.
42 I heard evidence from your uncle, Earl, who confirmed that there would be some work available to you upon your eventual release and that he considered you to have a good work ethic and that there were also some options for you to be able to live with both he and your grandmother upon your eventual release.
43 Mr Mallick sought a non-custodial disposition, that is a Community Corrections Order. However, as was stated by me during the plea hearing, I consider that the nature of these armed robberies are such serious examples of this type of serious offence that that would not be appropriate punishment and that the only appropriate disposition is an immediate custodial disposition.
44 A report from Warren Gardner, Court Advice Officer, Youth Justice dated 16 November 2010 confirms you are suitable for a Youth Justice Centre Order. The writer has had regard to s.32 of the Sentencing Act which says that, "The court must consider whether the young person has reasonable prospects for rehabilitation or is particularly impressionable, immature or likely to be subject to undesirable influences in an adult gaol."
45 He confirms that you do have reasonable prospects for rehabilitation. On the basis of all the material that is before me, including your own apology, I consider that that is an appropriate assessment. Otherwise he said that you are a person who may be vulnerable in the adult prison system, and I accept that assessment as well.
46 Mr Sage, your counsel, Ms Todd, highlighted a number of mitigating features, and they are, firstly, your youth; secondly, your plea of guilty entered the earliest stage at committal mention; third, your Aboriginality and background of profound and troubled deprivation; fourth your diagnosis of post traumatic stress disorder and substance abuse, and fifth, prospects for rehabilitation as evidenced in your post-defence conduct.
47 She submitted an appropriate disposition was a Community Corrections Order, and having regard to the seriousness with which I consider these armed robberies are, I do not consider that is an appropriate disposition, and I consider that a gaol term to be served in a Youth Justice Centre is the appropriate disposition.
48 I confirm and note that you are aged 19. You were 18 at the time of the offending. Your background is comprehensively set out in the report of Dr Aaron Cunningham that was tendered during the plea hearing, and I do not propose to go into great detail about that. I note, too, that yours was a very disrupted family history. You were exposed to a lot of violence in the course of your childhood, and I accept the evidence of Dr Cunningham that as a consequence of your exposure to violence in the home as a young child that you do suffer complex post traumatic stress disorder. He also says you have a substance abuse problem as well.
49 I accept that you had difficulties associated with the chaotic environment that you grew up in and you had limited educational opportunities. Your education was very disrupted, I believe there were several different primary schools you attended in the Cranbourn Mornington area and also at secondary school, you attended a number of schools as well. You left during Year 10 and you did attempt to complete Certificate 3 in Civil Construction, but that was not completed. I do note, however, from the material that has been furnished to the court that since the plea hearing you have been in stable employment, undertaking initially a role as an apprentice butcher and then doing some work with Cleanaway.
50 I note that you did have a significant relationship with your maternal uncle whom you described as being the most stable person in your life, and sadly, he was killed in a car accident on 18 June 2012, and you suffered significant grief and loss at your uncle's passing, and that is also part of a contributing feature to this offending.
51 You have a history of poly substance abuse as well, commencing at age 13 using cannabis. You began using Xanax at age 16 and methamphetamines from age 18. You are now said to be drug free.
52 As I have stated, I accept the diagnosis of Dr Cunningham in relation to the complex post traumatic stress disorder, and also the substance abuse. You told him that you were motivated to cease using drugs and in his written opinion he said if your post traumatic stress disorder is left untreated a term of imprisonment would weigh more heavily on you compared to an individual without such a condition. In his evidence today he said that the risk of that is lowered in a Youth Justice Centre setting. He said that there was a lower risk of exposure to violence in that setting and also there is more opportunity for treatment through forensic services that are provided in that setting.
53 I have taken into account his findings and diagnosis. I accept that your time spent in custody may be more difficult than otherwise and that there is a risk, albeit low, that your incarceration in the Youth Justice Centre may exacerbate your condition.
54 I note that to date you have not had any treatment in respect to your complex post traumatic stress disorder and recommend to the authorities Dr Cunningham's report and his evidence, and that will be provided to the authorities.
55 You were released on supervised bail, and reports from Rae Christeson from the Court Advice Service Southern Metropolitan Youth Justice Unit, confirm that you have demonstrated commitment to complying with your bail conditions and have positively engaged with her, and she canvassed many of the things that I have just outlined about your working and other experiences whilst on the program.
56 You have continued to live with your mother, step-father and younger siblings, and recently you ended a long-term relationship to concentrate on yourself and to improve your own situation.
57 I have had regard to the references provided by Deborah Salmon who has known you for four years, and also from Lisa Van Sporl from the Koori Housing Cooperative. Both consider you to be a person who is hardworking, well mannered and capable of change but in need of encouragement to assist you in beginning that change.
58 Overall I consider your prospects for rehabilitation are quite positive and I am optimistic for you for the future.
59 Insofar as your prior criminal history is concerned, I note that your counsel submitted you had very little memory for those events. Ms Todd, as I have said, urged the court to impose a non-custodial sentence and sought to distinguish you from Mr Vinen on the basis that you had not previously been charged with armed robbery, your slight difference in age, your mental health diagnosis and the fact that you have never been held in adult custody.
60 Overall I have assessed your respective roles in relation to this offending and I consider it to be equal. It is apparent from my viewing of the CCTV footage that the two of you were organised prior to your entry to the two stores, you both had a proper understanding of what it was expected that you would do once you were in the stores and you went about your tasks of collecting money and cigarettes in a systematic way.
61 The fact that Mr Vinen has a relevant prior criminal record for armed robbery and attempted armed robbery does distinguish you. I also note that there was no reliance upon the Verdin’s principles in respect to Mr Vinen such that there will be a slight disparity in the sentence that I am about to impose.
62 You have both been assessed as suitable for a Youth Justice Centre order having regard to the factors set out in s.32. I note Ms Christeson has provided me with a suitability report this morning in respect to Mr Sage.
63 I will now announce the formal sentencing orders. Could you please stand, gentlemen.
64 The Crown put a range of head sentence of between two and a half to three years for Mr Vinen and two to three years for Mr Sage. I note counsel on behalf of Mr Vinen and Mr Sage both submitted the Crown ranges were too high having regard to all the other factors.
Nickolas Vinen Sentence
65 Mr Vinen, in respect to your charges, on charge 1, that is the armed robbery, you will be convicted and sentenced to two years' imprisonment to be undertaken in a Youth Justice Centre, and charge 2, armed robbery, convicted and sentence to two years to be undertaken in a Youth Justice Centre. Charge 3, cultivating a narcotic plant, you will be convicted and discharged, and Charge 4 criminal damage, you will be convicted and sentenced to seven days in a Youth Justice Centre. The summary charge of dealing with property suspected of being the proceeds of crime, you will be convicted and sentenced to three months in a Youth Justice Centre.
66 I nominate charge 1 as the head sentence and I make an order that six months of the sentence imposed with respect to charge 2 be cumulative upon that, making a total effective sentence of two and a half years to be served by way of a Youth Justice Centre order.
67 I make a declaration of presentence detention pursuant to s.35 of the Sentencing Act, and that is 185 days. I direct that be entered in the records of the Court.
Ricky SAGE sentence
68 Ricky Sage, charge 1, armed robbery, and charge 2, armed robbery, I am imposing an aggregate sentence of two years to be served by way of a Youth Justice Centre.
69 I make the disposal order sought.
70 In with respect to Nickalos Vinen, I make the order for the retention of the forensic sample. Having regard to the seriousness of the circumstances of the offending I consider that such order is warranted. It was not opposed and it is in the public interest.
71 In relation to Mr Sage, I make an order that he undergo a forensic sample pursuant to s.464ZF(2) of the Crimes Act 1958. On the basis of the seriousness of the offending I consider that it is warranted. It is by consent and it is in the public interest.
72 The only thing I need to tell you, Mr Sage, is that by reason of this order you will be requested to provide a sample, and you will be given a cotton bud to put in your mouth, they will do a scraping, and that is done under supervision. The only thing I have to warn you is if you do not cooperate they can use reasonable force to enable that procedure to be undertaken. I am sure you will cooperate.
73 All right. I think that covers everything. No further matters?
74 MS COGHLAN: Your Honour, is it necessary to – 6AAA.
75 HER HONOUR: There is a declaration of presentence detention of 10 days in relation to Mr Sage, and I will make that declaration and order, and direct that that be recorded in the records of the court.
76 MS COGHLAN: Thank you, Your Honour, I just raise the issue of the 6AAA, whether that needs to be - - -
77 HER HONOUR: Yes, for both of them. Yes, okay.
78 MS COGHLAN: Just for the plea of guilty.
79 HER HONOUR: So that is the final thing. 6AAA. It is always tricky because in this case – do I have to give maximum for both of them given it is a Youth Justice Centre Order?
80 MS COGHLAN: Your Honour, given that it's a term of imprisonment, I do believe Your Honour is required to.
81 HER HONOUR: Okay. I'm not sure about that.
82 MS COGHLAN: Your Honour, just having a look at the section, 6AAA, it does refer to the imposition of sentences under Division 2 of Part 3. My instructor tells me that that deals with Youth Justice Centre orders. I'll just check that, myself, now.
83 HER HONOUR: I'll make it anyway.
84 MS COGHLAN: As Your Honour pleases.
85 HER HONOUR: Section 6AAA with respect to Mr Vinen, but for his plea of guilty I would have imposed a sentence of four years to serve two and a half years imprisonment, and in relation to Mr Sage I would have imposed a sentence of three years to be served by way of Youth Justice Centre order.
86 MS COGHLAN: As Your Honour pleases.
87 HER HONOUR: I'm not clear about that.
88 MS COGHLAN: Your Honour, I am not certain, myself, I would need to check it more thoroughly, but for the sake of completeness, thank you, Your Honour.
89 HER HONOUR: All right. All I need now to finalise this matter is the disposal order. I've got those other orders.
90 MS COGHLAN: My instructor will send that through this afternoon, Your Honour. Thank you.
91 HER HONOUR: Thank you.
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