Director of Public Prosecutions v Samas
[2019] VCC 1746
•25 October 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-19-01236
Indictment No. K10819071
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THOMAS SAMAS |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 October 2019 |
| DATE OF SENTENCE: | 25 October 2019 |
| CASE MAY BE CITED AS: | DPP v SAMAS |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1746 |
REASONS FOR SENTENCE
---Subject: Attempted armed robbery, on CCO and bail at time. Related summary offence of offending whilst on bail. Many earlier offences listed for consolidated plea in December. 22 years old now.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. O’Toole Ms A. Nalpantidis | Office of Public Prosecutions |
| For Accused | Mr A. Cameron | Fitzroy Legal Service |
HIS HONOUR:
1Thomas Samas, you have pleaded guilty to one charge of attempted armed robbery and one related summary offence of committing an indictable offence whilst on bail.
2The maximum penalties are correctly set out in the agreed prosecution summary marked as Exhibit A on the plea. It is a 20 year maximum for the attempted armed robbery. The summary offence has a 3 month maximum term of imprisonment.
3You are 22 years of age born on 2 September 1997. You were 21 years old at the time of the offending earlier this year. You have admitted a short criminal history. It has some relevance to my task. You also though have admitted a large variety of other conduct that is being dealt with in December 2019 at the Heidelberg Magistrates' Court by way of consolidated plea.
4You were on bail and also a community corrections order at the time of the offending that I must deal with.
5The plea was conducted on Wednesday of this week and I remanded you to today’s date. The prosecutor, Mr O’Toole, opened the matter to me on that day in accordance with the agreed written opening that was dated 15 September 2019. That document was marked as Exhibit A. Your counsel, Mr Cameron, informed the Court that this was an agreed factual statement. In those circumstances, I see no need to set out the full factual basis of sentencing in these my reasons. I will not stray beyond the agreed facts.
6Very briefly, this was a soft target attempted armed robbery committed upon a man you had met on the ‘Grindr’ App. You exchanged messages with that person, arranged to meet and then in fact did meet. You had asked him if he had a car. He did and he picked you up in it. To that point, he had seen your photo and he recognised that he knew you from schooldays. You recognised that connection only when you got in the car. You told him it was a bad situation. He asked you what you wanted to do, presumably a question relating to sexual acts and you replied, ‘You can give me your car’. He saw something silver in your hand. He then drove in fear to the nearby train station. You had plenty time enough to reconsider your conduct. As he parked the car, again you made a demand this time for his phone and car and as you did so, you were holding a knife. He then escaped from his own car taking his keys and phone and he left the scene. As he did so, you told him not to ring the police. Now, I sense not without some misgivings given the context of the meeting, he nonetheless reported the matter to the police later that same morning.
7You were on bail at the time of these events. I will say more later in these reasons about the nature of that bail undertaking as it is of some relevance to my task. You were arrested the next day, being 28 March 2019, and interviewed. You made some admissions but certainly you did not provide anything by way of a complete or truthful account. You told the police that it was all a misunderstanding, that you had no intention to take his car or phone and that you had no knife. You went on to say that the account that the victim gave was outrageous. Well, of course, it was not. It was the truth though you were not then or even now prepared to say as much and that is despite your guilty plea. You have been in custody since that day of arrest.
8You pleaded guilty at the earliest opportunity which is to your credit.
9That then is only my brief summary of the agreed written summary that has been placed before me. I will sentence in accordance with the full agreed factual statement.
Impact
10Now, your victim, who I will not name in these reasons, has made a victim impact statement marked as Exhibit B on the plea. But even without such a statement, it would be obvious that this was a frightening event. After all, you were producing at close quarters in the car a knife. This is in the early hours of the morning. It was an act designed to frighten him into relinquishing his property. His victim impact statement dated earlier this month goes into far greater detail as to the real impacts of your crime and I have read that again since the day of the plea. I do not see any need to descend to great detail as to what he has said. I take it all into account. The fact is none of what he says is in the least way surprising. He no longer feels the same. He no longer feels safe in his own community. He often enough relives the event. He was scared to drive in the dark. He lost his sense of trust in others. He hates how this night played out and how it has made him feel. He even feels guilty though he should not but he also feels betrayed and in fear and that is hardly surprising. Your crime has had a sizeable impact upon your victim and your counsel concedes as much.
11I take into account that impact.
In Mitigation
12Now, your counsel, Mr Cameron, had prepared an excellent defence outline of submissions marked as Exhibit 1 on the plea. He placed before the Court a report from a psychiatrist, Dr Turnbull, marked as Exhibit 2 as well as a bundle of course certificates marked as Exhibit 3. He took me to your background. He had an impressive grasp of your background and had obviously spent considerable time studying the Department of Health and Human Services file and other material. He was very well prepared and familiar with the relevant case law as well. Unsurprisingly then, given that level of preparation, Mr Cameron conducted an excellent plea on your behalf and he left no stone unturned.
13He made submissions as to the relevant sentencing purposes, the seriousness of your crime and your prospects of rehabilitation.
14Mr Cameron relied upon:
·Your early guilty plea;;
·Your youth;
·Your disadvantaged background;
·The efforts you had made to deal with drug addiction issues;
·He argued that you had good prospects of rehabilitation;
15He argued for the imposition of what is described as a combination-type sentence. That is to say, a term of imprisonment with release onto a community corrections order. He was not, by the way, submitting that you had served enough time in custody. Nor was he submitting that your release would even be imminent. Rather, that a sentence could be structured in such a way as to expose you to further time in custody over and above your pre-sentence detention, but with release engineered some time down the track onto a suitably conditioned community corrections order.
Prosecution
16Mr O’Toole, who appeared to prosecute, had also prepared some excellent written sentencing submissions marked as Exhibit C. He amended one error in those submissions relating to the number of prior appearances for car theft. It was only one, not two. Mr Cameron made it clear that he did not take issue with any of the Crown sentencing submissions. The Director of Public Prosecutions conceded that a combination disposition would be within range. Plainly then, it was submitted that the attempted armed robbery warranted a term of imprisonment but that was never seriously in dispute at any stage. Now the Crown submission as to range is just that, it is a submission made on behalf of the Director. It is not the Director of Public Prosecutions saying that that is what should happen or that that was the only option available to the court. Rather, that it is open to proceed in such a way as that, that is a
combination-type sentence. After all, your release could take effect within 12 months, so there was still a sizable prison term available over and above your existing pre-sentence detention to combine with a community corrections order.17While I pay regard obviously to the submissions as to the availability of a combination order indeed, I pay regard to any submissions made by either party, but those submissions made by either party do not bind me, the sentencing judge. What I have to do is to exercise my own sentencing discretion in this case.
Background
18Your background is set out briefly in the written outline as well as in greater detail in the expert report of Dr Turnbull. It was supplemented also by further detail in the oral submissions. I accept that personal background. I see no need to restate it all in these my reasons. I will set out only some brief salient features. You are now 22 years of age born 2 September 1997. Your parents separated when you were but a toddler. You mostly lived with your mother and grandmother. There was Department of Health and Human Services involvement from the year 2000, so from when you were around 3 years of age. That arose as a result of concern as to the risk of family violence from your mother’s new partner. For upon separating from your father, your mother had two partners and each were highly problematic. Your mother had a long term alcoholic and violent partner who was verbally and physically abusive to her and to you. That relationship has, as I understand it, reasonably recently ended. You saw much violence in the home and many things that you should not have seen as a child. I was told by your counsel of some of the incidents which took place in your early youth exposing you to family violence, for instance your mother taking shelter in your bedroom. Such time as you spent with your father was massively problematic. He used methamphetamine and heroin intravenously and he did so quite openly. In fact, you were provided with methamphetamine by your own father when you were in your early teens, 13 years of age or so. It was a ridiculous and seriously wrong thing for a father to do to any child. He encouraged you to use drugs and also to gamble. It is hardly surprising then that you emerged with addiction issues. It is to your credit that you completed Year 12 by way of the VCAL program. In fact you also at one point sought out some form of drug rehabilitation and counselling when you were 16 or 17 years of age via Youth Projects. It is fair to say you have had a quite sporadic employment history though you have not been employed for quite some while now, at least over a year. In late 2016, I was told that you sensed that you were losing your way. At two points in 2017, you sought out treatment for drug abuse with two inpatient stays in Birribi residential rehabilitation facility run through YSAS. The second period was for close to 3 months ending in September 2017. You felt at that stage that your life was back on track. I do note reference in Dr Cook’s letter of 10 July 2017 (see report of Turnbull page 4 of 8) to there being an immediate relapse. That is likely a reference to the earlier period of rehabilitation.
19Upon emerging in September 2017, you then had a period of abstinence all up of close to 6 months. Your formed a relationship with a young woman who had a child. You worked at that stage long hours and took on that added responsibility. You set up a house in Box Hill together. But it was all a bit much. The relationship failed. You relapsed as you had in the past and as your counsel put it, your life really then spiralled out of control. If we throw into the mix also a level of questioning as to your own sexuality and the conditions spoken of in the report of the expert including your social isolation and social anxiety condition, it was not a good time for you. You were not tracking too well at all and you had actually lost your way in life. It was that spiralling out of control that led you to police notice and to the Courts. The transcript will reflect the full chronology of which I was informed. I set out really the essential ingredients as they are actually relevant to my task.
20Let us start with the matters on the formal prior criminal history. Your first matter was dealt with back in April 2018. I had little information about those matters and none as to the actual weapon possessed. Fines were imposed as well as an adjourned undertaking on the theft which obviously has not been complied with. You were then placed on a community corrections order in October 2018 for a consolidation of matters. Those various matters included dishonesty matters and weapons offences and had occurred in April 2018, July 2018 and October 2018. The community corrections order took effect from the 17 October 2018 and had a variety of conditions including supervision and drug assessment and treatment. On 3 December 2018, you then committed the offences including car theft which were dealt with on 11 December 2018 by way of a 9 day term of imprisonment. You had already served that 9 days and emerged then back onto the community corrections order.
21On 26 February 2019 you were released on bail on a variety of offences. This was at the Heidelberg Magistrates' Court. In fact, the Magistrate deferred sentence and you were bailed to return to court on 29 March 2019. The bail had strict conditions indeed including a curfew and a condition that you not use any drugs. Skipping ahead, you committed the offences for which I must pass sentence in the currency of that bail and whilst on the community corrections order. In fact only two days before your return to court on the deferral and there you were, out and about beyond your curfew, disinhibited by drugs of dependence committing this serious attempted armed robbery. The offences for which sentence was deferred were a handful of dishonesty offences and some bail offences occurring on 18 November 2018 and 3 December 2018. So those previously deferred matters are all now waiting in the wings to be dealt with by way of a consolidated plea on 18 December at the Heidelberg Magistrates' Court. The breach of community corrections order is also listed on that date but that is not all.
22Those matters are consolidated with 7 other briefs covering a range of offending from June 2018 to 28 March 2019. Handle stolen goods (28 March 2019), shop theft (17 December 2018), attempted theft from car (21 March 2019), driving under the influence (24 June 2018), theft (13 October 2018), a minor driving matter of having no P plates (July 2018) and handle stolen goods, three offences of obtain property by deception, offending on bail and contravening bail conditions (13 March 2019). I have provided then only a brief description of the offence and the commission date of which I was informed. I do not descend to further detail. Plainly the offending was at varying levels of seriousness with nothing coming close to the seriousness of the major matter that I am dealing with here today. Many of the thefts, for instance, were petrol drive-aways or what might be described as low level thefts from shops.
23I only mention these matters as your counsel told me that you admit them all and you are in fact pleading guilty to all of those offences. Had I been told that they were in some way contested or there was some uncertainty as to you plea, well, of course, I would have had no regard to them at all but that is not the position. I can then have regard to this other conduct in making such judgements as I can as to your future prospects of rehabilitation and the need to deter you. It is not too pleasing a chronology. Bail provided no impediment to offending. Nor sentence deferral nor even being on a court-ordered community corrections order.
24You have not taken any of the chances offered to you.
25You are however doing quite well in custody. You are working and doing such courses as are open to you. I was told that you are abstinent from drug use and also that you chair a Narcotics Anonymous meeting. You have evident family support. Your mother and grandmother were in court the other day and you hope to move from custody upon your release to live with your mother somewhere in regional Victoria. She has recently separated from her partner and seeks to move and have a fresh start.
26Well I have gone into more detail than I had hoped to in terms of that chronology but returning to your developmental background, I do accept the submissions made as to your personal background being one of real and significant disadvantage.
27Who would choose such a background? You certainly did not. You had no say in those things at all. You were dealt a very poor hand indeed as so many who sit in the dock of this court are. You had some very poor role models, little by way of proper guidance and much by way of pervasive influence and improper guidance in your formative years. Obviously those sorts of deficits are not just easily shrugged off. They mark a person and they can have a sizeable role in the way that their life pans out. It is hardly surprising that you took to drugs. However the commission of this crime has little to do with your background other than undoubtedly being committed by you when affected by drugs. Nonetheless, I take that background into account as far as I am able to in mitigation of sentence in the ways referred to by your counsel in his written submissions. It does lead to some reduction in your culpability. See Marrah v The Queen [2014] VSCA 119. See also Bugmy v The Queen [2013] HCA 37.
Dr Turnbull
28I have read and I take into account the report of Dr Turnbull. Your counsel was explicit in disavowing any reliance on any of the principles from the well-known decision of Verdins.
29Before going to Dr Turnbull’s report, let me voice again, as I did in the course of the plea, my concern as to the conduct of the assessment by way of a video link.
30The Court of Appeal in this State has often enough commented on the unsatisfactory nature of some of the expert reports being provided to the courts. It seems to me at least that we have reached a new low with the use of the video link becoming increasingly common. It should not be occurring and I look forward with some hope to the Court of Appeal signalling that fact strongly. Who knows if they will? But I will express my dismay at this conduct that is occurring. It seems a bit odd that Dr Turnbull who saw you by one video link takes issue with the diagnosis made by an expert (a registrar) who has actually seen you physically and treated you in person. Nor is it entirely satisfactory that Dr Turnbull seemingly has no idea of the detailed chronology of offending which I have spelt out in these reasons to date, that is the fact of being on the deferral and the bail and the existence of all the other pending matters which had occurred previously.
31It is however not your fault that Dr Turnbull used the video link so I will put aside my general criticism of this style of assessment process and turn instead to what he says because that is of some use. Truthfully, there is not much to be had by way of mitigation in that report and your counsel made that plain enough. It comments on your long-term addiction to Ice and use also of GHB. Your counsel said that is not mitigatory and of course he is right.
32You would benefit from treatment for that addiction, that is obvious, and for the social anxiety disorder and the obsessive compulsive disorder which also is referred to. There is also some form of social isolation in play here. You also need to come to grips with your sexuality.
33In a way, Mr Cameron was relying on the fact that the report does not speak of intractable mental health or personality conditions which would necessarily impede your rehabilitation. Dr Turnbull makes plain that drug use and addiction to drugs was the most pressing issue for you and you at least have some level of insight into that. Mr Cameron reminded me that you had taken some steps when you were 16 or 17 years of age and later in 2017 as well.
34There are unfortunately some matters in the report that to some extent cast real doubt as to there being any true acceptance of your responsibility here. True it is you have admitted your guilt but you still cling to an absurd version of the event. This was no misunderstanding on the night, Mr Samas. I cannot accept your account of having no intention to take the car or the phone. You have pleaded guilty to attempted armed robbery. Nor do I accept for one moment your account of the knife and having no memory of it. I am not satisfied of that on the balance of probabilities at all. Indeed I am satisfied beyond reasonable doubt that you know and recollect that you had the knife. For whatever reason, you choose not to admit that memory. Maybe it is just a bit hard to do so. Anyway I take into account the report in the ways envisaged by Mr Cameron.
Guilty Plea
35I turn then to the matters raised in mitigation. You have pleaded guilty. You have done that at the earliest stage. That is important. You have facilitated the course of justice. You have also taken legal responsibility for your crimes. The victim in this case has been then spared the experience of giving evidence. The community has been saved the time, the cost and effort associated with a contested hearing either in the Magistrates' Court or up in this court. It can be quite difficult sometimes for a victim to relive the experience of the crime when giving evidence and at least he has not had to that. There is a utilitarian benefit in pleading guilty and I take those various matters into account in mitigation. You also made admissions to the police which I take into account in your favour. You put yourself at the scene but of course it is not suggested that they were by any means complete admissions. Of course they were not.
Remorse
36A guilty plea is often but not always indicative of some level of remorse or contrition. Your guilty plea was entered at the earliest stage. You however did not give a complete account to the police, far from it. But I suppose anyone can panic when first spoken to by the police so I do not dwell on that account that you gave. More troublingly though, you are still for some reason downplaying your criminality in discussions with Dr Turnbull on 24 September of this year, suggesting that the victim had somehow mistaken your intentions. It is a bit hard to know what to make of that. You cannot traverse the plea. Your victim was not mistaken as to your intentions. In the car, you intended to rob him at knifepoint. You attempted to do so. You have admitted attempted armed robbery by your plea and yet, in a way, you suggest quite otherwise to Dr Turnbull. It is no doubt for these reasons that Mr Cameron made it plain that he was not suggesting that there was any remorse here at all. Well, I suppose I could act on that submission. It was quite explicit. But I am going to approach this issue perhaps in a less binary fashion. I am pretty confident that you are a work in progress. I am prepared to infer from your early guilty plea that you do have some very limited remorse for the attempted armed robbery and I will take that into account in mitigation. It is far from complete and I sense you are still trying to come to terms with the truth of what you have actually done and are still clinging onto some fictions, but even limited remorse is better than none.
Youth and Rehabilitation
37I turn then to your prospects of rehabilitation. In a way, it ties in neatly with your youth which plainly is an important consideration here.
38I was referred by your counsel to cases such as R v Mills [1998] 4 VR 235 and also R v Azzopardi (2011) 35 VR 43. These are decisions made by judges in a higher court dealing with the importance of youth in the sentencing process. You were only 21 years of age at the time of this offending and you are still only 22 now, so self-evidently, you are still a young man. Your youth is still important for all the reasons advanced by your counsel, reasons which are elaborated on in the cases to which he referred me to. Rehabilitation is always a relevant sentencing purpose no matter what the age of the offender but is generally far more important when dealing with a youthful offender. Youthful offenders are less mature than adult offenders, they are less set in their ways, they are generally less culpable and they are more likely to not actually really think through and consider the consequences of their actions. Very importantly, they are generally far more amenable to change for the better. They are far more likely to be reclaimed and the law recognises that fact as well as the fact that time in an adult prison can actually impair rather than enhance those rehabilitative prospects. Accordingly, when dealing with a youthful offender, rehabilitation is important, and less weight is ordinarily to be devoted to punishment, deterrence and community protection. These things do not apply automatically in every case in the same way. The more serious the crime, generally the less weight can be given to youth and to rehabilitation and that is because of course more weight is given to other purposes of sentencing. But nothing is set in stone. It is always important to consider the nature, the gravity and the prevalence of the offence and the extent to which other sentencing purposes must be given some prominence. Also to consider the extent to which youth actually played a role in the offending. Plainly here general deterrence is important. Your counsel concedes that.
39Your youth though is still very important. I do not lose sight of it in my sentencing task. I give it significant weight but sometimes even a youthful first offender is sent to prison owing to the seriousness of the offence committed. Here you are no first-time offender by any stretch of the imagination. You were not some silly teenager. You were 21. You were on bail and on a community corrections order when you chose to offend in this way. You had also tasted adult prison in December 2018 and yet you still offended. Neither the conditions of bail nor the fact of deferral of the sentence, or the existence of the community corrections order, curbed your offending. You committed the most serious offence you ever have committed whilst out beyond your curfew two days shy of the return to court on the deferral matters. So it is obvious then that specific deterrence has a real role to play given this chronology. Disinhibition by virtue of drug use is not mitigatory and is I suspect more at the heart of this offence than youth. Still though, you were and are young and of course that cannot be overlooked.
40Your counsel argues that you have good prospects of rehabilitation. He did not make the following submission but the fact is the past conduct that has brought you before the Courts (including the outstanding matters), it has to be seen in light of the disadvantaged background that you have had. It really would not have been all that surprising to see a far lengthier criminal history extending many years. Instead, you have a relatively late start but you have started in something of a rush. Drugs have been a real problem for you for very many years now and they no doubt have a role to play in this offending. That is, as I have said, not mitigatory. You have shown some insight into the importance of not using drugs. You have independently sought out treatment yourself on those three occasions I was told about prior to your remand. So that was not court-ordered treatment, it was treatment you were seeking out and it indicates surely a recognition by you of the damage caused to your life by drugs and having then some desire for change in your lifestyle. You have had a pattern of relapse which is not that unusual for people who use drugs.
41As I have said, you have a relatively sketchy employment record.
42This has been the longest period in custody that you have ever served. You have being doing such courses and programs as are available to you. You are also working in custody. You are, I am told, maintaining abstinence and attending (chairing) a Narcotics Anonymous meeting. There is a plan upon your ultimate release to join your mother somewhere in regional Victoria.
43It is plain then that the attempted armed robbery represents a very sizeable escalation in your offending. It occurred regrettably in the currency of a community corrections order and whilst you were on that undertaking of bail. I cannot just ignore those features. The chronology is something of a worry.
44You have pleaded guilty and I find that you have at least some limited remorse. I am not able to conclude that you presently have good prospects of rehabilitation. It seems to me that I really can only be quite guarded here. I am however not going to write you off, not by a long shot. I am prepared to find that you do have quite reasonable prospects of rehabilitation; indeed, they would rise to being quite good if not good conditional though upon your abstaining totally from illegal drug use. That has been a big issue for many years and you have not found it easy. The test will come as it always does upon your release from prison. If you continue to abuse drugs into the future, your prospects of rehabilitation will just plummet.
General Remarks
45I turn then to make some general remarks about this offending and the sentencing process.
46I must have regard to the gravity of the offences before the court. Now, I speak in the plural in terms of offences but I will focus really on the attempted armed robbery as it is plainly head and shoulders above the summary offence in terms of seriousness. Your counsel concedes that the attempted armed robbery is serious offending. He was not suggesting it was low level offending and he accepted the Crown characterisation as contained in the prosecution sentencing submissions. It was a soft target attempted armed robbery upon a lone vulnerable male in the early hours of the morning. He was in his car and came to pick you up for some form of sexual activity consistent with the ‘Grindr’ and the Snapchat messaging. You got into the car and the offence then very swiftly unfolded. You produced the knife, you made the demand in what was obviously a frightening event. He fled from his own car.
47The Court of Appeal in this State has said often enough that it is not particularly useful trying to apply some adjective to describe an offence in terms of high, mid or low level offending; that is to try to place the particular offence on the spectrum of offence seriousness. They say really it is better to examine what the offender did rather than spend time considering which particular band or bracket the conduct would fall into. See the case of Weybury [2018] VSCA 120.
48I do though, as a sentencing judge, have to consider the nature and the gravity of the offending. What then did you do? What you did was serious enough as your counsel concedes. He made it clear he was not submitting it was offending at the lowest or even a low level.
49Your counsel argues that you were affected heavily by ice. There is no mitigation to be had in that. He argues that there was no plan to commit the arm robbery by way of preplanning. He argued that you had a sexual act in mind, that was what you were arranging and that that quickly altered once you got in the car and recognised the other party as an ex-school associate. The prosecution opening took me by way of footnote to the victim’s statement and your demeanour when you got into car. Your counsel also made reference to the victim’s statement. That is to your behaving anxiously and being jittery, and saying, 'This is a bad situation', and having your hand in your pocket. The victim then asking what you had in your pocket and you then pulling out a bag of tobacco and asking if he had any filters. That submission as to your plan to seek a sexual act and not to commit some style of criminal offence by way of robbery or attempted armed robbery was at first blush a bit hard for me to swallow as you seemed to have very seamlessly swung into the commission of the offence. I still do not quite follow how seeing it was someone you knew would then produce that reaction of ‘sticking them up’. Why would you 'freak out' as your counsel described by then attempting to commit an armed robbery?
50You had the knife with you. Well I suppose someone seeking out this sort of sexual act from a person thought to be a stranger may carry a weapon for protection. There is that to be said for it. However you did not just have it on you. You produced it. You produced the knife. You made the demand. Your saying it was a bad situation is consistent, it seems to me, with you having a plan to rob a stranger but then finding that you knew the victim. Why without some plan afoot would finding out you knew him prompt you then to attempt to rob him? I have very significant reservations about your instructions and hold suspicions as to some degree of planning given the discussion in the Snapchat and the Grindr of the existence of the car and the speed with which you sought to relieve him of it. However, sitting up here as a sentencing judge, suspicions are not enough. Having considered the various submissions and the evidentiary material, I am not satisfied beyond reasonable doubt that you planned this event at the time of the Grindr and Snapchat communications. Assuming as I do therefore that there was some sexual activity in mind, you then very swiftly have abandoned that idea and formulated another plan, that is to rob at knifepoint. You had the knife. You produced it. You made the demand twice. It related to valuable objects, being a car and a phone. You were in very close physical proximity to your victim. It then unravelled badly for you and you knew as much as you tried to dissuade your victim from calling the police. You knew how far you had overstepped the mark.
51Your counsel argued that it was quite impulsive and carried out in a drug disinhibited state. Well, being affected by drugs, as I have said, is not mitigatory. There are matters in aggravation, which are said not to exist. For instance, significant planning is said to be absent here. He said, by way of submission that it was a short duration offence. Most soft target armed robberies or attempted armed robberies are of short duration and very many of them occur with very little by way of preplanning.
52Ultimately though, as I have said, I am not satisfied beyond reasonable doubt that there was much, if any, planning. There was certainly no sophistication. It was a quite disorganised offence with for instance no disguise. The Grindr communication was in a false name but that might well be the norm for that platform, but the Snapchat message was in your real name and more tellingly, it involved the provision by you of a photo of yourself. That would be a strange thing indeed to do if the plan afoot was to rob. So it is those things that support Mr Cameron’s submissions as to the relatively impulsive and spontaneous nature of the attempted armed robbery. It is those things that cause me to entertain a doubt as to the existence of the planning of the crime at the time of the messaging. What on earth you were going to do with the car is anyone’s guess. Plainly though, once in the car you had decided to commit the offence. You could have just called off the whole sexual event. You could have just left the car. You chose not to. You chose instead to commit this serious crime upon a person who you well knew was a quite vulnerable victim. This was not senseless automatic offending. You have chosen to commit this crime.
53I do accept though that as these things go, it was a long way removed from being the most serious examples of this style of offence, an offence that after all can cover a multitude of different conduct including for instance the brandishing or even the discharge of a firearm. There can be acts of additional violence. There can be injury caused in an attempt. There can be detailed planning in the lead up. Well, that is not what I am dealing with here at all. It was a nasty offence, make no mistake about that, and no-one should mistake what I am saying. I am not saying that your crime was not serious. Of course it was. It was a crime of attempted armed robbery which is an inherently serious offence. It was obviously a deeply frightening event for your victim. This sort of offending is by its very nature dangerous. This sort of offence can escalate quite wildly out of control. How can you know how the victim will respond or how you might respond if he reacts or resists. You were sitting right next to your victim, you had a real weapon, not an imitation weapon. Happily though this offence did not escalate wildly and I must sentence you for what you did, not for what might have happened.
54But the absence of aggravating features is not actually a matter in mitigation. It does not alter the actual facts that I have to sentence upon. That is because I must deal with you for what you actually did. This attempted armed robbery was a serious criminal offence as is conceded directly by your counsel.
55Now, often enough, there is little distinction in terms of the conduct between an attempt and a completed armed robbery. Soft target armed robberies or attempts seldom have much by way of planning. Very often a demand is made, as it was here, but it is then complied with. It is common enough either for attempts or for completed armed robbery offences to be accompanied by no direct physical force or violence. I do not and will not lose sight of the fact that here I am dealing with an attempt and there is of course the lesser maximum penalty at play because of that fact.
Current Sentencing Practice and Offence Gravity
56I take into account current sentencing practices as I am required to as a judge.
57I have considered the SACStat online data for attempted armed robbery which is a far more current material than the sentencing snapshot, No.36, from the Sentencing Advisory Council. That particular Snapshot is very dated indeed from data collected between 2002 and 2007. It is of no use to my task at all and of course current sentencing practices are in any event not a controlling factor. They are just one of the many matters that the court has to have regard to. From the more recent data, the most common sentence where imprisonment was selected was between one and two years (31.2%). However in that SACStat data, there was a very sizeable band of sentences (25.6%) falling between two and three years for the crime of attempted armed robbery. There was a decent enough band of sentences between 3 to 4 years (10.3%) as well as under one year (12%).
58I have also considered the Judicial College of Victoria sentencing manual which has an overview of sentences imposed for the crime of attempted armed robbery. See 32.15.2.5.1. Again that material is quite dated. I had considered the extent to which sentences imposed for what are described in the Judicial College of Victoria material as low level completed armed robberies with no actual violence may assist my task but I have ultimately taken the view that it does not assist me at all. It is a different offence with an actual taking of property and a higher maximum. So there has to be great caution.
59The fact is though that any statistical material has inherent limitations. Other sentences imposed by other judges for other crimes committed by other offenders, they are in no way precedents to be followed or departed from. Having engaged in this process of looking at the statistics and these other cases, what I then have got do is to pass an appropriate sentence in your case for your crimes. The answer is never provided by looking at statistics or other cases and that is of course because every case and every offender is very different.
60But this was serious offending as is conceded. Attempted armed robbery is a serious criminal offence. It is punishable by a maximum term of 20 years' imprisonment. Your attempt was a serious criminal act. It was committed by a man of disadvantaged background, but by one who was on bail and on a community corrections order at the time.
61The charge of offending on bail speaks for itself and you have relevant prior convictions.
General
62Sentencing always involves a balancing of a number of sentencing purposes. Now, rehabilitation is one of the purposes of sentencing. It is not unimportant here. In fact I give it greater weight than would be the position if you were an older man. I do not ignore your prospects of rehabilitation; I regard them as being quite reasonable rising even to good if you succeed at abstaining from drug use. But your rehabilitation is however not the only thing that I have to take into account. If it was, well sentencing would be far easier than it is. I have to pay regard to the maximum penalties here as well as to the impact of your crime. The attempted armed robbery has obviously had significant impact. You know that. You have read the victim impact statement.
63There are other purposes of sentencing at play as well. I have to punish you and do that justly and proportionately. I must also denounce your conduct. I must consider the need to give weight to specific and general deterrence. Now, specific deterrence relates to the need to deter or dissuade you from committing crimes in the future. Well it must be given some weight here. I must deter you from ever committing crimes such as this into the future. The chronology assumes some importance. Plainly you have not taken your chances and you must be deterred.
64I must also give appropriate weight to community protection.
65If you were older and had a far more serious criminal history and lesser prospects of rehabilitation, I would no doubt be giving far greater weight to the need to deter you and to protect the community from you. But that is not the position. So I believe there can be some moderation of these purposes. I also sense that specific deterrence would in part at least be achieved by the time that you have already spent in custody on remand and by virtue of the time that lies ahead in custody for you. I believe there can be some moderation then of community protection and specific deterrence.
66General deterrence is still an important sentencing purpose and that is so despite your youth. There is the need for this Court to send a message to
like-minded other offenders. The Court must strive to deter other people from engaging in this sort of conduct. Soft target armed robberies and attempted armed robberies, they are prevalent offences and they are often enough committed by young men, many of whom are affected by drugs as you were.67Like-minded potential offenders, and there seem to be plenty of them out there, must understand that soft target offending such as your attempted armed robbery will be met with significant punishment. Such people as that must be discouraged from actually offending.
68Now, prison is always a disposition of last resort. Your counsel is conceding the inevitability of a prison term. He argued though that you had already served 209 days as at the date of the plea and that with additional time over and above your pre-sentence detention you could ultimately be released onto a community corrections order.
69Your counsel argued then that a combination-type disposition would achieve all the purposes of sentencing. The prosecution conceded that such a disposition fell within my available sentencing discretion.
70I do not ignore either of those submissions but, as I said earlier at the start of these reasons, I am not bound by submissions made by the parties. I have considered them. I just do not accept them.
71I do not believe that such an outcome is open to me in the sound exercise of my discretion in this case. The attempted armed robbery was serious conduct indeed committed whilst on a community corrections order and whilst on an undertaking of bail. I am not going to set out again the chronology of offending. I spent significant time doing so earlier in these reasons. I do not believe that a combination-type disposition would achieve all the purposes of sentencing, including the need to punish and to deter you as well as deterring others. I believe also that there are serious difficulties with a community corrections order in a setting where the release is significantly deferred. The Adult Parole Board would be in a vastly superior position to make appropriate judgments as to your treatment needs and appropriate conditions much closer to the point of your potential release than I possibly could be today. I do not even know where you would be living. They also have a much greater and swifter ability to reclaim you should you breach the conditions of any conditional release on parole than a judge has, in terms of the leisurely way a community corrections order breach is returned back to this court.
72Ultimately, I believe the only appropriate disposition is a term of imprisonment and one where I will fix a non-parole period.
73I cannot assume that you will be paroled. I cannot speculate about that. It will be entirely up to the Adult Parole Board as to whether you will be released prior to the end of the head sentence. No doubt that would depend on the efforts that you are making along the way. I must assume that you will serve every day of the head sentence which I will pronounce but I am going to fix a
non-parole period which will extend to you at least the possibility of a quite decent period on parole.Totality
74I have taken into account the principle of totality of sentence. I have looked at the sentences and the effect of the sentences I am about to impose to guard against imposing a crushing outcome and also to ensure that the sentences I am imposing are appropriate and commensurate with the overall gravity of your crimes. I am going to run the sentence on the summary offence concurrently with the sentence imposed on the attempted robbery. So I will be making the appropriate order under section 16(3C) of the Sentencing Act. Otherwise, cumulation would be presumed. I have treated the fact of your being on bail as a matter of aggravation. To then cumulate the sentence imposed on that discrete offence upon the sentence imposed for the attempted armed robbery strikes me as being unfair to you so I will not do it.
Ancillary Orders
Forfeiture
75There are a couple of ancillary orders that are sought in this case. The first of those is a forfeiture order which is brought under the provisions of s.33 of the Confiscations Act seeking forfeiture of the phone that was seized from you. There is no opposition to the making of this order. I have signed it. Upon convicting you of the Schedule 1 offence, being the attempted armed robbery, I order pursuant to the relevant provisions of the Confiscations Act that the property referred to in the schedule, being that phone, is forfeited to the Minister. I have signed that order.
464ZF
76There is also an application for a a forensic procedure order that is sought pursuant to the provisions of s.464ZF of the Crimes Act. There is no opposition to the making of this order and I order pursuant to s.464ZF of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with the relevant provisions of the Act until a sample of sufficient standard is obtained for placement on the database. I have made this order. I believe it is justified to make it owing to the seriousness of the offending, the prior convictions that you have, the fact that the order is not opposed and that I judge it to be in the public interest.
77Now, what this deals with is someone in a position of authority will approach you and seek to obtain a mouth swab from you. I am authorising the least invasive process. I am not authorising a blood sample at this point. It is not that invasive. They will have an object that they will run around the inside of your mouth. It is not particularly difficult. It is not painful but they can use reasonable force though to take that sample, I have to advise you of that and, of course, there should be no need to use any force. It should be a simple business. If there is any issue with it, no doubt they will be back before me making an application for a blood sample which is a more invasive approach which is why I have not authorised that as of today's date. I have signed that order as well.
Sentence
78If you would stand up please. Thank you.
79On the charge of attempted armed robbery, I convict and sentence you to 28 months' imprisonment. That is the base sentence.
Summary Offence
80On the summary offence of committing an indictable offence whilst on bail, I convict and sentence you to seven days' imprisonment.
Cumulation/Concurrency
81I direct then that the seven day term of imprisonment imposed on the summary offence is to be served concurrently with the base sentence. Hence I otherwise order concurrency under section 16(3C).
Total Effective Sentence
82These orders produce a total effective sentence of 28 months or 2 years and 4 months imprisonment.
Non-Parole Period
83I fix a period of 14 months during which you will not be eligible for release on parole.
Section 18 Pre-Sentence Detention
84You have already served 211 days of these sentences by way of pre-sentence detention and that declaration will be entered into the records of the court.
Section 6AAA
85As I have said, I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences, I would have convicted you and sent you to prison for 4 years. I would have fixed a non-parole period of 2 ½ years. That statement is to be entered into the records of the court.
86Grab a seat for a moment, Mr Samas. I will see if there are any other matters that I have to attend to. Are there any other matters at all?
87MS NALPANTIDIS: Nothing from the prosecution's perspective, Your Honour.
88HIS HONOUR: No?
89MR CAMERON: Nothing from me, Your Honour.
90HIS HONOUR: You will go down and see your client downstairs, Mr Cameron?
91MR CAMERON: Yes, Your Honour.
92HIS HONOUR: Yes. All right. Well, that completes the matter then. So Mr Samas can be removed now. Thank you.
93MR CAMERON: As Your Honour pleases.
94MS NALPANTIDIS: As Your Honour pleases.
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