Director of Public Prosecutions v Sanghnin

[2022] VCC 347

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02421

DIRECTOR OF PUBLIC PROSECUTIONS

v

STANLEY SANGHNIN

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JUDGE:	His Honour Judge Hannebery
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2022
DATE OF SENTENCE:	23 March 2022
CASE MAY BE CITED AS:	DPP v Sanghnin
MEDIUM NEUTRAL CITATION:	[2022] VCC 347

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Theft – armed robbery – youthful offender – plea of guilty – COVID-19 – general deterrence – specific deterrence

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991

Cases Cited:R v Verdins & Ors (2007) 16 VR 269

Sentence:                  16 months imprisonment and I order that you serve a period of 10 months before becoming eligible for parole.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Raimondo	Solicitor for the Director of Public Prosecutions
For the Accused	Mr D. de Witt	Bowler and Co

HIS HONOUR:

Introduction:

1Stanley Sanghnin, you have pleaded guilty to an indictment containing four charges being three charges of theft[1] and one charge of armed robbery.[2] The maximum penalty for theft is 10 years' imprisonment and the maximum penalty for armed robbery is 25 years' imprisonment.

[1]Contrary to s 74(1) Crimes Act 1958.

[2]Contrary to s 75A Crimes Act 1958.

2Charge 4, Armed robbery, is a category 2 offence whereby the court must impose a period of imprisonment unless an exception applies.

Summary of offending

3Tendered and read aloud on the plea was the summary of prosecution opening.[3] Your offending can be summarised in shorter form as follows:

[3]Prosecution Exhibit 1.

4On 5 July 2021, a co-accused attended an address in Sunshine. There he stole the car keys for a silver Toyota Corolla the co-offender met up with you and you both gained access to this vehicle before driving away inside it together (Charge 1 – theft). 

5You then attended a Coles Express in Hoppers Crossing whereby you filled this vehicle with $54.51 of unleaded petrol before driving away without paying for the petrol (Charge 2 – theft).

6You later attended an IGA Supermarket in Deer Park. You parked the stolen vehicle, entered the supermarket and took two bottles of Calypso soft drink valued at $7.98. You left the store without paying (Charge 3 – theft). The manager of the store chased you, however you ran back to the stolen vehicle before driving away.

7You and the co-offender then drove to a convenience store in Deer Park. You both entered the store. Once inside, your co-offender pointed black-handled scissors at the female shop keeper and demanded Winfield cigarettes. Both you and the co-offender jumped the counter and took six packets of JPS 30 cigarettes and six packets of Winfield 20g tobacco packets for a total value of $576. You also took between $2,000 and $3,000 from the till before leaving the store. You both drove away in the stolen vehicle (Charge 4 – Armed robbery).

8Two days after this offending, the stolen vehicle was located in a car park in Hoppers Crossing. You were inside, with the co-offender and another female passenger. You were subsequently conveyed to the Sunshine Police station where you were interviewed, charged and remanded in custody.

9The victim in this matter declined to provide an impact statement. However, in a statement police she states as follows, “when I first saw the scissors, I was really scared but I tried to stay calm because at first I thought they might kill me. That’s why let them take the cigarettes”. Your offending would undoubtedly have caused her significant distress, in addition to the financial loss.

Nature and gravity of offending

10The offence of armed robbery is inherently serious. So much is evident from the maximum penalty prescribed by Parliament of 25 years' imprisonment, and mandate that a term of imprisonment must be imposed for the offence where an exception is not made out.

11In this case, the offence was committed against the female owner of a convenience store. She was working alone. You were in company. Your co-accused was armed. She was extremely vulnerable. She was a “soft target”.

12The weapon used to perpetrate the armed robbery was a set of scissors. The duration of the offending was short. The victim was not physically assaulted. Both you and the co-accused did, however, jump over the counter. The amount of property stolen, namely cigarettes, tobacco and cash valued perhaps just in excess of $3,000, was a significant amount in the context of someone running a small business.

13I accept for the purposes of the plea that you were unaware of your co-accused’s possession of the pair of scissors used in the armed robbery until they were brandished. As such, you are to be sentenced on the basis that your involvement in the armed robbery involved your spontaneous acquiescence with an unplanned offence initiated by your co-accused. Once the scissors were produced, however, you have fully participated in the offence without any apparent reservations.

14Overall, I consider that your offending, in relative terms, is at the lower part of mid-range of seriousness for offences of this nature. The theft of the motor vehicle the subject of charge 1 is a serious example of the offence. The stolen vehicle was then used as a means of transport for further offending. However, in the course of the plea, it was not suggested that the car was damaged in any way. The thefts the subject of charges 2 and 3 are both relatively minor examples of the offence given the modest value of the goods stolen being a total of $62.49 for both those charges.

Personal circumstances

15You are now 20 years old. You were 19 years old at the time of the offending.

16You were born in Myanmar. Your parents fled that country shortly after your birth.

17You have a close relationship with your mother, who has recently returned to work as a baker. Your father ran a bricklaying business in Melbourne. You have one sister who is currently completing her VCE.

18Your family lived in New Delhi up until you were 6 years old. Your life as refugees in India was difficult, and at times distressing. You were impoverished. As a child of 4 years old you were witness to a serious sexual assault upon a woman. Psychologist Mr Warren Simmons reports that the trauma of what you witnessed continues to be a burden upon you.[4]

[4]Defence Exhibit 2.

19Your family relocated to Brisbane when you were 6 years old. You have remained in Australia since that time and became a citizen in 2011.

20You initially attended primary school in Queensland for 9 months. You spoke very little English and this impacted upon you both educationally and socially.

21Your family relocated to Melbourne in order to be closer to other relatives. You report that your English skills improved but that your education was still marred by ongoing racism.

22You attended a number of different schools. You attended Victoria University secondary school until being remanded into Youth Justice Detention as a result of a Children’s Court sentence. It was during your time in juvenile detention that you completed your VCAL, an achievement indicative of your capacity for academic progression.

23Whilst at Malmsbury you commenced a Certificate 2 in construction. You were unable to complete that course prior to your release and did not recommence it in the community.

24By way of employment you have worked with your father and his bricklaying business but have otherwise struggled to secure or retain work.

25You have had problems with alcohol misuse from an early age. You started drinking regularly from age 13. You acknowledge that your problems with alcohol have been a cause of your engagement with the criminal justice system. This conclusion is confirmed by Exhibit 4 from the defence namely the Children's Clinic report from 2019 which confirms that problems with alcohol were a concern, even as far back as then.  Psychologist Dr Warren Simmons says that you would meet the criteria for a diagnosis of alcohol use disorder.[5]

[5]Defence Exhibit 2.

26You state that upon your release from custody in 2020 and 2021 that you recommenced the use of alcohol at a problematic level. You also report the use of other drugs over the course of your life including cannabis and ecstasy. It is not suggested , however, that your use of these drugs have had the influence on your criminal conduct that alcohol has.

27Your prior convictions involve dishonesty offences, drug offences, weapon offences and offences of violence. You have previously breached court orders and served periods of imprisonment. Of most significance, you were sentenced for attempted armed robbery in 2018, and for multiple charges theft of a motor vehicle in 2021.

28The commission of the offences on the current indictment occurred only 12 days after your release from a 270 day period of imprisonment imposed by the Werribee Magistrates' Court.

29You instruct that you were under the influence of alcohol at the time of the offending the subject of this indictment. You told Dr Simmons that you and your co-accused had shared at least 2 bottles of whiskey. Whilst this is not a matter in mitigation, your recognition of the adverse impact of alcohol on your behaviour does reveal some measure of insight into your offending.

30Since going into custody on these matters, you have engaged with a psychiatrist. This treatment has involved the prescription of an antipsychotic medication. You report that your mental health has now stabilised.

31You have been employed whilst in custody, firstly working in the kitchen and then as a horticulture billet. You have also participated in several courses and programs, to the extent available subject to the pandemic restrictions. You have, unfortunately, not been provided the opportunity to do an alcohol and drug program but notwithstanding this, you instruct you have remained abstinent whilst in custody.

32A character reference from your parents tendered on your plea[6] confirms that they, and in particular your mother remain closely engaged with you.  They confirm that they are willing to support you in any way to assist you to turn your life around. Your father says that both he and your mother have friends who would be willing to offer you employment upon your release from custody.

[6]Defence Exhibit 3.

33Your sister provided a character reference.[7] She attests to your close relationship and that you are someone she describes as having compassion and selflessness. She says that you have discussed with her your regrets about the actions that have led you to being incarcerated, and that you wish to change your life.

[7]Defence Exhibit 3.

34You are fortunate to have such support from your family. This provides a firm basis from which you can address your substance abuse issues.

Matters in Mitigation

35Your ongoing prospects of rehabilitation are closely connected with your capacity and motivation to maintain engagement with appropriate psychiatric and psychological services. Dr Simmons notes that “there was evidence of post-traumatic stress disorder” though it was not clear that you would qualify for a formal diagnosis of that nature at this time. He also noted that you had reported auditory hallucinations whilst in custody. Dr Simmons said this raises the question as to whether you were in the early phases of disorder such as schizophrenia, albeit that no such diagnosis could currently be made.

36Mr de Witt submitted on your behalf submitted that the evidence with regard to your current mental health enlivened limb 5 of Verdins[8], namely that as a result of your condition imprisonment constitutes a more significant burden for you than for someone without that condition. This proposition was not contested by the prosecution.

[8]R v Verdins & Ors (2007) 16 VR 269.

37I further note that your period of imprisonment has been made additionally burdensome by the additional deprivations of liberty resulting from pandemic restrictions on the prison environment. These have included but are not limited to restrictions on visits and the availability of programs. I take all these additional burdens of imprisonment  into account in mitigation of sentence.

38You were 19 years old time of the offending. You are now 20 years old. You are to be sentenced as a youthful offender. The principles applicable to the sentencing of youthful offenders are well-established. There is a strong community interest in fostering your rehabilitation. When sentencing a youthful offender, rehabilitation is usually far more important than general deterrence

39Rehabilitation remains very significant in this case. However, it is not the only factor. Having regard for the nature and seriousness of the offending, general deterrence is also an important consideration. You have a significant prior criminal history, and as such specific deterrence carries significant weight.

40You have pleaded guilty to these charges at an early-stage in proceedings. The matter resolved at the committal mention. No witnesses were cross-examined. By your plea of guilty you have spared the time and resources that would otherwise have been expended on contested proceedings. The utilitarian value of your plea is especially significant having regard to the impact that pandemic restrictions have had on court listings.

41I also accept that your plea of guilty is indicative of remorse. Apart from through the plea, you have expressed your contrition, and some level of empathy for the victim, to Dr Simmons and to your family.

42I take into account your plea of guilty, your remorse, the efforts you have made whilst in custody, your family support and your youth in assessing your prospects of rehabilitation. These things must be balanced against the fact you have a relevant prior criminal history, including a period of adult incarceration that concluded only two weeks prior to the commission of this offending. You have mental health issues that will require ongoing assessment and treatment. You have alcohol abuse issues that have been evident from a very young age.

43Balancing all these matters, I consider that your prospects of rehabilitation are guarded, but will significantly improve if, unlike last time, you can continue your current level of motivation and engagement upon your release.

44Consistency of sentencing between co-accused is an important aim of sentencing. All other things being equal, those who commit the same offence should expect the same punishment.

45The co-accused pleaded guilty and was sentenced in the Children’s Court to a six-month youth attendance order. I note that the co-accused pleaded guilty to an additional charge of aggravated burglary as well as the matters for which you were jointly charged.

46I am advised that the co-accused was 17 years old at the time of the offending and also at the time of sentence. Most significantly, he was sentenced pursuant to the principles applicable to Children’s Court proceedings. There is a completely different sentencing regime that operates in that jurisdiction. Of the many differences, perhaps the most significant is that general deterrence is not a sentencing purpose. As such, I note the sentence imposed on the co-accused but acknowledge that because of the significant distinctions between the applicable sentencing principles as well as his younger age there will be a level of disparity in the sentence imposed on you.

Sentencing submissions

47Mr de Witt, who appeared on your behalf submitted that you should be sentenced to a straight term of imprisonment on Charge 4, armed robbery, and then assessed for a community correction order in relation to the charges of theft.[9] He further submitted that should I not assess you for a community corrections order, that you instead should then be given a longer than normal parole period.

[9]Defence Exhibit 1.

48Mr Raimondo who appeared for the prosecution submitted that offending of this nature requires the imposition of a head sentence and non-parole period. However, accounting for the offender’s personal circumstances, Mr Raimondo conceded that a longer than normal parole period could be imposed.[10]

[10]Prosecution Exhibit 2.

Sentencing principles

49I must impose a sentence that seeks to maximise your prospects of rehabilitation as a youthful offender. That sentencing priority must, in the circumstances of this case, be weighed against the need to deter others from offending in a similar matter, and to deter you from further offending. I must impose a sentence that represents a just punishment in all the circumstances of the case. I must seek to express denunciation of your conduct, and to protect the community.

Sentence

50Stanley Sanghnin, I sentence you as follows:

51On Charge 1, theft, you are convicted and sentenced to 6 months' imprisonment.

52On Charge 2, theft, you are convicted and sentenced to one month's imprisonment.

53On Charge 3, theft, you are convicted and sentenced to one month's imprisonment.

54On Charge 4, armed robbery, you are convicted and sentenced to 14 months' imprisonment.

55I order that 2 months of the sentence imposed on charge 1 be served cumulatively upon the sentence imposed on Charge 4. This makes for a total effective sentence of 16 months' imprisonment.

56I order that you serve a period of 10 months before becoming eligible for parole.

57Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 259 days in custody by way of pre-sentence detention to be reckoned as served.

58Pursuant to s6AAA Sentencing Act 1991, but for your plea of guilty I would have imposed a total effective sentence of 2 years and 3 months imprisonment with a non-parole period of 18 months.

59On Charge 1, theft of a motor vehicle, all licences are cancelled and you are disqualified from making an application for a licence for 12 months from today’s date.

60Any other orders required?

61MR DE WITT:  No, Your Honour.

62MR RAIMONDO:  No, Your Honour.

63HIS HONOUR:  thank you both very much for your assistance, I will adjourn the court until 10.30.

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