Director of Public Prosecutions v Sankey

[2016] VCC 906

MA

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-16-00726

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW ROBERT SANKEY

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JUDGE:	HIS HONOUR JUDGE WISCHUSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	27 June 2016
DATE OF SENTENCE:	29 June 2016
CASE MAY BE CITED AS:	DPP v Sankey
MEDIUM NEUTRAL CITATION:	[2016] VCC 906

REASONS FOR SENTENCE

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Catchwords: Armed robbery & obtain property by deception.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Regan (plea) Ms V. Mellios (sentence)	Director of Public Prosecutions
For the Offender	Mr G. Thomas	Greg Thomas Barrister & Solicitor

HIS HONOUR:

1       Andrew Robert Sankey, you have pleaded guilty to one charge of armed robbery and to six charges of obtain property by deception. The maximum sentence for armed robbery is 25 years’ imprisonment, and for each charge of obtaining property by deception the maximum penalty is 10 years’   imprisonment.

Circumstances of offending

2       The circumstances in which this offending occurred are set out in the summary of the prosecution opening, the contents of which have been agreed through your counsel.[1]  Shortly stated, on 26 July 2014 at about 7:30pm two sisters, Nida and Sehrish Wilson, walked onto the Hallam railway station platform to catch the train home from work.  They had only just made it into the waiting booth on the platform when you and your co-offender, Nathan Foote, approached the two women. Both you and Foote were wearing hooded jumpers and had your hoods up over your heads. Foote was also wearing a balaclava, with only his eyes and mouth exposed. Still photographs from CCTV footage of the platform depict you quite clearly.[2]

[1]Exhibit 1.

[2]Exhibit 3.

3       What happened next is clear on the CCTV footage[3] of the platform and is explained in the opening. In an aggressive tone you said to the women, “take out everything you have.” Both women then tried to escape.  Sehrish Wilson managed to run around the back of the waiting booth. She jumped from the platform and ran along the live railway track to get help. Nida Wilson attempted to flee in the other direction but Foote blocked her path and you soon joined him.  Foote the brandished a silver coloured fold-out knife and demanded of Nida, “give me some money, take out everything you have.” Both you and Foote then snatched her wallet and ran away to a nearby parked car. The wallet contained $50 cash and a Commonwealth Bank of Australia (CBA) credit/debit card (charge 1, armed robbery).

[3]Exhibit 2.

4       Both you and Foote then went shopping in Hampton Park, giving rise to the charges of obtain property by deception. Over the next half hour or so, liquor and cigarettes were purchased at nearby retail outlets with the stolen CBA card including, $97 worth of Jack Daniels and Cola cans from the Thirsty Camel Bottle Shop (charge 2), $80 worth of Jack Daniels and Cola cans from Coles Liqourland (charge 3), a packet of cigarettes for $24 from Coles Supermarket (charge 4), $80 worth of Jack Daniels and Cola cans from Safeway Liquor BWS (charge 5), a packet of cigarettes for $22.95 from Safeway Supermarket (charge 6) and a packet of cigarettes for $27.50 from Safeway Plus Service Station (charge 7).  You were involved in all these transactions, still wearing the clothes you wore during the armed robbery. Foote accompanied you in the offending for at least charges 3, 5 and 7.

Police and court process

5       After the armed robbery was publicised on Crime Stoppers, information was received that led to your arrest and interview nearly a year later on 5 June 2015. You made no admissions during that interview.

6       You later indicated your intention to plead guilty to these offences at the committal mention stage and I regard these pleas as having been entered at a very early opportunity.

Prior criminal history

7       Save for a matter which related to offending when you were only 15 years of age and which in the end was not relied upon by the Director, your criminal history was admitted.

8       I was also informed by your counsel, quite properly, of a number of subsequent matters. In January 2010 you went before the Children’s Court on charges of armed robbery and obtain property by deception which related to offending committed in August 2009. You were placed on a Youth Supervision Order in relation to those charges. On the same sentencing occasion, you were also dealt with for much earlier offending committed in 2006 comprising charges of burglary and theft. In September 2010, you were again before the Children’s Court, on this occasion for offences relating to your behaviour on the transit system and you were released on a Good Behaviour Bond. Certified extracts of these appearances were tendered on the plea.[4]

[4]Exhibit 5.

9       More recently, you have appeared before the Magistrates’ Court. In February 2012, you were before the Court on a charge of criminal damage and unlawful assault where you were fined without conviction. In August 2012, you were dealt with for the offences that are no longer relied upon by the Director on this plea.

10      I was informed by your Counsel that some of the subsequent offences relate to a tumultuous family situation that is now resolved involving your sister and Intervention Orders. I was also informed that the other subsequent matters involved driving whilst disqualified and the refusal of a breath test, and have resulted in your disqualification from driving for a period of four years.  In relation to some of these matters you had completed most of a six month Community Correction Order.

Background and personal circumstances

11      I have taken into account your background and personal circumstances. These matters were set out by your counsel, who spoke to detailed written submissions and are expanded upon in the report of consultant psychologist, Gina Cidoni.[5]

[5]Exhibit 4.

12      You were born on 7 August 1992 and are now 23 years of age, soon to be 24.  Your parents separated when you were very young. You have continued to have on-and-off contact with your father. Your mother married your step-father when you were aged three or four and that relationship persisted until you were 16 years of age. Both of your parents were in court at the plea hearing to support you, as were other members of your family.

13      You were evicted from your mother’s house at the age of 14 after which time you were mostly without stable accommodation - living on couches, on the streets, with your father at times, with friends and in refuges. A longer, more stable period of accommodation in public housing of about 12 months’ duration ended with your eviction after some friends of yours held a party. A return to your mother’s household when you were 19 years of age was short-lived and resulted in the making of Intervention Orders. More recently, you have returned to your mother’s house where you live with your younger half-brother and older half-sister, who has Downs Syndrome.

14      Unfortunately, as is almost usual in this type of offending by people in your age group, you have a long history of substance abuse. You started on alcohol and cannabis from the age of 13. You have used LSD and ecstasy, and for a time before this offending you were using methyl amphetamine with your co-accused.

15      Your mother gave evidence on the plea that you were diagnosed with ADHD when you were three or four years of age, and you were treated with Ritalin thereafter. Her evidence was that when taking the medication you were quiet, but when you were not, you were uncontrollable. It is recorded by Ms Cidoni that you abused Ritalin periodically.

16      In 2011, you were diagnosed with a bipolar disorder and prescribed Seroquel which you are still taking. In 2014, you had a number of consultations with a consultant psychiatrist, Dr Pasan Manawadu, who, in correspondence with your general practitioner, explained the difficulties your inconsistent consumption of medication had caused.[6] Dr Manawadu noted that in March 2014, you were using up to 1000 milligrams of Seroquel on some days, along with alcohol and “very heavy use of marijuana.” Only weeks before the offending the subject of this plea, Dr Manawadu wrote that your alcohol and marijuana use had been cut back, that he was again changing your psychotropic medication and it was expected that you were about to undergo drug and alcohol inpatient treatment. 

[6]Exhibit 7.

17      In her report, Ms Cidoni wrote that she conducted psychological testing which revealed a full scale IQ of 77, which she said was indicative of borderline intellectual functioning. The testing also revealed symptoms of bipolar disorder, with depression at one end and hypomania at the other. She had accepted your history that you were using ice, alcohol and possibly Xanax at the time the offending occurred (you told her that your memory of the offending was vague) and Ms Cidoni felt these fluctuating symptoms of bipolar disorder would have been made worse by the use of stimulant drugs at the time of the offending.

18      Ms Cidoni records that your schooling was disrupted by your behaviour. You were expelled from the first secondary school you attended, but later managed to make it to part-way through year 10 with the assistance of Youth Services. Ms Cidoni further records your history of sporadic employment, though some of your jobs were sustained for quite a number of months.

19      Your counsel, in conjunction with the evidence from your mother, informed the court that since this offending your life has settled down somewhat. You have been living at home with your mother and siblings for over 18 months now and have relatively steady, but casual, employment working night-shift with your mother at Gully Bookbinders. Your employer provided an excellent reference.[7] I was also informed that you have severed ties with your former associates and that when you are not at work, you tend to stay at home (having neither a driver’s license nor a car) and occupy yourself with your computer games and the like. If your mother is aware that you are, as Ms Cidoni records, highly dependent upon and using 4 g of cannabis daily, she did not say so in her evidence.

[7]Exhibit 6.

Victim impact

20      I have had regard to the effect on the victims. The two victims of your offending were alone and vulnerable at night on a suburban railway station. In an attack that must have taken at least some planning, one of them was robbed at knife point whilst the other put herself in danger by running up the railway track. Although there were no victim impact statements, I have no doubt that they were both terrified by your actions.  Their concerns would no doubt have been greater had they known, as you informed Ms Cidoni, that you were affected by ice, alcohol and possibly Xanax at the time of the offending.

Sentencing considerations

21      Your counsel spoke to written submissions, the thrust of which were that a non-custodial sentencing disposition should be imposed and that imprisonment was not the only option. Your counsel relied upon your youth, your disrupted and chaotic childhood and adolescence, the progress you have made since you returned to your mother’s house, your steady work over most of the last year, your reduced drug consumption and, although not directly referred to by your counsel, the application of principles enunciated in Verdins[8] which as I understood it relate to your vulnerability in prison due to your youth, your level of functioning and bipolar disorder and to the prognosis offered by Ms Cidoni that incarceration may have significant adverse effects on your mental state and due to your pre-existing psychological conditions that your time in custody will be more onerous for you. I accept that these matters all have relevance to the sentencing consideration here. I have taken these matters, and the following matters, into account in mitigation of your sentence.

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

22      Firstly, your age. You were aged 21, though nearly 22, when these offences were committed and you will be 24 in August this year. You are therefore to be sentenced as a youthful offender.

23      Secondly, your early pleas of guilty. I take these to be an expression of your remorse for your offending, and of your acceptance of responsibility. Your pleas have saved the victims of your offending the trauma, and the community the cost of a trial. You are entitled to have these matters taken into account in mitigation of sentence, and I have done so.

24      Thirdly, delay. You were not charged for nearly a year after the offending, and since having been charged it has taken a year to get the matter to court here.

25      Fourthly, your prospects of rehabilitation. It was submitted that these are good. In support of this submission counsel pointed out that the changes in your life that you have made since this offending, including the cessation of methyl amphetamine use, stable accommodation with your mother, regular employment and the support of your family (a number of whom were present in court to support you on the plea), showed that your rehabilitation was already underway and that it should not be interrupted by reacquainting you with other offenders in custody.  Counsel also submitted that incarceration has harmful aspects and that little treatment for your bipolar disorder is available in prison and so regression in your mental health was likely. Whilst I accept that some progress has been made, you still appear to have limited insight into the damage substance abuse causes to you. Your continued heavy use of cannabis and your modest attempt to downplay your role in this offending when assessed by Corrections[9] leads me to conclude that your prospects of rehabilitation are guarded.

[9]Ms Perifanos wrote that the offender told her that he had a “minor role” in the robbery.

26      It was submitted on your behalf, by reference to the guideline judgment in Boulton,[10] that all relevant sentencing considerations could be met by the imposition of a Community Correction Order (CCO) with conditions, without the need for your confinement. Counsel for the Director of Public Prosecutions submitted that the objective gravity of the offending here was such that the purposes for which the sentence is to be imposed could not be achieved by a sentence that does not involve a period of confinement, but did submit that a period of imprisonment combined with a CCO would be within range.

[10]Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342 (22 December 2014).

27      Against the matters to be taken into account in mitigation must be balanced the fact that these are serious offences, as the maximum penalties imposed by Parliament show.  Your offending behaviour not only involved disguise, but also the use of a knife at a railway station at night in close proximity to your vulnerable female victims and where members of our community should feel and be safe from threatening behaviour by intoxicated armed criminals. It involved substance abuse (you were affected by ice and alcohol), robbing your victim of her property, and the use of her bank card on six subsequent occasions. As Nida Wilson’s statement shows and viewing of the CCTV confirms, the victims were terrified by your actions. So much so that one of them leapt onto the railway line to escape.

28      Despite your youth and the principles in Mills[11] case, general deterrence must be given weight in the sentencing consideration and as you have previously been before the courts for similar offending, specific deterrence must also be given weight.

[11]R v Mills [1998] 4 VR 235.

29      Having regard to both counsels’ submissions, an assessment of your suitability for a CCO was conducted and an Assessment Report was produced which ultimately found you suitable to be released on such an Order.[12]

[12]Exhibit 8.

30      In my view, a consideration of all relevant matters leads to the conclusion that the objective seriousness of the offending is such that only a term of immediate imprisonment is appropriate, and that the purposes for which the sentence is required to be imposed cannot be achieved by a CCO alone. I am called upon by the Sentencing Act 1991 (Vic) to manifest the community’s denunciation of your conduct and otherwise to impose just punishment. In doing so, I have taken into account all the matters raised on your behalf in the course of the plea and all relevant sentencing principles in arriving at the sentence I am about to impose upon you.

Sentence

31      Mr Sankey, on charge 1 you are convicted and sentenced to a term of imprisonment of 12 months. On charges 1, 2, 3, 4, 5, 6 and 7 you are sentenced to Community Correction Order with conditions for a period of 18 months commencing immediately upon your release.

32      The Community Correction Order will have attached to it conditions that you undergo treatment and rehabilitation for alcohol and drug dependency and for mental health, and that you be under supervision for the period of the Order and undergo offending behaviour programs as directed.

33      I declare that 2 days pre-sentence detention be recorded as time already served under this sentence and that that this be entered into the records of the court, to be deducted administratively by Corrections.

34      Pursuant to section 6AAA of the Sentence Act 1991 (Vic) I state that had you have been found guilty of these charges after a trial, I would have sentenced you to a term of imprisonment of three years with a non-parole period of two years.

Ancillary orders

35 You have pleaded guilty to a forensic sample offence within the meaning of section 464ZF(1) of the Crimes Act 1958 (Vic). The Crown has made an application to this court for an order directing you to undergo a forensic procedure for the taking of an intimate sample. I am informed that you do not oppose the making of such an order. Taking into account the seriousness of the circumstances of your offending I am satisfied that the making of such an order is justified and I regard the making of such an order very much in the community's interests. Accordingly, I order pursuant to section 464ZF(2) of the Crimes Act 1958 (Vic) that you undergo a forensic procedure for the taking of an intimate sample, namely saliva, in accordance with section 30A, Part 3 of the Crimes Act 1958 (Vic). I direct that a copy of the order together with a copy of my reasons be served on you. I am required by law to inform you that an officer of the Victoria Police may use reasonable force to ensure compliance with this order.

36      In addition, compensation orders have been sought by the Crown. I understand that they are not opposed, so I will make an order that you pay the Commonwealth Bank of Australia compensation in the sum of $331.45 and that you pay Ms Nida Wilson compensation in the sum of $50.00.

37      I will also note on the orders the custody management issues.

38      I hand down those orders and my reasons. I ask Counsel are there any matters arising?

39      COUNSEL: No, your Honour.

40      HIS HONOUR: Please remove the prisoner.

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