Director of Public Prosecutions v Schrempf
[2023] VCC 643
•21 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-02112
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AARON SCHREMPF |
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JUDGE: | His Honour Judge Gucciardo | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 March 2023 | |
DATE OF SENTENCE: | 21 April 2023 | |
CASE MAY BE CITED AS: | DPP v Schrempf | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 643 | |
REASONS FOR SENTENCE
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Subject:Criminal Law. Sentence upon plea of guilty.
Catchwords: Armed robbery - Robbery - Obtaining property by deception -
Intentionally cause injury - Indictable offence whilst on bail -
Possession of a controlled weapon without lawful excuse - High
degree of moral culpability - Early plea of guilty - Covid-19 delay –
Significant criminal history – Guarded prospects of rehabilitation.
Legislation Cited: Mental Health Act 2014; Sentencing Act 1991.
Cases Cited:Worboyes v The Queen [2021] VSCA 169.
Sentence: Total effective sentence of 7 years and 2 months imprisonment with
a non-parole period of 4 years and 3 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Roper | Ms B. Vaughan |
| For the Accused | Ms M. Bowler |
HIS HONOUR:
1
Aaron Schrempf, you have pleaded guilty to an indictment which contained
two charges of armed robbery, one of robbery, one of obtaining property by deception and one of intentionally cause injury.
2 You also pleaded guilty to five summary offences, four of which were of committing an indictable offence whilst on bail, and one of possession of a controlled weapon without lawful excuse.
3 The circumstances of your offending as summarised in a prosecution document which was exhibited upon your plea, I will briefly recite its contents of agreed facts.
4 At the time of this offending, you were aged 32 years of age and you were residing in Broadmeadows. You were also on bail from the Broadmeadows Magistrates' Court which had granted you bail on 10 February 2022 for driving offences.
5 You were also the subject of an 18-month Community Corrections Order which you entered into on 28 October 2021 at the Broadmeadows Magistrates' Court.
6 On 26 March you committed an armed robbery whilst on bail and you possessed a controlled weapon without lawful excuse on that occasion. At approximately 5 pm, 27-year-old Dylan Johns responded to an ad posted by a purported female escort named Krystal on a website. He conversed via the website messaging service and agreed on a price of $400 for an hour to meet at an address in Broadmeadows.
7 At approximately 11 pm Johns arrived at the address in his vehicle. He received a message directing him to wait while Krystal got ready. He parked his car and waited. At about 10 past 11 pm a motorbike drove past Johns' vehicle with one person on board. Some five minutes later he received a message requesting he attend at a specified number at the Broadmeadows address. As he approached that address, he observed you standing in front of the white motorbike which was parked in a carport. You identified yourself as the driver for the escort.
8 You asked Johns if he was there to see Krystal. Johns stated he was. You then asked if you had any other people coming, to which Johns replied that he did not. You then, out of the blue punched him to with your right fist to his left cheek. You stated you had a knife and made a demand for Johns' money. You produced a silver kitchen knife approximately 6 inches in length and again made a demand for Johns' money. Johns removed his wallet and took out $950 cash. Threw the money on the ground. You demanded he hand it to you. He collected the money and handed it to you before running back to his vehicle. He later contacted the police who attended the scene and recovered a $100 note and a silver kitchen knife from inside a council bin.
9 Enquiries in relation to the account used by Johns to arrange the meeting with Krystal revealed that the mobile number and email contact address were registered to you.
10 Fifteen days later on 10 April, you committed a robbery whilst on bail. On that day Mark Mazzotta, a 28-year-old man decided to purchase a new mobile phone for Jinwen Ang on Facebook marketplace from a profile under the name 'Does it matta'. Mazzotta spoke to you by Facebook Messenger and negotiated the price from $1,100, to a thousand dollars cash. He agreed to meet you at the units at an address in Broadmeadows.
11 At 11 pm or so, you approached Mazzotta, and Ang and they followed you into the front foyer of the units and were directed to wait while you retrieved the phone. About 6 minutes later you return holding a fabric Woolworths bag, you approach them and held the bag towards them, and you said, 'Listen, I've a knife on me, just give me the money or I'll stab you.' And then you added, 'I have three mates coming.' Ang immediately placed the thousand dollars in cash into the bag and then with Mazzotta left the area.
12 The next day you committed an offence of obtaining property by deception whilst on bail. It was 11 April 2022 and Adam Creasey a 42-year-old man arranged to sell his Oculus VR headset via marketplace for $650. You were using the Facebook account, 'Does it matta', and responded to the ad offering an extra $50. You arranged to meet at the carpark of the Anderson Reserve in Broadmeadows, where Creasey arrived there at about 9.25 pm and you arrived soon after. Creasey handed you the headset and you handed him the money. He attempted to rip one of the notes and the note tore.
13 Creasey knew the note was counterfeit. You then laughed at him and stated, 'You've been robbed' before driving away. Creasey attended the Broadmeadows police station to report the deception. Three days later you committed another armed robbery as well as intentionally cause injury. You committed these offences while on bail.
14 The victim, Muhammad Saad is a 20-year-old man. On 14 April 2022 he saw an ad on Facebook marketplace for an iPhone 13 Pro Max. The phone was advertised by Facebook account 'Does it matta'. Saad contacted you and negotiated the price to $1,100 in cash and agreed to meet you at an address in Broadmeadows. At about 6 pm, Saad parked outside the address and contacted you.
15 You asked him to meet you at the Dallas Shopping Centre where Saad could withdraw cash from a nearby ATM. At 9.15 pm, he parked his vehicle near the Fresh Plus supermarket at the centre and you approached him and refused to show the mobile phone until you had seen the cash. He left you in the car park and withdrew $500 from the ATM and when he returned, he had a conversation with you about the remaining $500. You put the phone box on the bonnet of his vehicle inviting him to have a look.
16 Saad reached for the box, and as he did so, you grabbed him by the right side of his throat, leaving scratch marks and turned him around. Saad saw that you were holding a large chromed silver meat cleaver approximately 1 foot long. You pushed the cleaver to Saad's stomach and told him that if he didn't give you the money you would slit his throat. You said, 'Do you want me to put the cleaver inside you?' before pushing the cleaver onto Saad's open left hand. You then began sawing the knife against Saad's middle finger on his left hand causing a laceration. He handed you the $500 and you then ran off. He later reported the matter to police.
17 On 16 April the investigators attended the address where you were living and executed a search warrant. They found you asleep in the rear bedroom. You were informed that you were under arrest for armed robbery. You then ran into the bathroom and held a pair of scissors towards your neck, stating you would kill yourself to prevent going back to prison. You then dropped the scissors and were placed in handcuffs.
18
A search of the premises was conducted where clothing and a meat cleaver were seized. Two knives located in the kitchen drawer had handles that matched the knife used and seized at the previous armed robbery on 26 March. You were placed in the rear of a divisional van to be transported to
Fawkner police station where you could be assessed by a custodial nurse, due to your behaviour on the scene. When you arrived at the station, your behaviour escalated. Paramedics attended and transported you to the Northern Hospital under s351 of the Mental Health Act.
19 Doctors assessed you and you were released into police custody, where you again became irate and aggressive. You were then deemed to be a danger to police and unfit for interview. It is notable that at the time of these offences as is reflected in the summary charges you were on bail and subject to a Community Corrections Order. These matters aggravate your criminality.
20 The court did not receive victim impact statements in this matter, however it is reasonable from the circumstances outlined to conclude that the various victims would have been affected and traumatised by your conduct. Dylan Johns was punched without provocation and without warning. You lured him by way of a ruse at night, you demanded money, punched him and produced a knife to threaten and intimidate him. He was a vulnerable victim and I take the likely impact upon him into account.
21
Such events most often produce lasting effects on the victims. The robbery was also put into effect by way of luring the victim on a pretence. You told them you had a knife and threatened to stab them and that you had others arriving to assist you. They too would have suffered relevant impact upon them as a result of your behaviour. The deception you operated upon Adam Creasey over a
VR headset not only appears to have been performed with some cavalier
self-congratulation but by the device of counterfeit notes.
22 The second armed robbery was again based on a ruse by way of an advert for a phone. You lured Mr Saad at night into a transaction scenario and then assaulted him out of the blue and injured his hand with a large meat cleaver accompanied by threats to slit his throat. Creasey and Saad, would both have felt terrified and upset by your conduct, which I take into account.
23 Armed robbery of these kinds upon soft targets lured by obviously planned and thought-out steps upon vulnerable victims performed by a level of sophistication but accompanied by weapons, threats and violence are very serious criminal offending. Although there is a spectrum over which armed robbery may be committed with degrees of objective gravity, this kind of offences are not towards the lower end but rather in the middle range of offending.
24
I consider that the circumstances indicate a high degree of moral culpability. The offending took place and was repeated over a period of time and was neither isolated nor spontaneous, but contumacious and deliberately planned. The legislators have clearly indicated that armed robbery is a serious offence, by providing for a maximum penalty of 25 years' imprisonment. Robbery carries 15 years. Intentionally causing injury and obtaining property by deception,
10 years. It is the kind of offending which causes the community fear and consternation. It is conduct therefore which the court must denounce as utterly unacceptable and seek to deter like-minded individuals by the imposition of just punishment, in order also to protect the community in a palpable sense.
25 These are paramount and primary considerations. Just as relevant if not more pointedly relevant in your case for the disposition of the court, is specific deterrence arising from your prior criminal history and antecedence, I will come to that aspect in a moment. I will address your rehabilitation prospects in a moment also.
26 I take your plea into account. A plea offer was made promptly in 2022 a month after the committal case conference. The prosecution considered the offer but rejected it within a month, that is 22 November. And guilty pleas were entered and the matter proceeded by a straight hand up brief. You have been on remand since your arrest. I take it to be an early plea, and assign it relevant utilitarian value of having avoided a criminal trial and taken responsibility for the offending, thus facilitating the course of justice and this will reduce your sentence. This is important to be properly and adequately recognised in this period of pandemic which has fundamentally affected the criminal justice system causing much delay and backlogs.
27 According to the authority of Worboyes, a palpable reduction of your sentence will follow upon the reduction upon your plea. The plea was made in expectation of a term of imprisonment and given the pandemic conditions to an extent still extant, this plea must resolve in a clear reduction of the term. This is so, especially as he had been on remand for a period in which the conditions and requirements of reclusion's have been unusual and rendered the service of time in detention much more onerous than usual. In your case, the remand period has been served with particularly harsh consequences of restrictions. You have experienced extended and numerous periods of lockdowns upon reception at the Melbourne Remand Centre, transfer to Hopkins facility, a long six-week period of isolation with two other prisoners in a cell where one of your cell mates got COVID-19 and subsequently infected you, leading to a further quarantine period and further lockdown periods in July, followed by isolation at Ravenhall.
28 I take these burdensome conditions into account. I also accept that the plea is evidence of remorse. I take your circumstances into account.
29 You are 33 years of age; your mother is of Torres Strait Island heritage and you identify yourself as such. You were raised in Broadmeadows. Your parents were very young when they had you, 14 and 16 years respectively. They remain in a relationship despite what you describe as violence and trauma.
30
Your father experienced mental health issues. Your uncle died in prison, 2001. You left home at 17 years of age when your first child was born. That son is now 15 years old. You maintained the relationship with his mother for some three years, but that was derailed by your drug use. You have recently endeavoured to reconnect with your son. A second relationship with another woman was longer some 14 years, produced two children, now aged four
and 11. This relationship ended in December 2020. When that took place your coping mechanisms went by the wayside and you attempted suicide and returned to drug use.
31 During the period of offending, you were homeless. Your drug use began in 2013 and lasted a year until you were incarcerated. During that time, you were involved in a gang and three of your associates were killed. In 2020, you relapsed as I have noted. At the time of the offences, you were using GHB and ice.
32 You had completed Year 11 and left to pursue employment working at various labouring jobs. Your longest period of employment was after you were released from custody in 2018. This history is best understood in the framework of your prior criminal history, which puts into sharper context the matters I have just outlined. It is a relevant and significant history. I recited in some detail not because you are to be punished again for any of the matters, but because it is relevant in the assessment of your prospects for rehabilitation, because it enlightens the need in my view for specific deterrence in your case.
33 Your priors began in 2009 when you were 20 years old with a series of dishonesty offences for which you were placed on a community-based order for six months, to perform 50 hours of community work. By January of 2010, you had breached that order and it was varied to extend into 2010. That new order was also breached in 2012 and a 12-month Community Corrections Order was imposed with a hundred hours of work for breaching offences involving criminal damage. That order was also breached in 2013 and the order was cancelled, but a new Community Corrections Order was made for 12 months and a further hundred hours of work.
34
In 2014 that order was breached, cancelled and a one-month term of imprisonment ordered to run concurrently with a sentence which had been imposed nine days before and which was the catalyst for the 2014 breach. That sentence was of this court on 7 May 2014 for two counts of armed robbery.
Two false imprisonment counts and two counts of indecent assault. That day, His Honour Judge Taft sentenced you to a total effective sentence of five years, with a non-parole period of three years. His Honour's sentence was made available to the court.
35 The circumstances of the offending require some detail in His Honour's sentence. In May of 2013, you disguised yourself, you approached a car at a carwash in which two young women were seated. You opened the car door and asked for money by wielding a kitchen knife, you then sat in the backseat and directed the driver to drive, telling them you would rape them and slit their throats. Over the next period of time, you sexually touched both of the women continued to threaten them, forced one to expose herself and generally terrorised them.
36
Upon your plea you stated you were depressed on the ray - on the verge of losing your job had just separated from your partner, Jude, to your use of ice and you had drug debts. The offences occurred at night, extended over a period of time. You made continuous threats of violence including sexual violence. You expressed some remorse, undertook rehabilitative program whilst on remand and in the remand environment you abstained from drug use.
His Honour had regard to your depression, and at 24 years of age treated you as a youthful offender.
37 This is a very concerning and relevant matter. It was said in relation to the plea before His Honour that you were supported by your family and your partner wrote a reference attesting to your devotion to your son and described you as a hardworking man. In the matter before me, it was similarly put that your family remain supportive and that you could live with them when released.
38 Your now ex-partner was online during the plea. She is now the mother of your two children. The court received the report from Dr Cunningham, a psychologist, in which he outlined your background including educational and medical. You told him that you had no learning difficulties and after release from prison in 2018 you worked as a logistics manager for two years prior to your separation. He conducted a psychometric assessment. Your paranoid personality style indicated a proclivity to be cynical and mistrustful with hidden conspiratorial intent with a tendency to undesirable personality traits and motives and attributing them to others whilst blind to your own 'unattractive' behaviours.
39 Your borderline personality disorder, indicated unstable mood, lack of emotional regulation, periods of dejection and apathy interspersed with episodes of inappropriate intense anger. You presented as a moderate to high risk of future violent offending with the use of drugs moving you into the high level of violence risk.
40
You were at that time of the assessment in November 2022 prescribed Seroquel and Sertraline. In gaol you have completed the violence intervention program, but Mr Cunningham wrote of your tendency towards reckless and
self-destructive behaviour and anti-social tendency combined with emotional instability which when combined with drug use, contributed to your offending.
41 The defence upon your plea conceded that this did not amount to a direct link between your disorder and the offending in a causative sense, but submitted the court should take this context into account in combination with drug use as providing 'a realistic connection'. The defence highlighted your positive engagement whilst in custody. You were assessed as appropriate to care for a fellow prisoner who is elderly, some seven days per week. This is to your credit. You also engaged in The Torch program whilst on remand. It was said though no certificates were sighted that your urine screens were drug free and that you maintain your regiment of medication for mood and anti-depressants.
42 It was said that despite the earlier run of Community Correction Order breaches over a period of time, you came to complete your parole and made use of the assistance given in support during that period of some 16 months. From that point until the end of 2020, you experienced a period of instability it was said, which tends to demonstrate a capacity for long term rehabilitation. It was at the end of that period that the breakdown of your relationship and a relapse into drug use drove you to commit these offences in 2022.
43
After other offences committed in 2021, which were dealt with in
October of 2021. Those offences were dealt with by the Broadmeadows Magistrates' Court for two offences of possession of controlled weapon, possession of dangerous article in public, breach of bail conditions, driving at a dangerous speed, possess a drug of dependence, theft of a motor car and possession of Category A Longarm.
44 You were sentenced to 43 days imprisonment served by way of pre-sentence detention and a Community Correction Order of 18 months. That order of course was breached by these offences having disengaged from Corrections during your period of supervision. That order was made more difficult by the pandemic situation, during which supervision was by remote technology and appropriate programs were difficult to access. Your new relationship was not favourable given that that person was also a substance user.
45 Your offending here extended over a period of two weeks or so and was the end result of all these factors. In my view there is a current and primary need to specifically deter you from further offending and to protect the community. The defence submitted I should not impose a crushing sentence. I do not intend to do so in order to factor the possibility of rehabilitation and reclamation. However, I am also of the view that those prospects must be guarded.
46 A longer than usual parole period was sought to provide you with support upon release, and it was said that I should carefully apply the principle of totality in the disposition. I intend to do so, in relation to totality, so as to arrive at a penalty properly proportionate to the criminality involved in the matters that are before me. A non-parole period will in my view, be appropriate to allow potential for return to the community at the most propitious time.
47 On Charge 1, of armed robbery, you are convicted and sentenced to five years' imprisonment.
48 On Charge 2, of robbery, you are convicted and sentenced to two years' imprisonment.
49 On Charge 3, of obtaining property by deception, you are convicted and sentenced to two years' imprisonment.
50 On Charge 4, of armed robbery you are convicted and sentenced to five years' imprisonment.
51 On Charge 5, of intentionally cause injury, you are convicted and sentenced to two and a half years' imprisonment.
52 On the related summary offences, Charges 2, 5, 7 and 10, of committing an indictable offence whilst on bail. You are convicted and sentenced to one month on each. And on the related summary offences. Offence 3, of possession of a controlled weapon without lawful excuse, you are convicted and sentenced to two months' imprisonment.
53 The sentences on the summary offences will all be concurrent with the sentences and with each other, with the sentence that I impose upon the indictment. I order one year on Charge 4, four months on Charge 2, four months on Charge 3 and six months on Charge 5 to be cumulative on Charge 1 and its sentence.
54 That makes a total effective sentence of seven years and two months. I order a non-parole period of four years and three months. But for your plea I would have sentenced you to eight years with a non-parole period of five years.
55 Mr Roper, what's the pre-sentence detention period?
56 MR ROPER: Three hundred and seventy days. It's been agreed with my learned friend, Your Honour.
57 I declare that you have served 370 days by way of pre-sentence detention and I will have that number noted in the records of the court. I will sign a restitution order pursuant to s84(1)(a) of the Sentencing Act.
58 In relation to each of the matters involving Mr Johns, Mr Ang, Mr Creasey and Mr Saad. And I will sign a disposal order in relation to the meat cleaver and the kitchen knife.
59 Are there any other ancillary orders?
60 COUNSEL: No, Your Honour.
61 HIS HONOUR: I have a trial proceeding, I'll stand down.
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