Director of Public Prosecutions v Schulze

[2015] VCC 998

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

AT GEELONG
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA SCHULZE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	29 May 2015
DATE OF SENTENCE:	29 May 2015
CASE MAY BE CITED AS:	DPP v Schulze
MEDIUM NEUTRAL CITATION:	[2015] VCC 998

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J.B.B. Lewis with Ms K. Swadesir	Office of Public Prosecutions
For the Offender	Mr R. Lawson	W S Lawyers

HIS HONOUR:

1Joshua Schulze, on 29 September 2014, you went to a milk bar in Newtown to buy cigarettes.  Your attempted Eftpos or credit card transactions failed, three times.  You wanted the cigarettes, but, understandably, the owners of the shop told you you would not get the cigarettes without paying.  There was argument.  You left the shop but returned shortly thereafter aggressively demanding the cigarettes from Mr Cummins, the shop owner.

2He refused, and you responded by threatening Mr Cummins, saying you would slit his throat or shoot him, or get an outlaw motorcycle gang to kill him.

3You made threats to Mr Cummins' partner, who was in the shop.  When she asked you to leave.  You tried to grab the cigarettes forcing Mr Cummins to the back wall and on to the ground.  You then produced a knife, holding it to Mr Cummins and his partner.  You were hit with a baseball bat, but you were not put off.

4Ultimately, those in the shop faced with your threats and your knife, gave you the cigarettes.  You left, but were followed by an astute postman.  You were later arrested in your house nearby.

5Also of importance was the fact that two women, family members of the shopkeeper's, witnesses this frightening episode.

6For this serious violent crime, you got a mere packet of cigarettes.  Shopkeepers and shop owners and those that work there, are entitled to feel safe in the work that they do.  When they are terrorised by offenders wielding dangerous weapons, the courts will respond by imposing stern punishment, usually involving terms of imprisonment, and lengthy ones.

7Those who are unwilling to walk away from situations where things don't work out for them and instead turn to violence and threats to get their way, cannot expect the courts to ignore the impact and consequences of the violence they displayed.

8While I will not ignore what is said to be your personal problems, they provide no justification or excuse.  Your crime had adverse impacts on the victims. 
Mr Cummins is much more wary and no longer is as relaxed or enjoys his job in the shop.

9The daughter of his partner no longer feels safe to work in the shop at all, which she previously did regularly.  She has lost money and Mr Cummins has lost a good worker.  It is important that you understand that although you only got a packet of cigarettes and you only thought of committing the crime in the moment, nonetheless it is offending that must be denounced.  It was frightening, violent, and you displayed determination to get your way and used a dangerous weapon.

10Also it is important that those that might be minded to act in this way are deterred from violent armed robberies by certain and stern punishment from the courts.

11You are 33 years old.  Your counsel submitted your upbringing and schooling were unremarkable.  He stressed he did not rely on many aspects of the psychiatric reports tendered on the plea.  What was stressed was you obtained a qualification as a carpenter and had a good work history.  That is to your credit.  Ultimately, you formed a relationship with your current partner through being apprenticed to her father.

12Despite time in psychiatric wards or clinics, self-harm and suicide attempts, the psychiatrists you have seen do not consider you have problems of a psychotic kind.

13Dr Zimmerman, the psychiatrist that saw you at the request of your lawyers, considered your problems were your poly drug abuse and your maladaptive ways of dealing with your emotions and relationships.

14You have a longstanding problem with alcohol, drinking excessively for many years.  You must address this problem. 

15You were involved in a car accident in 2011 or 12 or thereabouts while affected by alcohol, and have had back and neck pain ever since.  You have abused opiates that you took as a consequence of needing them for pain relief.

16Likewise, cannabis has been a problem for you.  You have had long-term significant relationships, including your current relationship which is a matter of some significance.

17You were raised in the Anglesea area and have lived there until just before your offending.  You have had involvement with Crisis Drug Rehabilitation facilities and mental health facility in Geelong; the latter due to self-harm and suicide ideas and attempts.

18I consider that you are mentally fragile.  Your current partner stands by you, Mr Schulze, she works in community care and is studying in order to advance her career.  It must be plain to you, Mr Schulze, that you should not let her down again by offending in the future.

19I am told that you have gained insight while separated from her in prison.  Your mother and brother support you.  Also your grandfather is willing to have you and your partner live with him in Anglesea.  This is no small matter.  Your time in Geelong was not at all productive, rather it was destructive.  Family ties are important, especially after someone is released from prison.

20You have been in prison since 29 September and have found it hard as you are stood over by more robust prisoners.  You have been moved into protection.  A matter that I take into account.

21I consider your mental health problems mean that you are and will do prison hard. 

22Your prior criminal history is noted, but it is not a significant factor at all.  This type of offending, the armed robbery, and the threats, is offending that is out of character, as was said by your grandfather in his letter.

23Your plea of guilty and its early indication are important matters and your sentence will be less than it otherwise would have been, and I take it as evidence of your remorse.

24Your counsel urged that a community-corrections order be combined with imprisonment, that is, imprisonment that you have already served, or
I discerned him really to be saying not much more.

25I had you assessed and you are suitable for a community-corrections order.  The question is whether your offending and all your circumstances mean that the sentence of imprisonment can be less than two years, as it must be, if
I am to allow for a community-corrections order.

26I have considered this most anxiously.  I have re-read Bolton and the decisions applying the principles in that case of Bolton v The Queen.

27In the end, a gaol term is warranted, and one longer than the time that you have already served in prison.  However, I consider much can be gained in terms of punishment and rehabilitation, if you are on a lengthy community-corrections order.

28In my view, a sentence less than two years' imprisonment, is just and appropriate in the circumstances where a lengthy community-corrections order is also imposed.

29Will you please stand, Mr Schulze.  Doing the best I can, for committing the crime of armed robbery, you are sentenced to a term of imprisonment of 16 months.

30For committing the crime of threat to kill, you are sentenced to a term of imprisonment of six months.

31Those sentences will operate concurrently.  The total effective sentence is 16 months.

32You have already served 242 days of the sentence that I have just imposed. 
I will ensure that these days that have been reckoned and declared are entered into the records of the court, that is, the declaration is entered into the records of the court, so that the prison authorities are left in no doubt that you have already served the 242 days.

33In addition to the penalties that I have imposed of imprisonment, order that you be subject to a community-corrections order for three years.

34There will be 300 hours of unpaid work.  There will be conditions involving your mental health treatment and the like.  Treatment and rehabilitation for drug abuse.  Treatment and rehabilitation programs to reduce your
re-offending and supervision of you.

35Had you pleaded not guilty to these offences and been found guilty of them,
I would have imposed a sentence of four years with a non-parole period of two years and eight months.

36There are a number of orders that are sought and I propose to grant each of them.  They relate to the forfeiture of items that were seized from you, together with disposal of items that were taken from you and a forensic sample.

37I need to explain the latter order.  The prosecution sought that you provide a forensic sample.  That is a scraping from your mouth so your DNA can be extracted, to be kept on a database.

38I have considered that application and I propose to grant it.  The reasons for it are the seriousness of the offences that you committed.  To a limited degree your prior offending.  The fact that you do not stand in the way of the order and, ultimately, it is in the interests of justice that you provide a forensic sample.

39When the authorities come to take the forensic sample from you, they are authorised to use reasonable force to get that sample from you should you not co-operate.  The way through it is do as your counsel have told me you will do, and that is co-operate.

40There needs to be some documents produced and ultimately signed by you.  They will be produced now and you can be seated while it is done.

41Is there anything outstanding?

42MS SWADESIR:  Nothing outstanding, Your Honour, but if I could just clarify one matter as to the opening.  You were mentioning the victim, Mr Cummins, and his partner being involved in the offending ‑ ‑ ‑

43HIS HONOUR:  Yes.

44MS SWADESIR:  ‑ ‑ ‑ it was actually the 20 year old stepdaughter which is,
I guess, it is unclear from the opening because both the mother and the stepdaughter's surname is Farnsworth, but the stepdaughter who swung the baseball bat.

45HIS HONOUR:  Just bear with me.  It is unclear.

46MS SWADESIR:  Yes, the partner, Fiona Farnsworth, stepdaughter, Imogen Farnsworth, and then only "Farnsworth" is used later, so I apologise for that.

47HIS HONOUR:  Yes.  I understand now that it has been pointed out to me that the particular female involved, that I did not name because I did not want any chance that her - she would be reminded of this by publication and the like;
Mr Cummins is named in the indictment, there is nothing I can do about that, but the particular person that I mentioned as his partner, should read, "His partner's daughter, who is the young woman who I mentioned does not work there any more."

48MS SWADESIR:  Thank you, Your Honour.

49HIS HONOUR:  It does not alter anything, but I am grateful to the Crown for sorting that out.

50The 464 application for the forensic sample, is that one that can occur while he is in custody?

51MS SWADESIR:  Yes, there is two different orders there, Your Honour, draft orders.  One is a non-custodial, and one is custody.

52HIS HONOUR:  Which one am I doing?

53MS SWADESIR:  Custodial.

54HIS HONOUR:  Mr Schulze, can you please stand.  I will explain the community-corrections order to you in the terms that I must.

55The community-corrections order will last for three years and commences on your release from prison.  You must attend at the Community Corrections Services here in Geelong at Lt Malop Street within two clear working days after you commence the order.

56The conditions that apply to everyone on a community-corrections order and, of course, they apply to you; you must not commit another offence for which you can be imprisoned during the time this order is in force.  That is three years from the time you get out.  So you are going to be under supervision for a significant time. You will be approaching 40, or mid-30s.  But if you commit an offence for which you can be imprisoned, you will come back before me and the likelihood of getting another community-corrections order will be pretty low, I would have thought.  There would be really only one choice and that is to re-sentence you for the serious crime of armed robbery and have you sent back to prison.

57So do not commit any more offences.

58You must comply with any obligation or requirement under the regulations of the Sentencing Act.  I am told that by and large means they will ask you to pose for a photograph and they will take one so they know who you are and you have got a photograph on the file at the Office of Corrections.

59You must report to and receive visits from the Office of Corrections.  You must let the Office of Corrections know in two clear working days if changing your address or your job, that is important.

60You must not leave Victoria without getting permission to do so from the Office of Corrections and you must obey all lawful instructions and directions from the Office of Corrections.

61So that is what applies to everyone.  What applies to you is that you must perform 300 hours of unpaid work over the three years.  You must be under supervision of the Community Corrections Officer for the three years and you must undergo assessment and treatment for drug abuse and dependence as directed by the regional manager

62You must participate in programs and/or courses that address factors relating to your offending.  Unfortunately, I want one other that is not on the form, which requires the form to be produced, and that is that you undergo assessment and treatment for mental health problems, so we will just get that produced properly.

63In the meantime, is the order that has all the police stations on the back of it, is that ‑ ‑ ‑

64MS SWADESIR:  That is the non-custodial ‑ ‑ ‑

65HIS HONOUR:  I had better get the other one.

66MS SWADESIR:  The one sheet is the non-custodial, the one with the staple, isn't.

67HIS HONOUR:  Thank you.  That is more familiar.

68You can be seated, Mr Schulze.

69In addition, Mr Schulze, to those that I read out, you must undergo a mental health assessment treatment which include psychological, neuro-psychologist, psychiatric treatment, as directed by the regional manager.

70If you consent to this order, then sign it.  Mr Lawson, your instructor can approach the dock.

71MR LAWSON:  Thank you, Your Honour.

72HIS HONOUR:  Signed that Mr Schulze, and above where you signed says,
"I understand the effect and conditions of the order and consent to it being made."  You will be reminded of that if you ever come back before me.  I do not expect to see you, but if you do, because you have not done each and every thing that is required of you; turned up on time, every time.  Stayed until it gets done, if you do not do any of that - or do not do all of that, well, I think the prospects of another merciful community-corrections order will have long gone.

73Mr Schulze, as I think I said earlier, this court is not the place where you can spend any time with those that care for you.  You will probably behave, but -
I have got no doubt if you were allowed time with them, but others would not, so the system is that you go with the prison officer now and they will see you in the prison when they next can.  Thank you.

74OFFENDER:  No worries.

75(Offender removed.)

76HIS HONOUR:  I thank counsel for their assistance in the matter.

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