Director of Public Prosecutions v Shane Studman
[2015] VCC 1349
•6 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-15-01063
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Shane Studman |
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JUDGE: | Her Honour Judge Lewitan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 September 2015 | |
DATE OF SENTENCE: | 6 October 2015 | |
CASE MAY BE CITED AS: | DPP v Shane Studman | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1349 | |
REASONS FOR SENTENCE
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Subject: Armed Robbery
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Malobabic | Vaille Anscombe Acting Solicitor for Public Prosecutions |
| For the Accused | Ms E Ramsay | Matthew White & Associates |
HER HONOUR:
1 Shane Studman, you have pleaded guilty before me to one charge of armed robbery. The maximum penalty for this offence is 25 years imprisonment. Pursuant to s.145 of the Criminal Procedure Act 2009, you have also agreed to the summary charge of committing an indictable offence whilst on bail being dealt with by this Court. The maximum penalty for the summary charge is 30 penalty units or 3 months imprisonment.
Circumstances of the offending
2 At 12.50am on Thursday 2 April 2015 you attended the 7 Eleven Store in Richmond. You were wearing a dark navy hooded jacket that was partly covering your face. You pressed the buzzer of the front door twice and the victim, Mr Ashay Jain, opened the door. The victim was employed as a casual sales assistant at the 7-Eleven Convenience Store in Bridge Road, Richmond. He was 24 years old at the time of the offending.
3 You walked to the counter and pulled your jumper over your face. You removed the screwdriver from the front of your pants. You held the screwdriver in your right hand and pointed it in the direction of the victim. The victim could see about one or two inches of the tip of the screwdriver. You said “Give me your till, you have three seconds before I jump over and slash your face.”
4 The victim complied and immediately put the till on the counter and started taking the money out of it and put it in the bag. There were two $20 notes and some $5 notes in the till. The victim also put all of the gold coins in the bag.
5 As there was not much money in the till, you made a further demand by saying, “Open up your safe and give me all your money”. The victim complied but there was no money in the safe. You then asked the victim to empty his pockets. The victim said that he only had cigarettes.
6 You then made a demand for the cigarettes. The victim started putting the cigarettes into the bag but dropped a few packets on the ground. You said “Breathe, calm down and start filling the bags.”
7 The victim then handed over the bags with money and cigarettes to you and you walked away towards Punt Road.
8 The offending was captured on the CCTV footage within the store. You were identified through the CCTV footage and your dealings with the police two hours earlier.
9 On 1 April 2015 at 10.59 pm (less than two hours before the offending), you attended the Pizza Hut Restaurant in Collingwood in possession of a knife. Police were called after a staff member observed the knife sticking out of your back pocket when you ordered pizza. You presented as drug affected, nodding on and off, unable to keep your eyes open, with slurred speech and having trouble standing up unassisted.
10 You were issued with an infringement Notice in relation to possession of a controlled weapon and the large kitchen-style knife was seized. You then left the Pizza Hut Restaurant.
11 You were arrested at your home address on 2 April 2015 and transported to the Melbourne West police station where you were interviewed and made a no comment record of interview.
12 At your address, police seized a plastic bag with 29 packets of cigarettes, assorted coins and $50 cash, two screwdrivers and the clothing worn during the offence. The stolen cash and cigarettes have been returned to the 7-Eleven Store.
13 At the time of the offending you were on bail in relation to one charge of theft alleged to have been committed on 16 October 2014.
14 You were charged on 2 April 2015 and remanded in custody.
15 You pleaded guilty to the present offence at the committal case conference on 18 June 2015.
16 The facts in this case are very serious. Your behaviour was threatening and disturbing. The aggravating aspect was that you were on bail at the time you committed the offence.
17 In assessing your moral culpability, your counsel submitted by way of explanation that you were significantly under the influence of something at the time that the offending was committed. Although you cannot clearly remember, you instructed your counsel that it was Valium rather than heroin.
18 In assessing the objective nature and gravity of the offence, your counsel conceded that the victim would have been terrified but submitted that the weapon used was a screwdriver and not a firearm and no actual violence was inflicted. Your counsel submitted that this was an unsophisticated crime in that you walked into the 7-Eleven shop with your face clearly visible which was screened on CCTV footage. When the police executed the warrant at your house, they found everything including all the cigarettes in the same bag that you had taken from the 7-Eleven store and the money in the same denominations in your wallet as had been taken. You were not going to benefit much from the crime anyway but certainly did not benefit at all at the end of the day because everything was recovered by the police. I accept your counsel’s submission that your offending falls within the mid-range of the offence of armed robbery.
19 As has been pointed out by your counsel, there are, however, some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial, witnesses have been spared the ordeal of giving evidence upon your trial. Further, I take it into account in your favour that you intimated your intention to plead guilty to these charges at the earliest opportunity.
20 Your counsel submitted that you are genuinely remorseful, not only for having done this to yourself and your partner, but for a completely senseless armed robbery where you terrorised the person working at a 7-Eleven store for effectively nothing. In your circumstances I accept that your plea indicates remorse for your actions.
21 I have been told something of your personal history and your circumstances.
You were born on 17 April 1985 and are now 30 years old. You have one sister who is four years older than you.
22 You had a difficult childhood. Both of your parents suffered from alcoholism. Your father passed away in 2012. You came to the attention of the police when you were only seven years old. You and your sister committed a burglary on a house in the neighbourhood to obtain food, plates and cutlery which you did not have at home. There were times when you went without food because your family did not have any money. Your father was largely unemployed due to his alcoholism. Your father was violent against you and your mother.
23 You attended the Auburn South primary school when the whole family was living with your paternal grandfather in Auburn. You were ostracised by the other school children and bullied for being a poor kid in a rich suburb. You never had a school uniform when everyone wore a school uniform. You often went to school without any lunch and had to rely on the kindness of ladies in the canteen for food. When it was discovered that you had committed burglary when you were seven years old, the other children were told that they were not allowed to associate with you. You never had any friends whilst you were at primary school.
24 At the age of 10 you attended a camp where you were the victim of sexual abuse. The offender was prosecuted and was convicted after you gave evidence. You have had counselling through CASA. In your opinion the offending contributed to your use of drugs at an early age. You began taking cannabis and other stimulants when you were 11 years old.
25 You attended Camberwell High School in year 7 but were expelled later in the year. You then attended Werribee High School. Drugs were easily accessible at that school and you were quickly introduced to speed and ice which you began using at the age of 12 or 13 in Year 8. You suffered a drug induced psychosis when you were 14 years old from the daily use of ice. At that time you were under the supervision of Juvenile Justice after the commission of a comparatively minor offence. You were directed to attend treatment in relation to drug use and mental health.
26 You began using heroin when you were 16 years old and have suffered from addiction to heroin from that time. Although you have had periods where you were drug free, your addiction to heroin has continued to trouble you from that time.
27 You attended high school at Werribee High School in year 10 on a superficial level. You spent most of your time taking drugs with other people. Whilst living with your parents during that time, you were basically looking after yourself because of the difficulties your parents had with alcoholism. You spent long periods of time at other people’s houses.
28 Throughout those childhood years, you never had any positive role models. When that was organised through the Jesuit Social Services, it resulted in the sexual abuse being committed against you.
29 You have admitted before me to prior convictions. There are 51 such convictions. You appeared in court on 11 occasions between December 2004 and June 2014. The nature of some of those prior convictions, in particular the convictions for attempted armed robbery, armed robbery, burglary and theft are such that they are highly relevant to my task of sentencing you today.
30 On 25 January 2006 you were convicted of recklessly cause injury, breaching an intervention order and criminal damage in the Sunshine Magistrates Court. Those offences were committed in relation to domestic violence. There was a verbal argument at your mother and sister’s house that turned into physical assault. You hit your mother multiple times and threatened your sister with a knife from the kitchen. The knife was used during a struggle and your mother sustained a small cut to the left breast and a cut to the upper thigh.
31 In July 2005 you were remanded in adult custody for charges of intentionally cause a serious injury and attempted robbery. That related to an incident at the Hoppers Crossing Train Station. You believed that the victim had drawn over some of your graffiti. You produced a knife and made a demand for the victim’s mobile phone and wallet. You then chased the victim to the end of the platform and stabbed him once and the victim sustained a three inch stab wound that required surgery. You were 19 years old when you committed those offences and under the influence of drugs. You were ultimately sentenced to a period of three years’ in a Youth Training Centre for that offence and other offences. However, after serving eight months of the sentence, you were transferred to an adult prison as a result of fighting with other boys at the Youth Training Centre. You were moved to the Melbourne Assessment Prison and served the rest of your sentence in an adult prison. You were granted parole in 2007 for a period of about 18 months which you successfully completed.
32 You moved to Queensland after you completed parole where your father was living. Your partner later moved to Queensland with you and you lived there for about two years. During that period of time you were drug free and working full time. Things were going very well.
33 You and your partner moved back to Melbourne in 2010. After a short period of time you relapsed into drug use. Since that time you have continued to struggle with your addiction. There have been periods of up to about nine months when you have been living with your partner and have been drug free. Unfortunately you resumed taking heroin a lot of the time.
34 In 2012 a Community Correction Order was imposed for a number of offences including shop theft, driving offences and using heroin. That Community Correction Order was breached. On 3 December 2013 you appeared in the Sunshine Magistrates’ Court. You pleaded guilty to shop theft and threat to inflict serious injury. You stole some vitamins from Coles and proceeded to exit without making attempts to pay. You were approached by the assistant manager. You told him to back off or you would slash him. You then produced a box cutter and waved it in the air. You were sentenced to an aggregate term of imprisonment of 3 months for the breaching offences. The Community Corrections Order was cancelled in December 2013 and you were sentenced to serve a new Community Correction Order for a period of 15 months. You are now in breach of that order (which was originally imposed in 2012).
35 You were released from custody on Christmas Eve 2013 and were placed in crisis accommodation at Flagstaff. At that time your partner was not convinced that you were not going to relapse into drug use. Drug use was rife within that accommodation. You immediately fell back into drug use which coincided with the commencement of the Community Correction Order. You have not lived with your partner since early 2013.
36 You were on bail at the time this offence was committed. There were two shop theft charges for August and October respectively. Those two charges were listed for hearing in the Magistrates’ Court on 15 September 2015. At that hearing you pleaded guilty to two charges of shop theft and one charge of breaching the Community Correction Order. You were sentenced to a total effective sentence of 4 months' imprisonment. There was no pre-sentence detention noted. The pre-sentence detention from the date of your arrest on 2 April 2015 until the date of your sentence in the Heidelberg Magistrates Court on 15 September 2015 is 166 days.
37 At the start of 2015 you enrolled to study in a Diploma of Community Work at Victoria University. You feel that you will be able to assist other people in situations that you have experienced in the past. You propose to resume that course when you are released from custody. It is a one year diploma. You plan to buy a car with some money you have received from your father’s superannuation and apply for a job. You have had no difficulty in obtaining employment in the past.
38 You have no memory of the offending but accept responsibility for it. In the days prior to the armed robbery, you had sourced some Valium illegally. You believe that you took the bottle containing 50 Valium pills in a suicide attempt. However, you do not have a clear memory of anything that happened during this period.
39
Since being on remand you have re-established your relationship with your partner Susan Merrell. In a letter to the Court dated 4 September 2015[1]
Ms Merrell indicated that she is prepared to allow you to move into her home, provided that you do not use drugs of any kind and do not have contact with any former friends or other persons who are currently or were using drugs. Ms Merrell has a background as a social worker. She stated that you will need to show her proof of your drug screens and that she would notify the police or corrections if you relapse into drug use whilst living with her.
[1] Exhibit 2.
40 Ms Merrell stated that she is concerned about your mental health whilst in custody. However, your counsel did not seek to rely on the principles set out in R v Verdins.
Rehabilitation
41 Ms Merrell stated that you want to rehabilitate yourself but recognise that you have many issues stemming from trauma and a long term addiction that requires mental health, drug and alcohol services and regular drug screening.
42 In relation to the prospects of rehabilitation, the prosecutor referred to your criminal record and submitted that there is a pattern of using weapons. You were awarded opportunities to serve sentences by way of community based orders in the past on three occasions. All of those orders have been breached.
43 I accept that you desire to cure your addiction, although I recognize that it will be difficult for you to do so. In fixing an appropriate sentence, I must have regard to the provisions of s.5(4C) of the Sentencing Act 1991. I must also seek to maximize such chances of your rehabilitation as there may be.
44 However, as well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am called upon by the Sentencing Act 1991 to manifest the community's denunciation of your conduct and generally to impose a just punishment.
Hardship due to circumstances of imprisonment after riots at the Metropolitan Remand Centre
45 As well as that, I would add that I cannot ignore what has occurred since you committed those offences
46 On 1 July 2015 riots (riots) took place at the Metropolitan Remand Centre (which you were not involved in). Prior to the riots, you had access to programs and had completed a number of drug and alcohol related programs and were on a waiting list for others. You have lost all of the certificates because none of your property has been located since the riots. You were able to wear your own clothes. You were in a cell where you were out of the cell for eight to ten hours a day. You were able to exercise and able to interact with other prisoners. You were able to receive visits and make telephone calls.
47 When the riots occurred, you and a number of others in your unit locked yourselves in your cells once you realised that something was happening. At some stage later on in the night you were broken out of those cells by other inmates because of fires. Your whole unit was damaged beyond use and you were placed in another unit. For the first five days you were locked in a single cell designed for one person with two other prisoners with no bed, no blankets, no mattresses, no electricity, no exercise, no fresh air, no toothbrush, no shower, no change of clothes and no information about what had occurred. For three of those days you did not receive methadone and suffered serious withdrawal symptoms, which included vomiting and shakes.
48 After five days you were moved for a period of four weeks to a single cell alone with electricity, shower, bed and TV but no exercise, no fresh air, no books, no toothbrush, and no phone calls. The cell was flooded with water still on the floor.
49 Each morning the door was opened to give you your methadone. You had no interaction with anybody except a prison guard who brought you the methadone and your food. You had no fresh air or exercise. After four weeks the prison guard started to take you out from your cell. You were supposed to be taken out for an hour a day for fresh air and exercise, however, you were only taken out every second day. When you were taken out, it was on your own and you still had no interaction with other people.
50 You were not able to make a phone call to your partner for the first four weeks. You have now been able to make a couple of telephone calls to her and she has had one box visit with you in the last ten weeks. You have not had a change of clothes for four weeks. All your property is unaccounted for and you did not even have clothes to wear to court.
51 Your counsel referred to Tognolini v The Queen (No 2)[2] and submitted that you should get a discount in the amount of time you are required to serve in prison because of the way that you have been held in custody. At paragraph 30 Maxwell P, Buchanan and Redlich JJA of the Court of Appeal stated:
The decision to keep the applicant in a management unit was expressly made for his protection. But the very great deprivations associated with being so held inevitably make the experience of imprisonment substantially more burdensome than it would otherwise be. That is a matter which must necessarily affect the sentencing decision.
[2] [2012] VSCA 311.
52 I accept your counsel’s submission that the conditions that you experienced whilst on remand made the experience of imprisonment more burdensome on you and it is a matter I take into account in your favour in mitigation of sentence.
Submissions on sentence
53 Your counsel conceded that armed robbery is a serious offence and that your offending is not at the lowest end of the scale of armed robbery. Your counsel conceded that general deterrence is a significant matter in determining an appropriate sentence. Notwithstanding that, your counsel submitted that the imposition of a Community Correction Order in the circumstances of this case would best protect the community as well as promote your rehabilitation (whether with or without some more time to serve), as opposed to a sentence of imprisonment with a non-parole period.
54 You have the support from your partner who is a social worker and able to provide you with accommodation upon release in a stable, healthy environment. This will be a “real chance for you to start and achieve your rehabilitation goals.” To maximise your prospects of rehabilitation you have agreed to a condition of the Community Correction Order subjecting you to fortnightly drug screens.
55 The Crown submits that general and specific deterrence are important sentencing considerations in the circumstances of this case. Nevertheless the Crown submits that you require assistance with your drug use and that your prospect of rehabilitation is directly linked with your ability to stay off drugs. In the light of your prior criminal history and this offence, the Crown submitted that a sentence pursuant to s.44 of the Sentencing Act 1991 being a term of imprisonment which is longer than the term already served (by way of pre-sentence detention) followed by a Community Correction Order with appropriate conditions is within range.
56 Charge 1 is without doubt a serious offence. Having given the matter some thought I have come to the conclusion that a sentence of imprisonment in conjunction with a Community Corrections Order would justify the requirements of general and specific deterrence and the requirement to impose a just punishment.
57 As you know, I have sought and received a pre-sentence report in this matter. That report indicates that you are considered a suitable candidate for a Community Corrections Order.
58 I am only able to make such an order if you consent to my taking such a course. So that you are in a position to make an informed decision in the matter, I should tell you something about the course I propose.
59 First, the length of the order will be three years.
60 Every Community Corrections Order, including the one I propose in this case, contains certain core conditions. They are:
1You must not commit another offence punishable by imprisonment during the period of the order.
2.You must comply with any obligation or requirement prescribed by the regulations.
3.You must report to, or receive visits from, the Secretary during the period of the order.
4You must report to the Werribee Correction Centre within two working days from the commencement of the order - that is, two working days from now.
5.You must notify the Secretary of any change of address or employment within 2 clear working days after the change.
6.You must not leave Victoria except with the permission of the Secretary.
7.You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
61 The conditions that apply in addition to the mandatory terms are:
1.You must perform 200 hours of unpaid work over a period of 36 months as directed by the Regional Manager.
2.You must be under the supervision of a Community Correction Officer for a period of 36 months.
3.You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional manager
4.You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional manager.
5.You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric in a hospital or residential facility as directed by the Regional Manager.
6.You must undergo programs consistent with the purpose of treatment and rehabilitation which may include but are not limited to employment, educational, cultural and personal development programs as directed by the Regional Manager.
7. You must be subject to fortnightly drug screens.
8. You must reside at 54 Banksia Crescent, Hoppers Crossing.
62 You must realize that if you breach the order you should expect to be brought back to Court and dealt with for such breach. You should expect to be imprisoned, perhaps be fined and perhaps other sorts of orders would be made if that occurs.
63 My proposal is, then, to record a conviction in relation to Charge 1 and make a Community Correction Order containing all the conditions I have just explained to you. Do you consent to the making of such an order?
64 OFFENDER: I do, Your Honour.
Orders
65 HER HONOUR: I propose to record a conviction on the charge of armed robbery and sentence you to a term of imprisonment of 12 months and impose a Community Correction Order of three years commencing upon release with the conditions I have previously outlined.
The summary charge – committing the indictable offence of armed robbery whilst on bail contrary to s30B of the Bail Act 1977
66 In Lecornu v R[3] the Court of Appeal held that a Court is entitled to treat the fact that a person has committed the offence whilst subject to an extended supervision order as an aggravating feature of the offence. Having done so, the sentencing judge was also entitled to impose a sentence for the corresponding breach offences but only for the separate criminality constituted by the offender’s disobedience of a court order.
[3] [2012] VSCA 137.
67 Bearing those principles in mind, I propose to record a conviction on the summary charge of committing an indictable offence whilst on bail and sentence you to a term of imprisonment of 30 days to be served concurrently with the term of imprisonment imposed on Charge 1.
68 Having regard to the principles of totality and the need to impose a just and appropriate sentence, there will be a measure of concurrency with the sentence which you are presently serving which was imposed by the learned Magistrate on 15 September 2015. I order that ten months of this sentence be served cumulatively upon the sentence of four months that you are already serving.
69 To avoid any doubt, I order that the Community Correction Order will commence upon your release from custody.
70
I order that the property referred to in the schedule of the disposal order which I have signed this day be forfeited to the Minister. Am in possession of
the - - -
71 MS MALOBABIC: Your Honour, my instructor has prepared up-to-date orders with today's date.
72 HER HONOUR: Thank you.
73 I declare that the period of 166 days be reckoned as time already served under the sentence I have imposed. I order that there be noted in the records of the Court the fact that such declaration was made together with its details.
74 But for the plea of guilty the sentence I would have otherwise imposed is 18 months imprisonment.
75 I will hand down those disposal orders. Are there any further matters?
76 COUNSEL: No, Your Honour.
77 HER HONOUR: The Community Corrections Order, I will ask my tipstaff to hand that for your counsel.
78 MS RAMSAY: Thank you, Your Honour. May I leave the Bar table and arrange with Mr Studman - - - ?
79 HER HONOUR: Yes, thank you. I have signed that order. Would you please take Mr Studman into custody? I thank counsel for their assistance.
80 MS RAMSAY: As Your Honour pleases.
81 HER HONOUR: I will leave the Bench.
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