Director of Public Prosecutions v Sharma

[2023] VCC 2388

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01523

DIRECTOR OF PUBLIC PROSECUTIONS

v

PRASANIT SHARMA

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JUDGE:	HER HONOUR JUDGE HARPER
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2023
DATE OF SENTENCE:	18 December 2023
CASE MAY BE CITED AS:	DPP v SHARMA
MEDIUM NEUTRAL CITATION:	[2023] VCC 2388

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Attempted armed robbery

Legislation Cited:      Sentencing Act 1991

Cases Cited:Worboyes [2021] VSCA 169, Akot v The Queen [2020] VSCA 55 

Sentence:                  16 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. White	Ms. A. Hogan, Solicitor for Public Prosecutions
For the Accused	Mr J. Mortley	Dribbin and Brown Criminal Lawyers

HER HONOUR:

1Prasanit Sharma, you have pleaded guilty before me to one charge of attempted armed robbery, the maximum penalty for which is 20 years' imprisonment.  You also pleaded guilty to a single related summary offence of committing an indictable offence whilst on bail.  The maximum penalty for that offence is three months' imprisonment.

Circumstances of the offending

2The circumstances of your offending were outlined in Exhibit A, the Summary of Prosecution Opening for Plea dated 14 November 2023.  I will summarise those facts now.

3On Monday 16 January 2023 at around 3:20 pm, your victim, Ms Liana Limanjaya, attended the Keysborough Hotel.  She was at the hotel to use the pokies gaming machines.

4You and a co-offender were at the Keysborough Hotel roaming around the gaming room.

5After about 10 minutes of playing the pokies machines, Ms Limanjaya won $800. She received a ticket from the machines that confirmed her winnings.

6She took the ticket to an e-cash machine, located in the corner of the gaming room, and exchanged the ticket for $800 in cash. The cash was dispensed in $50 notes, which she put into her wallet. She then put her wallet into a large Louis Vuitton-style handbag.

7Ms Limanjaya then exited the gaming area and proceeded through the hotel foyer to a female bathroom situated next to the exit way.

8CCTV footage captured Ms Limanjaya exiting the gaming room and passing you and your co-offender.

9You were then seen on the footage following her into the hotel foyer, where you were seen speaking to your co-offender outside the female bathroom. It is unclear what was said in this discussion.

10You and your co-offender then exited the hotel through the foyer about 30 seconds later.

11You were wearing a black puffer jacket and you pulled the hood of the jacket over your head and your co-offender also pulled his jacket hood over his head. You later told police you did this to hide from the cameras.

12At 3.34pm, about 40 seconds after you had exited the hotel, you and your co‑offender re-entered through the foyer and walked directly into the female bathroom.

13Ms Limanjaya was inside a toilet cubicle at the time. You and your co-offender waited for her to exit the cubicle.

14Once she exited the cubicle, you and your co-offender then approached her as she walked towards the basin area.

15You yelled at her 'money, money' or words to that effect. You then grabbed the strap of her handbag and tried to pull it from her but were unsuccessful because of the way that it was draped across her shoulder.

16You told Ms Limanjaya to give you her handbag.

17Your co-offender then produced a small red and black folding knife, about ten centimetres in length, and held it to Ms Limanjaya's throat.

18She then stepped back to get away from the knife and accidentally hit her head on the toilet door.  She then kicked out towards your co-offender and screamed for help.

19You covered Ms Limanjaya's mouth with your hand and continued to pull at her bag. Ms Limanjaya pushed your arm away and again screamed for help.  She screamed numerous times to get the attention of nearby hotel patrons.

20As Ms Limanjaya continued to scream, you let go of her handbag and fled the bathroom behind your co-offender.

21CCTV footage from the hotel shows your co-offender exiting the bathroom first, at about 3.35.45 pm, one minute and 40 seconds after first entering the bathroom.

22You can be seen exiting the bathroom after your co-offender, followed by Ms Limanjaya, who was still screaming for help and pointing towards you and your co-offender to alert others of your offending towards her.

23A patron of the hotel, Mr Banse, was playing a pokies gaming machine at the time and heard Ms Limanjaya screaming from the female bathroom.

24He saw Ms Limanjaya exit the bathroom looking pale and distressed.  Mr Banse said Ms Limanjaya was screaming but that she was unable to speak much English, instead she used her arms to point to you and your co-offender as you both ran out of the hotel.

25She also used her hands to show Mr Banse that a knife had been held to her throat.

26Mr Banse formed the view that you and your co-offender had taken something from Ms Limanjaya.  He exited the hotel and saw you and your co-offender leaving the premises.

27Your co-offender was too far from the premises for Mr Banse to reach him, but he was able to apprehend you and 'a bit of a push and shove' ensued.  You then fell to the ground.

28You got back up but Mr Banse pinned you down and told you that you were not going anywhere.

29A number of patrons exited the hotel soon thereafter and observed the scuffle.

30One of them contacted Triple 0 and requested that police attend.

31Police arrested you at the scene.  You were interviewed by police and during that interview stated that:

(a)   You were with your friend Ravi who had suggested robbing the victim;

(b)   You put your hood on to hide from the cameras;

(c)   You and Ravi 'jumped' the victim; and

(d)   You put your hand over the victim's mouth after Ravi pulled out the knife because you did not want her to shout.

32At the time of this incident, you were subject to one count of bail, granted on 29 July 2022 at the Magistrates' Court in Melbourne for the offences of armed robbery and dealing with property suspected of being the proceeds of crime.

Gravity of the offending

33Attempted armed robbery is a serious offence and this was a frightening example of it.  I consider your offending to have been opportunistic in that you were at the gaming venue when you saw your victim win a considerable amount of cash.  At the point at which you were in the foyer of the venue, you and your co-offender were clearly discussing the offending. While your behaviour may have been suspicious, I do not find there was any pre-planning prior to this point on the evidence available to me. 

34I cannot say who devised the offending at the point of the discussion in the foyer.  Your counsel, Mr Mortley, submitted that the plan was devised by your co-offender.  I take the view that it matters not whose idea it was, and I find that from the time you discussed the offending in the foyer, you and your co-offender were complicit in the offending. 

35As to the scuffle alleged to have taken place between you and your co-offender over the knife, the witness told police he saw you drop the weapon while running from the hotel and it was ultimately located near your backpack.  The complainant, who saw the knife in your co-offender's hand, saw no struggle between you. I find that the knife did change hands at some stage, however whether there was a physical struggle I cannot say.

36You were on bail at the time of your offending, which aggravates your offending.  I find this to be a serious example of the offence of attempted armed robbery, falling somewhere between the lower to mid-range of offences of this type.

Moral culpability

37From the point of the discussion with your co-offender in the venue foyer, you were complicit in the offending.  You did not produce the knife, however you did not desist when it was produced, and it ultimately came to be in your possession.

38Your moral culpability must be considered high.

Plea of guilty

39The parties agree that your plea of guilty was entered at an early opportunity.  This has significant utilitarian benefit.  You have saved the court and the community the time and expense of running a trial and spared the witnesses the ordeal of giving evidence.  In those circumstances, you have facilitated the administration of justice and you are entitled to a benefit for that.

40The utilitarian benefit of your plea is enhanced by the fact that the Worboyes [2021] VSCA 169 considerations are somewhat engaged as your plea was entered during the tail end of the pandemic. This results in a more pronounced amelioration of sentence than at other times.

41I further accept the remorse apparent in your plea.

Personal circumstances

42I turn now to your personal circumstances. 

43You were born in Jammu, India, in September 2000 and you are now 23 years of age.  You were 22 at the time of the offending. 

44You had what has been referred to as an idyllic childhood until the age of 11 and were brought up in your extended paternal family, living with your parents, grandparents, aunt and uncle.  You were raised Hindu, although your mother practices Islam and you have recently begun to follow her religion.

45You are the oldest of three children.  The second, your sister Pernika, was set on fire by your paternal aunt in 2011 at the age of seven.  At 11 years of age, you witnessed the aftermath of this incident and sat with your severely burned sister in hospital for much of the month before she succumbed to her injuries.  You have lasting trauma from this incident, to which I will return, but did not receive counselling at the time as it was not a part of your culture.

46Your parents went on to have another daughter, now aged 11.

47You completed your education at a military school and achieved good grades.  It was assumed you would provide for your parents. 

48You and your partner Angika, who you met when you were at school, then decided to move to Australia in 2019.  You settled on the Gold Coast and had plans to marry, become professional and send money home to your parents.

49You commenced a Bachelor of IT, but you found the pressure of study and work financially crippling.  You did not seek assistance from your parents and instead ceased your university studies and sought out a hospitality course which you considered better suited your goals.

50Your partner Angika left you in March 2021 and your life began to fall apart.  You moved to Melbourne to be closer to relatives, started studying commercial cookery and worked as a removalist. 

51You were introduced to heroin towards the end of 2021 and soon developed a daily habit.  You were unable to work or study.  You moved between couch surfing and motel accommodation, and you were stealing to support your drug habit.

52After attending Frankston Magistrates' Court on 10 January 2023, you lasted some five days until you ran into a man called Ravi Mangat.  He had previously sold you drugs and said you owed him $300.  You went with him to use heroin and committed these offences the following day.

53You have been in custody since 16 January 2023.  You have daily phone and weekly video call contact with your family in India and I received a character reference from your parents dated 15 April 2023, Exhibit 9.  I also received a reference from Mr. Manikdeep Singh dated 23 April 2023.

54While in custody you have participated in employment and education opportunities and commenced the nine-month VIP (Violence Intervention Program) in October 2023.

55I received a psychological report from Laura Fleming dated 6 June 2023, Exhibit 11. 

56Ms. Fleming reports that you have a history of poor sleep and nightmares, together with auditory hallucinations related to past traumatic events.

57She noted your use of heroin, methamphetamine and hallucinogenic substances which you used to relax and alleviate your distress.  You did however obtain suboxone and buprenorphine illicitly in an effort to keep your drug-use at bay.  I accept you had no access to Medicare while on a bridging visa and thus had no legal access to these opioid replacement drugs.

58You engaged with an ASCO Alcohol and Drug clinician while on CISP bail in 2022, Exhibits 6, 7 and 8.

59Ms. Fleming found you have ongoing symptoms of PTSD from the death of your sister which are exacerbated under situations of stress, such as your relationship breakdown and substance abuse. She found you sought relief from your symptoms through drug-use, which led to impulsive and reckless behaviour and impaired your decision-making ability.

Deportation

60I understand your bridging visa has expired and it is therefore likely that you will be deported upon your ultimate release from custody.  It was recognised by the Victorian Court of Appeal in Akot v The Queen [2020] VSCA 55 that:

'The potential for an offender to be deported at the completion of a sentence is relevant to the sentence in two ways.  First, the prospect of deportation renders the imprisonment more onerous because the prisoner will face the prospect of deportation. Secondly, the deportation, should it occur, would constitute an additional punishment, because it destroys the opportunity for the offender to settle permanently in this country.'

61You have been in Australia for several years and you have made your life and plans for the future here.  I accept that the prospect of deportation will weigh heavily upon you whilst you serve your sentence.

Sentencing principles and considerations

62Mr. Sharma, your offending was terrifying.  You and your co-offender cornered a vulnerable woman in a hotel bathroom, knowing she was alone.   You demanded her money, you tried to grab her bag, you covered her mouth with your hand and you continued after the production of a knife.  You then remained in the bathroom after your co-offender left for a short period.

63Fortunately, your victim was not physically injured.  She did not make a victim impact statement however, it takes little to imagine how utterly terrified she must have been by your actions.

64You have a prior matter involving carrying an imitation firearm without approval, possess drug of dependence and fail to answer bail.  While it was your co-accused who produced the weapon in the instant offending, nevertheless a weapon was involved.

65This offending occurred some six days after you appeared at the Frankston Magistrates' Court on the charges I have just referred to.

66Subsequently, you were sentenced on 14 June 2023 by His Honour Judge Maidment in this court on charges of armed robbery and deal in property suspected of being the proceeds of crime.

67While you are of course not to be re-sentenced for those offences here, I do take them into account in relation to specific deterrence, your prospects of rehabilitation and the need for community protection.

68Your prior and subsequent findings of guilt highlight the need for specific deterrence.  You must be deterred from committing crimes such as this one and from the use of a weapon.  Such offending is serious and the general public must be protected from you.

69I must also consider general deterrence.  The public must be deterred from committing crimes such as this, opportunistic crimes against soft targets. 

70Just punishment and denunciation must also feature in the sentencing synthesis.

71You come before the court aged 23, the offending having been committed when you were 22.  You are therefore a youthful offender and rehabilitation must be given some weight. 

72I consider your prospects of rehabilitation to be guarded, reliant as they are on your abstinence from illicit substances and you getting treatment for your PTSD.  It is hoped that you can achieve both of these things and get your life on track, be that in Australia or in India, with the support of your family.

73Your PTSD, it was conceded, enlivens limb 5 of Verdins as it will make your experience of custody more onerous than for a prisoner without such a condition.  Your experience of imprisonment has been further difficult because of your Indian background, and you have been assaulted in custody.

74You have served 26 days of 'dead time' between 15 December 2022 and 10 January 2023.  I take this into account by way of totality. 

75Mr Sharma, please stand.

Disposition

76On Charge 1, attempted armed robbery, you are sentenced to 16 months' imprisonment.

77On the related summary charge of committing an indictable offence on bail, you are sentenced to one month's imprisonment, to be served concurrently with the sentence imposed on Charge 1.

78That makes an effective sentence of 16 months. 

79I direct that 10 months of the sentence imposed today is to be served cumulatively on the 21 month sentence previously imposed by His Honour Judge Maidment on Indictment CR-22-02382. 

80That makes a global total effective sentence of 31 months.

81I direct that you serve a period of 25 months before being eligible for parole, to commence on 14 June 2023, the sentence date of the previous matter, Indictment CR-22-02382.

82

I declare that you have served 113 days excluding today by way of pre-sentence detention pursuant to s18 of the Sentencing Act 1991 on this Indictment,

CR-23-01523.

83For completeness, I confirm that the declaration as to pre-sentence detention made by His Honour Judge Maidment continues to apply.

84Pursuant to s6AAA of the Sentencing Act 1991, had you not pleaded guilty to this Indictment, CR-23-01523, I would have imposed a total effective sentence of 24 months' imprisonment with a period of 14 months to serve before being eligible for parole.

85I make the disposal order sought by the prosecution.

86You may be seated, Mr Sharma.  Is there anything else from either counsel?

87MR MORTLEY:  No, Your Honour.

88MR WHITE:  Nothing further thank you, Your Honour.

89HER HONOUR:  Thank you.  You can take Mr Sharma out thank you and we will adjourn the court.   

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