Director of Public Prosecutions v Sharma&Anor

[2014] VCC 677

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00014 and CR-14-00181

DIRECTOR OF PUBLIC PROSECUTIONS

v

DIXIT SHARMA
BUU TRAN

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 May 2014
CASE MAY BE CITED AS:	DPP v Sharma&Anor
MEDIUM NEUTRAL CITATION:	[2014] VCC 677

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For The Queen	Ms S. Coombes	OPP
For Offender Sharma	Mr L. Baker	Valos Balck & Associates
For Offender 2	Mr D. Cane	Dowsley & Associates

HIS HONOUR:

1You, Dixit Sharma, have pleaded guilty before me to Charge 1 armed robbery, Charge 3 false imprisonment contrary to common law, and a summary charge of making a false report to police which is before me pursuant to the relevant legislation.  Of course you pleaded guilty to that matter as well.  You, Buu Van Tran, have pleaded guilty before me to one count of armed robbery, Charge 2 on the indictment. 

2The facts in this matter are fully outlined in the summary of prosecution opening which is exhibited.  In broad compass, in the early hours of 19 February 2013, you Mr Sharma and a co-offender known as Rocky walked into the Swanston Hotel in Swanston Street, Melbourne, wearing a disguise and carrying weapons which in your case Mr Sharma was a metal rod, and in Rocky's case was a sharp kitchen knife.  You, Mr Tran, had distracted the security staff as part of a pre-arranged plan.  You also sent a message to Rocky letting him know it was safe to enter the building and as part of the pre-arranged plan, you Mr Sharma and Rocky, walked into the premises and hid in a room for almost two hours until approximately 3.30 am, after the venue had closed and the machines had been cleared of money.

3At that stage, you Mr Tran would typically go to the safe, where the money was counted and housed.  On this occasion, as part of the plan however, you went with a trainee gaming employee. Who was the victim in this matter, and after you were in the room for a short time, you left and indicated to the victim that he should continue the counting of money and the storing of it in the safe.  You then sent a text to your co-offenders telling them that the money and the victim were now in the safe room alone.

4You, Mr Sharma and Rocky, then left your hiding place, pushed your way into the safe room and there threatened the victim who was both physically and audibly scared, and you took just short of $170,000 in cash as well as the victim's iPhone.  You also tried to have the safe opened although the victim said that he did not know how to do that, that is he did not know the PIN number. 

5With respect to the charge of false imprisonment, you Mr Sharma, with the assistance of Rocky then tied up the victim and his mouth was taped to prevent him calling out.  You both then left and were captured walking on Little Bourke Street on CCTV footage although you were not then identified.  At about 4 am, Rocky sent Mr Tran a message saying that he had the victim's iPhone.  Shortly thereafter, you, Tran, rang Rocky telling him to destroy the phone.  In due course, Mr Sharma and Rocky returned to Rocky's house in Footscray, the money was counted there and you Mr Sharma admit to taking $18,000 in cash from the approximate $170,000 in cash that was there. 

6You, Mr Sharma, then contacted your wife at 6 am and arranged for her to pick you up from a nearby railway station.  With respect to the summary offence of making a false report, Mr Sharma, you and your wife then devised a plan to report your car as having been stolen from your house the night before in an effort to minimise the risk of you being linked to the offence.  In due course the car was recovered, although it is now the subject of an application for forfeiture which you have not opposed and I understand the value of that vehicle is approximately $1,000.  You were each arrested after what can only be described as some very clever detective work by the police and also the efforts of the victim.  You each then took part in a record of interview and details of your answers are set out in the exhibit which is the Crown opening and to which I need not refer in any further detail.

7The aggravating aspects of this offence include the pre-planning, there were disguises employed, and weapons utilised.  In your case, Mr Tran, it was the breach of trust with respect to your employment and of course I have no doubt that each of you understood the inevitable consequences of your actions.  It was put forward on each of your behalves that you were coerced into acting, by the more dominant personality of Rocky although of course that coercion is not put as high as providing you with any defence to the crime.

8I also note, of course, with respect to you Mr Tran that you had been employed in the gaming industry for some time.  No victim impact statement was tendered in this matter, although it is clear from the depositions and what has been put by the prosecutor that your victim suffered considerably as a result of your actions and apparently is still seeking counselling.  I have no doubt that he was in great fear of you, Mr Sharma and Rocky.

9Of course, as was pointed out by each of your counsel, there are some mitigating factors.  Firstly, you have each pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so.  The community has by your pleas been spared the time and cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon your trial and I can tell you the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.

10Further I take it into account in each of your favour that you intimated an earlier intention to plead guilty to these charges and certainly whilst you were not quickly apprehended and it took some months for the police to locate and arrest you, you have each made admissions in your recorded interview although of course each of you sought to lay the blame as much as you could at Rocky's feet by describing how persuasive he was.

11You have both made statements as to your particular role in this matter and you have each sworn to give evidence according to that statement in the event that Rocky ever returns to Australia and is prosecuted for his role in the armed robbery.  Of course, the sentencing authorities say in those circumstances you are entitled to some discount in sentence. 

12I should also note that submissions were made on behalf of each of you with respect to what, if anything, you were supposed to receive from your role in this affair.  With respect to you Mr Tran, as set out in Paragraph 20 of the opening, it was said that you were going to get a small percentage and I understand that that was $5,000 although ultimately you say you received nothing. 

13With respect to you, Mr Sharma, you admit to receiving $18,000 which you utilised to pay off two credit cards and that was the extent of the money you received.  I sought further submission from counsel with respect to these instructions and in the end provided the opportunity for you to provide further instructions clarifying and explaining these matters. I found it difficult to understand in the circumstances how it was that you Tran should receive nothing, and you Sharma, should receive only a modest amount given the roles you each played.

14I did receive those further submissions with respect to these matter, which are now marked as exhibits and as I indicated to counsel, I do accept and act upon what it is that you told the police in your recorded interview and of course I will sentence you on the matters that are agreed between the parties and set out in the opening as accurately reflecting the appropriate matters on which I should sentence you.

15Written submissions were made and tendered by counsel on behalf of each of you and Mr Barker, who appears for Mr Sharma, in a very helpful document set out some preliminary matters describing your background as being born in the Punjab in India in 1986, and of course you are now 28 years of age.  Your father is 58 and apparently head of the Punjab electricity board and your mother is 57 and also works for the Punjab Electricity Board.  I understand your mother suffers from depression and migraines.  Neither of them has been in trouble with the law, but apparently they have been notified of your predicament by the Salvation Army.

16You are the youngest of three children.  Your two siblings both reside in the Punjab.  It is said that you had a normal upbringing in India, save that you have a history of epilepsy since the age of 9 and you have the occasional seizure.  And indeed you have had two seizures since being placed in custody, but you prefer the occasional seizure rather than taking the medication which would prevent you having those seizures as the medication has significantly debilitating effect upon you.  You are a Hindu man and therefore have dietary restrictions and of course that makes the time you spend in prison more difficult. 

17You arrived in Australia on a student visa on 14 February 2009 and you have resided here since then save for one month when you returned for your brother's wedding.  You came in on a student visa to study architecture, although the family was unable to afford that, apparently and subsequent you have undertaken and completed various other courses which are set out in the hope that you were ultimately going to be study architecture.  In addition to the various courses you have successfully undertaken, you have demonstrated a capacity for hard work and have held down a number of jobs which are also there set out.  One of those jobs was your obtaining of a security license and as a consequence of that, you were employed in that industry and that's where you met the co-accused Rocky.

18You apparently married in Melbourne on 24 June 2012 and of course your wife is the co-accused in that matter of making a false report to police.  Whilst in custody you have undertaken a number of courses which have been made available to you and the certificates with respect to those matters are in evidence before me.  Further, there was a psychological report prepared by Mr Jeffrey Cummins and that exhibit is dated 1 May 2014.  Mr Cummins very helpfully sets out your background as well as dwelling upon the relationship with your wife and the difficulties you currently suffer as a result.  Mr Cummins also sets out your employment and deals in some detail with your history of suffering from epilepsy.

19I do note under the heading factors of relevance to the present charges that you spoke in detail to Mr Cummins about Rocky and the nature of the relationship you had with him.  In Mr Cummins view, you were remorseful and talked appropriately about the issue of victim empathy and in the circumstances I accept you are remorseful.  Mr Cummins particularly points out the difficulties you suffered as a result of lending the sum of $22,000 to somebody that you did really not know terribly well. 

20In Mr Cummins' opinion, you present as psychologically vulnerable and immature man and it was his view if your wife does not resume visiting you, that your time in custody will be made more onerous and I accept that that is the case and further no doubt the practice of your Hindu religion whilst in gaol will also be made the more difficult given the dietary restrictions. 

21You were not assessed as having any personality disorder and it was Mr Cummins' view that your offending behaviour was situationally motivated and opportunistic and in the circumstances, I accept what Mr Cummins has had to say with respect to your situation and you have no prior conviction. 

22Mr Tran, I have been told a considerable amount about your personal circumstances and helpfully submissions were made on your behalf by Mr Cane.  You are 29, you were born in Sydney before you relocated to Melbourne when you were five.  You have four siblings and you have what is described as a loving and supportive family, and I have no doubt that that is the case as your family attended the court when the plea was made on your behalf.  You were educated to a tertiary level having acquired a Bachelor of Mechanical Engineering and Aviation Engineering at the Royal Melbourne Institute of Technology.  Your first job was with Traico as a factory hand after which you commenced full-time employment with your father as a tradesperson.

23You then went onto work full-time at Sandown TAB between 2008 and 2011 before you became a gaming supervisor at Black Opal TAB.  Your employment was of course terminated when you were arrested in 2013.  Subsequently, you commenced volunteer work at the Avalon Centre in February 2014 whilst working for your father in his building business.  You are not said to have any drug or alcohol issues although you attract a diagnosis of post-traumatic stress disorder and you have extremely severe levels of depression, anxiety, and stress.

24As to these matters, I have the psychological report which is Exhibit G.  That report was prepared by Dr Janev.  He is very extensive and gives a much more complete picture of your personal history and family.  I note the contents of Paragraph 4.8, which explains your relationship with your co-offender and it is said on behalf of both you and Mr Sharma, as I have observed, that you were prevailed upon by a stronger man - a stronger man mentally that is - and that you are Sharma are followers or perhaps better described as "under assertive".

25As I said earlier, after appropriate testing it was Dr Janev's view that you do not currently meet the diagnostic and statistical manual of mental disorders, criteria for a diagnosis of a psychological disorder.  However, you did present with difficulties in a number of areas and again I quote; "Dependent personality traits, symptoms of post-traumatic stress, generalised anxiety (excessive worrying) and social anxiety as well as symptoms of depression and suicidal ideation".  You are estimated to be at the low risk of recidivism at this time.

26In addition to those materials, I also have Exhibit H, which is a letter addressed to the president of the Magistrates' Court, dated 26 April 2014 by the centre-coordinator of Avalon.  That is a non-profit organisation, working with people with disabilities and mental health problems as well as the homeless, and you have been a volunteer there for three months attending two to three days a week and a character reference is provided on your behalf and speaks well of your contribution to that organisation. 

27In addition there is the letter of support from your younger brother.  I have no doubt that whilst the relationship with your father is complicated, the relationship with your other siblings and your mother seem to be an extremely positive thing in your life and I have no doubt will remain so during the course of your incarceration.

28As I say, neither of you have any prior convictions and I sentence each of you as people of previous good character.  I have read the various materials provided in support of the pleas made on behalf of each of you, and of course there have been no subsequent matters.  I am on balance satisfied that chances of the rehabilitation of each of you is reasonably good and that seems to be the view of the psychologist that each of you attended.

29Clearly your co-offender Rocky has not been caught, and it would seem extremely unlikely he will return to Australia.  I am unable to take into account parity of sentence with regard to him.  And as between yourselves of course, it seems to me that you each played a significant and ongoing role with respect to this armed robbery.  I do accept that Rocky was the instigator and leader but notwithstanding that, each of you needed to do what you did in order to ensure that the armed robbery was successful, as it was up until the time when you were arrested.

30I have no doubt you believed that for a fairly lengthy period you had got away with your criminal activities.  Of course as well as those matters personal to you to which I have referred including the question of rehabilitation, I must also take into account such matters as deterrence and especially general deterrence, which your counsel conceded is of considerable importance in a case such as this involving a planned armed robbery on gambling premises in circumstances where weapons were produced, threats were made, a significant amount of money was taken and has gone, and clearly your victim was very significantly upset as a result of your actions. 

31It seems to me that specific deterrence is of some importance given your actions on these occasions, notwithstanding of course there are no prior convictions.  I must still consider the question of the protection of members of the community from each of you and bear in mind the likelihood of you re-offending, which I find to be modest in each of your cases given the materials produced and tendered on your behalf.

32Was there an application for a s.464ZF order?

33MS COOMBES:  As a retention order, yes in relation to Mr Tran.

34HIS HONOUR:  A retention order for Mr Tran?

35MS COOMBES:  Yes.

36HIS HONOUR:  And nothing for Mr Sharma?

37MS COOMBES:  And yes a forensic sample sought for Mr Sharma.

38HIS HONOUR:  Yes, thank you.  Yes, an application has been made for an intimate forensic sample to be taken from Mr Sharma and I assume that is not opposed?

39COUNSEL:  It's not opposed, Your Honour.

40HIS HONOUR:  And that has not been objected to.  I am satisfied that it is in the interests of justice, having regard to the seriousness of the offending, that and I order an intimate forensic sample namely saliva be taken from you.  And that sample may be taken by a doctor or nurse or other authorised person, wiping a swab inside your mouth and although you have conceded if you change your mind, I must inform you that the police may use reasonable force to enable that procedure to take place with respect to the retention order in respect of Mr Tran, that order is also not opposed and so I will make that order given the seriousness of the offending.

41Yes, if you would stand please, gentlemen.  These are without doubt serious offences, and in all the circumstances, I have no alternative to the imposition of custodial sentences.  And you, Dixit Sharma, are convicted and sentenced as follows.  On Charge 1, armed robbery, three and a half years imprisonment.  On Charge 3, false imprisonment, one year imprisonment.  And in respect to the summary offence of making a false complaint, four months imprisonment.  I direct that Charge 1 be the head sentence and I direct that six months of Charge 2 and 2 months of the summary offence be served cumulatively upon the sentence imposed on Charge 1 and each other.  That results in a total effective sentence of four years and two months and I direct that you serve a minimum term of three years before you become eligible for parole.

42As prescribed by the Sentencing Act, I direct the period of time you have already spent in custody is 217 days. Thank you, Mr Sharma, you can be seated. I also direct that pursuant to the provisions of s.6(aaa) but for your plea of guilty, I would have imposed a total effective sentence of six years' imprisonment with a non-parole period of four years.

43You, Mr Buu Van Tran, with respect to Charge 1, are convicted and sentenced to a total effective sentence of three and a half years' imprisonment and I direct that you serve a minimum term of two and a half years before you become eligible for parole. As prescribed by the Sentencing Act, I declare that the period of time you have already spent in custody is 11 days and I direct that such be noted in the records of the court. But for your plea of guilty, pursuant to the provisions of 6(aaa) I would have ordered a total effective sentence of five years' imprisonment with a non-parole period of three and a half years. Yes, you can be seated thank you Mr Tran.

44COUNSEL:  As Your Honour pleases.

45HIS HONOUR:  Yes, I think with respect to Mr Sharma, I would be grateful if counsel would bring to the attention of the authorities who - and officer, I am sure that you understand that he suffers from epilepsy and the authorities I think already understand that but special precautions ought to be made and that ought to be brought to the attention of the appropriate people.  But I will ask Ms Coombes to make sure that that is done as well.  Just as I say, just as an abundance of caution but it ought to be something that is specifically drawn to the attention of the authorities notwithstanding it probably already is, but that step ought to be taken.

46Yes, anything further?

47MS COOMBES:  Your Honour has made the disposal and forfeiture orders?

48HIS HONOUR:  Yes, I have signed both those orders. 

49MS COOMBES:  Yes, and that concludes the matter, Your Honour.

50HIS HONOUR:  Thank you, yes thank you for your assistance in those written submissions gentlemen.  That has been most helpful in the circumstances.

51COUNSEL:  Mr Sharma and Mr Tran, I think if you could go with the officers at the back of the court.  Yes, and we will adjourn until tomorrow morning.

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