Director of Public Prosecutions v Sharp
[2018] VCC 1500
•14 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00602
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL SHARP |
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JUDGE: | HER HONOUR JUDGE FOX | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 June 2018 | |
DATE OF SENTENCE: | 14 September 2018 | |
CASE MAY BE CITED AS: | DPP v Sharp | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1500 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Miss K. Hamill | Ms L.Treasure |
| For the Accused | Ms I. Dubroja | Ms J. Pisasale |
HER HONOUR:
1 Michael Sharp, you have pleaded guilty to an indictment containing five charges: two charges of armed robbery, two charges of common assault, and one charge of attempted armed robbery. You have also admitted a lengthy criminal history.
2 The maximum penalty for armed robbery is 25 years imprisonment, the maximum penalty for attempted armed robbery is 20 years imprisonment, and the maximum penalty for common assault is 5 years imprisonment.
3 A summary of prosecution opening was tendered on the plea and marked Exhibit A. CCTV footage of all incidents was provided and I have viewed that footage. I will confine my remarks here to a summary.
4 Charges 1 and 2 arise out of events that occurred on Sunday, 18 November 2017. At approximately 7am you entered the Mitcham Newsagency on Whitehorse Road, wearing a grey hoodie with the hood up. You had concealed your face with a piece of black T‑shirt, and were wearing dark sunglasses. You had with you a large knife, described as a butcher’s knife, around 9–10 inches long.
5 The owner was behind the counter, and the delivery driver and a 66‑year-old customer, Mr Hubbard, were in the store at the time. As Mr Hubbard was speaking to the owner, you approached him, wielding the knife. You grabbed him near his right shoulder, pushed into him, and held the knife very close to his neck. You then said to the owner, “Give me all your money, cunt, or I’ll fucking stab him”. The owner tried to call triple zero on his mobile phone, however you spotted him and told him to “put down the fucking phone”. He handed over all the money he had, as you continued to make demands for money. After you had the money, you ran out of the store to Ms Perrin’s nearby vehicle.
6 The total proceeds of this armed robbery was approximately $500.
7 Charges 3 and 4 arise out of events occurring on Sunday, 26 November 2017. At approximately 8.40am, Perrin drove you to the IGA supermarket on Mitcham Road, Mitcham. The owner Mr Zhou was serving a regular customer, 81‑year-old Mrs Johnston.
8 You entered the store wearing the same hoodie, had a T‑shirt concealing your face, and sunglasses. You again carried with you the large butcher’s knife. You held the knife to Mrs Johnston’s throat whilst holding her around the neck like a headlock and saying to Mr Zhou, “Open the till, give me the money”.
9 Mr Zhou’s wife was at the back of the store and he used the loudspeaker to ask his wife to call the police. Once he did this, you released Mrs Johnston and ran around the counter towards him. You pointed the knife at his torso, grabbing his shirt and continuing to demand money.
10 His wife emerged from the back of the store and saw you swinging the knife around, and started to call triple zero. You then ran out of the shop without having received any money, and down a nearby side-street. The owner gave chase but lost sight of you.
11 You returned to the car, and Perrin drove you to the nearby 7‑Eleven store on Springvale Road. The events which followed form the basis of Charge 5. The store manager was working alone. You entered the store with the hoodie over your head and your face still concealed. You told the store manager Ms Kotadia to come towards you, and as she approached you pulled out the knife and pointed it at her. You then gestured for her to go to the counter, and accompanied her there. She pulled out the till and placed its contents into a plastic bag. As she was doing this, you were demanding that she be quicker. She gave you the bag, and you ran out of the store and back to Perrin’s vehicle.
12 The bag of cash you obtained contained approximately $250 in notes and coins.
13 Subsequent police investigation identified you as a suspect.
14 Your co‑accused Perrin was arrested on 19 December 2017 and participated in a record of interview. She also made a statement implicating you in the offences.
15 You were arrested on 29 December 2017 at your residence in Lilydale, and taken to Box Hill Police Station for interview.
16 When the allegations were first put to you, you variously answered “No comment,” that you could not remember anything like that happening, that you could not identify yourself in the photographs, and that you did not own the clothing worn by the offender. When told that Perrin had made a statement implicating you in the offending, you initially said you did not know what she was talking about.
17 However, you did then admit the offending. You said you could not remember “half the shit” you were doing for probably three weeks, because in that period you were “taking Xanax and that”. You then made substantial admissions. You said you realised how scary it would have been for your victims. When asked why you did not keep going, you said:
“I just didn’t bloody want to do it any more, you know. That’s – it terrorises people. People, you know, don’t go ... for work and – because of it and go to counselling and it’s not me.”
18 You admitted that you were scared of getting caught and scared of being separated from your children for so long. You said it was just a stupid mistake that you made. You admitted that you told Perrin to get rid of the hoodie and to put the knife down the drain. You admitted the knife was yours and that it was out of the kitchen.
19 You indicated your guilty pleas at the second committal case conference at the Magistrates’ Court on 21 March 2018 and I regard this as pleading guilty at the earliest reasonable opportunity.
20 Two victim impact statements were tendered: one by Mr Zhou, and one by Mr Johnston, who is the son and primary carer of Mrs Johnston. Mr Zhou outlined the physical and psychological impacts of your offending. He is now scared when the automatic shop-door opens. He is afraid of somebody coming back to do the same thing. His sleep has been affected, and he has lost weight. He is always watching outside, and he feels very stressed if somebody is wearing a hoodie. He said he was very frightened, “about 8 out of 10”, when the knife touched him and he was very scared.
21 Mr Johnston, set out how his mother had just relocated to the area after having lived in another suburb for 50 years. She was just becoming involved in her new suburb and feeling part of the local community, including joining the local bowls club.
22 Following the incident she became quite paranoid about living alone, lost confidence, and became suspicious of locals. She became anti-social and declined to participate in family activities or to go to the local bowling club. She refused to attend the local IGA for shopping and suffered uncharacteristic anger and mood swings. She has since sought assistance and her son says it has taken about six months for her to get close to returning to her former self. She did not suffer any physical injuries but really suffered emotionally, and had nightmares about the event.
23
Ms Kotadia did not make a victim impact statement, but told police she was scared when you pulled out the knife because you were so close to her. She felt she would have been hurt if she had not complied with your demands.
Mr Hubbard did not make a VIS but he also was scared whilst you were holding a knife to his head. This can be seen on the CCTV.
24 The prosecution submitted that the offending reveals a degree of planning. In particular, you arranged for your co‑accused, Perrin, to be the driver. You disguised your appearance, and took with you a knife, which is a serious weapon. There was a degree of violence in the first armed robbery and the attempted armed robbery that was not necessary to effect armed robbery. There were two separate dates of offending, and three separate incidents. It could not be said that this happened on a single day or was a single incident. The victims were soft targets, and you assaulted innocent customers and used them to make the demands of the shopkeepers.
25 Your counsel conceded that this is serious offending. Your counsel conceded that you did the majority of the planning, and it could not be said you were led into this offending. It was violent and it had a significant impact on your victims. At the time, you were using heroin, you had lost your employment, your children had been taken into the care of DHS, and you had lost your relationship with Ms Perrin. I note she was in fact the getaway driver and co‑accused, but I am told you were no longer together at the time, but remained friends.
26 I note that in relation to Ms Perrin she is yet to be dealt with. I am told she pleaded guilty to one charge of armed robbery and one charge of attempted armed robbery arising from the events of 26 November 2017, and her plea will be heard in this court on 21 September 2018. I understand the basis for her plea of guilty is that she was effectively the getaway driver.
27 I turn now to your personal circumstances.
28 A psychological report of Dr Cunningham dated 8 June 2018 was tendered on your behalf. A letter from your father, Mr Allan Sharp, was also tendered on your behalf, and Mr Sharp was present during the plea. I was also provided with a handwritten letter of apology authored by you, together with two certificates attesting to courses you have done since being in custody.
29 According to Mr Cunningham, you have a full-scale IQ score of 74. This places you overall in the borderline intellectually-disabled range. However you were placed on a CCO with a Justice Plan attached in November 2013, which suggested you have an IQ of no more than 70 and are in fact intellectually disabled. I raised this with your Counsel and a further report of Dr Treeby dated 5 September 2018 was obtained. Dr Treeby found you have a FSIQ of 73 which confirms you are in the borderline intellectual functioning range.
30 You were born in Canberra in 1992, and taken into the care of DHS at a very young age. You were placed into the foster home of your parents, Allan and Carol Sharp, in Victoria at age approximately 8 months. You had supervised access with your biological parents; however, remained in the permanent care of your foster parents. It is clear that your foster parents have always been loving and supportive of you, and they remain so. You regard them really as your mum and dad. You have three younger biological siblings; two sisters and one brother, and you were raised with six siblings in your foster parents’ home.
31 You had significant learning difficulties at school, and exhibited symptoms of ADD. You were prescribed medication that had little impact on your behaviour. Despite the best efforts of your parents and changes of school, your behavioural issues, both at primary and secondary school, continued. You left school at age fifteen, after commencing but not completing Year 10 at Croydon Community College.
32 In his letter, your father Allan Sharp sets out that you had a number of issues and problems growing up, including the issue of rejection by your mother. One of your biological siblings did remain with your mother and their biological father (being a different father to your own), and this amplified your sense of rejection. When you were fifteen there was a two-month attempt by you to live with your mother and stepfather, but this was unsuccessful. The family was very poor, and you were exposed to serious family violence and drug use. It appears you commenced your own illicit drug use around this time.
33 It is also around this time that your criminal history commences. You have a number of appearances from the Ringwood Children’s Court and Melbourne Children’s Court for offences including burglary, attempted armed robbery, armed robbery, assault, theft, driving offences, and other matters. In October 2008 you received a 12‑month youth justice centre sentence.
34 In 2008 you met the co‑accused, Ms Perrin, who is your ex‑partner and the mother of your two children. She is the only person with whom you have had a romantic relationship. You moved into her family home shortly after the commencement of your relationship, and your first child was born in 2012. You and Ms Perrin moved into your own home with your baby when you were aged nineteen. According to your father, you were successful at first, and you often commented that this was what you needed: a family of your own. You were successful at managing finances, having food in the house, and caring for yourself and your child. Your second child was born in 2013.
35 Shortly after this, in February 2014, you received six months’ imprisonment, with all but two months partially suspended. The charges for which you received this sentence include theft and contravening a Family Violence Intervention Order. When you were released from custody in 2014, aged twenty-one, your heroin use commenced. I am told that immediately upon your release you were contacted by a former drug associate over a drug debt involving your ex‑partner. Apparently you were held for a number of days because of this drug debt and the incident culminated with you being hit over the head with a cricket bat, and an ambulance was called. Apparently you told the ambulance staff you had fallen over, as you did not want to tell them the truth, and you were taken to hospital.
36 After being released from hospital you continued to live with Ms Perrin and your two young daughters. You continued to struggle with illicit drug use, but there was no more offending from February 2014 until these matters at the end of 2017. You were both using drugs and working, but your drug use slowly increased. It became out of control, and you were fired from your job. This created financial strain and stress, and you increased your heroin use. Your partner, Ms Perrin, was also using. This led to DHS involvement, and the children were removed from your care and placed with Ms Perrin’s mother. I am told they are now back with Ms Perrin.
37 At the time of this offending your life had spiralled out of control. You were unemployed, your children had been removed from your care, you were using drugs and you were staying with friends.
38 Since being incarcerated I'm told you have been drug-free. You are now on methadone. You have undertaken a drug treatment course and obtained a certificate in food handling. You have telephone contact twice a week with your young daughter, and you are hoping, once you are a sentenced prisoner, to obtain some employment. Not only will this help with your time in custody, but it will give you money so that you can continue to make twice-weekly phone calls to your children.
39 I turn now, Mr Sharp, to some other matters.
Verdins
40 You told Mr Cunningham that your offences were motivated by your withdrawal symptoms and your desire to obtain money to buy drugs. You did in fact buy drugs with the proceeds from the armed robberies, and you and Ms Perrin both used those drugs.
41
Mr Cunningham opined that in the context of your intellectual impairments, you have difficulty adjusting to stresses in the community, difficulty abstaining from drug abuse, and you are easily influenced by others. Based on
Mr Cunningham’s report, your counsel did not rely on Verdins.
42 After obtaining the report of Dr Treeby, your counsel sought to rely on limbs “three and four” of Verdins, meaning both general and specific deterrence should be moderated due to your impaired mental functioning at the time of the offending. The impairment relied upon is your foetal alcohol spectrum disorder which has resulted in enduring cognitive, emotional and social functioning impairments. In particular, poor executive functioning, impulse control, insight, judgment and understanding of “cause and effect” were relied upon by your counsel.
43 Dr Treeby opined that these cognitive impairments have “almost certainly contributed to his history of offending”, however his impression was that “poor coping and substance misuse in the lead up and at the time of offending cannot entirely account” for your offending behaviour. In his opinion you meet full DSM 5 criteria for anti-social personality disorder and your counsel conceded that neither substance abuse nor anti-social personality disorder can enliven Verdins.
44 The prosecution argued that there is an insufficient link between your impairment and this offending. They submitted that whilst there may be a link between some of your past offending and your impairment, for example where the offending is of an impulsive or emotional nature, here there was a degree of planning. The prosecution submitted that the impairment you suffer must be taken into account in a “global sense”, but Verdins is not enlivened.
45 It is very difficult to unravel the role played by your foetal alcohol spectrum disorder and resulting impairment, your drug use and your anti-social personality disorder in committing these offences. They were not impulsive, spontaneous or unplanned. They were motivated by a desire to obtain money for drugs. You understood what you were doing was wrong and indeed you made a decision to stop offending prior to being arrested.
46 In my opinion, your ability to think clearly at the time of the offending and make calm and rational choices was principally impaired by your drug use. Your mental impairment had little role to play, and in my view Verdins is not enlivened. However I do take into account that you suffer from a borderline intellectual disability that puts you at a great disadvantage compared to most members of the community and this is relevant in sentencing you, and attracts a level of mitigation.
47 Your early guilty plea has a significant utilitarian or practical value, and in particular has spared the victims the emotional trauma of being required to give evidence. It also shows you have taken responsibility for your offending, and you made admissions to the charges in your record of interview. I accept your pleas of guilty and your cooperation upon arrest indicate remorse. You also wrote a letter to the court apologising for your conduct, and saying that you regret what you did and you are remorseful.
48 There are five separate charges, and five individual victims. Your counsel accepted that some cumulation was inevitable, but submitted the principle of totality must be relevant here, which of course it is.
49 Your counsel submitted that you have reasonable prospects of rehabilitation. She relied, in support of this submission, on the fact that you have some insight into your offending, that you have had gaps in your offending history where you have been gainfully employed and caring for young children, you have the support of your foster parents, and, whilst in custody on remand, you have engaged in positive activities, including education.
50 Your counsel accepts that perhaps some guardedness must be applied when considering your prospects of rehabilitation. The prosecution submitted that your prospects of rehabilitation are perhaps more guarded than reasonable.
51 In my view, Mr Sharp, you do have some prospects of rehabilitation; however, your ability to remain offence-free will be very much tied to your ability to remain drug-free. As your father notes, when you are not taking drugs you are a hardworking young man and a caring and loving father. Given the support of your foster family, you have the capacity to gain employment, and, if you are able to do this and remain drug-free, your prospects of rehabilitation greatly increase. Dr Treeby deemed you high risk of reoffending, but he said your risk would reduce if your mental health and substance abuse issues are appropriately managed.
52 Armed robbery committed against soft targets is a prevalent type of offending, and general deterrence, denunciation and community protection are significant sentencing factors. The knife you chose was a large and dangerous weapon and you planned the incidents to some degree, including arranging a driver, arming yourself and concealing your face. A serious feature is the degree of violence used to effect the armed robberies and the attempted armed robbery.
53 The two common assaults were committed against innocent bystanders simply going about their lawful business. Both assaults were short-lived but involved a weapon and would have been terrifying for the victims, although no-one was actually physically injured.
54 As I have said, your prospects of rehabilitation must be approached with some guardedness. You are fortunate to have a father who understands the system and is a significant support for you, and will continue to be a significant support when you are released. Indeed, your entire foster family remains supportive of you. I am told you cannot return home when you are released, because your parents have other foster children and you now have a criminal record; however, they will continue to support you. You are relatively young, 26, and your rehabilitation is very much in the interests of both you and the community.
55 Charges 1 and 5 are charges of armed robbery, and charge 3 is a charge of attempted armed robbery. In the circumstances I do not regard the attempted armed robbery as any less serious than the armed robberies, and this is particularly evident when one watches the footage. Mr Sharp, can you please stand up.
56 Mr Sharp, the sentence of this court is as follows:
57 On charge 1, you are convicted and sentenced to 3 years' imprisonment. This is the base sentence. On charge 2, you are convicted and sentenced to 15 months' imprisonment. On charge 3, you are convicted and sentenced to 3 years' imprisonment. On charge 4, you are convicted and sentenced to 15 months' imprisonment. On charge 5, you are convicted and sentenced to 3 years' imprisonment.
58 I direct that 4 months of the sentence on charge 2, 12 months of the sentence on charge 3, 4 months of the sentence on charge 4, and 12 months of the sentence on charge 5 be served cumulatively upon the sentence on charge 1 and upon each other.
59 This makes, Mr Sharp, a total effective sentence of five years and 8 months imprisonment and I direct that the minimum term you must serve before becoming eligible for parole is 3 years 7 months imprisonment.
60 I declare that pre-sentence detention of 259 days be reckoned as time already served under this sentence.
61 And Mr Sharp, but for your pleas of guilty, pursuant to s 6AAA, the total effective sentence I would have imposed is 8 years imprisonment with a non-parole period of 6 years imprisonment.
62 There were no ancillary orders sought?
63 MISS HAMILL: That's correct, Your Honour.
64 HER HONOUR: Is there any reason why Mr Sharp should not be removed? Is there anything else?
65 MS DUBROJA: No, Your Honour.
66
HER HONOUR: Thank you. Mr Sharp, thank you. If you could remove,
Mr Sharp. Sine die.
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