Director of Public Prosecutions v Simmonds
[2012] VCC 1015
•20 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00700
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RUSSELL SIMMONDS |
---
JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 July 2012 | |
DATE OF SENTENCE: | 20 July 2012 | |
CASE MAY BE CITED AS: | DPP v. Simmonds | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1015 | |
REASONS FOR SENTENCE
---
Catchwords: Sentence – guilty plea – robbery and armed robbery – history of drug and alcohol abuse – mature offender – 3 previous convictions for armed robbery – importance of specific deterrence – non parole period fixed to encourage commitment to address substance abuse
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Cronin | OPP |
| For the Accused | Mr M. Brugman | Michael Brugman Barristers and Solicitors |
HER HONOUR:
1 Russell Simmonds, you have pleaded guilty to one charge of robbery and one of armed robbery. I have already sentenced your co-offender in both offences, Nathan Cameron.
2 The circumstances of the offences I set out in my reasons for sentence when I dealt with him and I will repeat them here.
3 On 13 March this year, at approximately quarter past one in the morning, you and your co-offender Cameron went into the Apco Service Station at Ormond Road, East Geelong. There was a sole attendant there, Daniel Pusnjak.
4 Each of you and Mr Cameron were wearing clothes that included, in his case a hoodie, in yours a hat, which were being worn in a way that could, at least in part, disguise your appearance.
5 The door of the Apco was closed at that hour of the morning, no doubt to provide some rudimentary form of security for the attendant, but you rang the bell to request entry and Mr Pusnjak unlocked the door and let you in.
6 Cameron had a brick in his hand. It appears the brick was to be used for the purpose of wedging the door open so that you could make good your escape, rather than for any purpose connected with threatening or applying force to the victim, and that is reflected in the charge to which the two of you have pleaded guilty - robbery, not armed robbery.
7 The two of you entered the store and you grabbed Mr Pusnjak around the neck, in a headlock, told him that you were armed with a weapon and demanded to be taken to the cash register. You kept him in the headlock as he pointed out where the cash register was and you went towards it. You took cash out of the register, whilst Mr Cameron helped himself to some cigarettes.
8 Mr Pusnjak was told to get to the floor and count to 20 while you left. It was not until he had complied with your direction that he felt able to push the alarm button and get help.
9 About a thousand dollars worth of cigarettes and $481 in cash was stolen as a result of this robbery.
10 You and Mr Cameron went back to your home and divided the proceeds. You apparently caught a taxi and went off in an attempt to buy some heroin, although that appeared to be unsuccessful. You later went to the Grovedale Hotel where, in effect, the money was laundered by putting it through the poker machines. You stayed there for some time at the hotel after the robbery before going home.
11 Within 24 hours the two of you went to the 7-Eleven on the Bellarine Highway at Newcomb. There was one person in attendance there, a man by the name of Zubair Ali. The two of you got there about midnight. Again, you were wearing a cap and Mr Cameron a hoodie, again, it would appear, in some attempt to conceal your identity.
12 Each of you had a glove on one hand, and you, Mr Simmonds, had a large knife with you. Again, you requested entry at the locked security door and were let in. You asked Mr Ali to get you a packet of cigarettes, and while he turned his back to comply with that request, you produced the knife and when he turned back it was pointed at him.
13 He was told to give you the money. You leant over and grabbed not just the money, but the whole cash register. Your co-offender, Cameron, had a small knife with him which he used to cut the leads which connected the cash register to the power system.
14 You left the store and went with the cash register to the Bellarine Rail Trail in Newcomb. There it was forced open and it was discovered there was no money in it. You left the cash register dumped there. By then it had a fingerprint of yours on it which later connected you with it.
15 The attempts to conceal your identity have been rudimentary, and police were soon able to identify the two of you. You were both arrested on 14 March. A search of your house found some of the clothing worn in the robbery and the armed robbery.
16 When interviewed, you gave an account which was essentially denials and the putting up of what were patently false alibis.
17 You were charged and remanded in custody and have remained in custody ever since.
18
Only one of the two victims has provided a victim impact statement,
Mr Pusnjak, the victim of the robbery, Charge 1.
19 As I said to Mr Cameron, so I say here, what he said is remarkably like what many other victims of these soft target robberies and armed robberies say, and although no victim impact statement has been provided by Mr Ali, I have no doubt that he would have had similar responses to those of Mr Pusnjak.
20 Mr Pusnjak said that, as a result, he felt paranoid, that he was constantly on the lookout and afraid of leaving the store without company. He has had anxiety attacks, and that has resulted in poor performances at work. He said that he had become more cautious with taking protective measures, locking doors, closing windows and not being alone when he stepped out at night. He said he smokes more often, he is more judgmental when he is vetting people in the store and he is not enjoying work as much as he used to.
21 He also pointed out something that I accept could not have been known to you and Mr Cameron. This was the second time in a week that this had happened to him. It is often said that petrol stations and convenience stores are soft targets, and that is a euphemism. What that means is that they are places where people who are vulnerable to this sort of attack, that is the sort that you and Mr Cameron carried out, work.
22 People who work in such places do not often have great choices about where they work or the hours when they work or how they are protected. The places they work in are places that are generally open to the public, open all hours or late into the night, because they are providing a service for basic daily needs. They do not have great security. That is a measure of the sort of service that they provide. That means that the people who work there are much more vulnerable to this type of attack than people who work in other places. Unfortunately, although it seems that there are such things as facilities to lock doors and to install closed-circuit TV cameras, they do not seem to deter people like you. The most they do is provide some video or still images that can help identify offenders once offences have been committed.
23 People like Mr Pusnjak and Mr Ali, who engage in such employment, do not understand and do not sign up for the risk of being held up, threatened with knives or threatened with violence as part of their daily job. There is, therefore, clearly a very strong need to impose a sentence that marks punishment, denunciation and deterrence.
24 You, at the age of 40, have a considerable criminal history, including three separate convictions for armed robbery. The first was in 1990 when you were aged 18. You were then sentenced by a judge of this court to imprisonment for three years and six months. You were sentenced for other offences at the same time. You received a total effective sentence of four years and six months with a three year non-parole period.
25 Your second armed robbery conviction was recorded in 1993, when you were aged about 22. That was an armed robbery on a service station. It occurred in similar circumstances to this. You were with a co-offender. You were armed on that occasion with batons. You stole money and other items. You received, on that occasion, a sentence of two years and eight months, and again, being sentenced for other offences at the same time, ended up with a total effective sentence of three years. A period of 20 months was set as your non-parole period.
26
Your last armed robbery sentence was imposed in 1999 when you were aged 27. Again, it was on a service station. Again, it was in company with a
co-offender. On this occasion you were armed with a tyre lever and, again, cash was stolen. On that last occasion, you were sentenced to be imprisoned for five years with a non-parole period of three being set.
27 Over that same seven year period for which you were dealt with for the armed robberies, you had four other court appearances, all for dishonesty-related offences, all dealt with in the Magistrates' Court, and terms of imprisonment were imposed in respect of those.
28
Since your release in 2002, from your last armed robbery sentence, until the time of the commission of these offences, you had only one further court appearance and that was for a different type of offending, for personal violence. I was told it was for assaulting a bouncer, and your partner. You were sentenced in New South Wales to a period of 15 months' imprisonment with a non-parole period of six months and you were released at the end of that
non-parole period. On the same occasion you were fined for possession of a firearm.
29 Since then, or during that period, from your release in 2002 until the time of the commission of this offence, apart from that single court of appearance, you had kept out of trouble. It would appear a combination of moving out of Geelong, forming stable relationships, fathering children and obtaining and maintaining steady employment were responsible for that, and so it looked, as you were maturing from your twenties into your thirties and approaching your forties, that things were going well and that you had put that behind you.
30 Although your first relationship post release came to an end shortly after the birth of a child in 2003, you then formed another which, although having periods, it would appear, of instability, still endures today. You seemed, during that period, to cope with the grief following the death of the first child born of that second relationship, a daughter born very prematurely and living only a few days or weeks. Since then, you and your partner have had two more healthy baby girls, now three and two. You were working, supporting your family, moved on a couple of occasions from New South Wales down to country Victoria and eventually back to Geelong, but things seemed to be going well for you. However, they began to fall apart in the middle of last year.
31 You were involved in a motor vehicle accident. You sustained serious injuries in that, particularly to your right leg, which resulted in you spending a considerable time in hospital dealing with considerable pain. You were unable to return to work and you lost the last job that you had held, as an abattoir worker at the rabbit abattoirs in North Geelong.
32 You were using, and maybe abusing, Oxycontin, initially prescribed for the pain for the leg, but perhaps then used for its generally sedative or narcotic purposes, and you were drinking far too much.
33 It appears that alcohol abuse has been a long-term issue with you, and according to what you told Mr Cummins, who provided a report dated 12 July this year, you now, since you have been in custody, define yourself as an alcoholic and acknowledge that you have had long-term problems with alcohol abuse.
34 In any event, the combination of those circumstances starting, it would appear, with that motor vehicle accident led to such tensions between you and your partner that you were, in February of this year, asked to leave home. That seemed to have devastating consequences for you. You had difficulty coming to terms with the fact that you were not seeing your children, but difficulty obviously in addressing the alcohol and then drug abuse problems that you continued to manifest.
35
You lived on the streets for a short time before you fell in with and then moved in with an old friend. It was there that you met up with Mr Cameron, your
co-offender. Your life seemed to revolve around abuse of alcohol and methamphetamine and that provided the context for these offences that bring you before the court today.
36 It is clear that alcohol abuse and drug impairment are not excuses for this offending. They are not mitigators. You are an adult able to make choices and aware of the consequences of the effect of those substances on you, on your judgment and on your behaviour.
37 Since being remanded in custody, you have taken steps to get your life back in order. You have repaired your relationship with your partner and she is very supportive. She has provided a letter which supports your instructions. She has visited you and she has brought the children on two occasions to visit you in prison. She says in her letter that she intends to help you continue the close and caring relationship you have had with them and the important role that you play in their lives. She says that you telephone her and the girls every day and maintain contact with them. That clearly is an important factor for you in having an incentive to continue the change that you have tried to embark upon since in custody to make sure that they are waiting for you when you get out.
38 You have been working, whilst you have been on remand, as a billet and then in the kitchen, doing so until you were prevented by your leg pain from that motor vehicle accident injury from doing so. I, of course, note that it is not compulsory to take work on whilst in remand, and therefore that shows a demonstration by you of a commitment to get back into the routine of work and meaningful activities within your day, which stands in contrast to the way you had been living your life in the time leading up to this offending.
39 You have been working in the gym to try and restore strength to your injured leg, and you have put your name on a waiting list to participate in a drug and alcohol course. You are showing in that sense, although knowing that you are facing a substantial term of imprisonment, a determination to set yourself on the right track from the time that you start your term of imprisonment rather than wallowing in self-pity and misery or idleness until close to your release date. So, it is clear that you have got family support, something to look forward to, and that you are taking positive steps yourself to make sure that they are there for you and that you will be able to participate and enjoy them as best you can upon your release, though they count in your favour.
40 You have a number of other matters pending arising out of that motor vehicle accident and other matters. They are relevant only to show how your life went off the rails in that time since the motor vehicle accident and that there is a little more clearing the slate necessary before you can say that it is all behind you and you can look forward to that future. That is the only way I refer to them and take them into account.
41 I take into account your early plea of guilty. I accept that it is made at the first available opportunity and that it has both utilitarian benefits in saving the time and cost of trial and significant benefits to the victims. It saves them the ordeal of having to keep the events in their minds and then have to relive them as they give evidence at trial. That is something that I consider to be a significant saving to the victims and something that I should take into account in your favour.
42 In his report, Mr Cummins says that you provided a history which would attract a diagnosis of a personality disorder, most probably an antisocial personality disorder, although he noted that it must be taken into account that you reported a significantly dysfunctional history.
43 He said that you did not present as being paranoid, although you did present with an elevated level of suspicion and defensiveness and that you did not immediately present as having an acquired brain injury, although your reported history of alcoholism and your lengthy history of poly drug use raises that possibility.
44 Mr Cummins said that you now acknowledge that you have been a chronic alcoholic and says that in his opinion you were suffering from alcohol dependence at the time of committing the armed robbery. He notes that you have never undergone any residential, drug or alcohol detoxification or rehabilitation, and that you have never had any mental health treatment or grief counselling following the death of your daughter.
45 He says that your personality problems have, at times, been significantly reflective of your alcohol dependency, and notes that on your report to him all of your previous armed robberies were committed because you were then either alcohol or drug-dependent, and he notes that you hope that you will be provided with psychological or psychiatric treatment whilst serving your sentence. He says, therefore, that your prognosis would be described as being significantly guarded, but he, too, places weight on the fact that your partner, Ms Yeoman, remains supportive of you and provides you something very significant to look forward to in the future.
46 I must balance the matters referred to by Mr Cummins and the matters that I have taken into account in your favour with the need to impose a sentence that reflects denunciation, just punishment and general deterrence.
47 Offences such as those that you and Mr Cameron committed are far too prevalent, and we must continue to denounce them and must continue to make it clear in sentences for people who act as you do, that those who commit such offences must expect a term of imprisonment. We must try and make it clear that it is just not worth it.
48 You have expressed remorse for your offending and proffered an apology to the two victims in court. Whilst I can say, as I often think when sentencing people in your position, I wish you had thought of it before you forced your way into those places and terrorised those poor people, I take into account the fact that you are now prepared to acknowledge that you have harmed the people who you held up and that you have offered your apologies to them.
49 In your case also, specific deterrence is important. It must be acknowledged that despite the considerable gap between the sentences for the previous armed robberies and now, those previous sentences were not sufficient to act as deterrence to you earlier this year. Your previous convictions for armed robbery are also relevant to the weight to be given to denunciation, to general deterrence and to just punishment.
50 So far as your other previous convictions are concerned, both the pre 1991 and the 2007 New South Wales one, they are not directly relevant to the armed robberies, they simply mean that you are a person who has had a history of contact with the criminal law and you do not come before the court as a first or even occasional offender, but that is as far as it goes.
51 Your co-offender, Mr Cameron, I sentenced to be imprisoned for a period of three years, and I fixed an 18 month non-parole period. The sentence I am about to impose on you is higher than that. He ultimately made a confessional interview which did assist the investigation, and did that at a time that you had denied committing the offences and proffered alibis. He did not have any priors for armed robbery and had only one previous conviction, one for shop stealing, which I took as being relevant only for the purposes of showing that he, too, did not come before the court as a first offender. He had taken positive steps to address his substance abuse, having been accepted into and remained in a residential rehabilitation program once he had been released on bail. Although equally responsible with you for the robbery and the armed robbery, he was not the person who put Mr Pusnjak in the headlock, nor was he the person who was armed with the large knife which was used to threaten Mr Ali. These are relevant distinctions between your circumstances for sentencing purposes.
52 Mr Brugman's submissions were directed to fixing a non-parole period, which I consider it appropriate to do.
53 The prosecution submitted that the appropriate sentencing range was a head sentence of between four and six years and a non-parole period of between two and a half and three and a half years. Mr Brugman submitted I should fix a non-parole period at that lower end of the prosecution range. I consider the non-parole period should be long enough to allow the Parole Board, whose choice it is whether to release you on parole and when to release you on parole, sufficient time for them to supervise you. In particular to monitor your drinking and drug-taking upon your release in order to assist you to maintain your current strongly expressed resolve to address these problems on release. It is clear that no matter how firm your commitment is now and remains during your time in custody, it will be more difficult once you are released on parole because of the greater availability of both alcohol and drugs in the open community.
54 I do not consider, however, that the non-parole period should be fixed simply by reference to the lowest figure in the Crown range. I have to take into account your circumstances, the circumstance of the offending and your previous history.
55 Could you now please stand?
56 Russell Simmonds, on the two charges to which you have pleaded guilty, you are convicted: On Charge 1, robbery, you are sentenced to be imprisoned for a period of two years and three months, and I direct that nine months of that be served cumulatively upon the sentence on Charge 2, which I make the base sentence. On Charge 2, of armed robbery, you are sentenced to be imprisoned for a period of four years and nine months. That makes a total effective sentence of five years and six months, and I fix a non-parole period of three years and three months.
57 I declare that you have spent 128 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
58 Pursuant to s.6AAA of the Sentencing Act, I declare that but for your pleas of guilty, I would have sentenced you to a term of imprisonment of four years on Charge 1 and six years on Charge 2. I would have fixed a total effective sentence of eight years and six months and a non-parole period of six years.
59 I have been asked to make a disposal order and an order for the retention of the forensic sample taken from you at the time of interview. I am told that both those orders are consented to, and I propose to make those orders. I consider it appropriate to make the retention order having regard to the seriousness of these offences and to your previous convictions.
60 Could you take a seat while I just sign those orders, thank you.
61 Do the orders that I pronounce reflect what I said I intended to do?
62 MR CRONIN: Yes, Your Honour.
63 MR BRUGMAN: Pre-sentence detention, would Your Honour declare that period?
64 HER HONOUR: I'm sorry, didn't I do that?
65 MR BRUGMAN: Well, I didn't hear it, Your Honour, but I'd be grateful if Your Honour would declare that.
66 HER HONOUR: I thought I did, but I will do it again. I declare that you have spent 128 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
67 MR BRUGMAN: If Your Honour pleases.
68 MR CRONIN: As Your Honour pleases.
69 HER HONOUR: Thank you. Can you remove Mr Simmonds, please?
- - -
0