Director of Public Prosecutions v Smith

[2024] VCC 1736

IN THE COUNTY COURT OF VICTORIA

AT MILDURA

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00478

DIRECTOR OF PUBLIC PROSECUTIONS

v

Roderick SMITH

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JUDGE:	His Honour Judge Cahill
WHERE HELD:	Mildura & Melbourne
DATE OF HEARING:	5 August 2024 & 23 October 2024
DATE OF SENTENCE:	31 October 2024
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2024] VCC 1736

REASONS FOR SENTENCE
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Subject:Armed Robbery

Catchwords:              Guilty plea – Koori Court – Remorse – Background of disadvantage – guarded prospects of rehabilitation – institutionalisation – impaired mental functioning

Legislation Cited:      Sentencing Act 1991 (Vic) s 5(3).

Cases Cited:R v Williscroft (1975) VR 292; Honeysett v The Queen (2018) 56 VR 375; DPP v Heyfron [2019] VSCA 130; R v Steelie Morgan [2010] VSCA 14.

Sentence:                  Total Effective Sentence of 15 months imprisonment, in combination with a two year community corrections order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mx J Van Dyke Mr B Sharp	Office of Public Prosecutions
For the Accused	Mr D McGlone	Victoria Legal Aid

HIS HONOUR:

1Roderick SMITH, you have pleaded guilty to one charge of armed robbery.[1]

[1] The maximum penalty is 25 years imprisonment.

2Your offending occurred on 7 November 2023 at Mildura.

3The victim of your crime was Akin Ciftci. You knew him.

Circumstances of Offending [2]

[2] The circumstances of your offending are set out in the Summary of Prosecution Opening dated 26 July 2024 (Exhibit A). They are agreed facts.

4Around midnight, while you were walking with three friends on San Mateo Avenue, another friend approached you. She told you Ciftci, who lives nearby, had earlier assaulted her and taken her things. She was visibly upset.

5One of your friends, a woman, went with you to Ciftci’s flat where you knocked on the door. Ciftci recognised you and let your friend and you in.

6When you sat down you pulled out a machete and demanded Ciftci hand over “everything”. You told him you wanted drugs and said you would “slice him up” if he did not comply.

7Your two other friends, both men, arrived and, after you took Ciftci’s phone, you let them inside. When you returned to Ciftci, you hit the table with the machete a couple of times and then struck Ciftci with the flat side of the machete. The blow cut his cheek. When you hit him again, to the head, your male friends grabbed you and took you outside. Your female friend called emergency services.

8Later that morning, around 11 AM, police arrested you with one of your friends who had been with you at Ciftci’s flat. You were wearing the same clothes you had worn when you robbed Ciftci.

9Police questioned your friend and released him without charge.

10You were held in custody. You were drug affected and not fit to be questioned.

11Next day, you made full admissions to the armed robbery.

12You agreed you went to Ciftci’s home, hit him with the machete and stole his phone.

13You told police you knew Ciftci because he sold you ice. He was then a known drug dealer.

14You said you wanted to scare him because he had upset your cousin; that you did not mean to hurt him.

15You said you threw his phone away when you left.

Objective seriousness

16Because it invariably involves a frightening experience for the victim and threatens the wider community sense of safety, armed robbery is a serious offence.[3]

[3] R v Williscroft (1975) VR 292, 301.

17You went to Ciftci’s home late at night. He was in bed when you knocked at the door.

18While he knew you and you wore no disguise, you were armed with a machete.

19No doubt it was a frightening ordeal for him.[4]

[4] Mr Ciftci declined to make a victim impact statement.

20Your crime was not planned. You reacted to your friend’s distress.

21You acted alone.

22You had already taken his phone before you threatened cut him and then struck him.[5]

[5] Your crime is not a category two offence; see s 75A(2) of the Crimes Act.

23I am satisfied you did not intend to harm him.[6]

[6] Implicitly, I accept, as you told police, you are carrying machete for protection.

24Implicitly, I accept, as you told police, you were carrying the machete for your own protection from someone else.

25Overall, I assess the objective seriousness of your crime to fall to the lower end for a crime with the type.

Criminal Record

26You have admitted a criminal record.

27You have served prison terms for offences of dishonesty and violence:

(a)   On 17 July 2023 at the Mildura Magistrates’ Court, you were sentenced to 50 days imprisonment for predominantly dishonesty offences.

(b)   On 1 March 2023, at the Mildura Magistrates’ Court, you were sentenced to 50 days imprisonment for theft of a motor vehicle.

(c)   On 1 November 2018, at Broken Hill District Court, you were sentenced to three years imprisonment for an aggravated break and enter.

Personal circumstances[7]

[7] Your personal circumstances are set out in the reports of Dr Fiona Morrison, psychologist (Exhibit 2) and Martin Jackson, neuropsychologist (Exhibit 3).

28You were born in October 1995 at Mildura. You are 29 years old.

29You are a Barkindji man. You grew up at Dareton, an Aboriginal community near Mildura, where violence was normalised. You witnessed, and experienced, your father’s violence at home. He was in and out of prison. When you were seven or eight years old you witnessed your uncle’s fatal stabbing.

30You struggled at school and dropped out part way through year seven. You have never learned to read or write.

31As an adolescent you were in and out of juvenile detention.

32When you were 16 years old your IQ was assessed at 66, which falls into the “extremely low” range.

33Your work history has been very patchy. You have had some work herding livestock and picking fruit.

34You have had two serious relationships. You were with one woman for eight years. You are ashamed you were violent towards her.

35You have never been violent to your current partner of two years. You described her as being a good influence and support.

36You have a history of long-standing polysubstance abuse. You also have a history of self-harm.

37A psychologist, Dr Morrison, and a neuropsychologist, Martin Jackson, agree, as a result of your history of childhood trauma, and intergenerational trauma, you have developed mental health issues, that is, depression and anxiety.

38From a psychological point of view, Dr Morrison’s opinion is you have complex post-traumatic stress disorder, borderline personality disorder and multiple severe substance use disorders.[8]

[8] Report of Dr Fiona Morrison dated 2 August 2024, [112] and [121].

39From a neuropsychological point of view, Mr Jackson’s opinion is you have a mild intellectual disability, severe language disorder and borderline personality disorder.[9]

[9] Neuropsychological report of Mr Martin Jackson dated 16 September 2024, page 16 – 17.

40They agree there is a direct link between these conditions and your offending because they compromise your capacity to think clearly and make calm and reasoned decisions and appropriate judgements.[10]

[10] Report of Dr Fiona Morrison dated 2 August 2024, [130]; Report of Mr Martin Jackson, page 18.

41They also agree, although you are likely highly institutionalised, because of your psychological conditions, you do not cope well in prison.[11]

[11] Report of Dr Fiona Morrison, [131.a]; Report of Mr Martin Jackson, page 18.

42In prison, you have been prescribed an antidepressant, to help you sleep, and methadone, to help you deal with your drug addiction.

43Your family has kept contact with you in prison. And they supported you at court..

44In relation to this offending, you described that while Ciftci had wronged you, you were remorseful for your actions and would like to “go back to that day and do it differently, just walk away”.       

Analysis

45Because of the seriousness of your offending, only a term of imprisonment can achieve sentencing objectives.

46However, there are mitigating factors which I take into account to moderate your sentence and influence the type of sentence I will impose.

47Firstly, you pleaded guilty at an early stage. The victim of your crime was spared the ordeal of committal and/or trial. You plea has high utilitarian value. In my view, it also demonstrates your willingness to facilitate the course of justice and your acceptance of responsibility for your actions.

48Secondly, I am satisfied you are genuinely remorseful.

49When police questioned you, you made full admissions to your offending.

50It is also to your credit you actively participated in a sentencing conversation with two elders.[12] In the presence of your parents and grandmother, you told the elders you are sorry for what you had done. You said you only meant to slap Ciftci because he had wronged your cousin.[13] You were open and honest. You are entitled to a sentencing benefit for your participation in Koori Court.[14]

[12] Uncle Mark Bland and Auntie Sandra Stewart.

[13] You said you carry knives because you've got enemies.

[14] Honeysett v The Queen (2018) 56 VR 375; DPP v Heyfron [2019] VSCA 130; R v Steelie Morgan [2010] VSCA 14, [33] – [40].

51Thirdly, because of your disadvantaged upbringing, Bugmy principles are enlivened to moderate your moral culpability.

52Fourthly, relying on the expert opinions of Dr Morrison and Mr Jackson, I am satisfied, because of your psychological and neurodevelopmental conditions, Verdins principles are engaged to lower your moral culpability and reduce the need for deterrence.

53Your conditions also will make prison harder for you.

54Generally, they are relevant to the severity and type of sentence I will impose.

55Unfortunately, your poor mental health, in combination with your substance abuse disorder, also pose risk factors for your reoffending.

56You have some NDIS funding to assist you with supports in the community.[15]

[15] Letter from NDIS confirming assistance dated 25 November 2019 (Exhibit 4).

57You need intensive treatment to decrease and manage the risk of you reoffending.[16]

[16] Report of Dr Fiona Morrison dated 2 August 2024, [136].

58While I must be guarded about your prospects of rehabilitation, I have some optimism you can change and make a better life for yourself. However, the change must come from within you.

59Overall, I have decided a composite sentence of a punitive prison term and a therapeutic CCO structured to decrease and manage the risk of your reoffending can best achieve sentencing objectives in your case.

60I am aware I must impose a sentence that is no more severe than that which is necessary to achieve the purposes of sentencing.[17]

[17] Sentencing Act 1991 (Vic) s 5(3).

61Mr Smith, by the sentence I impose I must denounce your conduct, punish you, and deter you, and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.

62Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of armed robbery, you are sentenced to 15 months imprisonment in combination with a two-year community correction order.  

63I impose the following special conditions:

(a)   supervision;

(b)   mental health assessment and treatment; and

(c)   drug assessment and treatment.

64I declare you have 359 days of your sentence by way of pre-sentence detention.

65While there is some artificiality to the process, I declare, but for your plea of guilty I would have sentenced you to two years and nine months imprisonment and imposed a minimum non-parole period of two years