Director of Public Prosecutions v Smith

[2024] VCC 889

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-24-00374
CR-22-00439

DIRECTOR OF PUBLIC PROSECUTIONS

v

ACE SMITH

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	21 May 2024
DATE OF SENTENCE:	14 June 2024
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2024] VCC 889

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Armed robbery – Contravene condition of bail – Contravention of community correction order – Resentenced on index offending – Relevant criminal history – Intellectual disability – Bugmy principles – Verdins principles – Significant drug addiction – Aboriginal offender – Koori Court.

Legislation Cited:      Crimes Act 1958 ss 75A, 201A(1); Bail Act 1977 ss 30(1), 30A(1); Sentencing Act 1991 ss 6AAA, 18.

Cases Cited:Director of Public Prosecutions v Weybury [2018] VSCA 120; Bugmy v The Queen (2013) 249 CLR 571; Director of Public Prosecutions v Herrmann [2021] VSCA 160; The Queen v McKee [2003] VSCA 16; The Queen v Morgan (2010) 24 VR 230; Honeysett v The Queen (2018) 56 VR 375; Director of Public Prosecutions v Heyfron [2019] VSCA 130.

Sentence:                  Imprisonment for a period of 3 years with a non parole period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms O Sparrow for Plea Ms A Stephanides for Sentence	Office of Public Prosecutions
For the Accused	Mr L Barker	SLKQ Lawyers

HIS HONOUR:

Introduction

1Ace Smith, on Indictment P12210568, you have pleaded guilty to:

(a) one charged of armed robbery contrary to s 75A of the Crimes Act 1958 (‘Crimes Act’) which carries a maximum penalty of 25 years imprisonment (Charge 1).

2You have also pleaded guilty to related summary offences being:

(a) one rolled-up charge of failing without reasonable excuse contravene any conduct condition, namely to report to the Fawkner Police Station contrary to s 30A(1) of the Bail Act 1977 (‘Bail Act’), which carries a maximum penalty of 3 months imprisonment (Summary Charge 3); and

(b) one charge of failing without reasonable cause to appear in accordance with your undertaking of bail contrary to s 30(1) of the Bail Act, which carries a maximum penalty of 2 years imprisonment (Summary Charge 5).

3You have also admitted your Criminal Record.

4Further, you have admitted to breaching a Community Correction Order imposed by me on 27 January 2023 in respect of Charge 5 on indictment M12691331 being one rolled-up charge of intentionally causing a bushfire contrary to s 201A(1) of the Crimes Act, which carries a maximum penalty of 15 years imprisonment.

5You now stand to be resentenced on this index offending.

Circumstances of the offending

6A prosecution opening was tendered on the plea and may be summarised as follows:

7You were born in December 1990 and are currently 33 years old. You were 32 years old at the time of offending.

8The victim is Moshin Nadeem, who was employed at Convenience Lodge EzyMart in Footscray.

Armed Robbery (Charge 1)

9On 17 October 2023, the victim was working at Convenience Lodge EzyMart located at 101 Ballarat Road, Footscray. At approximately 3:04pm, you rode a blue bicycle to a stop outside the EzyMart. You entered the shop and approached the front counter. Mr Nadeem walked to behind the counter.

10You produced a knife from your bag and brandished the blade towards Mr Nadeem. You then gestured with the knife towards the till. The knife blade was approximately 10 centimetres long with a creamy blue coloured handle.

11The victim felt shocked and scared. He believed he was going to be hurt if he did not comply. He opened the till and stepped backwards. You reached across the counter and removed all the notes from the till. Mr Nadeem estimated a total of $150 to $200 was taken.

12You then exited the shop and got on your bike. You rode along Ballarat Road in a westerly direction.

13The victim called his employer, then called 000 and police attended the scene.

14Police identified you as a person of interest and, the following day, attended your mother’s address in Maidstone. Police observed the blue bicycle outside the front door.

15Police located you in a building directly behind your mother’s which appeared uninhabited. You were hiding in the roof. Police arrested you, and you stated your methadone script had run out and you could not afford heroin and you did it to score. You requested methadone and indicated you had last used that morning with the money from the prior day.

16Police obtained items of clothing from your mother’s house that matched those you had worn in EzyMart the previous day. Police noted you appeared remorseful and asked if you could just return the money you had taken.

17You participated in a record of interview and gave no comment answers.

Contravention of Bail (Summary Charges 3 and 5)

18At the filing hearing, the first committal case conference was listed for 10 January 2024.

19On 20 December 2023, you were granted bail in these matters by Her Honour Magistrate Falla at the Melbourne Magistrates’ Court. Bail was granted on your own undertaking with conditions, including to:

(a)   report to Fawkner Police Station every Monday and Friday between 6:00pm and 9:00pm; and

(b)   reside at Kent Road in Pascoe Vale.

20Between bail being granted and the first committal case conference date, you failed to report on six out of seven occasions. During that period you also failed to reside at the Pascoe Vale address.

21You also failed to appear at the first committal case conference on 10 January 2024.

Nature and gravity of offending

22Armed robbery is an inherently serious offence. This is reflected in the maximum penalty of 25 years imprisonment which Parliament has prescribed.

23Mr Barker who appeared on your behalf, while acknowledging the seriousness of the offence of armed robbery, submitted that the offending in this instance falls towards the ‘less serious end of the spectrum’ when all the circumstances are taken into account. The offending occurred in circumstances where you had been suspended from your methadone program and were suffering significant withdrawal symptoms. Thus, it was submitted that your conduct was situationally motivated by your craving for drugs. Mr Barker highlighted that the offending was brief, you made no attempt to disguise yourself and while your conduct was threatening, no verbal threats were made. Ms Sparrow who appeared on behalf of the Director of Public Prosecutions, for similar reasons, fairly submitted that the offending ‘falls within the low range of offences of this type’.

24As has been noted by the Court of Appeal in Director of Public Prosecutions v Weybury, while phrases such as ‘low range’ or ‘less serious end of the spectrum’ may be problematic when assessing where offending sits within a range,[1] in the circumstances I accept the submissions of counsel for the prosecution and defence that your offending, while serious, is towards the lower end of the range of seriousness for this type of armed robbery.

[1] DPP v Weybury [2018] VSCA 120, [54].

25Nonetheless, your conduct represents an example of an armed robbery on a soft target, in this instance a person working in a convenience store. While no victim impact statement was tendered, the victim indicated in his statement that he felt shocked and scared, believing he was going to be hurt if he did not comply. It is self evident that a shop assistant being confronted by a person brandishing a knife would be a frightening experience.

Personal circumstances

26As I have already noted, you were previously sentenced by me on 27 January 2023 in respect of charges set out in Indictment M12691331. I outlined your family history and personal circumstances in some detail in those sentencing remarks, and have largely reproduced those paragraphs below, noting that the psychological reports and other supporting materials relied upon by Mr Barker at the plea were also tendered by your previous counsel in respect of the matters for which you were sentenced by me on 27 January 2023.

27You are 32 years old, a proud Wakka Wakka man born in Queensland. Your father was a general labourer and your mother worked in aged care. You have two half-siblings from an earlier relationship of your fathers, with whom you do not have any ongoing contact.

28Your family relocated to Victoria when you were an infant. Your parents separated when you were around four or five years old and you lived with your father. The two of you shared a positive relationship and you had fortnightly contact with your mother while in the care of your father. When you were 10 years old, your father died of a heart attack while being questioned by police. After this, you lived with your mother and her new partner and you lost contact with your paternal half-brother and half-sister. You recall witnessing frequent family violence between your mother and stepfather. You were also exposed to drug use growing up, as your mother was a methylamphetamine user. Mr Barker submits this had the effect of hardening you from a young age to the harms of drug use.

29You left your mother's home when you were 14 or 15 as a result of the family violence you were experiencing, and lived with a cousin in Shepparton until you were 20 years old. This was followed by a period of ‘couch surfing’. Around 2012 you entered your first relationship. An intervention order was eventually taken out against you by your partner after you committed family violence against her. Your partner ended this relationship when you were incarcerated in 2014.

30Around August 2020 you commenced your second significant relationship, with Teesha Hood. Together you had a son, who is now almost three years old. You and Ms Hood are no longer romantically involved but remain on amiable terms. You also have a daughter, almost 12 years old, born to a different mother.

31You were diagnosed with an intellectual disability in primary school and transitioned to a specialist school from Year 7. You describe getting into fights at school, however you were never suspended. You left school at 15 and attempted to gain a vocation as a welder, however you disengaged after two weeks. You were granted the disability support pension at 16 years and have not sought work since.

32Your use of alcohol and drugs started from a young age. You have used alcohol and cannabis from about age 13, and amphetamines from the age of 16. In the last few years, you have used GHB regularly – up to 30 millilitres a day. You have also heavily used methamphetamine and heroin. You report having previously used buprenorphine in custody, and although you were prescribed methadone during your four year sentence from 2016, you immediately relapsed after release due a lack of supports in the community. 

33A number of reports and letters were tendered in support of you, including a psychological report of Dr Aaron Cunningham dated 21 November 2022 and a psychological report of Ms Sandra Cokorilo dated 22 May 2022.

34

Dr Cunningham opines your presentation is consistent with your prior diagnosis of intellectual disability, and in line with this diagnosis, you have struggled to maintain stability in education, accommodation, employment and relationships.

Dr Cunningham notes that given you were raised in the context of drug use, violence and criminal behaviour, your intellectual impairment would have made you vulnerable to the modelling of this environment. Dr Cunningham assessed you as presenting a moderate risk of future violent offending, which could increase to high, in the context of drug and alcohol abuse.

35

In the report of Ms Cokorilo, she refers to the previous psychological assessment and report of Mr David Ball from 2016, where he confirmed your intellectual disability as well as Cannabis Use Disorder and Stimulant Use Disorder.

Ms Cokorilo confirms those diagnoses and further diagnoses you with Generalised Anxiety Disorder, Opioid Use Disorder, Sedative, Hypnotic or Anxiolytic Use Disorder and Borderline Personality Disorder.

36In Ms Cokorilo's opinion, your early environment and disrupted parental attachment are inferred to have led to the development of Borderline Personality Disorder. Dr Cunningham however is of the opinion that you do not meet the full DSM-5 criteria for the diagnosis of Borderline Personality Disorder.

37You instructed Ms Cokorilo that you had thought about death or hurting yourself for several days over the previous two weeks at the time of her report.

38Both Dr Cunningham and Ms Cokorilo acknowledge your desire to engage in drug and alcohol rehabilitation, and that you have identified your young son as a significant motivation to reform your lifestyle. Dr Cunningham opines you present with insight into the wrongfulness of your behaviour. 

39You come before the court with an extensive criminal history, commencing when you were 18 years old. You have spent a number of years of your adult life in prison.

40You have had assistance from the NDIS and receive the support of Ms Hood’s grandfather, a Respected Elder, Uncle Graham 'Boots' Cooper. It is understood that this support will continue upon your release. Further, you have recently been referred to a caseworker from Relive Services who has taken on your case to assist you upon your release.

41Since being remanded for this current matter, you have immersed yourself in traditional art and made efforts to deepen your connection to your cultural heritage, meeting with other Aboriginal inmates and visiting Respected Elders. You have participated in the Torch program and sold artwork through them. Mr Barker attached to his written submissions an example of your work which clearly demonstrates that you have considerable talent.

Sentencing considerations

42I first take into account your plea of guilty. The matter proceeded to this court by way of straight hand-up brief and no witnesses having been cross-examined. As such your plea has saved significant court time and expense demonstrating your acceptance of responsibility and your willingness to facilitate the course of justice.

43Over and above your plea of guilty I accept that you have demonstrated a degree of remorse. On arrest you presented to the police as remorseful indicating that you wished to return the money you had taken. Having heard you speak in the sentencing conversation in the Koori Court plea, I accept that you do have insight in relation to your conduct and have expressed genuine remorse.

44I take into account your personal circumstances, most particularly your very difficult childhood, which includes the death of your father when you were 10 and your exposure to significant family violence, including family drug use. In my view your dysfunctional childhood and adolescence clearly enliven principles in cases such as Bugmy v The Queen[2]  and Director of Public Prosecutions v Herrmann[3]. As such, I accept that the depravation you have suffered in your formative years should be given full weight in the sentencing discretion.

[2] (2013) 249 CLR 571.

[3] [2021] VSCA 160.

45In addition to your dysfunctional childhood you have also suffered from an intellectual disability and a significant drug addiction from an early age, both of which played a part in your offending. Nonetheless, you present with insight, in that you understand that your drug use impacts your decision making and clearly did so in relation to this offending. Ordinarily, drug use in those circumstances cannot be relied on in mitigation, particularly where the person has an appreciation of the influence of drug use on their behaviour, as you do. Further, you have had repeated opportunities in the form of community-based dispositions to address your drug problem. That said, I accept that your drug addiction has stemmed from your early depravation and has continued to influence your conduct in the context of you also suffering from an intellectual disability and in my view, is able to be taken into account to some extent.[4]

[4] The Queen v McKee [2003] VSCA 16, [21] per Vincent JA.

46In relation to your intellectual disability and other identified psychological conditions, I accept the submission on your behalf that Verdins principles are enlivened. As such general and specific deterrence are able to be moderated to a degree. Further in my view your moral culpability is also able to be reduced in consideration of your cognitive deficits as detailed in the psychological materials.

47Turning to your prospects of rehabilitation, Ms Cokorilo assesses your risk of reoffending as high. Mr Cunningham is of the view that based on the test he administered, you present as a moderate risk of future violent offending with the caveat that your risk could increase to high in the context of drug and alcohol abuse. Even so, despite your difficulties, your insight is good, and you understand what is required in order for you to break the cycle of drug use and crime. I note however that when I last sentenced you, giving you the opportunity to engage in therapeutic programs as part of a community correction order, you were unable to sufficiently detox and comply which ultimately led to this new offending, resulting in a breach of that order.

48Your prospects are clearly dependent on you receiving substantial support in the community. You have had a number of positive supports such as Uncle Graham Cooper who will continue to provide mentorship to you. You also have the benefit of the NDIS plan which offers additional cultural support through Trevor Barker, the Aboriginal Coordinator of Supports at Gallawah. As noted, you have recently reengaged with an NDIS agency who will begin to work with you more closely. In my view your prospects at this stage, on the current material, cannot be viewed as positive, however the material also confirms that if you accept and fully embrace the supports offered to you, your prospects will undoubtedly improve dramatically.

49I take into account your participation in the Koori Court. The Court of Appeal has recognised that the 'Sentencing Conversation' in the Koori Court is designed to 'further the reformation of an Aboriginal offender'[5] and is rightly considered to be a mitigating factor.[6]  More recently, these principles have been reiterated in Director of Public Prosecutions v Heyfron.[7] After referring to the principles outlined in Honeysett v The Queen, Kaye JA stated:

In the present case, those factors apply, in fair measure, to the manner in which the respondent has participated in the Sentencing Conversation in the course of the plea hearing.  While the participation of an offender, in that process, is by no means a ticket to freedom, nevertheless, as a matter of sentencing principle, it is appropriate to take it into account for the reasons explained by the Court in Morgan and Honeysett.

[5] The Queen v Morgan (2010) 24 VR 230, [36].

[6] Honeysett v The Queen (2018) 56 VR 375, [54].

[7] [2019] VSCA 130, [66]-[69.

50While taking in to account your psychological deficits, general and specific deterrence, denunciation of your conduct and protection of the community still remain as relevant sentencing considerations in the circumstances. Your conduct, which was motivated by your need to fuel your ongoing drug habit, cannot be tolerated in our community and a clear message must continue to be conveyed to those who contemplate such conduct. In terms of specific deterrence, you have a number of prior convictions for dishonest and violent offending including a prior conviction for armed robbery. While many attempts have been made to deter you, you must be remined of the consequences of offending in this way.

51Turning to the breach of the community correction order that I imposed on 27 January 2023. That order related to a sentence of imprisonment for a period of 15 months together with a community correction order for a period of 3 years in relation to Charge 5 on the indictment, intentionally causing a bushfire. Therefore, you fall to be resentence on that charge. Having served the prison component of that combination order, you were released into the community on the community correction order which you have breached by the commission of the offence above, and also as a result of non-compliance as outlined in the breach report. I have considered the contents of the breach report and my previous sentencing remarks in relation to the previous offending. On resentencing you on the original charge, I take into account your very limited compliance with the community correction order.

Sentence

52Mr Smith, would you please stand.

53Ace Smith, on Charge 1, armed robbery, you are convicted and sentenced to 2 years imprisonment.

54On related Summary Charge 3, contravene conduct condition of bail and related Summary Charge 5, failing to appear in accordance with your undertaking, you are convicted and sentenced to 1 month imprisonment on each charge.

55In relation to the breach of the community correction order on Indictment M12691331, on Charge 5, intentionally causing a bushfire, you are convicted and sentenced to 2 years and 6 months imprisonment.

56In relation to the charge of breaching the community correction order, you are convicted and discharged.

57I direct that 6 months of the sentence imposed on Charge 1 on Indictment P12210568 be served cumulatively on the sentence imposed on Indictment M1291331, making for a global total effective sentence of 3 years imprisonment. I direct that you serve 2 years before becoming eligible for parole.

58Pursuant to s 18 of the Sentencing Act, I declare that 620 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

59Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty, I would have sentenced you to a period of imprisonment of 4 years with a non parole period of 3 years.