Director of Public Prosecutions v Smith
[2024] VCC 209
•29 February 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-02250
Indictment No. M12521438.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BROKK SMITH |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 February 2024 | |
DATE OF SENTENCE: | 29 February 2024 | |
CASE MAY BE CITED AS: | DPP v SMITH | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 209 | |
REASONS FOR SENTENCE
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Catchwords: Armed robbery on one date; theft on another; prohibited person carry imitation firearm on yet another date. Summary matters: Commit indictable offence on bail and aggravated assault (with a weapon) in lead in to the theft charge on the indictment. 26 years of age at time of offending in late 2021 – 29 years of age as at sentence. Lengthy enough criminal history – guilty plea, though not the earliest. Worboyes v The Queen [2021] VSCA 169. Protection prisoner.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Tatas | Office of Public Prosecutions |
| For the Accused | Mr M. Page | Leanne Warren & Associates |
HIS HONOUR:
1 Brokk Peter Smith, you have pleaded guilty to three charges on the indictment being one charge of armed robbery, one charge of theft and one charge of being a prohibited person carrying an imitation firearm. Those three offences occurred on three separate dates in late 2021. You have also pleaded guilty to two related summary matters, namely one charge of committing an indictable offence whilst on bail (Summary Charge 7) and one charge of aggravated assault, that is, assault with a weapon (Summary Charge 11).
2 The prosecution plea opening at para 4 and 5 sets out the relevant maximum penalties.
3 You have admitted a lengthy enough prior criminal history which your counsel concedes is of relevance to my task.
4 Let me move then to the factual basis of sentencing.
5 The prosecutor Ms Tatas opened this matter to me earlier today in accordance with a written summary of prosecution opening for plea dated 19 December 2023. Your counsel Mr Page informed me that this was an agreed summary. For that reason, there is little point in my setting out all the agreed facts in these my reasons. The document does that and I will sentence pursuant to it. It is marked as Exhibit A.
6 I will give only a short summary in my reasons so that my reasons and ultimate sentence might be actually understood by anyone who happens to access these remarks.
7 By way of very broad summary then, in late 2021 you met some people living at a unit out in Deer Park. These were Beray Ali and his sister Sheray Ali. They were in their 40s and Mr Ali lived there with his partner, Kylie Crump. Mr Ali was wheelchair bound. You also met one of their housemates, a man named Truong Duc Huynh.
8 In the early hours of 15 November 2021, you entered Mr Huynh's bedroom where he slept. It was between 1 and 2 am. You woke him up and pointed a handgun in his face. It was an imitation firearm. He was not to know that. He thought it was real as it was pressed to his head and he could feel the metal. You demanded money and when he said he had none, you demanded he withdraw some. You were hitting him to the chest and face with your fists and the handle of the gun. At one point you obtained a pillow, held it to Hunyh's head and put the gun against it and told him to give you money or you would shoot him. Again, you demanded that he withdraw money from the bank but he said he had none in the bank. You asked about the amount of cash that was in the wallet and he said there was $30 and you then snatched the wallet and left the house. This conduct that I have described was the subject of the armed robbery charge on the indictment and it took place whilst you were on bail.
9 Thirteen days later you went back to the same premises in the early hours, this time at around 3 am. You had arranged to be driven there by another who does not feature in this sentencing exercise. There are no
co-accused. Sheray Ali was asleep on the couch and was woken by your yelling and knocking on the front door. Though she had some understandable reservations, she ultimately opened the door and you said that you did not care what time it was. You walked past her and headed toward the bedroom where her brother Beray was asleep with his partner Kylie Crump. As you went in that direction, she saw you reach into your jacket. She fled the address in fear. Her brother had been awoken by the disturbance and was getting into his wheelchair and was wheeling towards the bedroom door when you entered and pointed a silver pistol at his head and told him 'not to fuck around'. You asked for money and you demanded objects of value and began going through the drawers out in the loungeroom. You ultimately stole the bike. That bike belonged to Sheray Ali. You left with it. That is the subject of the theft charge. The use of the weapon pertains to the aggravated assault summary offence before me.
10 Assault with a weapon such as that and theft would often enough add up to a completed offence of armed robbery.
11 For whatever reason, in relation to this second attendance, the decision has been taken not to proceed against you for aggravated burglary and/or attempted armed robbery, or a completed armed robbery for that matter. It is not for me to review that decision or to be in any way critical of it. The fact is what I must do is sentence you on the charges before me and on the agreed factual basis. It follows then that I have to be very careful, indeed astute, not to slip into sentencing you for more serious offences that are not before me.
12 Moving forward to 7 December 2021, on that day you were arrested by the police and found to be in possession of a silver imitation firearm. You were, for the reasons set out in the summary at para's 35-37, a prohibited person at that time. I have mentioned already that you were on bail at the relevant time having been bailed in September 2021 to appear at Wodonga Magistrates Court on 15 February 2022.
13 During the execution of the search warrants, police found a number of cards and items from Huynh's wallet. They also seized the stolen bike. You were interviewed and denied the offending.
14 You have remained in custody since, with all but 30 days to be reckoned as formal pre-sentence detention for this matter. Attached to the agreed summary is a chronology of the matter before the court. A contested committal was conducted in November 2022 and the matter was in fact at one point assigned a trial date. A defence response was filed where you denied most of this offending.
15 The matter settled in September 2023 and you were arraigned in short form and pleaded guilty in October of that same year.
16 So much then for what is really only a brief summary of the agreed summary in this matter. As I have already said, I will sentence pursuant to the more detailed agreed summary dated 19 December 2023 and marked as Exhibit A on the plea.
Impact
17 There are no impact statements placed before me but it is plain enough that this was frightening offending. Your counsel conceded this was so. In fact, he took no issue with me having regard to such statements as to the immediate impacts as were set out in the statements within the depositions. The agreed summary after all describes Ms Ali fleeing her own home. It describes Mr Huynh believing the gun was real. This was serious offending and no-one involved will ever forget it. Plainly it had a frightening impact. Beyond that though, in the absence of impact statements, it is impossible for me to determine that there has been any long term significant impact arising here.
In mitigation
18 Mr Page conducted the plea in mitigation on your behalf earlier today and he relied upon an undated 6 page outline of submissions. He filed an old report from a forensic psychologist Mr Jeffery Cummins. I have had regard to that report, but I will not set out any detail from it in these, my reasons. It is not relied upon as in any way enlivening any of the principles from the case of Verdins[1] or containing any expert opinion of any significance to my task. It was obtained with a bail application in mind. Having said that though, it was still useful for me, containing as it did detailed information as to your background. I should say I have had this material available to me overnight. I have read all of this material prior to coming onto the Bench this morning.
[1]R v Verdins [2007] VSCA 102
19 Either by reference to the written material or the oral submissions, Mr Page has informed me of your personal background and by that I mean your family, educational, work, drug use, relationship and even mental health history. He addressed me as to your prior criminal history.
20 He made some submissions to the court as to the level of objective gravity of this offending, the relevant sentencing purposes and also as to your prospects of rehabilitation. He dealt with your status as a protection prisoner and the role that he said that should play in my sentencing task.
21 In truth there were not that many matters in mitigation here. In the excellent and comprehensive plea that he conducted on your behalf, Mr Page relied upon the following matters in mitigation:
· Your guilty plea with some heightened benefit owing to the global pandemic backlog, (Worboyes[2]);
· Your likely status as a protection prisoner with some heightened prison burden arising.
[2]Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’)
22 He conceded the inevitability of a head sentence and one of a dimension requiring the fixing of a non-parole period.
Prosecution
23 The prosecutor Ms Tatas really did not need to make detailed oral submissions in this case given the sensible and realistic manner in which the plea had been conducted. She had filed some written submissions which really were quite uncontroversial dealing as they mainly did with matters of established sentencing principle. For instance, she dealt with matters in aggravation present in this case as well as features of aggravation absent in some of the offending. She also made submissions as to where the offending sat on the spectrum of offence seriousness and the reasons why it did. She pointed out in oral submissions the vacuum in the evidence in relation to the claims that you were drug free and had accessed a psychiatrist and launched civil action in relation to the abuse committed upon you in the juvenile justice system. The Director was calling for a head sentence with a non-parole period but so much had already been conceded by your own counsel.
24 I will come back later in these reasons to consider the various submissions made by each of the parties.
Background
25I will turn firstly though, and relatively briefly, to your background. Briefly as I have no reason not to accept the submissions and the material placed before me as to your personal and family background. As I have said already, there are detailed statements in Mr Page's written outline as well as in the expert report of Mr Cummins, and I simply see no need to repeat all this detail.
26In broad summary then, you were born in December 1994. So you are now 29 years of age. Your parents separated when you were quite young and your father died several years later when you were about 10 years of age. Though not mentioned in the expert report, it was submitted to me that he had committed suicide. Nothing depends upon that. He was an indigenous man.
27
You were raised in NSW. You lived with your mother and stepfather and were the oldest of a sibship of three children, two of them being
half-siblings. You described to Mr Cummins that you had been raised in a loving and caring family albeit with some strictness from your stepfather which prompted you to run away. I was told in oral submissions that you ran to your grandmothers and that was not an ideal destination.
28There was no physical domestic violence within the family home but you were certainly far less lucky once you landed in juvenile detention at the age of 14 where there was physical and sexual abuse. Your counsel chose to tell me about those earlier periods of incarceration in juvenile facilities which of course were not allegeable against you and predate the matters in the criminal record that has been filed in this matter. I am not critical of Mr Page for doing that. It gave me I believe a better sense of the person before the court.
29Backtracking slightly then if I may, you went to the local primary school up in Bega and then onto high school where it would seem you failed Year 7. You finished up your education in Year 10 but that was within the juvenile detention system up in New South Wales.
30In terms of your work history, it has been sporadic and in fact virtually non‑existent for many years. I saw reference in the written materials to the fact that you had not worked since the age of about 22. Prior to that you had worked intermittently in the fishing industry where there had been some family connection.
31I mentioned in the course of the plea that your life took a dreadful turn when you were 16 years of age. It was a life altering event for you and sadly a life ending event for two of your friends. You were involved in a catastrophic driving offence. You had stolen or taken your mother's car, it matters not which, driven it and rolled it, killing two of your closest friends and losing your right leg into the bargain. Unsurprisingly you were incarcerated for some years as a result of that offending and you wound up at one point at the Goulbourn prison where there were some connections made to an Outlaw Motorcycle Gang. Drugs have been very much problematic for many years and have also impacted upon your mental health with drug induced psychosis suspected. You have also had some health issues with a diagnosis of hepatitis C.
32I was told about one intimate relationship that you had had with Bonnie. This was in your twenties. In fact met whilst you were in custody. That relationship lasted a few years and produced a daughter who is now five years of age. In fact that daughter now lives with your mother and stepfather out in Werribee and she has been coming for monthly visits to see you. You have also had some Zoom visits. She gives you some hope for the future. I am told you still enjoy family support. I should say, your family are strangers to the courts and to law breaking. You are the only member who has ‘troubled the scorers’ in that respects.
33Your counsel told me that you estimated that your longest period out of custody has been something in the vicinity of six months. That you have found integration or reintegration upon release very difficult indeed. That supports have been lacking. Your counsel pointed to your most recent release on parole where you were provided, he said, with a train ticket late at night. You were released in August 2021.You were trying to transfer your parole to Victoria to be closer to your family who now live down in this State. That transfer had not gone through and you failed to report and left the State in breach of parole. Parole was then revoked in October 2021, prior to the commission date of these offences.
34You have a quite lengthy criminal history before the courts. I see no need to set out the full details of that criminal history as the document does that and it will not change. I have already mentioned the dangerous driving causing death charges. There are a range of other offences over the years including driving, dishonesty, drugs, criminal damage, bail and weapons offences. There is one common assault prior conviction and I enquired of that, though that does not assume any significance to my task given the explanation provided.
35As Mr Page spelt out, you have been sent to prison on a number of occasions and you have had real difficulties making any progress upon release. He said that you had swiftly enough relapsed into drug use and then offending behaviour and wound up back in custody yet again. You hope this time it plays out differently upon your ultimate release. Only time will tell in that respect.
36 You do not fall to be sentenced a second time for any of your past crimes. You received those past sentences and you served them. Your past criminal history does not in any way aggravate the offending that I am dealing with or remove the need for a proportionate and just response to this offending.
37 I do however have to make judgements as to your prospects of rehabilitation, the extent of the need to deter you, your risk of reoffence and the weight to be given to protection of the community. It is obvious that you present with a significant enough risk of reoffence.
Guilty plea
38 Let me turn then to some of the other matters raised on the plea. I do not pretend by the way that I have canvassed every detail of your background. I act on the more complete detail placed before me some of which is in that report of Mr Cummins.
39 Turning then to the other matters raised on the plea, the first of those is your guilty plea. Though not a plea at the earliest or even an early stage, it still is of real importance to my task. There was a committal where your various victims were all cross examined. You pleaded not guilty and you were committed to this Court. A defence response was filed setting out your denials of any assault or armed robbery. You were pleading to the theft of the wallet and the carriage of the firearm found ultimately upon arrest. It was your right to run a committal and to take the matter to trial. That is not a matter of aggravation at all. As the trial date came closer, the matter resolved and you pleaded guilty. I have certainly seen later pleas than yours. It was not a plea on the very eve of the trial or during the trial, for that matter. It settled on 25 September 2023 and in a setting where the Crown did not proceed with some charges.
40 What is important is that you have taken responsibility for your crimes by pleading guilty.
41 As a result of your guilty plea, the time, the cost and the effort of an actual jury trial in this Court has been avoided. All the witnesses have been spared the experience of giving evidence in this Court.
42 You have in these ways facilitated the course of justice and you must be rewarded for doing so.
43 As I have said this matter settled in September of last year at a stage when the backlog in this Court was close to being under control. It had not been entirely cleared and certainly no announcement had been made to the effect that it had been cleared.
44 We are surely close to the point in time now, if not at that point, where any future decision to plead guilty surely could not be met by any heightened sentencing benefit derived from the principles in Worboyes and the subsequent cases applying that decision. Not only have we now moved beyond the global pandemic. The pandemic backlog in this Court has now actually been cleared. We are operating in this Court at pre-pandemic levels as the Chief Judge announced to the profession late last year. However, as Mr Page spells out in his submissions, this case settled before that announcement and I do accept it is appropriate to give some heightened benefit to your guilty plea in line with the principles derived from that case of Worboyes. So I will treat your guilty plea as worthy of some extra weight for the many reasons set out in that line of authority.
45 I take these various matters into account in mitigation.
Remorse
46 Your counsel's submissions were silent as to remorse and that was easy to understand. I queried this with him and learnt that it was no oversight. You had after all displayed no remorse at all in the police interview, you had denied any assault or armed robbery in the defence response and in your earlier discussions with Mr Cummins. Mr Page was not arguing that there was any actual remorse on display here in the materials. You have though, pleaded guilty. A guilty plea is usually, though not always, indicative of some remorse.
47 I will find some limited remorse to be implied from your guilty plea and I take that into account in your favour as well.
Protection increased burden.
48 Mr Page relied upon your likely protection prisoner status and the increase in burden presented by that status. He cited the case of Rostom.[3] That case is no authority for some blanket statement as to an increased burden arising for all protection prisoners. There are many variables including the reason for protection status and the circumstances in which the prison sentence will be served. Some prisoners who are informers or who have given undertakings to assist and given evidence or who have been serving police members self-evidently are greatly at risk and as a result are held in very difficult circumstances. Their conditions are closely resembling solitary confinement. That is not the position I am dealing with here at all. As a result of some issues with the ‘Finks’ and your decision not to maintain those links, you were assaulted early on in your remand and transferred to protection in February 2022. You have been in protection since but in a prison that is almost exclusively for protected prisoners. That may well continue. I will work on the theory it will. To quote from the Judicial College of Victoria sentencing manual, the extent to which being in protection is to be taken in the prisoner's favour will depend upon why protection is needed, the particular circumstances, and the likely duration of the protection. In assessing the weight to be given to this factor, the court must assess the actual effect on the offender of their classification as a protection prisoner. The degree of restriction varies greatly from one case to the other. Some regimes will be very restrictive and involve circumstances very close to the solitary confinement of past days. Others will involve little comparative hardship.
[3]R v Rostom [1996] 2 VR 97
49 Here Mr Page spelt out very frankly that the increased custodial burden here was not arising from any harsher than usual physical conditions or regime or any aspect of deprivation arising from your protection status. Put very simply, it was your distaste or distress at being placed with sexual offenders. No more than that.
50 I do not ignore this issue but it really cannot be a large matter on the plea. I can give it only some modest weight. Nor for that matter do I ignore the issues presented by your being an amputee. The difficulties that presents in terms of ongoing medication, and choice of work, as well as issues in the replacement of the prosthetic limb, cannot be ignored.
COVID burden
51 Mr Page had placed no submission before me as to any past increased custodial burden arising from the prison authorities response to COVID-19. I did ask some questions on that topic at the tail end of the plea, as I really wanted to know whether it was in any way being relied upon. The short answer is that it was, but only for a very limited period. That was the period upon your being arrested and received into prison in December 2021 up until around March of the following year when many of those restrictions were then lifted. It was not being suggested that the later periods of your remand were impacted by COVID-19. So I take into account the increased burden in that first very limited period. It seemed to me and this is the reason I raised it, that there would have been some COVID driven impacts affecting that period of incarceration and perhaps even extending slightly beyond. That period would have involved a heightened prison burden given that there would have been a need for some quarantine and there was, for that period, the suspension of visits as well as the impact upon the availability of the full range of courses and programs. The impacts of the pandemic upon prisoners has of course eased now, but I do pay regard to that earlier period when that was not the position.
Rehabilitation
52 I turn then to your prospects of rehabilitation. Mr Page was not slinging around extravagant adjectives on the plea in dealing with your prospects. He had no reason to. There is no point him selecting extravagant adjectives that bear no relationship to the reality. The report of
Mr Cummins, as I have said, usefully sets out your background but there is no risk assessment there; it was prepared for a bail application.
53 Your counsel accepted that the chronology of offending really over the last decade was not encouraging. You were in and out of prison, staying out only for a matter of months. You were on bail at the time. You had only been released from prison on parole in August 2021, though of course I have mentioned that that had been revoked by the time of the commission of these offences. You were a mature adult committing these serious offences. You have not been deterred by past sentences including a large number that involved prison terms and some of a considerable duration.
54 You will be deterred to a degree I am sure by the sentence I will soon impose, both the sizeable portion you have served already on remand and that portion which lies ahead. There is still some family support here and that is encouraging. You hope to address in some meaningful way the abuse that you suffered whilst detained in the juvenile justice system. You have a sense that addressing those ‘demons’ may allow you to forge a way forward in your life. I do hope that is the case. Your counsel is placing some weight on that factor. That is, that you have engaged lawyers and seen a psychiatrist. That you will deal with these matters in a meaningful way and maybe even such unresolved issues as exist relating to the death of your close friends. He told me that you are drug free and I am prepared to act on that submission as well. Also that you were starting to explore your indigenous heritage and you had done some courses or programs. He said to me that you had a level of optimism and that you had hopes to take your place in fathering your daughter.
55 What it really boiled down to it seems to me is this: Your counsel was submitting that I should find that you had at least some prospects of rehabilitation. That your prospects should not be judged to be entirely extinguished. He was using the term ‘guarded’.
56 I am certainly not prepared to find that you have no prospects of rehabilitation at all. As I said earlier today, that really is far too gloomy a view to take of a 29 year old. Despite your unimpressive criminal history and the chronology of being in and out of prisons over the years, you are just too young to write off. You can still hopefully live a contributing life. Your prospects will surely increase very significantly if you can actually abstain from illegal drug use in the future, but that has been a major problem for many years. Perhaps ongoing treatment of the issues relating to the various trauma in your life may have some role to play in terms of ceasing drug use in the future. If you cannot abstain from illegal drug use, if you keep using drugs of dependence, your prospects of rehabilitation will be almost non-existent. If not upon your release on this occasion, well when Mr Smith? Your life really is passing you by and it is not too late for you to change. As I said earlier today, if you do not alter the trajectory of your life, if you do not take these meaningful steps, you are going to wake up and be in your late 30s looking back at the better part of 20 years in and out of institutions. Can you really change? I do not know but I certainly will not rule that out. I certainly accept that you could not want to keep living the sort of life that you have led over the last decade. It just cannot be satisfying for you.
57 Your prospects are not strong and the risk of future offending is obviously high enough. I can only really be guarded but I do believe that you have some prospects of rehabilitation into the future. It will take some real effort from you but one hopes that you will take that effort and we all of us have seen people who, even at your age, have changed the trajectory of their life. I hope you are one of them.
The Offences
58 The agreed summary describes your offending. I am not going to re-state all the agreed facts. There is no point doing that.
59 I must pay regard to the nature and the gravity of the offences before the court. Your counsel accepts that the armed robbery is a serious offence. Each party made submissions as to the ‘relative gravity’ of the offending, but of course armed robbery is inherently serious.
60
Each party spelt out aggravating features that existed as well as some which were absent. The absence of some features of aggravation is really not the best way for me to assess the seriousness of the instant offence especially where there are plenty of matters of aggravation in play.
Mr Page submitted that the armed robbery fell at what he termed
‘mid-range’ for this type of offending. The Crown placed it as falling at the ‘mid to serious’ end of the crime. In his written submissions, Mr Page placed the other offences on the spectrum of offence seriousness. He varied his submission as to Charge 3, the prohibited person charge, and accepted it was not a low range offence but fell at the mid-range.
61 There is always difficulty when applying an adjective to describe where an offence falls. Mid, low, high range- well they are words that mean different things to different people. It is actually better to look at the actual conduct.
62 Well the armed robbery was no minor example of the offence. Its seriousness is not to be determined by the small monetary yield. It was a soft target offence. Your victim could not have been softer. He was asleep in his own bed in his own bedroom under his roof. You entered the bedroom, woke him up and swung into this offence. As I said on the plea, so many armed robberies that we see in this Court involve a demand and compliance and with no actual violence. Not necessarily even a threatening use of a weapon. Not necessarily even a threating physical proximity. Often enough there will be a shop attendant be it in a 7-Eleven or a service station, one who is to some extent protected by a counter and a screen. Well here we had none of that. Here you had what your victim believed was a real handgun. You woke him up and made a series of demands. You placed the metal gun up against his head, hence his fear. At one point, as I have said, you placed a pillow up against his head and the gun on the other side of the pillow as if to silence the shot, saying for him to give you money or you would shoot him. You hit him to the chest and face with fists and the butt or handle of the gun. This setting, where it took place, what you did and said places it comfortably at least at mid-range. This is for an offence that has the high maximum spoken of in the submissions.
63
The theft of the bike is actually a bit hard to disconnect from your earlier conduct on that particular occasion and yet I must. You had assaulted
Mr Ali with the imitation firearm pointing the pistol at his head and telling him not to muck around. That assault took place at 3 am inside his house, inside his bedroom, as he was wheeling his wheelchair to the door to see what the disturbance was all about. That was undoubtedly a serious example of an aggravated assault.
64 You then made off with the bike.
65 You were on bail at the time of all of this offending.
66 The final charge relates to the carriage of the imitation weapon on the day of arrest. We have a clear enough understanding of your reasons for carrying that imitation weapon. You told police you had it for protection but there plainly were settings in which you used it in non-protective settings. It is not one of those instances where there is an innocent enough explanation. Your counsel accepted it did not fall at a low level of offence seriousness. Having said that though, I cannot find against you some imminent crime to be committed with the item found on 7 December.
67 These offences were all serious enough, but the armed robbery was plainly the most serious. It is a very long way removed from the low-level instances of the offence that sometimes come before the court. Actual physical force, the brandishing of the weapon, the setting and the time and all that was said and done in that bedroom at 1 am
Purposes
68 I have to consider a number of purposes of sentencing. Rehabilitation is one of the purposes. Your prospects are not strong but I do conclude that they do exist. They are not non-existent.
69 I must give weight to the various other purposes of sentencing as well though.
70 I am required to punish you justly and proportionately. Punishment is an important sentencing purpose in this case.
71 I must also denounce your conduct. Again, that is of real importance here.
72 So too community protection. That is of obvious importance.
73 Deterrence is also a significant matter in my task. I must try to deter you as well as others from offending in this way in the future.
74 Specific deterrence relates to the need to deter you. That is of obvious importance in my task. Past sentences have not deterred you. Being on bail did not impede your offending. Nor being recently released from a prison term up in New South Wales. The armed robbery represents something of an escalation in offending. Plainly I must strive to deter you from future offending.
75 Then there is general deterrence. General deterrence is an obvious and important purpose of sentencing in this case. It relates to the need to deter future offenders.
76 Armed robbery is a prevalent enough offence.
77 The Courts must pass sentences which would cause those considering committing crimes such as yours to reconsider and reflect on their position. We want future likeminded offenders to actually pause for thought and to reconsider their conduct. We want them to be deterred from offending.
78 I have to pay regard to the impact of the crimes and the maximum penalties for each of the offences before me. The summary sets them out. Armed robbery has a 25-year maximum term. It is, as your counsel recognises, an inherently serious offence and this one does not fall at a low level by any stretch of the imagination.
79 I have to pay regard to current sentencing practices. That is not a single controlling factor at all. I have looked at the Sentencing Advisory Council Snapshot that I mentioned in the course of the discussions with counsel, this is Snapshot No. 261 dealing with the crime of armed robbery. I have also looked at the more up to date statistical material available on the Sentencing Advisory Council website for that crime, as well as for the prohibited person charge. I have looked also briefly at the Judicial College of Victoria case summaries.
80 Having said all that though, sentencing statistics are of very limited, if any, use. Nor do other sentences imposed upon other offenders for other crimes provide much, if any, assistance. They are not 'precedents' to be followed unless able to be distinguished. They are not precedents at all. They are simply examples of other sentences imposed on other offenders for other crimes. There is no such thing as one correct sentence either.
81 What I have to do is sentence you for your crimes. That is not a mathematical or statistical task or one where the outcome is dictated by what has happened in other cases or by average outcomes or trends as disclosed in the statistics. I have got to sentence you for your crimes taking into account all the matters in aggravation and mitigation in this case.
Totality
82 I do take into account the principle of totality of sentence. I have to consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality. I have 5 charges to deal with. Three on the indictment and the two related summary matters. As I have said already, the most serious offence obviously is the armed robbery. That is clear enough. That took place on the 15 November. It has no temporal relationship at all to any of the other offending. The theft took place on the 28 November and that does have a temporal relationship with the aggravated assault upon Mr Ali, but they are differing victims and differing impacts. The final indictment charge is at a different time and location altogether. Another occasion of you carrying that imitation weapon.
83 You were on bail throughout. So I have these many different charges on different dates with differing elements and differing impacts. Necessarily there must be a level of cumulation as between episodes and even as between charges in a single episode in the case of the theft and the aggravated assault given the seriousness of the aggravated assault.
84 I have engaged in a last look at the sentences imposed by this Court in endeavouring to guard against the imposition of a crushing term upon you. I have considered this aspect of totality. I have also, in considering totality, had regard in a general fashion to the period of 30 days which you served pursuant to an earlier sentence and for which I can make no formal pre-sentence detention declaration. The fact is you have been continuously in custody since 7 December 2021. It is a sizeable period.
85
Prison is a disposition of last resort. A sizeable prison term is inevitable here, given the seriousness of the offending and the need for some level of cumulation. That is conceded. Your counsel concedes the inevitability of a prison outcome and one of a dimension requiring the fixing of a
non-parole period.
86 I must not take into account the possibility of your early release on parole. I am required by law in this case to fix a non-parole period and that is owing to the size of the head sentence that I will soon pronounce upon you. The Adult Parole Board will make the decision as to whether you can be released on parole. That has got nothing to do with me. It is really between you and them. Indeed I must have no regard to that possibility of early release.
Ancillary - Disposal & Forfeiture Orders
87 There are a couple of ancillary orders that are sought here. There is no opposition to the making of each of these orders. The first is a disposal order sought pursuant to the provisions of s78 of the Confiscations Act. I have signed that order and pronounce it in very much abbreviated fashion. I am satisfied that the criteria for the making of the order are made out. I forfeit to the State the property referred to in the signed order and direct it to be handled in the manner contemplated by that signed order.
88 The second of the orders is a forfeiture order. There is no opposition to the making of the order. I am prepared in the circumstances to sign it and I order pursuant to the provisions of the Firearms Act that the property referred to be forfeited to the Minister. I have signed each of those orders.
Sentence
89 Look I am sorry to have taken so long to get to this point. I will now sentence you. I will have you remain seated, I think, in the particular circumstances here. You will lose track of these orders as I pronounce them, all right. There are five different charges. You will lose track of what it all means, especially when I come to spell out the extent of cumulation or concurrency. I will explain what it all means towards the end of my remarks by way of the total effective sentence and also the
non-parole period. Then of course I will be declaring the pre-sentence detention that you have already served. So let me pass sentence upon you then.
90 On Charge 1, the charge of armed robbery, which I have said is the most serious offence by a fair distance here, on that charge of armed robbery you are convicted and sentenced to 3 years 10 months' imprisonment. That is going to be the base sentence.
91 On Charge 2, the charge of theft, I convict and sentence you to 5 months' imprisonment .
92 On Charge 3, the charge of prohibited person carrying an imitation firearm, I convict and sentence you to 16 months' imprisonment on that charge.
Summary matters
93 On the related summary matters, on the charge of committing an indictable offence whilst on bail, so summary offence number 7, I convict and sentence you to 7 days' imprisonment.
94 On the aggravated assault summary offence, so summary offence number 11, you are convicted and sentenced to 7 months' imprisonment.
Concurrency
95 The base sentence is therefore the 3 years 10 months that I have imposed on Charge 1. I make the following orders for cumulation. I direct that:
· 2 months of the sentence imposed on Charge 2;
· 4 months of the sentence imposed on Charge 3 on the indictment; and
· 4 months of the sentence imposed on the summary aggravated assault;
is to be served cumulatively upon the base sentence and upon each other. The seven-day term imposed on the Bail Act offence will be served concurrently with all other sentences imposed today. I am then to that extent otherwise ordering concurrency pursuant to s16(3C) of the Sentencing Act. I have treated the fact of your being on bail as a matter of some aggravation when dealing with Charges 1, 2 and 3. To then cumulate the Bail Act sentence would involve in my judgment an aspect of double punishment.
Total Effective Sentence
96 It follows then that these orders for cumulation produce a total effective sentence of 56 months or 4 years and 8 months' imprisonment.
Non-parole period
97 I fix a period of 3 years and 3 months or 39 months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
98 You have already served 784 days of this sentence by way of pre‑sentence detention and that period is declared pursuant to s18 of the Sentencing Act and entered into the records of the court.
Section 6AAA.
99 I have told you that I have taken into account your guilty plea and I have reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these offences following a trial before a jury, I would have convicted and sentenced you to six and a half years' imprisonment. I would have fixed a non‑parole period in that setting of 4 and a half years.
100 Let me just see if there is anything else I need to deal with. Anything else from your perspective, Ms Tatas?
101 MS TATAS: No, Your Honour.
102 HIS HONOUR: Or Mr Page?
103 MR PAGE: No, Your Honour.
104 HIS HONOUR: Did you follow the individual sentences and the orders for cumulation?
105 MR PAGE: Thank you, Your Honour.
106 HIS HONOUR: There's no issue in terms of at least the mathematics of it?
107 MR PAGE: No there is not, Your Honour.
108 MS TATAS: No, Your Honour.
109 HIS HONOUR: All right. Well look there is nothing else for me to do then. I will sign those orders once they are presented to me and you will go down and see your client again today, Mr Page, will you?
110 MR PAGE: Yes.
111
HIS HONOUR: All right. I have signed that order. That completes the matter then. So Mr Page will come down and see you downstairs,
Mr Smith, and give you some advice, discuss what has happened here today and your rights in relation to the sentence that I have just imposed. You can leave us now, thank you.
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