Director of Public Prosecutions v Smith

[2023] VCC 1522

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

KOORI COURT DIVISION

CR-23-00227

CR-17-02420

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL SMITH

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	14 August 2023
DATE OF SENTENCE:	24 August 2023
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2023] VCC 1522

REASONS FOR SENTENCE

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Subject – Criminal law -  sentence

Catchwords: Koori Court jurisdiction - plea of guilty on current indictment to one charge  of   each of aggravated burglary, armed robbery, burglary, theft and possession of a drug of dependence – on proof of contravention of CCO imposed in 2022 re-sentenced for one charge of armed robbery and one charge of assault – further developed insight into offending and drug use.

Sentence: Total effective sentence – 4 years imprisonment with a non parole period of  2 years  six months -  407 days declared as already served.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Van Dyk	Office of Public Prosecutions
For the Offender	Mr R. Backwell	Greg Thomas Lawyers

HER HONOUR: 

1Michael Smith, in the Koori Court you have pleaded guilty to one charge of each of the following offences:  aggravated burglary, armed robbery, burglary, theft and possession of a drug of dependence.

2You committed these offences on two occasions in July 2022. 

3You are also facing a charge of contravening a Community Correction Order that I imposed on 9 February 2022 following an earlier Community Correction Order imposed on 7 August 2018.  You have admitted that breach.

4Both these orders were in relation to a charge of armed robbery and one of common assault, committed on 30 July 2017.  I shall return to those matters later in these sentencing remarks.

5Before proceeding I shall set out the maximum sentences relevant to each of the charges.  For armed robbery and aggravated burglary, 25 years' imprisonment; for burglary and theft, 10 years; for possession of a drug that is not for the purpose of trafficking, one year; for assault, five years; and for breach of a Community Correction Order, three months.

The 2022 offending

6I shall now set out the matters relating to the present indictment, the offending in July 2022.

7Earlier that year you had befriended Gilbert Parsooramen, the victim in this matter.  At that time you were living temporarily next door to him with your girlfriend, Tamara Crawford, in a residence tenanted by your mutual friend, Christian Aranda. 

8You and the victim entered into an agreement whereby the victim would swap his electric scooter, plus $4,000, to purchase your motorbike[1].  The agreement was finalised and you took ownership of the electric scooter, together with the payment.  About three months later, in July 2022, you moved into Aranda's residence with Crawford.

[1] A 2010 Suzuki GSXR 750

9At about 7.45 pm on 7 July, Crawford messaged the victim and asked to borrow his vacuum cleaner to clean her car.  At about 9.45 pm Crawford parked in the victim's driveway and began cleaning her car.  The victim opened his front door and was immediately confronted by you and Aranda who commenced yelling at him.  The victim could not understand why he was being abused.  You and Aranda told the victim that he should have told them that Crawford was there.  Screenshots of relevant text messages showed that the victim had already told you this.  You pushed past Aranda to enter the victim's home with a long-bladed chef's knife in your hand.  That is charge 1, aggravated burglary.

10Aranda also entered the house and the victim ordered you both to leave.  He was very frightened and shocked and stood protectively in front of a woman who was visiting him at the time.  He said you looked enraged.  You took the keys for the motorbike the victim had bought from you, as well as his helmet and jacket.  That is charge 2, armed robbery.

11You held the knife with the blade pointed towards the victim and threatened to cut him if he went to the police.  You also demanded that he pay you $1,000 and he would get his bike back.  You then left, riding away on the victim's motorbike.

12The following day the victim and Crawford exchanged text messages in which she informed the victim that she had tried to get his bike returned, to no avail.  You then sent a message to the victim telling him, '…you need to come up with $3,000 before two days or by by.'

13At 3.52 pm on 11 July, you and Crawford went to the victim's residence again.  He was not home but received a notification on his phone as his CCTV system had detected movement in the carport and backyard.  By this means he was able on his phone to watch you using your feet to break open the side gate and enter the backyard.  He watched as you forced open his son's bedroom window and gained entry through it.  That is charge 3, burglary.

14Crawford went into the shed and took a Makita tool bag containing approximately $5,000 worth of tools. 

15She then went again into the backyard and returned the bag to the shed. 

16The victim called the police and went home.  He found his front door was open, there was blue paint on his doorbell, his electric Kaabo scooter was missing, which is charge 4, theft, and in his house his belongings were strewn everywhere.  He found that his camera under the carport had been ripped off and left on the ground.  The side gate lock was bent and needed repair and the window used to gain access was not broken but had been pulled off its rails.

17A few days later police searched your home and found the helmet and jacket belonging to the victim and a ziplock bag of methylamphetamine.  This is charge 5 to which you made an admission in the record of interview conducted that day.

18The committal hearing was by way of a straight hand-up brief and because you pleaded guilty with resolution on 6 June, the victim and witnesses had been spared giving evidence and being cross-examined.  The avoidance of a trial is of significant benefit to the court and to the criminal justice system generally at a time when the court is still dealing with the backlog of cases caused by the Covid 19 pandemic.  I also accept it as an indication of remorse and it means you are entitled to a discount on your sentence.

19This was serious offending, although it was conceded by the prosecution that it is not in the higher range of offending of this type.  The victim did not provide a victim impact statement but said in his statement to the police that he was anxious, his stomach was churning and his blood boiling while you were holding the knife towards him.  He said he was in shock as he did not believe you would actually do that.

20The confrontation in his home was at night and you were with others, although you have not been charged with being in company.  You threatened the victim, both verbally and with the knife, which was very frightening for him.  You then returned a few days later and committed the burglary and theft causing considerable damage to the property, and that is an additional aggravating factor.

21The serious nature of the offending is concerning also because it is an escalation of your criminality and the second time you have been convicted of armed robbery.

Previous offending dealt with in 2018 and 2022

22I turn now to your previous offending for which I sentenced you on 7 August 2018 and then again on 9 February 2022.

23As I said a moment ago, those charges included a charge of armed robbery which was against what we call a soft target using a broken pellet gun.  You breached the two-year Community Correction Order which I imposed in 2018 by non-compliance and further offending and in 2022 I imposed a new Community Correction Order of 12 months' duration with a 30-day sentence for the breach charge.  You have now breached that order, also for non-compliance and further offending, and stand to be re-sentenced for those original charges.  You made no notable progress on that CCO.

24There are several mitigating factors which I take into account, chiefly in relation to your prospects for rehabilitation, but also as to general and specific deterrence and just punishment.

25You pleaded guilty at an early stage, so a trial was avoided, and importantly the victim was not cross-examined and other witnesses were spared from having to give evidence.  That is of assistance to the court, as I said before, and it follows that there will be a discount on your sentence.

26Your criminal history is generally explained by your drug addiction which has affected you since you were aged about 19.  Dealing with that addiction would appear to be the key to your rehabilitation.  You have not yet engaged in meaningful drug rehabilitation but you now have some insight into the need for it.

27Your childhood and upbringing were marred by your mother's absence but was otherwise unremarkable.

28You left school in Year 9 and have only basic literacy.  You joined the workforce as soon as you left home at the age of 18 but were exposed to illicit drug use, and your addiction dates from that time.

29You were given a lenient sentence for the earlier armed robbery because of your demonstrated remorse and contrition, your relative youth, and at that stage, a limited criminal history.

30To your credit, you knew that your compliance with the first CCO was inadequate and you volunteered for that first breach.  You spent three months on remand before taking on the second CCO and you now realise that that was insufficient time for your drug rehabilitation.

31You have now been in prison for 13 months and have completed a short course in drugs and alcohol, as well as other courses, which have equipped you to perform the work that you have been doing.  You have been working as a kitchen billet and as a cleaner in a high security section, work which is the preserve of trusted prisoners and which is very challenging in itself.  You get paid for your work, and to use your own words, you 'stay away from idiots.'  It seems that you have become a very good and reliable worker, according to the letter from one of the prison managers.  It is relatively unusual for such a letter to be provided and you deserve credit for that achievement.  You have taken part in Aboriginal cultural activities whilst in prison and you currently have a painting in an exhibition.  You have your name down for another course and you say you are doing everything you can to do well in prison.

32In the past you have elected to appear in the Koori Court as you have done for this Plea and the breach of CCO and you say that this was because you were looking for the best outcome.  You were prepared to make that election knowing you would have to engage in conversation with the elders and that that could be confronting.

33You have a plan to wean yourself off buprenorphine before being released from prison but you have been unsure how to ask for help with this plan. 

34In a similar manner, you have not been able to fully explore your childhood abandonment by your mother, as it was not talked about at home.  You now acknowledge that you need professional help for this and for the drug addiction which you can now recognise as a disease needing treatment.

35Your family continues to attend court and to support you.  In February 2022 a letter from them included an offer of work in the family business upon your release.

36You are now aged 28 and you appear to recognise the need for change in order to be a better person when you leave prison.  That demonstrates insight, but I made the same observation at your last appearance in 2022, some 18 months ago.  What has changed since then is the lengthy period on remand and the positive steps you have taken during that time.

37I find the breach proven and I order that the order be cancelled.  I think that is a necessary technical step to take, Ms Van Dyk.

Sentence

38I sentence you as follows, Mr Smith:  for the breach itself, 30 days' imprisonment; for the original charge of armed robbery, two years, and for the charge of common assault on that indictment, 12 months.

39Turning now to the current indictment:  12 months' imprisonment for Charge 1, aggravated burglary; three years for Charge 2, armed robbery; 18 months for each of Charges 3 and 4, burglary and theft; and three months for Charge 5, possessing a drug.

40The three-year sentence for armed robbery on the current indictment is the base sentence for purposes of cumulation.  Three months of each of the sentences for Charges 1 and 3 are to be served in cumulation upon the base sentence, as well as six months of the armed robbery sentence from the original charges.

41This results in a total effective sentence of four years.

42I fix a period of two years and six months which you must serve before being eligible for parole.

43Pursuant to s6AAA, if you had pleaded not guilty I would have sentenced you to five years' imprisonment with a non-parole period of three years.

44There is one day of pre-sentence detention, together with 406 days, by my calculation, to be declared as having already been served, and that is a total of 407 days, and if that is accurate I shall note it on the court records. 

45MS VAN DYK:  It is, Your Honour.

46HER HONOUR:  It is, thank you.  There is a disposal order that the prosecution seeks; Mr Backwell, is that not opposed?

47MR BACKWELL:  Not opposed.

48HER HONOUR:  I make that order.

49MS VAN DYK:  As Your Honour pleases.

50HER HONOUR:  Now I read that out fairly slowly so you could both take notes at the bar table.  Was there anything you need me to repeat?

51MS VAN DYK:  No thank you, Your Honour.

52MR BACKWELL:  No, Your Honour. 

53HER HONOUR:  All right, thank you.  Anything I have omitted or neglected?  No?  Thank you.  All right, thank you Mr Smith.

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