Director of Public Prosecutions v Smith
[2022] VCC 397
•28 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02564
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DWANYE SMITH |
---
JUDGE: | Her Honour Judge Ellis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 March 2022 | |
DATE OF SENTENCE: | 28 March 2022 | |
CASE MAY BE CITED AS: | DPP v Smith | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 397 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: One charge armed robbery- one charge theft- plea of guilty- aged 47- priors for similar offending- community corrections order at time of offending- guarded prospects of rehabilitation;
Legislation Cited: Crimes Act 1958; Sentencing Act 1991;
Cases Cited:Worboyes v The Queen [2021] VSCA 169;
Sentence: Total Effective Sentence of 3 years and 3 months' imprisonment. Non Parole Period of 2 years and 3 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms G. Overend | Office of Public Prosecutions |
| (For Plea) Ms H. Baxter | ||
| For the Accused | Mr M. Brogden | Michael J. Gleeson & Associates |
HER HONOUR:
1Dwayne Smith, you have pleaded guilty to one charge of armed robbery contrary to s75A Crimes Act 1958 and one count of theft contrary to
s74 Crimes Act 1958.2The circumstances of your offending were set out in a Summary of Prosecution Opening tendered on the plea as Exhibit A. On 5 September 2021 at 4.07pm you entered retail store Beer Wine and Spirits Hawthorn, located at 674 Glenferrie Road, Hawthorn. You stole a 4-pack of Woodstock Bourbon 200ml cans valued at $18.50, by placing the cans into a bag. You then approached the service counter and said to the store attendant, Jake Dawkins, 'I have to make a phone call', before leaving the store without paying for the cans (Charge 2 -Theft).
3At 4.45pm the same day, you entered a 7-Eleven convenience store, located at 3/672 Glenferrie Road, Hawthorn. You approached the service counter and pulled from your right sleeve, a black handled knife with a silver blade, which was approximately 15cm long. You pointed the knife at the shop assistant, Mit Patel, and asked for a packet of Bond Street cigarettes.
4You then put the knife up your right sleeve, attempting to conceal it. Mr Patel offered you $5 and a coffee to which you replied, 'No, I want Bond Street cigarettes'.
5You took the knife out from your sleeve and held it under the barrier of the service counter pointing it towards Mr Patel and repeated, 'Give me Bond Street cigarettes'. Mr Patel, who felt frightened, opened the cigarette counter and handed you a packet of Bond Street Classic Cigarettes, valued at $31.00. You took the cigarettes with your left hand, whilst still holding the knife in your right hand. You concealed the knife up your right sleeve and pointed to Mr Patel and said, 'You shut your mouth'. You also indicated to Mr Patel that you hung around the area before leaving the store. The incident was captured on CCTV (Charge 1 – Armed Robbery).
6Police were contacted and attended the 7-Eleven store shortly thereafter.
7You were arrested three days later walking along Elphin Grove, Hawthorn. You were wearing the same clothing that you wore on 5 September 2021. Police walked you to your home in Elphin Grove, Hawthorn and executed a search warrant, where they located an empty packet of Bond Street Classic Cigarettes on the bench in the kitchen.
8You were taken to the Box Hill Police Station where you participated in a record of interview, during which you made admissions to the theft of the bourbon and the armed robbery. You stated that when you entered the 7-Eleven you apologised and said you had to do this, showing him the knife, which you said was a steak knife you eat with at home. You claimed you had armed yourself for your own safety mainly. You acknowledged that the attendant must have got pretty scared. You stated that you did not want anyone to get hurt, and you were glad no one did.
9You were remanded in custody on 8 September 2021 and have been in custody since. You pleaded guilty at the earliest opportunity- at a committal mention on 1 December 2021.
10Your counsel has submitted that you were significantly affected by alcohol at the time of the offending, having commenced drinking at 11am. You had also consumed a small quantity of ice after you woke up. You drank close to two bottles of port before stealing the bourbon from BWS. You then drank the four cans of bourbon before you committed the armed robbery.
Victim Impact
11No victim impact statement has been prepared but no doubt this would have been very frightening for Mr Patel.
Nature and gravity of the offending
12The offending here is serious. Armed robbery is by its very nature a serious offence, as is reflected in the maximum penalty. Your counsel has submitted that this offending falls towards the lower end of seriousness, highlighting the unsophisticated nature of the offending; that it involved little planning and that you made no attempt to disguise yourself. Further that no one was injured, there was no physical struggle and there was no financial gain, with the value of the goods being modest. The prosecution does not take issue with the submission that this offending falls toward the lower end on the spectrum of seriousness.
13Whilst I also accept that, a lack of sophistication is not uncommon in offending of this nature. You claim to have carried the knife for your own protection, but this is difficult to accept when you were the person posing the threat. Furthermore, it appears that this has previously been a feature of your past offending involving the use of weapons.
Prior Criminal History
14You have admitted a lengthy prior criminal history both in Victoria and interstate which extends back to 1993. You have many prior appearances for dishonesty related matters, including burglary, robbery, attempted armed robbery, as well as priors for violence including intentionally causing injury and assault with weapon in 2009, among other things including criminal damage, carrying a controlled weapon without excuse and resisting emergency worker on duty. You have received various dispositions from both this court and the Magistrates' Court including terms of imprisonment, suspended sentences and community correction orders. Significantly, you appeared at Melbourne County Court on 27 August 2010 on a charge of attempted armed robbery and possessing a controlled weapon without excuse, for which you were sentenced to a term of imprisonment of 14 months.
15More recently on 10 June 2020, you pleaded guilty in this court to one charge of attempted armed robbery and committing indictable offence whilst on bail. You were convicted and sentenced to a term of imprisonment for 17 months, followed by a Community Correction Order for a period of two years. This offending breaches that Community Correction Order.
16The prosecution have made enquiries with Corrections as to your compliance with that Community Correction Order and to your credit, it appears that you have engaged with Corrections. It is very unfortunate that you have now breached that Order by committing these offences. The fact that you have done so is an aggravating feature of the offending.
17I have been provided with the sentencing remarks of Her Honour Judge Pullen who sentenced you in both 2010 and 2020. The circumstances of those offences were concerningly similar to the offending here. and this does not bode well for your prospects of rehabilitation. It also means that specific deterrence looms large as a sentencing consideration.
Personal circumstances
18Your personal circumstances were set out in comprehensive written submissions and articulated further by your counsel, Mr Brogden on the plea hearing. You were born in August 1975 and you are now 47 years of age. You have described having a good childhood and being raised by your mother and grandparents. Your grandmother’s death, when you were eight years old, had a significant effect upon you. Everything went downhill. You became angry and disruptive at school.
19You managed to complete Year 10 at Parade College but you were expelled after you were arrested breaking into the school one night.
20You have worked in labour intensive roles, including as an apprentice shop fitter after leaving school (which you ceased following a transport accident which resulted in you sustaining a head injury and led to the loss of your driver’s licence). You have also worked as a cabinet maker, bricklayer and concreter, and at one stage you lived in Queensland working for a business building timber staircases and balustrades between 1996 and 2001. However, you lost this job due to your escalating drug use which led to you frequently taking time off work. Currently you are in receipt of Disability Support Pension.
21You began consuming alcohol from a very young age- 12 or 13. You grew up seeing your mother drinking and thought this would provide you with some happiness. By the time you were 16, you were drinking daily. At the age of 15 or 16 you began using cannabis, and you later began using amphetamines. You began using and became dependent on heroin when you were 19. You have experimented with other drugs, prescription drugs and abused opioids. According to a report by Dr David Thomas, intervention to address your drug and alcohol use was highly recommended.
22You ceased all contact with your mother in 2008. However, you have come to understand that your mother recently passed away. You have no family supports and have not been in a relationship since you were 21 years old. You lost a previous partner in a motor vehicle accident when you were 18, the same accident in which you sustained a significant head injury.
23In recent years, you have been fortunate to have the support of Mr Sebastian Berrios, a case coordinator responsible for assisting you to secure housing. Mr Berrios was present during your plea. His letter of support dated 23 March 2022 observes that in the six months prior to your arrest, you had worked hard towards completing the conditions of the Community Correction Order; you had previously been confronted with transient homelessness; sleeping rough and couch surfing. Approximately two months prior to this offending, you obtained a transitional property subsidised through the ‘From Homelessness to a Home’ program. This was a significant milestone. Mr Berrios states that you have presented to him as a kind and generous person and, at the time of offending, had not missed a rental or utilities payment; you had otherwise displayed the hallmarks of a determined individual seeking to secure positive outcomes for yourself. Since your arrest Mr Berrios has assisted you in funding your accommodation. However, the realistic probability is that you will lose that accommodation, and this has been difficult for you to confront. So much so that upon being remanded you were suicidal and you were put under observation for two months. You have continued to receive multiple supports from numerous services, as set out in Mr Berrios’ letter. You have also managed to remain engaged with your NDIS support worker Ms Miranda Holt.
Mental health
24A report from Dr David Thomas was tendered dated 30 May 2020. This is the same report that was tendered on your plea in 2020 and was done so in order to provide some background. I have had regard to all of the matters set out in that report (Exhibit 2). You have a complex psychiatric profile reflected by numerous problems and physical health limitations, including repeated head injuries. Dr Thomas noted your first recorded contact with mental health services was in December 2003 when you were admitted to Frankston Health. You were in hospital for three to six months and you were managed on Olanzapine. At that time, you said you had a marked increase in your use of Ice in the months preceding that admission to Frankston. You described thinking the neighbours were out to get you, to kill you. There were numerous other admissions between December 2003 and October 2017. You have a long history of paranoid delusion, which has resulted in you having a history of carrying weapons for your own safety.
25Given your history of substance abuse, Dr Thomas was of the view that your presentation was consistent with a diagnosis of Substance Dependence Syndrome due to the use of multiple psychoactive substances. That use, at times, resulted in discrete periods of acute psychosis, resolving on treatment with antipsychotic medication. Dr Thomas agreed with previous treating clinicians that you meet a diagnosis of Paranoid Schizophrenia. With respect to previous offending from 2020, Dr Thomas was not convinced your offending behaviour was driven by your psychotic illness. Nor here, is this submitted by your counsel. This is in light of the fact that your offending appears to have been as a product of you being heavily intoxicated at the time.
26Accordingly, your counsel does not submit that principles of Verdins are enlivened here, except to the extent that your Paranoid Schizophrenia will make your time in custody more difficult. I accept that.
Plea of Guilty
27I take into account your plea of guilty which was entered at the earliest opportunity, and it is of significant utilitarian value. You have spared the need for a trial and for witnesses to give evidence. Your plea of guilty has an additional utilitarian value given that it was entered during the
COVID-19 pandemic, where the court faces a substantial backlog of trials resulting from the suspension of jury trials. Accordingly, as the Court of Appeal articulated in Worboyes v The Queen,[1] your guilty plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not affected by the pandemic. As a consequence, you are entitled to a substantial discount in sentence both for your plea of guilty itself and taking into account that this plea of guilty has occurred during the pandemic. Your plea demonstrates a willingness to facilitate the course of justice. It also provides some evidence of remorse.[1] [2021] VSCA 169.
28You have been in custody for 201 days. I accept that this must have been difficult given that your remand has occurred during the COVID-19 pandemic and that this has involved periods of quarantine, lockdown and limited movement within the prison.
Prospects of rehabilitation
29Given your extensive prior criminal history, and the fact that you have offended in this manner on two previous occasions, I am of the view that your prospects of rehabilitation are extremely guarded. I do take into account the fact that you have otherwise been compliant with the Community Correction Order imposed in 2020. I also take into account that you have the support of Mr Berrios and that you have made efforts to maintain your own housing situation. To that end, your prospects are slightly improved. I accept that you appear motivated to reform. It is indeed regrettable that you have allowed yourself to behave in this way on this occasion, when it appears that things had been otherwise going reasonably well for you. I accept that you are remorseful for your conduct.
Totality
30I must have regard to the principles of totality and proportionality. Your counsel has submitted that there was a period of 45 minutes between the two sets of offending, which form part of a course of conduct. The prosecution submits that these were two discrete acts and that there should be an order for cumulation. Whilst I accept these were two separate instances of offending, I have declined to make an order for cumulation, having regard to the need to impose a sentence that is just in all of the circumstances.
Relevant sentencing factors
31Pursuant to the Sentencing Act 1991, I am required to take into account various factors when formulating an appropriate sentence in your case. The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of the offences, your culpability, the effect of your offending on the victim and your personal circumstances. The sentence I impose must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated and reintegrated into society. Just punishment and denunciation must also be given primary consideration in my instinctive synthesis. Your counsel has conceded here that the only realistic sentencing disposition is one of immediate imprisonment.
General and specific deterrence
32General deterrence is an important sentencing consideration in sentencing you for these offences. Other members of the community must understand that serious criminal offending will attract significant punishment. Armed robberies committed on soft targets such as convenience stores will not be tolerated. In your case, specific deterrence and protection of the community are also required to be given some weight, in light of your prior criminal history. This is the third time that you have committed, or attempted to commit an armed robbery. On this occasion, your offending lasted less than two minutes, and whilst I accept that it occurred in the context of you being highly intoxicated and in the afternoon, you must understand that this sort of offending will continue to attract significant punishment. The sentence that I impose must deter you from doing so in the future. As I have noted, you were on a Community Correction Order at the time of this offending.
33Although this is but one of the factors for consideration, I have also taken into account current sentencing practices.
Sentence:
34On Charge 1 you are convicted and sentenced to 3 years and 3 months' gaol.
35On Charge 2, you are convicted and sentenced to 1 month gaol. This charge is to be served concurrently with Charge 1.
36I order that you be eligible for parole after serving a period of 2 years and 3 months in custody.
Pre-sentence detention
37Pursuant to s18 of the Sentencing Act 1991, I declare 201 days' pre-sentence detention as time already served to be deducted from the sentence that I have imposed.
s6AAA
38Pursuant to s6AAA of the Sentencing Act 1991, had you proceeded to trial and been found guilty, I would have imposed a total effective sentence of 4 years and 6 months' imprisonment with a minimum of 3 years and 4 months.
‑ ‑ ‑
0