Director of Public Prosecutions v Smith

[2018] VCC 1208

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

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:	22 February, 6 June 2018
DATE OF SENTENCE:	7 August 2018
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2018] VCC 1208

REASONS FOR SENTENCE
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Subject: Criminal law – sentence – Koori Court
Catchwords: pleaded guilty to one charge of armed robbery and one charge of assault – soft target service station  –  unidentified co-offender -  2  victims - pellet gun -  -  both victims suffered trauma - voluntarily confessed to police -  drug addiction -  further offending 
Sentence:  Upon release from Magistrates’ Court sentence  2 year CCO  with conviction to attend  Wulgunggo Ngala Learning Place

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Accused	Mr D. DeWitt (Sentence) Mr T. McCulloch (Plea)	VALS

HER HONOUR:

1Michael Smith, you have pleaded guilty to one charge of armed robbery and one charge of assault.

2You committed these offences on 30 July 2017 at a service station in Eumemmerring.  Two people were standing at the counter.  One of them,
Mr Sapandeep Thind, was behind the cash register and the other, Ms Barban Kaur Thind, was to his right.  Mr Thind had seen you and another offender run towards the front door carrying a firearm, which he described as a rifle.  He immediately tried to lock the door with the internal button, but the door opened.

3You and the other man with you entered the store and you handed the firearm to your companion, who then held the rifle towards Mr Thind and started yelling, "Give me the till".  Mr Thind opened the till and gave you the plastic drawer insert containing the cash, which he believed to be between $700 and $800.  You and the other man ran out of the store and Mr Thind called the police after observing you both running away.  He later described the firearm as looking real, “but like the sort you would use at an amusement park to pop balloons”.

4Barban Kaur Thind described it as a rifle with a brown handle.  She could not recall if the firearm had been pointed at her, but in any event she was fearful at the time.

5You were arrested on 9 September 2017 in relation to other matters and you confessed your role in this matter to the police.  You were interviewed and you made admissions, explaining that the firearm was a broken pellet gun which could not fire a bullet.  You confirmed that you got about $800.  You said you felt bad about it and sorry for the victims and you knew that they were traumatised, because you knew someone who delivered fuel there.  You said you had been using ice every day at that time.

6The case resolved at a committal case conference and you indicated at that early stage that you would plead guilty.  You elected to have your plea heard in the Koori Court and so you accepted that you might be challenged by the elders sitting with the judge hearing the plea.  Indeed, you were challenged by them and it is accepted that this is not easy and I take that into account.

7The maximum penalty for armed robbery is 25 years' imprisonment.  It is one of the most serious of charges and that is reflected in that penalty.  For assault the maximum penalty is five years.

8In determining the appropriate penalty for you I must consider the gravity of your offending and the impact on the victims, as well as the protection of the community from such offending as this.  I must also consider your prospects for rehabilitation and decide what is a just punishment in all the circumstances.

9No victim impact statements were obtained but you told police that you were aware of the trauma suffered by the victims and Ms Thind told the police that she had been afraid.  They were vulnerable people working in their shop, dealing with the public and they made easy targets for you and your
co-offender, who has not been identified.  They deserve protection from crimes like this and that is why both general and specific deterrence are important sentencing principles.

10Your comments to the police when you were arrested indicate that you are capable of empathy with people and that you have some insight into why you offended.  You confessed voluntarily to the police and it is unlikely you would have been charged if you had not confessed.  Therefore, the discount on your sentence for your plea of guilty should be a significant one.

11Your counsel submitted that your confession and the remorse it signified indicated that the weight to be given to specific deterrence should be significantly moderated.  You also expressed your remorse at the Koori Court hearing and to Dr Cunningham, who assessed you recently.

12On 12 February, when I heard the plea, I did not formally defer sentence but adjourned the further hearing until I could obtain a further assessment as to your suitability for a Community Correction Order and have an enquiry made as to whether you could attend the Wulgunggo Ngala Learning Place as a condition of that order, and for that purpose your bail was extended.

13On 22 February I was told that enquiries were being made with the Koori Youth Centre for drug rehabilitation on the Mornington Peninsula, but by then there had been no assessment offered.  The plea was further adjourned until 6 June, on a deferral basis, to see whether drug rehabilitation could be arranged and, again, bail was extended.

14When June came around you were in custody for further offending, which occurred between March and May 2018.  I understand these charges were in respect of unlicensed driving, possessing methylamphetamine and contravening an intervention order concerning your ex-partner.  You told the corrections officer that this had been a low point in your life, as your relationship with your partner had broken down and this caused you to relapse into drug use.

15I am told that you are due to return to Dandenong Magistrates' Court next week to be sentenced for those charges.

16You also told the officer that since being on remand you had been able to identify some additional supports to be able to rely upon, should you be released from custody.  You have employment prospects with your brother, and your father was taking steps to have an intervention order varied to permit you to live with him once again.  Although, I understand that plan has now changed again, as your sister has volunteered her home

17You said you were resolved to exclude all negative influences in your life and to see only those friends and family who did not use drugs.  This is consistent with what you told Dr Cunningham when he assessed you recently and I shall return to that matter shortly.

18You are aged 23 and you were 22 at the time of this crime.  You are a Yorta Yorta man through your father, Gary Holt, who brought you up alone with your two siblings since you were four years old.  Your mother had left the family home and you have not seen her since, which has caused you considerable distress.  In other ways you had a good childhood and your family was a caring one.

19You left school at Year 9 level and your literacy is limited.  Dr Cunningham explored that and found that you have what he termed a verbal learning disorder.

20You left home at 19 and began working in paining and plastering.  At this time you were exposed to illicit drug use and ultimately developed an addiction to the drug ice.

21Your first court appearances was in the Magistrates' Court on 27 June 2016 and you were placed on a Community Correction Order.  You breached it and it was extended on 28 April 2017.  On 30 December 2017, you were remanded in custody for 14 days.  Five months after you committed the armed robbery for which I am sentencing you.

22That was your first experience of adult custody and you pleaded guilty to subsequent matters and to breaching the Community Correction Order on
12 January this year.  You were released from custody onto a further Community Correction Order with a re-referral to Wulgunggo Ngala Learning Place, where you stayed for 48 days.  Unfortunately, there was an episode of conflict with a staff member and you had to leave.  You have since apologised to the staff member verbally and in a letter.

23Your prior convictions are limited and they, together with subsequent offences, are dissimilar to the serious crime of armed robbery.  You committed those further offences whilst on bail for this matter, as I indicated earlier and so you did not perform well during the deferral period at the beginning of the year.

24But you are still a young man and so your rehabilitation is regarded as very important.  Although, of course, having committed a serious crime the significance of your youth is somewhat reduced.  Nonetheless, your youth remains a very significant sentencing principle because of the long life that you have ahead of you and because the indications are that you have good prospects for rehabilitation if your drug problem can be overcome.  There are no other indications that you have a propensity to offend or to live an antisocial way of life.  The community will be protected if you can be successfully treated for drug use.

25From what I am told you were earlier assessed as unsuitable for Wulgunggo Ngala Learning Place because of your conviction for burning some property.  You were then seen by Dr Aaron Cunningham, who is a forensic psychologist and he concluded that you do not present as a specific risk of arson-related offending.  He said the prior offending occurred because you intended to punish your ex-partner.  He said you do not present with a fascination or specific interest in fire.  He added that he considers that if you were to return to Wulgunggo Ngala you might be able to gain support, guidance and mentorship there.

26With the concern about arson having been explained you have again been assessed as suitable.  The program there can provide you with a culturally appropriate program for three months, in combination with a Community Correction Order.  I do not consider it necessary or desirable for any purpose that you remain in prison beyond that date of your sentence in the Magistrates' Court on 17 August.

27You will have spent just over three months in pre-sentence detention, referrable only to the Magistrate Court charges.  But I take that time into account not to be reckoned as already served for these charges, but as a salutary experience for a youthful offender. That is in important because of the indications that you are susceptible to negative peer group pressure.  The risk of further susceptibility in prison is a serious matter for a young person and clearly a residential rehabilitation program that is also culturally appropriate is by far the more suitable disposition.

28So will you stand now please, Mr Smith.

29Accordingly, I sentence you for both charges with conviction to a Community Correction Order, which will begin immediately upon your release from custody and will last for two years.  You will be under supervision and you must perform 100 hours of unpaid community work.

30You must also be assessed for treatment for drug and alcohol abuse and for any other programs considered necessary and suitable.  Importantly, it will be a condition that you participate in the program at the Wulgunggo Ngala Learning Place.

31You must report to the corrections office in Dandenong within two working days after your release from prison.  It has been arranged for you to be taken by your sister to the induction appointment with corrections and from there to Wulgunggo Ngala .

32I note that your family are here today to support you, as indeed they have been throughout the progress of your case and that solid family support is an important matter, which I have taken into account in assessing your prospect for rehabilitation.

33Now, just a couple of technical matters.  There is an application by the prosecution for an order for a forensic sample of saliva to be obtained. 
Mr DeWitt, I have not recorded whether there is consent to that.

34MR DeWITT:  There is consent.

35HER HONOUR: Mr Smith, that means that after your release you will have to go to the police station nearest to where you are and to have a sample of saliva taken.  I simply have to advise you that the police have the power to use reasonable force to obtain that sample, but I trust that won't be necessary.

36OFFENDER:  Yep.

37MR DeWITT:  Your Honour, is the Community Correction Order set to commence on 17 August, is that so?

38MR ROPER:  On release, isn't it?

39HER HONOUR:  I've considered the two technical possibilities here. It seems that the most sensible one is once he's released from the “Dandenong sentence” putting it that way,  he's got two days to then report to the Dandenong corrections office, so arguably that can be on Monday 19.  But he's got two working days after Friday the 17th.

40MR DeWITT:  Thank you, Your Honour.

41HER HONOUR:  All right?

42MR ROPER:  Thank you, Your Honour.

(Discussion ensued re  reporting police station for 464ZF samples to be taken.)

43MR ROPER:  Sale  Police station , Your Honour.

44HER HONOUR:  All right.

45MR ROPER:  We'll go to Sale.  Apologies, Your Honour.

46MR DeWITT:  Your Honour, Mr Smith has just raised that his date of birth on the order is incorrect.

47HER HONOUR:  All right.

48MR DeWITT:  It turns out it's 6 February as opposed to the 9th.

49(Community Correction Order amended by hand to read “6 February”

50HER HONOUR:  It will be fixed though, you can be assured, Mr Smith, on the computer.  So that the official record will have your proper date of birth on it.

51MR DeWITT:  Thank you, Your Honour.

52HER HONOUR:  Thanks.  Adjourn please, Mr Percy.

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