Director of Public Prosecutions v Smith

[2014] VCC 2149

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01786

DIRECTOR OF PUBLIC PROSECUTIONS

v

GAVIN SMITH

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	11 December 2014
DATE OF SENTENCE:	12 December 2014
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2014] VCC 2149

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Coombes	OPP
For the Accused	Mr R. Lawrence	Balmer & Associates

HIS HONOUR: 

1Gavin Smith, you have pleaded guilty to three charges of armed robbery.  I have heard a summary of the offending.  It is not my intention to repeat the whole summary.  It has been tendered as Exhibit A. 

2Briefly, the first charge relates to an armed robbery committed on 19 September 2013.  At approximately 9.14 pm you entered a Bottlemart store located in St. Albans.  You were wearing a black hooded top, dark grey pants, white shoes and green dishwashing gloves.  You were disguised with a balaclava.  You were carrying a knife that was approximately 10 centimetres in length.  You approached the store attendant, pointed the knife at him and said "Give me the money” and “Open it up."  You took approximately $1000 from the register.  The victim received a small nick from the knife to his wrist.  You then ran from the store.

3The second charge relates to an armed robbery committed on 24 December 2013 at Kings Pharmacy in St. Albans.  At approximately 3.55 pm you entered the store wearing a makeshift balaclava and carrying a small pocket knife approximately six inches long.  You approached the victim who was working at the pharmacy and said "I just want the money, don’t try anything funny."  When the victim placed the cash drawer on the counter you took between $500 and $700 and you left the store.  The clothing you wore at the time of the offence as well as the makeshift disguise and green and yellow dishwashing gloves were later found a short distance away from the pharmacy.  Your DNA was present on some of those items.

4The third charge relates to an armed robbery on 28 December 2013 at the Glen Waverly pharmacy.  You entered the store and at the time you were wearing a balaclava and holding a knife.  You shouted "Get me the fucking money."  You pointed the knife at the victim, Low, and yelled out "I don’t want to hurt anyone."  A little later you yelled at Low saying "Be quick, the knife is razor sharp."  After you were handed the money you told everyone to lie down and you ran from the scene.  One brave customer chased after you.  An off-duty police officer saw the chase and eventually caught up with you.  You accepted your fate and the police attended and arrested you.  You were interviewed on this charge and made full admissions to the this armed robbery.

5Mr Smith, you have committed three serious offences.  Armed robbery carries a maximum penalty of 25 years' imprisonment.  You have committed three of them.  General deterrence, denunciation and just punishment are central sentencing considerations in this case. 

6In assessing the seriousness of your offending I take into account the following matters.  The offending was not sophisticated.  Indeed, the first armed robbery was committed at a place where you were well known.  However, there was a level of planning involved.  For example, when you were interviewed on the third armed robbery charge you said that you travelled to the area by train with the idea of getting some money from somewhere.  You just were not sure initially whether it would be "a pharmacy or take-away joint."  On all the armed robberies you had armed yourself and endeavoured to disguise yourself.  You chose soft targets where there were likely to be members of the public present who would witness your criminal behaviour.  You behaved towards the victims in a threatening and menacing way.  One of the victims suffered a nick to the hand.  The experience for each of the victims must have been terrifying.

7Mr Smith, you come to court with a number of prior convictions for dishonesty matters.  You have served sentences of imprisonment in the past; most of them relatively modest terms although in September 2004 you received a sentence of 30 months with a non-parole period of 12 months from the Lismore District Court in New South Wales.  I accept that it is a matter in your favour that you do not have prior convictions for offences of violence.  On the other hand, these armed robberies represent a worrying escalation in your offending behaviour.  Specific deterrence and protection of the community are also highly relevant sentencing considerations. 

8I now move to those matters that are relevant in mitigation.  I have already said that when you were interviewed by the police after the third armed robbery you made full admissions to that offence.  You made an offer to plead to all three charges at the committal hearing on 8 October 2014.  The offer was accepted by the prosecution.  You will be given credit for your guilty plea.  It is an acknowledgement of your responsibility.  It has allowed the victims to avoid the trauma of giving evidence and it has saved the community the costs associated with a criminal trial.  I am also satisfied that your plea to these three charges is an indication of your remorse.  Ms Lechner, psychologist, provided a report that states, "Mr Smith expresses deep regret and shame for his actions.  He demonstrates appropriate victim empathy."  You are entitled to a sentencing discount for these matters.  

9You are a 39 year old man who has had a problem with heroin and other drugs for many years.  Your counsel described your upbringing as good until your mother and stepfather's relationship ended.  You were 17 years old at the time.  Your mother and sisters moved to a house in Geelong but you were unable to go with them.  After a very brief time living in a friend's home you found yourself homeless.  You commenced to use heroin.  Your inability to effectively deal with your drug use has profoundly affected your life ever since.  Basically you moved between periods of relative stability in your life and periods of relapse into drug use and, at times, criminal offending.  I was told by your counsel that when you were 18 you went to live with an uncle in New South Wales and managed to stop using heroin.  At the age of 20 or so you returned to Melbourne and lived with your mother.  You were working.  When you were 22 you spent some time working in the music industry and apparently relapsed into heroin use.  After a couple of years you got your life back on track.  You were again working and in a relationship.  When that relationship failed you started using heroin again.

10In July 2002 you appeared at the Frankston Magistrates Court for dishonesty, driving and drug offences.  On a number of the charges you were ordered to serve an aggregate jail term of 12 days with 13 days reckoned as already served.  In August 2002 you received a six month jail term at the Ballarat Magistrates Court for a charge of burglary.  You were released on appeal bail and fled to New South Wales.  You were involved in further offending in New South Wales culminating in the sentence of 30 months that I have already referred to.  You were released on parole in 2005 after completing the 12 month minimum term.  You complied with the parole order and obtained work.  Again, you did well until an incident where you witnessed a man try and kill himself.  I was told that this precipitated a period of heavy cannabis use.

11In 2011 you returned to Victoria and surrendered yourself to the police.  It appears that a warrant was executed for the outstanding six month jail term, together with other warrants for outstanding offences.  These offences were dealt with at the Melbourne Magistrates Court in August and October 2011.  I accept that it is a matter in your favour that there is a gap in your offending between 2005 and 2013. 

12In 2011 you were diagnosed with a brain aneurysm.  You went on to a waiting list for an operation.  I was told that you were suffering severe headaches and migraines.  Even so, you worked variously in roof restoration and in a band located in Daylesford.  In mid-2013 you were working for the EPA.  Ms Lechner states in her report that you relapsed into heroin use in order to cope with the pain of your headaches.  It was an unwise choice.  One obvious way to treat severe pain is to seek appropriate medical support.  Your choice was to use heroin.  You did so with the knowledge that such a choice had in the past led to offending and imprisonment. 

13Mr Smith, you are not an unintelligent man.  You have shown an ability at times to be law-abiding and hard-working.  However, you have a history of drug relapse and offending.  You know what happens when you involve yourself with drugs and yet, notwithstanding that understanding, you made that choice.  You will understand why in these circumstances I am guarded about your prospects for rehabilitation. 

14I accept that you have been a model prisoner since your remand in custody.  You have been in custody for 349 days.  You are now drug free and have trusted prisoner status.  You are keen to enrol in and complete drug programs offered by the prison.  Indeed, you are on a waiting list for that purpose. 

15You have had an operation to address your aneurysm.  The operation has been successful and you are no longer suffering from headaches.  I have been told that your mother is prepared to have you reside with her when you are released from prison.  I accept that you would benefit from the support offered by the parole system upon your release from prison.  In fixing your sentence I have acted to ensure that the total sentence remains “just and appropriate” to the whole of your offending.  You will be sentenced as follows:

16On Count 1, convicted and sentenced to three years' imprisonment.

17On Count 2, convicted and sentenced to three years' imprisonment.

18On Count 3, convicted and sentenced to three years' imprisonment.

19I order that 9 months of the sentence on Count 2 and 9 months of the sentence on Count 3 be served cumulatively upon each other and on the sentence imposed on Count 1, making a total effective sentence of four and a half years' imprisonment.  I fix a minimum period of two and a half years before you will be eligible for release on parole.  I make a declaration that you have served 349 days as pre-sentence detention.  If you had been found guilty after trial I would have sentenced you to an effective term of six and a half years' imprisonment with a minimum of four and a half years.

20I make the disposal order sought by the prosecution.

21Are there any other matters, Ms Coombes?

22MS COOMBES:  No, Your Honour.  As Your Honour pleases.

23HIS HONOUR:  Yes, thank you.  The prisoner can be removed.

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