Director of Public Prosecutions v Solomon

[2018] VCC 42

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

AT WANGARATTA
CRIMINAL JURISDICTION

CR 17-02523

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES SOLOMON

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Wangaratta
DATE OF HEARING:	31 January 2018
DATE OF SENTENCE:	31 January 2018
CASE MAY BE CITED AS:	DPP v Solomon
MEDIUM NEUTRAL CITATION:	[2018] VCC 42

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr S. Kennedy	Tait Lawyers

HIS HONOUR:

1James Solomon, on 19 February you went to the Old Town and Country Tavern in Wangaratta intending to rob the gaming venue.  You put a stocking over your face and took a large knife into the venue.  You went past four patrons using the machines.

2When you were at the bar, you yelled out "Give me the money", all the while hitting your knife on the bar.  Fortunately the gaming attendants were in another part of the facility.  They could see you and moved away, and one called 000.

3You quickly realised that your attempt at the armed robbery was doomed, and you retreated back to your car.  All this was filmed on CCTV, and I have seen that video of your behaviour.  It is brief, just under 40 seconds from beginning to end.

4Months later in July 2017, you confessed to the police that you were the one who attempted the armed robbery on the gaming venue.  You were wracked with guilt and did the right thing by confessing.  This is one of the rare instances where genuine remorse has prompted an accused to confess to a crime that but for the confession, would not have been solved.

5You pleaded guilty to an attempted armed robbery at the earliest possible time.  The benefit to you for your plea of guilty will be more than in any other case I have dealt with.  Your cooperation with the police was comprehensive, your insight into your conduct was revealed in the record of interview, and it has continued and developed.

6While aspects of the attempted armed robbery reveal some planning and intention, your actual conduct was far from the worst example of attempted armed robbery.  Indeed, it is at the lowest end of the spectrum.  No one was directly confronted or put in immediate fear.  This was bizarre behaviour directed at an empty space.

7As you said in your police interview, you quickly "felt like goose and took off".  Nonetheless, you went on to plead guilty, and by doing so, very much relieved the prosecution of the significant burden they had of proving that this was a proximate attempt at armed robbery.

8As I say, that is no small matter, and I have given it due weight in the sentence that I will shortly announce.

9That said, Mr Solomon, the patrons and staff were no doubt put in fear, especially by your weapon.  Again, it was by reading about the trauma to a patron in the newspaper later on that brought your intense sense of guilt and remorse.  As you said to the police, your motivation was to secure money to pay debts, including to drug dealers. 

10As to your personal circumstances, you are now 32 years old.  You are a single man, you moved from school after Year 11 to the workforce and have impressive work history.  However, you have a self-confessed addictive personality, and as such have developed severe problems with alcohol, drugs and gambling.  As noted, you were in debt due to getting drugs on credit and wasting money on gambling.

11However, following your arrest in July of 2017, you took stock.  You organised yourself to go to Galiamble, commencing in the inpatient program on 3 October 2017.  The reports from Galiamble could not be more positive as to your improvements, as to your dedication to your reform, and as to your positive influence on others.

12The doctor treating you at Galiamble wrote - that is, Dr Josephine King:

"James suffers from a 13-year history of ice, alcohol and gambling addiction.  These addictions have caused significant chaos and harm, culminating in this charge as well as a major depressive disorder. Fortunately, since James was charged he has received significant support from a family he knew well, and has been in residential rehabilitation since the beginning of October.  I have been particularly impressed by what I see as James' real sincerity in his reform and motivation towards change.  In particular, his urine drug screens have been all clear.  He has been working intensely with our psychologist, Dean Janiver.  He has been working through the Alcoholics Anonymous steps and meeting with his sponsor.  He is a real pleasure to have as a patient.  His sincerity and commitment to reform is a very good prognostic indicator.  His prognosis therefore is good".

13Another report from Galiamble reads as follows:

"Since James' intake into the Galiamble program, James has gone above and beyond what is expected of him.  James has continually showed great willingness to change, and consistently goes the extra mile.  He has shown great ability to lead other clients in positive change and action, and has quickly become an integral part of the St Kilda community, both Aboriginal and otherwise, while continually displaying utmost respect, politeness and positive program involvement."

14He indicates that you have chaired or run the Galiamble AA meetings, and you have engaged in a range of programs which are outlined in the report.

15Mr Mark Hammersley, the manager of the recovery centre writes that you intend to continue to participate in counselling sessions and Gamblers Anonymous, Narcotics and Alcoholics Anonymous programs after completing our programs, and "to his credit, has sought out extra meetings on his own, got himself a sponsor, a home group, and is working the AA program".

16The counsellors Mr Smith and Ms Sather write that you applied yourself to all the programs, even those that were "not my cup of tea".  "It has also been very clear and purposeful in working through a list of issues that he wanted to 'sort out' during his time at Galiamble, such as regaining his driver's licence and dealing with his current legal matters".

17They note that shortly before Christmas you had a weekend leave with your family.  That was significant given the absence of contact in the months leading up to your entry into Galiamble, and you reported to them you were able to say things to each other in a constructive way, and the door was left open for continued contact.

18They go on to say to help plan for the future, you applied to a support housing program, which includes mutual support for men, many of whom have been involved in AA, and other support programs.  "James is also talking to Galiamble staff about other options and merits of returning to a country area or staying in Melbourne close to his supports".

19You have had many drug screens, which the doctor noted were all clean.  There is a mental health plan and a very comprehensive exit plan from Galiamble.  The steps taken and the signs of real reform in your case are as good as I have come across.  The community would, in my view, support the court given significant weight to establishing conditions that further facilitate your rehabilitation.

20Your counsel urged that I punish you by a community corrections order.  His submission was supported the prosecutor given the unusual circumstances of the offence that you committed, and what you had done since the commission of the offence.  Both agreed that a community corrections order was the appropriate penalty, and the punishment of last resort, being prison, was not required in this case, though ordinarily it probably would.

21The important Court of Appeal decision in this state of Boulton made it clear that the legislative changes relating to a community corrections order have radically changed the sentencing landscape in this state, so that community corrections orders can be considered appropriate for serious crimes that might have in the past attracted gaol terms.  The reasoning was that the community corrections order could simultaneously punish and aid rehabilitation.

22A community corrections order was particularly appropriate where an accused was not an ingrained criminal and had taken steps already to get away from drugs and criminality.  You, Mr Solomon, fit that build.

23The community corrections order is the just and appropriate sentence.  It is capable of meeting all sentencing considerations and purposes.  It punishes, denounces, deters and facilitates your rehabilitation.  Ordinarily of course, armed robbery, and in most instances attempted armed robbery, would result in immediate gaol, but this is a peculiar case.

24You have no criminal history of note, but a subsequent appearance in Seymour at the Magistrates' Court there in September of 2017.  You were placed on a community corrections order.  The report that I received from Community Corrections was that you have done what is required of you on the current community corrections order.  This is another positive matter supporting a sentence in this case that will further aid your rehabilitation, that is, a further community corrections order.

25Mr Solomon, for committing the crime of attempted armed robbery, you are convicted and placed on a community corrections order for 15 months.  You will be required to have the following program conditions, that is:

26You have to be under the supervision of community corrections officers;

27You must do 100 hours of unpaid community work;

28You must undergo treatment and programs in treatment for drug addiction, alcohol abuse, and other programs that you are directed to do, that are themselves directed at reducing your risk of reoffending.

29There are other ordinary conditions that apply to everyone, they will be read out to you shortly.

30Had you pleaded not guilty to this matter and been found guilty of it, I would have imposed a penalty of two years' imprisonment with a minimum non-parole period of 18 months.  Are there any other orders that ‑ ‑ ‑

31MR CORDY:  No other ancillary orders, Your Honour, but is Your Honour's intention the 100 hours as a standalone period of unpaid work, or is it Your Honour's intention that attendance at programs can be credited to that?

32HIS HONOUR:  Thank you for that, what is the current situation, do you know Mr Kennedy?

33MR KENNEDY:  I believe he has completed the bulk of the 120 hours that he has done.

34HIS HONOUR:  He got 120 from ‑ ‑ ‑

35MR KENNEDY:  Yes.

36HIS HONOUR:  Yes.

37MR KENNEDY:  Can I just ask him ‑ ‑ ‑

38HIS HONOUR:  Was that just work, or was it work that he could - he could subtract away the time he went to various other programs?

39MR KENNEDY:  I will ask him that question if Your Honour pleases.  Thank you Your Honour, it is an amalgamation of the appearances - or the attendance, rather, at various treatment places can be used as (indistinct).

40HIS HONOUR:  Thank you.  Given the intensity of the work that Mr Solomon has done, and the benefits from it, I likewise as the magistrate did indicate that the 100 hours that I have asked him to do as unpaid community work can be via unpaid work and attendance at various rehabilitative programs.

41MR CORDY:  As Your Honour pleases.

42MR KENNEDY:  Thank you Your Honour.  Mr Solomon, come out of the dock if you would not mind, come up behind your lawyer here.  Thank you
Mr Solomon.  The community corrections order I have placed you on goes for 15 months starting today and ending 29 April 2019.  So the mandatory conditions that apply to everyone on a community corrections order - you probably know them well from being on a community corrections order at the moment, but they are these:

43You must not commit an offence for which you could be imprisoned during the time that the order is in force, so that is very important.  If you commit another offence, you will come back before me, and the mercy shown here will not be repeated.  So just do not commit another offence at all, but certainly not during the period of this order;

44Another obligation is you must comply with any requirement of the sentencing regulations.  That is really about - they will take photographs, if they need to, of you to know who you are when they start the order, so just cooperate there.

45Many of these conditions are about cooperation.  So you must report to and receive visits from the Office of Corrections, you must report to a community corrections centre within two clear working days.  That is down at Moorabbin, you know where that is, you have got to get down there tomorrow or the next day.

46You must let a community corrections officer know in two clear working days if you change your address or job, so that is relevant if you move away from Galiamble.

47You must not leave Victoria without getting permission, that is anywhere over the border, you must obey all lawful instructions from the Office of Corrections, all right?  That applies to everyone, what applies to you - you must perform 100 hours of unpaid community work, and I order that all hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purpose of the unpaid community work condition.

48Further, you must be under the supervision of the Office of Corrections for 15 months they will need to see you and meet with you just to see how you are going.

49You must undergo assessment and treatment for drug abuse and dependency as directed, you must undergo assessment and treatment for alcohol abuse and treatment as directed, and you must participate in programs and courses that address factors relating to your offending, all right?  So that will dovetail in, hopefully, with all the programs that you are currently doing.  If you consent to that, sign it and we will bring the matter to an end.

50All right, as I say, that brings the matter to an end, Mr Solomon, so that is hanging over your head, and if things go wrong, you will be back before me, thank you.  So Mr Kennedy, I thank you for your assistance today, if you could pass on my thanks to Ms Greensil for a comprehensive preparation of plea, and - well, Galiamble are here, and that underlines what I am about to say, that their continuing efforts for men like Mr Solomon over decades, really, that I have been involved continues to impress, and this is one of the cases that gives some sense of hope that people can come good, and I think it is because of the work of Galiamble in this case.

51So we will adjourn until tomorrow.

52(At this stage the court proceeded with another matter.)

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