Director of Public Prosecutions v Soupourmas
[2018] VCC 765
•25 May 2018
jun
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-17-01957
Indictment No: H10129805
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER SOUPOURMAS |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 May 2018 | |
DATE OF SENTENCE: | 25 May 2018 | |
CASE MAY BE CITED AS: | DPP v Soupourmas | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 765 | |
REASONS FOR SENTENCE
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Subject: Armed robbery, ICI, kidnapping,
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A Kapitaniak | Office of Public Prosecutions |
| For the Accused | Ms N Grunwald | Paul Vale criminal law |
:
HIS HONOUR:
1 Peter Soupourmas, you have pleaded guilty earlier today to three charges that are laid on the indictment that has been filed before me. Those offences are armed robbery, intentionally causing injury and also an offence of kidnap. The maximum penalties have been correctly stated in the prosecution's summary that has been placed before me and marked as an exhibit earlier this morning. I am not going to restate them again here, there is no need to.
2 You were born on 24 August 1964. You are now 53 years of age. You have a criminal history that has been filed before me. There has been some discussion about that. It is long enough, obviously, but it is not particularly relevant to my task. This is your first time in custody.
3 This matter was opened to me earlier this morning by Ms Kapitaniak who appeared on behalf of the Director of Public Prosecutions of this State. A written opening, dated 18 May 2018, was tendered on the plea and marked as Exhibit A. Your counsel, Ms Grunwald, told me that this was an agreed summary. There have also been some photographs which have been tendered on the plea and they have been marked as Exhibit A. They portray the metal bar that was employed, and also the rope that was used to tie your victim. In the circumstances, given that Exhibit A, the written summary is an agreed summary, you have heard it read out and your counsel concedes that that is the agreed factual statement upon which you fall to be sentenced, it really is not necessary for me to restate it now at any length at all. It is a lengthy enough document and what I can assure you is I will not go beyond the agreed facts in this case. .
4 This was undoubtedly serious offending. You do not need me to tell you that. Indeed, your counsel, I think sensibly and correctly, concedes the seriousness of your offending. After all, it is clear enough that the victim was lured to the premises and then was met at those premises by the combined force of you and others. It was joint activity. Two others wait to stand their trial, of course. One other has been dealt with on a summary offence of assault in company but, of course, there is no suggestion that the sentence passed upon that person has any role to play at all in my sentencing and, of course, it does not. The kidnap spanned a number of hours and it was a most unpleasant and frightening setting. So the seriousness of the offending is conceded by your counsel.
5 You were arrested on 15 January 2017, so the very day of the offending, and have remained in custody since. However, not all of that period remains to be dealt with by way of a pre-sentence declaration by me. Warrants to arrest were executed at the same time as you were arrested in relation to these matters on 15 January 2017, and you pleaded guilty to a consolidation of offences. Those offences had been committed in 2015 and when they were brought before the Magistrates' Court on 2 June 2017, you pleaded guilty and you received an aggregate term of five months' imprisonment for that dishonesty offending; I use that broad term to describe it. A presentence declaration was made by the Magistrate, at that stage, to the tune of 137 days. That sentence, therefore, because of that pre-sentence detention declaration lapsed on 18 June 2017 and so, from that point, you have been in custody purely for the matters for which I must pass sentence. That period is a period of 341 days. Of course, I will have regard more broadly to the earlier period that you had served under that earlier sentence as totality of sentence is an important consideration. You have been continuously in custody, for the first time, I should add, since 15 January 2017 and doing very well there by all accounts.
6 You, as I have said, were arrested on 15 January 2017. You were not interviewed in any detail, you were judged to be unfit for interview and participated in a contested committal hearing, that was conducted where the victim was cross-examined by your counsel and others. You pleaded guilty on the morning of the second day of a committal hearing. As I have said, the other two co-accused are awaiting their trial in this court and one other was dealt with for a far less serious offence in the Magistrates' Court and received a community corrections order.
Impact.
There is no victim impact statement in this matter though it is plain enough that the offending was very frightening. Of course, it was designed to be. In any event, I see no need to go further into the factual basis. As I say, it is a lengthy summary. It sets out the nature of the individual offences committed upon this man, the victim on this day, including the duration of the kidnap and the various things that occurred in the currency of the kidnap, which I judge to be the most serious of the offences before the court.
In Mitigation
7 Your counsel, Ms Grunwald, earlier this morning conducted a very sensible and realistic plea on your behalf. She had prepared some excellent written submissions that, in fact, I had access to before today. They had been filed yesterday and so I was in possession of those yesterday and read them overnight. She relied chiefly upon the following mitigatory matters:
· The fact of your pleading guilty and at a relatively early stage;
· She did not mention it specifically, I do not recall, but implicitly there was some reliance on the presence of some remorse as implied from your guilty plea;
· She spoke of the efforts that you had been making in custody, the fact that it was the first time that you had been in custody, and the presence of family support that is still in existence here though as she made plain, there was no-one here today on your behalf, you had basically told family members not to come to court in the same way as you have told them not to come to visit you at prison because you were embarrassed by the position you have put yourself in and them in. In any event, your Counsel conceded that which had to be sensibly conceded, that is the seriousness of the offending, the fact that the only appropriate sentences were terms of imprisonment and that, unavoidably, there was going to be a significant term of imprisonment imposed upon you, one of a dimension requiring the fixing of a non-parole period. But she made submissions about the way in which regard should be had to your prospects of rehabilitation. She argued that there was some prospects and that there should be some consideration of a decent gap between the head sentence and the non-parole period to foster your rehabilitation.
Prosecution
8. Ms Kapitaniak who appeared on behalf of the Director of Public Prosecutions also made submissions but, as is often the case when there are sensible and realist submissions made on the plea, on the behalf of the accused, there was not much, really, that she needed to say. Your own counsel had conceded the seriousness of the offending. Well, she was correct to, and Ms Kapitaniak addressed me in that area as well, dealing with some of the factual matters here, that is the fact of there being a number of people present in the flat, all of them turned against the victim. The kidnap, she says, spanned something close to seven hours and there was a need to pay sufficient regard to general deterrence and specific deterrence in this case. Clearly enough, the only available disposition was a term of imprisonment and so much had already been conceded by your own counsel.
Background
9. I have not said anything about your own background and I am not planning to say a great deal about it. You know what your background is, it has been placed before me in the written submissions, predominantly, that had been filed on the plea and marked as Exhibit 1. For that matter, I accept what I have been told about your family background, so I just do not see the need to rehash it all in these sentencing reasons. It does not actually explain your offending at all.
10. You are 53 years or age, born, as I have said, on 24 August 1964. You are the youngest of two children and, by all accounts, you had a childhood that was marred by some level of family violence, both committed upon you and witnessed by you. Well, no one would envy that sort of background and I take into account that difficult childhood insofar as I am able to.
11. Unsurprisingly then, you had a difficult relationship with your father, who I infer was the person perpetrating the violence upon both you and your mother. You were close to your mother but she passed away in 2005 after a long bout of illness.
12. As to schooling, you struggled academically, it would seem. You left school having completed Year 10. You then had a decent sort of period where you were working in the community, initially in a factory with your mother, then installing air conditioning with your father. But that relationship deteriorated to the point that you could no longer work together.
13. You then found the employment that it strikes me is the most enjoyable that you have had; that was as a shark fisherman, where you were working ten days off and ten days on a fishing boat. You did that for four years and the written submissions suggest that you loved that job. Regrettably though, the owner sold the business and you were then back in the hunt for work. You hunted around and you did work over the next eight years in a number of positions as a labourer essentially, and when not employed, you were in receipt of Centrelink benefits.
14. Now, you are not entirely clear as to the precise reasons why you entered onto a disability support pension about 17 years ago. It obviously had some connection to deterioration in your mental health, though there is no clear or plain diagnosis placed before me to explain why it was that the disability support pension was engaged in that way. But you were on that pension right up until the day of the arrest for these offence.
15. You had two relationships of significance, one that produced a child; that son is now in his 30s, I think he is 31 years of age and you still had contact with him up until your receipt into custody. The reason you have not had contact since is because you would rather him not see you where you are. There was a second relationship that produced four children. Sadly though, you have had no contact at all with them for a number of years.
16. There were some health issues in 2009, serious health issues, with an aneurism diagnosed and operated on in 2010, and them some return to the St Vincent's Hospital for an MRI with some issue, at least at that stage, in terms of mental health considerations and suicidal ideation. There was a CAT team that was engaged. Again though, there is not any particular diagnosis that is relied upon or even identified and Ms Grunwald made plain enough that she was not relying upon any of the principles from the well-known Court of Appeal case of Verdins v The Queen.
17. Part of your background, of course, is the lengthy enough criminal history. Look, it is lengthy enough in the sense that there are quite a number of offences and quite a number of appearances that have been dealt with. But, again, your counsel is correct to describe the current offending as a significant escalation. There are some gaps in the offending, sometimes significant enough gaps. None of the offending up until you were received in custody in June of last year, none of it had ever justified an immediate term of imprisonment being imposed.
18. It is a history that is consistent entirely with the account provided as to your having long-term issues with drugs, starting off, as these things often do, with the smoking of cannabis in your teenage years, progressing to amphetamine use from your late teens into your early 20s and then moving onto heroin use in your early 30s; that was a 15 year addiction. You attempted residential detoxification and I went to Moreland Hall at one stage. The CBO that was imposed in 2006 was obviously to address that issue. But ultimately, you seem to have had some success there by use of the methadone program.
19. Unfortunately, though you have not used heroin for many years, and that is good, you have moved onto methamphetamine and that is bad and that is what you were using at the time of this offending, using it at the rate of about a gram a day. It is a long-term problem that you have had with drug use. You are no longer a teenager, you are 53 years of age and you have had real battles with drugs over many years and, unsurprisingly, given that history, you have had run-ins with the law as is evidenced by the criminal record.
20. A positive, at least, is this, you have been in custody now since January of last year. There were a couple of drug screens that have been clear. You instruct counsel that you have not used in that period and that would represent, in your case, the longest period where you have been drug-free for many decades. What you have to do is you have to work on that upon your ultimate release.
21. So much then for your personal and family background.
Guilty plea
22. I turn then to some of the matters that have been raised in mitigation. The first of those is the fact of your guilty plea. Well, you, unlike the two co-accused who are coming to this court for trial, you have pleaded guilty. Your counsel was not suggesting it was the earliest stage of a plea. Of course it was not. You ran a committal, your counsel was engaged in the cross-examination of the victim, who attended and gave evidence and was cross-examined on that first day of the committal. You pleaded guilty on the morning of the second day, your co-accused did not; they have gone on for trial. So whilst not the earliest of pleas, it is still a guilty plea and that is important and it is at an early enough stage. There are plenty of pleas that are much later than yours, many settle on the day of the trial. So I must reward you for your guilty plea and the stage at which that plea was entered. You have facilitated the course of justice. You have taken responsibility for your crimes and at that relatively early stage. It follows then that the witnesses, in particular, Mr South, the victim in this case, has been spared the experience of actually giving evidence in this court on your account. The community has been saved the time, the cost and the effort associated with a contested trial up in this court in relation to the allegations brought against you. There is still going to be a trial, he is still going to be called but you are not responsible for that. You have pleaded guilty. The co-accused are proceeding by way of trial and, of course, they are free to do that. But they won’t have the benefits that must be given to you by virtue of your guilty plea. So I take those various matters into account in your favour as I am required to.
Remorse
23. As I said, your counsel really said little, if anything, as to remorse.
24. That is not surprising but a guilty plea is often indicative of there being some level of remorse. As I have said, your guilty plea was entered at an early enough stage in my judgment.
25. And I am prepared to find that you do harbour a level of remorse here and I take that into account in your favour.
Rehabilitation
26. As to your prospects of rehabilitation, it is a bit hard to be overly optimistic sitting up here. You are 53, you have been before the courts on plenty of occasions. You have committed serious crimes here and so there has been that significant escalation, and you have had significant and long-term issues with a variety of drugs of dependence. Well those sort of things almost compel a court to be relatively guarded in making judgements as to what is to take place in the future in your life. As against that though, it is a bit of a departure from your normal offending; this is a significant escalation. It is reasonable to think that it must have had some pretty strong connection to the sort of life you were leading and that sort of life involved the use of drugs. You have taken some decent steps in custody. Your urine has been analysed on two occasions, you have been clean on each of those occasions from testing back in June of last year and November of last year. You have done two courses, one is placed before me by way of the statement of the results, the other was the preparatory course in occupational/health leading into the cleaning operations course that you have completed. So you are not wasting your time in custody, you're actually doing things. You are also working. You do not have to work but you are. You are not just working but you are working and working very well. There is an MRC employment file note that is part of Exhibit 2 and, really, it speaks in glowing terms of the attitude that you bring to bear in your discharge of your work duties there. On each of those entries, I think there are eight of them, there is not a bad word said about your attitude and many good words that are spoken. These are good things that you are doing.
27. Well, you have been arrested - that is right back in January 2017 - you have been charged, you have been brought before the courts. You have pleaded guilty at an early enough stage, as I have said, and I am prepared to accept that there is also evidence of some level of remorse. You are then, for the first time, in custody. That is since 15 January and you have had plenty enough time to reflect upon your crimes that you have committed and your life and what lies ahead for you. It is probably the longest period that you have been off drugs since your teenage years, I imagine. What then are your prospects of rehabilitation into the future? Well, it is very hard to make those sort of judgments here. It is probably hard enough for you down there to be making judgments about what lies ahead for you. But I am certainly not going to write you off. I think there are at least some positive signs in terms of what you are doing in custody. Not everyone does what you are doing. Some people create a ruckus and mayhem in custody, some people do not work. Well, you are doing what you can do and so you are using your time quite well in custody. That gives me at least some basis to have a view that you have some prospects of rehabilitation into the future. Indeed, it is plain enough you must stop using drugs upon release. You pick it up again where you left off, you start using again, you will be back before the courts as a matter of certainty. You have no prospects of rehabilitation if you use drugs. But from what I can see at the moment and from the efforts that you are taking, I am prepared to conclude that you have realistic prospects of rehabilitation into the future.
General remarks
28. I turn then to make some general remarks about your offending.
29. As I have said already, and your counsel conceded, this was serious offending, and I must have regard to the nature and the seriousness of the offences before the court. It is not that uncommon for judges sitting up here to have counsel making submissions about where a particular offence fits within a particular spectrum of offence seriousness. Sometimes we have been encouraged to have that approach from utterances in the Court of Appeal. Sometimes the Court of Appeal would take a different view and say that is not much benefit. I think most recently in a case of Weybury, they have taken that latter approach. The fact is though that a court must at least consider the nature and the gravity of the offending, so necessarily one looks at the particular circumstances of the offence before the court. We see a lot of offending up in this court and there is no question that this does not represent the most serious example of armed robbery, it does not represent the most serious example of kidnapping and, likewise, in terms of the intentionally cause injury, it is not the most serious example of that. In terms of the offences, though. They are nowhere near the top of the tree, in terms of offence seriousness, they are still serious offences, make no mistake about it. You heard the maximum penalties raised in the course of the submissions made by prosecution counsel in reading the opening. It is plain that here there was a level of planning. These were not simply people bumping into each other on the street as sometimes happens. It is conceded that your victim was lured to these premises. When he got there, he was told that there was only one person there but, of course, there was not. There were four of you. So there is plainly a level of planning. The armed robbery is a serious enough example of that offence. It is nowhere near the bottom of the range of offence seriousness, given the premeditation involved and given the joint nature of the offence. The intentionally cause injury, it is not a sustained attack. There were a couple of blows described in the summary, giving rise to that particular matter, and it is plain enough that the level of injury is not high in the scheme of what injury can include. The mechanism is not a slight one, there is the use of a metal bar and again it is in company. As to the kidnapping, well it is what it is, and what it is, is a serious example of that serious crime and one that is subject to a 25 year maximum term of imprisonment. Three are some kidnaps that span minutes. True it is there are some that span many days and have all manner of humiliating and degrading conduct visited upon the victim and that is not what we are dealing with here. What we are dealing with is a significant period measured in many hours. The victim got to the premises at about 11 o'clock and was liberated many, many hours later at the North Richmond train station at about 5.57. As the summary makes plain, he was abused, he was threatened, he was tied up and he was held for, as I have said, a number of hours, so it was far from a brief ordeal. It was a significant ordeal and, therefore in my judgment, a relatively serious example of the offence of kidnapping.
30. Well, sentencing always involves a balancing of a number of purposes that are set out in the Sentencing Act. One of those purposes is the rehabilitation of the offender before the court. That is not to be ignored and I do not ignore it. I have already commented on my assessment of your prospects of rehabilitation, I think they are realistic prospects into the future, subject to and conditional upon you abstaining from the use of drugs.
31. I have to consider and give weight to the need for specific deterrence, that's the need to deter you from committing crimes in the future. Well, obviously, I must give some weight to that purpose here. You have to be deterred from ever engaging in this sort of conduct ever again. Likewise, community protection hast to be at least considered and given some weight and I give it some more limited weight, in this case, I think given the absence of a significant and serious criminal conduct in the past. It still has to be given some weight.
32. General deterrence is an important sentencing purpose in this sort of case.
33. The courts have to make as plain as they can to others in the community that conduct such as yours will be dealt with very sternly. Armed robbery and kidnap, in particular, are serious offences. The sort of conduct that you are engaged in simply cannot be tolerated in a civilised society. People out there must understand that serious violent conduct will be met with immediate punishment. I have to also punish you, obviously. I have to do that to justly and proportionately and I have to denounce your conduct and I do. This was serious criminal conduct.
Current sentencing practice
34. I have to pay regard to the offence maximums. I have to also pay regard to current sentencing practices. I have, since I left the Bench, looked at the more up to date statistics kept by the Sentencing Advisory Counsel, the SACStat higher courts statistics for the offences of kidnapping, armed robbery and also intentionally causing injury.
35. Each case is very different, of course. Statistics and other cases, for that matter, other sentences passed upon other offenders, those sort of things are only of very limited value. That is because, each case is very different, each offender is, and the statistics that I have looked, well they say nothing as to the existence, or otherwise, of aggravating features. They say nothing as to whether a person has pleaded guilty or not guilty or the stage of their plea. What I have to do is to pass an appropriate sentence in your case for your crimes.
Totality
36.
Your counsel raised submissions as to the importance of the principle of totality of sentence, though conceded the inevitability of some level of cumulation as between the three sentences imposed for the offences. There are three offences on the indictment. I do have to pay regard to the principle of totality. I cannot ignore the fact that these offences, the three of them on the indictment, they have all occurred in a close time sequence. They are all occurring on the one day and all, really, arising out of the same motivation. Those sorts of considerations, in my assessment, demand a very decent level of concurrency, actually. But I can't ignore the existence of there being separate crimes with separate elements. What I have to do is I have to pass appropriate individual sentences and then I pay regard to the principle of totality in moderating the extent of the cumulation here. I also, as I have said earlier, pay regard to the fact of your being held continuously in custody since
15 January 2015, notwithstanding the fact that there was a five month period that was subject to the other custodial liability from the five month aggregate sentence imposed in the Magistrates’ Court.
37. I have looked at the sentences that I am about to impose and the ultimate sentence, to guard against the imposition of a crushing outcome and to ensure that it is commensurate with the overall gravity of your crimes and your culpability. Your culpability, though, was quite high here and this was serious offending indeed.
464ZF
38. I will deal with the ancillary order. It is the 464ZF application. There is no opposition to the making of this order. Pursuant to s.464ZF of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with the relevant provisions of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. I am satisfied that the order is justified, owing to the seriousness of the offending, the existence of the prior convictions, the fact that the order is consented to and that I judge it to be in the public interest. I have to inform you that notwithstanding your present consent to the taking of this mouth scraping that the authorities may use reasonable force to enable the forensic procedure to be conducted. Now, this is not an invasive process, I have only authorised the scraping from your mouth, it is a mouth swab that will be run around the inside of your mouth by the authorities. They can use reasonable force to do that. It should not be an issue for you. If it presented any issues and no doubt the authorities would be back before me wanting to have me authorise a blood sample, which I have not authorised. I have only authorised the least invasive procedure, which is the scraping from the mouth. But I have signed that order.
39. Yes, all right. Look, I will have you stand up now, please.
Sentence
40. On Charge 1, which is the charge of armed robbery, you are convicted and sentenced to three years' imprisonment.
41. On Charge 2, which is the charge of intentionally causing injury, you are convicted and sentenced to 12 months' imprisonment.
42. On Charge 3, kidnap, as I said earlier, I regard this as the most serious offence, spanning, as it did, a period of many hours. It was a frightening episode indeed. On that offence, you are convicted and sentenced to four and a half years' imprisonment.
Cumulation
43. The base sentence, therefore, is the four and a half year term imposed on the kidnap offence. I make the following orders for cumulation. Nine months of the sentence imposed on the armed robbery offence and three months of the sentence imposed on the intentionally causing injury offence are to be served cumulatively upon the base sentence and upon each other.
Total effective sentence.
44. What that results in, Mr Soupourmas is a total effective sentence of 5 ½ years' imprisonment.
Non-parole period.
45. I fix a period of three years and three months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention.
46. You have already served 341 days by way of pre-sentence detention and that declaration is to be entered into the records of the court.
Section 6AAA.
47.
I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have convicted and sentenced you to eight and a half years' imprisonment. I would have fixed a non-parole period of six and a half years in those circumstances. That statement is to also to be entered into the records of the court. Just grab a seat for a moment please? I will just see if there is anything I have overlooked.
Ms Kapitniak, any other matters I need to deal with at all?
48. MS KAPITANIAK: No, and my arithmetic adds up with yours, Your Honour, 12 months on top of four and a half is five and a half.
49. HIS HONOUR: Yes.
50. MS KAPITANIAK: Yes.
51. HIS HONOUR: Five and a half as a head sentence - - -
52. MS KAPITANIAK: With three years.
53. HIS HONOUR: - - - with three years and three months by way of a non-parole period.
54. MS KAPITANIAK: Yes, Your Honour.
55. HIS HONOUR: No other matters I need to deal with?
56. MS KAPITANIAK: That is it.
57. HIS HONOUR: Ms Grunwald, no other matters?
58. MS GRUNWALD: No other matters, Your Honour.
59. HIS HONOUR: All right. Well, he has been custody so there is no need for me to deal with any sort of custody management matters or anything like that. Will you go down and see your client downstairs?
60. MS GRUNWALD: I will, yes, Your Honour.
61.
HIS HONOUR: All right. Well look, that completes the matter then,
Mr Soupourmas, so you will be taken downstairs. Ms Grunwald will come down and have a chat to you downstairs, all right?
62. OFFENDER: Yes.
63. HIS HONOUR: Yes.
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