Director of Public Prosecutions v Stack

[2023] VCC 1749

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-23-00426

DIRECTOR OF PUBLIC PROSECUTIONS

v

LAWRENCE STACK

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JUDGE:	HER HONOUR JUDGE HARPER
WHERE HELD:	Melbourne
DATE OF HEARING:	18 September 2023
DATE OF SENTENCE:	27 September 2023
CASE MAY BE CITED AS:	DPP v Stack
MEDIUM NEUTRAL CITATION:	[2023] VCC 1749

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW    

Catchwords:              Robbery – Koori Court jurisdiction

Legislation Cited:      Sentencing Act 1991

Cases Cited:

Sentence:                  392 days imprisonment and 12 month therapeutic CCO

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms. H. Baxter	A. Hogan, Solicitor for Public Prosecutions
For the Accused	Mr. M. Page	Chester Metcalfe

HER HONOUR:

1Lawrence Stack, you have pleaded guilty before me in the Koori Court jurisdiction to one charge of robbery.  The maximum penalty for robbery is 15 years' imprisonment. 

2You come before the court with a substantial criminal record which I will return to.

Circumstances of the offending

3The circumstances of your offending were fully outlined in Exhibit A, the summary of prosecution opening, dated 5 September 2023.  I will summarise those facts here.

4You had met the victim, Mr. Choo, on a previous occasion when you exchanged phone numbers.  He knew you as Charlie.

5On the afternoon of 1 September 2022 you contacted the victim and asked him to come to your house in Preston at 7 pm.  You wanted to buy heroin from him and asked if he could also obtain methamphetamine.

6Mr. Choo arrived around 7.15 pm and saw you sweeping rubbish out of the garage.  You waved to him, he went in and you shut the garage door.  There was a table and chair in the garage and you told him to sit down while you put the broom away.

7Within 30 seconds, two unknown males wearing balaclavas entered the garage.  It is not alleged that you were one of them.  One man carried a kitchen knife and the other a wooden bat.

8The men yelled at the victim to give them what he had.  Mr. Choo tried to escape but was trapped inside the garage.  He sat down on the floor as the men threatened him with their weapons.  One man grabbed the victim's bag and searched his pockets while the other pointed the knife at him. 

9Mr. Choo's bag contained a wallet, two mobile phones and cigarettes.

10The victim yelled out ‘robbery’ which caused the two unknown men to open the garage door.  Mr Choo ran to a main street nearby, flagged down a passing motorist and was taken to a petrol station from where he called Triple 000.

11Police arrived at your address at 9 pm and you were arrested.  The items belonging to the victim, being a wallet containing cards in the victim’s name, two iPhones and cigarettes were recovered.

12You were interviewed and told police that you had no idea what happened.

Gravity of Offending

13The offence of robbery is a serious one.  There is evidence of premeditation and planning in that you contacted the victim and arranged for him to attend at your house with drugs.  You knew him and knew of his vulnerability.

14You shut your victim in the garage and left the room.  It must have been a frightening experience.  Fortunately, there was no injury sustained by the victim and I note there is no Victim Impact Statement.

Plea of Guilty

15While your plea was not entered until after a committal proceeding, the charge now is substantially different to that which you then faced, and you are to be seen as having entered an early plea.  Your plea has significant utilitarian benefit.  You have saved the court and the community the time and expense of running a trial and spared the victim the ordeal of giving evidence at trial. In those circumstances, you have facilitated the administration of justice and you are entitled to a benefit for that. 

16The utilitarian benefit of your plea is enhanced by the fact that the Worboyes [2021] VSCA 169 considerations are engaged. This results in a more pronounced amelioration of sentence than at other times.

Remorse

17By your plea of guilty you have demonstrated an acceptance of responsibility for your offending.  I take this into account.

Personal circumstances

18I will now turn to your personal circumstances.

19You are a 43-year-old Noongar man.  You were born in November 1979 in Victoria but moved back to Western Australia with your parents at a young age.

20Your mother was a home maker, while your father spent considerable periods in custody.  You are one of five children and your family moved frequently during your childhood. 

21You went to a number of schools, leaving formal education at the age of 13.  Your parents separated but resumed a relationship when you were 16.  Shortly after that your father was returned to custody. 

22By the age of 16 you were a user of cannabis and amphetamines.  You lived with your mother until the age of 18 when you had your first child.  You had a second child the following year. 

23I consider the principles cited in the case of Bugmy v The Queen [2013] HCA 37 (2 October 2013), to have modest general application in this case.  You have a background of disadvantage, transience, instability and early drug addiction.  I will moderate the sentence accordingly. 

24At 18 you were working as a manual labourer but separated from your partner and began committing crimes.  You have offended consistently since this time.

25At the age of 27 you met your second partner and had three more children.  You are close to all five of your children and your grandchildren.

26You separated again at the age of 33 and since then have battled addiction and have been in and out of custody.

27During your last period in custody, both of your parents passed away.  This was a significant and deeply distressing time for you and you decided to move to Victoria to get away from negative influences in Western Australia.

28You moved to Preston, but your drug use continued and you were arrested after a matter of months.

29You have been productive in custody and were asked to become a 'peer listener', a position which you find fulfilling.

30You have completed the Wadamba Prison to Work program, a 12-week Atlas program and certificates in Traffic Control, Workplace Safety, Maths and Data Collection.

31You have remained abstinent from drugs while in custody.

Sentencing Conversation

32Having never before had the opportunity to participate in Koori Court or its equivalent, you participated in a sentencing conversation with Elders Uncle David Farrall and Aunty Zeta Thompson.  You fully engaged with them and showed insights into what it is you need to do to become a settled, functioning member of the community.  You plan to get a licence and a job upon your release and develop a routine.

33You spoke with pride of your children and grandchildren and the progress you have made in custody.  Your relationship with your family is a positive influence on you.  You stated that you now “have hope.” 

34It is recognised that participation in a Sentencing Conversation is more difficult than a General List plea hearing.  It is confronting.  You are held accountable and you have to speak for yourself.  You demonstrated that you have been trying to learn about and connect with your Aboriginal heritage and spoke of your commitment to change given your age.

35From your participation in the Sentencing Conversation, I have observed remorse, contrition and a desire to reform and you are therefore entitled to a mitigation of sentence. 

Sentencing Principles and Factors

36You have an extensive Western Australian criminal history, which reflects a number of relevant offences.  You have received a number of significant terms of imprisonment but have seemingly not yet been deterred from offending.  Specific deterrence is particularly relevant.

37I consider your prospects of rehabilitation to be guarded, dependent as they are on you remaining abstinent from drugs and finding stability outside of gaol.

38The principles of general deterrence, denunciation and just punishment loom large, as does community protection. 

39Your counsel, Mr. Page, submitted on your behalf that I should sentence you to a period of imprisonment not exceeding the time you have already spent in custody.  Ms. Baxter, for the prosecution, submitted that a term of imprisonment combined with a Community Corrections Order is warranted.

40I consider that your ongoing rehabilitation would be best served by way of supports available under a Community Corrections Order.  I intend to impose a therapeutic order to assist in your return to the community, in combination with a period of imprisonment.  Would you please stand, Mr Stack?

Disposition

41

On Charge 1, robbery, you are sentenced to 392 days' imprisonment and a

12 month Community Corrections Order with conviction.  The conditions of that order are that:

·     You are to report to the Reservoir Community Corrections Service within two days of the making of this order;

·     You are subject to supervision;

·     You are to participate in treatment and rehabilitation for drug use;

·     You are to participate in treatment and rehabilitation for mental health.

42I declare 392 days, including today, served by way of pre-sentence detention pursuant to s18 of the Sentencing Act 1991.

43Pursuant to s6AAA of the Sentencing Act 1991 I declare that had you not pleaded guilty, I would have imposed a sentence of 2 years and 2 months' imprisonment with a minimum non-parole period of 20 months to serve before being eligible for release.

44I make the forfeiture and disposal orders applied for.  Are you prepared to enter that community corrections order, Mr Stack?

45OFFENDER:  Yes, Your Honour.

46HER HONOUR:  Could that order please be provided to Mr Stack?  The final condition, Mr Stack, is that you are to participate in programs to reduce re‑offending.  I omitted that one, I am sorry.  Mr Stack, should you breach the community corrections order you will be brought back before me for re-sentencing.

47I have faith that you will not do that, and you will be released from custody on this matter today is my understanding, but you will have to go out the back now with the officers.  Thank you.

48OFFENDER:  Your Honour, I appreciate it, thank you very much.

49HER HONOUR:  Thank you, Mr Stack.  Mr Page, do you wish to speak to Mr Stack over the link in my absence?

50MR PAGE:  Very briefly if that is convenient, Your Honour.

51HER HONOUR:  If you could just remain in the room please, officers, just for a moment and Mr Stack will speak to his counsel.  We will adjourn.

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