Director of Public Prosecutions v Steele

[2017] VCC 1187

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

AT BENDIGO
CRIMINAL JURISDICTION

CR -17-00924

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA DOUGLAS STEELE

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Bendigo
DATE OF HEARING:	24 August 2017
DATE OF SENTENCE:	24 August 2017
CASE MAY BE CITED AS:	DPP v Steele
MEDIUM NEUTRAL CITATION:	[2017] VCC 1184

REASONS FOR SENTENCE
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Subject:  Sentencing

Catchwords:  Plea of guilty; attempted armed robbery of convenience store; theft; no prior convictions; heroin addiction followed loss of partner; good rehabilitation prospects

Legislation Cited:           
Cases Cited:
Sentence:  6 months imprisonment and CCO for 2 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D.Cordy	Solicitor for the Office of Public Prosecutions
For the Accused	Ms Youngson	Victoria Legal Aid

HER HONOUR:

1Jason Douglas Steele, you have pleaded guilty to one charge of attempted armed robbery, one charge of theft and one charge of handling stolen goods.  You have also agreed to have heard in this court and have pleaded guilty to three summary charges dealing with your bail - two of failing to comply with bail conditions, and one of failing to appear on bail.

2The maximum penalty for attempted armed robbery is 20 years' imprisonment.  For theft it is ten years and for handling stolen goods, 15 years.  These maximum penalties are substantial and that reflects the relative seriousness with which offences of this type are generally regarded.  The maximum penalty for each charge of failing to comply with bail conditions is two months' imprisonment or 30 penalty units, and for failing to answer bail, two years' imprisonment.

3The events that give rise to these charges were that on 19 November last year at about 10.50 am, you approached the counter at a Foodies convenience store in Bendigo, your face covered, and you were holding a syringe.  You told the store attendant to open the till and give you the cash.  The attendant, Mr Aaloori, told you first that he did not understand, and then that he could not do that - that is open the till.  He stepped backwards at that point.  You gave up and left the store.  However you returned about five minutes later, this time with your face uncovered, and with no syringe or other weapon and presumably were not recognised.  You made as if to purchase a can of soft drink handing over cash, which led to the till opening, and you then reached over the counter and grabbed notes; about $310 was stolen. You then ran out of the store.

4You were followed by one then another man, and police, having been notified of your vicinity, found and arrested you.  They also found nearby a bag that you had discarded containing a sharps disposal container and an uncovered syringe. On you they found glasses, a glasses case and a wallet containing cards in the name of a man who that morning reported having such items stolen from his parked car. 

5On interview with police you admitted the theft of money, but denied the attempted armed robbery, and you also said that you found the wallet with its contents, and claimed that the sunglasses were yours.  You were cooperative with police generally. 

6You were charged and released on bail that day, but between 30 November 2016 and 18 January 2017 of this year, you failed to comply with bail conditions of reporting to police and residing at a designated address.  You then failed to appear on 18 January 2017 at the committal case conference.  That led to a warrant being issued and you being arrested on 23 March.  You have been remanded in custody ever since, and that is a total of 154 days not including today, which will count as pre-sentence detention towards the sentence I impose.

7In early May of this year you agreed to plead guilty to the charges on the indictment and to have the summary charges transferred and heard in this court, and you have been waiting a court hearing in the County Court since then.

8Your attempted armed robbery and theft from the convenience store were examples of serious offences, although I regard yours as at a relatively low end of the potential range of seriousness for offences of this nature. 

9Armed robberies of convenience stores, often with only one attendant present, are all too often seen by people desperate for quick cash as soft targets. 
The community is tired of these types of menacing events and the risk they place on a number of people involved.  The workers in stores such as this are doing no more than trying to work to earn a living, should not be subjected to this type of menacing and frightening occurrence, and the community requires courts to impose sentences for such offences that are sufficient to thoroughly denounce such offending, send a message to others tempted to try it, and protecting the workers at such premises.

10Although there is no victim impact statement in this case, I infer that the whole experience would have been confronting and frightening for the man in question.  You seem to acknowledge this in a letter to me; indeed you showed real insight into that situation.

11There is also inevitably risk to other customers in the store, although it seems there was no harm done to another customer nearby in this instance.  In this case the event did occur in broad daylight, 10.50 or thereabouts in the morning, but nevertheless the menace to the individual behind the counter or any other customers in the store is real, and, as I say, the community requires stern denunciation of that type of behaviour. 

12I regard the need for community denunciation and general deterrence as well as protection of the public as sentencing purposes to apply in this case.

13What, in my view, puts the circumstances at the low end of possible seriousness was being in daylight and not in darkness in the early hours of the morning the attendant is likely to have felt less isolated, and once you were thwarted at having the till opened, you did leave straightaway without causing any harm to any other customer or the operator behind the till or indeed, causing any other damage.  That you returned about five minutes later is of concern, but this time you did so without a weapon, without the menace of having your face covered, and you effectively used trickery to get the till open by trying to purchase an item and handing over a small amount of cash which led to the till opening, and then you took the chance and grabbed the money but without any force.  So it is a charge of theft and not robbery.

14Although handling stolen goods attracts a higher maximum penalty than theft, reflecting that it is often a more serious charge, in this case I do not regard it as of high order as the evidence does not indicate that you stole and encouraged the theft of the items from the owner's car, nor that you aimed to profit from finding them.

15I do regard as of concern that you were not sufficiently shocked or confronted by your own behaviour, and the experience of being arrested and charged by police, into complying with bail conditions and answering bail by going to court when required.  These summary offences cause inconvenience and disruption to the justice system, but are not as serious on their own as the primary offending which brings you before this court.

16You have pleaded guilty to these charges, and are entitled to considerable leniency for doing so.  Your pleas of guilty are not only of utilitarian value in saving the time and cost of disputed hearings and sparing witnesses having to come to court, but they reflect that you have accepted criminal responsibility for your actions, and also in your case I accept that your pleas of guilty are a reflection of genuine remorse.  As I have said, the letter you have written to the court indicates that you do understand the serious impact that your actions were likely to have had on the store attendant, and you express insight into that - that he had done nothing wrong, and was just doing his job.

17I turn now to your personal circumstance.  You are now aged 34.  You grew up in supportive circumstances although your parents separated when you were about five.  You attended and finished school, then studied at TAFE, and became a roof plumber at which occupation you apparently worked hard over a number of years.

18From a relationship started in High School, you have two children whom you describe as "wonderful".  They live with their mother, and until last year you still saw them regularly and were close to them.  I accept that you remain very fond of them and want to rebuild a relationship with them.

19You are also still close to both of your parents and their partners. All have been present in court to support you, as has been your brother.  Your parents have each written references reflecting their love and support for you, their shock at the offending and the state that you were in at that time, and have described that you had disconnected from them prior to that.  They make clear that they will continue to support you and try to assist you to build a better life in the future.

20I am told that the background, indeed the trigger, to your getting to the point where you committed these offences, was the sudden and tragic death of your partner of some five to six years when she died last August of a suspected aneurysm.  That occurred in front of you. You called ambulance officers but she was unable to be revived.  You write that you were devastated, and effectively you walked away from your life as you knew it at that stage.  You ceased work, you left the flat you rented with her, ceased contact with extended family, and you sold your belongings to get money to buy drugs. You rapidly descended into heavy heroin use.

21I am told that you had, in fact, used drugs a little before that, but never to that extent, and it was the loss of your partner in those circumstance that caused a very rapid descent into drug abuse, which led to homelessness and staying amongst drug users.  I am told it was to gain some quick cash that you attempted an armed robbery and then stole from that store.  I am told that you had not moved away from that environment in the following weeks, when bailed, and that that was the reason you did not comply with your bail.

22Your parents' letters indicate that this behaviour was totally out of character for you, and for the person they'd always known.  Not only their references and your prior strong work history, but also the fact that you come before the court with no prior convictions, is consistent with the history I have been given that there was a trigger, the tragic death of your partner, that caused a sudden spiral into drug use, and the further criminal behaviours that have led you to be here today.

23Your prior good character benefits you in two respects.  First, you are entitled to some leniency on your first appearance before a sentencing court for that.  Secondly, it indicates that there are good prospects for you for the future as although your offending was related to drug abuse, you do not have an entrenched history of that or other criminal or anti-social behaviour.

24There is no material before me as to whether you were suffering depression or another mental health condition following the death of your partner.  It seems to me that there may have been something more than ordinary, if I can call it ordinary, grief, driving you to abandon your previous lifestyle and sense of responsibility.  It may be useful for you to seek medical advice about that and coping mechanisms if they can be imparted to you.

25I am told that whilst in custody you have been working and have applied to undergo some drug rehabilitation programs but none have yet become available to you. I am told that you have not been using drugs and I am told that you have had two drug screens that were clear.  You apparently are not on any other medication.  While relapse into drug use is a very real risk for all people who come out of prison with a history of something like heroin use, I consider that you have good chances of avoiding that if you do seek out and undertake programs to assist you to make that adjustment. In particular you would benefit from a program to teach you strategies to avoid the temptation to revert to using harmful drugs if things are not going well.

26Although the seriousness of attempting armed robbery, and then returning to steal from that store, normally would attract a sentence of considerable time in prison with your lack of prior criminal history, strong work history and potential to obtain work in your field on your release, having pleaded guilty and accepted responsibility and shown genuine remorse, and with the support from your parents and siblings available, and the strong motivating factor of re-establishing your relationship with your children, I have decided to impose a sentence that does not require you to spend a lot longer than you have already in prison, and that will be followed by a period under a CCO with programs to assist your rehabilitation.

27I had you assessed for a CCO and you were found to be of low risk of re-offending on the assessment tool used by community corrections officers, and suitable for a CCO.  The condition of you being required to be assessed and undergo treatment if directed in respect of mental health conditions was not recommended.  However, you have heard me discuss with counsel why I think it would be a good idea for such a condition to be imposed.  I am going to impose it.  It is up to community corrections officers as to whether they require you to, at least, approach a GP, for a mental health care plan, and of course what happens is up to a doctor in that regard.  But it seems to me that there may be some issues that you need to address and you may be able to be given, at least, some counselling to assist with that.

28The issue of drug rehabilitation, I think, needs to be addressed even though you seem to have managed so far in prison to stay clear.  There are all sorts of ways people can revert to taking refuge in drugs they have used before when things do not go as well as they might hope after release from prison.

29Would you stand up now please.

30Jason Steele, on Charge 1 of attempted armed robbery, I impose six months' imprisonment.  On Charge 2 and the same for Charge 3 but they are imposed separately, I impose a Community Corrections Order to last for 12 months commencing on the day of your release from prison.

31The conditions I impose on the CCO are that you are to submit to assessment and undergo programs as directed in respect of drug abuse including testing.  The pre-sentence report says I need to specify the frequency, but I have never done that in the past.  It will be up to those assessing you as to the frequency for drug screening, but I do impose the testing aspect of that condition.

32I also impose a condition that you undergo assessment and treatment  as directed in respect of your mental health. 

33I will not impose further conditions, and no further ones were recommended.  So the two conditions are the drug programs and the mental health assessment and treatment.

34I must explain that all usual terms of a Community Corrections Order also apply.  Those are that you must, within two working days of being released from prison, report to the community corrections office closest to where you will be living, and I gather that will be Geelong. You must, during the 12 months of the order, obey all lawful directions and instructions of community corrections officers.  You must not leave the State of Victoria without prior permission of community corrections officers, and you must notify community corrections officers of any change of address of where you are living or where you are working within two clear working days of that change occurring. 

35Now further, and above all, you must not commit any further offence which could be punished by imprisonment during the period of the CCO.  Now that includes offences ranging from a variety of drug related offences, and all offences of dishonesty from theft to receiving stolen goods or, of course, armed robbery.  There are a range of further offences such as many of violence, but you have not been before courts in the past, and I have no reason assume you will embark on that.

36However you must understand that if you do not comply with the Community Corrections Order, either by not complying with the conditions or breaching the terms of if by further offending, then you may well be brought back before a court,that would be likely to be me, on what they call contravention proceedings.  Contravention of a CCO is itself an offence that could carry up to three months imprisonment as a separate penalty, but on these charges, that is Charges 2 and 3 on which I impose the CCO, it could be confirmed, it could be varied by being extended, or the order could be cancelled and you could be
re-sentenced on those charges.  What actually happens would depend on the circumstances of any contravention and also of how much of the order had been complied with.

37Now I turn to the summary charges.  On those I impose an aggregate sentence of a community corrections order for three months.  The only condition I impose on that is that you submit to assessment and programs as directed for drug abuse.  It will run concurrently with the other one and they will treat it as one CCO, but I have to impose a separate penalty on the summary charges from those on the indictment.  The same usual terms that I have just outlined to you apply but in effect there will be a three month CCO on those.  Once that three months is up, if you have complied with that, that is spent but there will be nine months further on the balance of the other CCO.  This CCO on the summary charges also commences on your release from prison.

38I declare 154 days of pre-sentence detention reckoned served, which means you have just under a month to serve on my reckoning. 

39I state that but for your plea of guilty on the charges on the indictment, and if all other circumstance had been the same, I would have imposed a total sentence of imprisonment of 21 months with a 15 month minimum term before you could be eligible for parole.  On the summary charges I would have imposed a total – I could not because of the other sentence have imposed a CCO - so I would have imposed for the summary charges an aggregate of two months' imprisonment, one month of which would have been cumulative on the indictment matters.  That is totally artificial on the summary charges because if you had not pleaded guilty they would not be before the court here.

40All right, now I was asked to make a disposal order which if its terms are handed up?

41MR CORDY:  Yes, that's been prepared.

42HER HONOUR:  Thank you.  This is for disposal of the four cap syringes in the sharps container.  Have I covered everything I needed to?  All right, well, you can take a seat, Mr Steele.  The CCO has to be produced and you will be asked, once it is checked, to sign it and I will sign it.

43The computer has managed to produce a page that is numbered p.2 of 1.  There is always something new.  Could we have the address at which Mr Steele will be living because it still has got his Eaglehawk address in the system.

44MS YOUNGSON:  Yes, Your Honour, it's No.112 Bay Shore Avenue, and that's in Clifton ‑ ‑ ‑ 

45HER HONOUR:  Is that one word, Bay Shore?

46MS YOUNGSON:  They're two different words, Your Honour.

47HER HONOUR:  All right, Bay Shore ‑ ‑ ‑ 

48MS YOUNGSON:  Avenue and that's Clifton Springs, which is Geelong.

49HER HONOUR:  I think we need - do we have a postcode?

50MS YOUNGSON:  3222.

51HER HONOUR:  3222.  All right those will be shown to counsel just to check that they include what I announced.

52MR CORDY:  Yes, Your Honour, that seems to reflect Your Honour's stated intention.

53HER HONOUR:  They are noted at the bottom too that they will run concurrently.  All right I will have my Associate take those to Mr Steele to sign.  Mr Steele, you have heard that your counsel has checked them but you’d better have a read through too.  One is for three months and one is for 12 months for the reasons I have said. 

54All right, I have signed each of those.  There will be copies for each party. 
The orders are signed and I will now adjourn the court until ten o'clock tomorrow morning. 

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