Director of Public Prosecutions v Tambakis
[2019] VCC 772
•29 May 2019
jun
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-19-00174
Indictment No: J12385437
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CONSTANTINE TAMBAKIS |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 May 2019 | |
DATE OF SENTENCE: | 29 May 2019 | |
CASE MAY BE CITED AS: | DPP v Tambakis | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 772 | |
REASONS FOR SENTENCE
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Subject: robbery, possess drug x 2. 54 years old, long criminal history.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms T. Bolton | Office of Public Prosecutions |
| For the Accused | Mr J. Barreiro | Daniel Taylor Lawyers |
HIS HONOUR:
1. Constantine Tambakis, you pleaded guilty this morning to one charge of robbery and two charges of possession of drugs of dependence. The maximum penalties are correctly set out in the prosecution summary. The prosecution accept that the lower penalty provision applies to the drug offences and that concession is sensibly made and accepted by me.
2. You were born on 9 April 1965 and are 54 years of age. You have admitted a lengthy criminal history.
3. The matter was opened to me this morning by the prosecutor Ms Bolton in accordance with a written opening dated 30 April 2019. That summary was tendered on the plea and marked as Exhibit A. Your counsel Mr Barreiro told me that this was an agreed factual statement and in those circumstances, I really see little need to set out the full factual basis of sentencing in these my reasons. I will not stray beyond those agreed facts. Very briefly stated, however, on the afternoon of Monday, 10 September 2018, you attended upon an IGA supermarket in Main Street in Thomastown. You had left home on your bike with a variety of gear including a knife, a wig, ski mask and some gloves. You parked your bike around the corner from the entrance to the supermarket and then entered the store. You were by then disguised with the blonde wig, ski mask and a beanie. You wore black gloves, you had a jacket pulled up over your face and a piece of material actually half covering your face. You had the knife in the back of your pants. It played no role at all in the offending and the prosecution has chosen to settle this matter on the basis of robbery not armed robbery. In those circumstance, I can pay no regard to the knife at all. If I did so, I would be falling into the vice of sentencing you for armed robbery and of course I am dealing with you for robbery.
4. Back then to the entry into the premises. You entered the store and you approached the female cashier. You told her to open her drawer. She raised the alarm or tried to by calling out a service code. You responded by walking around the back of the register closer to her and demanding that she “open the drawer now”. She stepped back and she did so. You then grabbed the money. She then called out the assistance code again, and others in the store heard and for that matter saw what was happening. You said at one point “I'm sick and I need the money”. You turned and left with approximately $600 but were pursued and detained a short distance away by a couple of bystanders as you tried to ride off on your bike. It was purely a matter of chance that those people were in the store and were prepared to pursue you and apprehend you. You were arrested by the police a short time later. The cash was all recovered of course. The drugs were found upon the police search and there is nothing at all to suggest anything other than possession for personal use.
5. You made full admissions when you were interviewed by the police and have been in custody since. You pleaded guilty at the earliest opportunity.
6. I have only provided then a pretty brief summary of the full summary but of course I sentence in accordance with the full agreed factual statement placed before me.
Victim Impact
7. There is no victim impact statement here. I do not need one. The victim speaks of her fear in her statement. You hoped that your conduct and words would bring about compliance and of course it did. Plainly this was a frightening event as it occurred and that is conceded. I cannot speculate as to any long term impact but it is reasonable to think that the victim will never forget this incident. It is hardly an everyday event. I take into account the impact of your crime.
In Mitigation
8. Your counsel, Mr Barreiro had prepared some excellent written submissions on the plea which were marked as Exhibit 1. He took me to your background. He tendered a report from Mr David Ball marked as Exhibit 2.
9. He made submissions as to the objective seriousness of the offending and the absence of some aggravating features which sometimes exist.
10. In addition he relied upon;
· Your co-operation with the police and your early guilty plea;
· The presence of some remorse;
· He argued that you had at least some prospects of rehabilitation though those prospects were described as being poor.
11. Your counsel initially was submitting that a sentence equating to your current pre-sentence detention would suffice. That was not a realistic submission and I said as much in the course of the plea. Now the written outline raised the possibility of a combination-type disposition with your ultimate release onto a community corrections order. He abandoned that submission in running for two reasons. Firstly, he had spoken to you and you were evidently not keen for such an outcome. Secondly he conceded that the criminal history disclosed non-compliance with a number of recent community corrections orders. Indeed you were on one at the time of the commission of this offending and a breach proceeding is in fact contemplated. He abandoned then any consideration of a community corrections order and urged me to fix a head sentence and, as he described it, a meaningful non-parole period.
Prosecution
12. Ms Bolton on behalf of the Director of Public Prosecutions of this State argued that a term of imprisonment was the only option here with the fixing of a non-parole period. You had relevant criminal history, she argued, and this was a serious enough planned robbery committed by a man with highly relevant criminal history including being on a community corrections order at the very time of the event. She argued that there was the need to pay strong regard to general and specific deterrence.
Background
13. Your background, if I may turn to that briefly, was set out in the written outline, in the oral submissions made by your counsel and also is to be found in the report of Mr Ball. I am not going to set it all out in my reasons as I have no reason not to accept that early family background. Just excuse me. Let me just clarify one thing. I should have clarified in the running. Mr Barreiro, was your client born in Australia? You better just - - -
14. MR BARREIRO: Yes, as I understand it, Your Honour.
15. HIS HONOUR: Just go and clarify it very directly please, if you could.
16. MR BARREIRO: As Your Honour pleases.
17. HIS HONOUR: Yes.
18. MR BARREIRO: He instructs that he was born in Australia, Your Honour.
19. HIS HONOUR: Yes. All right. Thank you.
20. Very briefly then you are 54 years of age born in Australia on 9 April 1965. You come from a Greek migrant family and your parents had a very stormy relationship. There was some violence from your father and it seems little by way of love from him. It was a dysfunctional relationship between your mother and father and a relatively dysfunctional upbringing for you and your sister I imagine. Your parents notwithstanding their tempestuous relationship stayed together. Your father died in 2014. You had received some serious facial injuries in a car accident when you were 6 and there was evidently some permanent scarring. You left school at around the age of 16 and you had gone into State care by about that stage where you claim that you had been sexually abused and treated violently at a boy’s home. You have had only one significant intimate relationship and your partner died of an overdose in your presence some years ago. You had been caring for your mother in the lead in to being remanded last September. She is frail and is not able to visit you though your sister and an aunt can deal with her day-to-day needs. You still speak to her from prison every couple of days but it is not the same and I have no doubt that you regret being away from her.
21. You have never had stable employment. Indeed you tell Mr Ball you have not ever had paid employment. You describe your life to Mr Ball in the following terms: “I turned to drugs to help me cope but it got out of control. I turned into a drug addict and it has cost me 30 years in jail, a heart attack and a lot of misery and I’m still paying for it.” It is depressing to consider such a waste of a life. You have had these long term serious issues with drugs, I do not doubt it. Heroin has been your drug of choice and it would seem that it has virtually destroyed your life. You have tried rehabilitation with varying degrees of success. Relapse has been a common enough event.
22. You have a sizeable criminal history and it is of real significance to my task. Now I want to make one thing very plain. I am not sentencing you again for those past crimes. You have received sentences and you have served them and you do not fall to be resentenced again by me for those past acts. However I am entitled to look at your history when I come then to make judgements as to you risk of re-offence, your prospects of rehabilitation and matters such as the need to deter you as well as affording protection to the community. Courts have tried to deter you with really only very limited success. I will try again. Specific deterrence and community protection must be given real weight in my sentencing task and that is conceded. I see no useful purpose trawling my way through your criminal history. It is a lengthy document indeed. As can be seen from even a cursory reading of it, there are a large number of robberies and armed robberies spanning over 30 years. More recently you received a community-based order for robbery when sentenced at the Magistrates' Court back in January 2009. You breached that order. You received three years with a two year non-parole period in this Court in 2010 for a robbery committed at a railway station. Since then you have received community correction orders which obviously have a much greater focus on your rehabilitation. You also have received prison sentences. You got a community corrections order in February 2015 with judicial monitoring in place. You were breached in June 2016 and the order was then confirmed. You got a community corrections order on a consolidation of matters that was dealt with at the Heidelberg Magistrates' Court on 26 June 2018. Again you were being judicially monitored under that order with the first monitoring due to take place on 27 September. You committed the offences for which I must pass sentence on 10 September 2018 so not long after having put on the order and very shortly before the first judicial monitoring. It of course renders untenable the suggestion which was pressed at least in the written outline (but abandoned in oral submissions) that you were a decent candidate for a community corrections order. It is unthinkable.
23. You have been in custody now for 261 days since your arrest in September of last year.
24. As to your early background, which I have traversed only broadly in these reasons, it seems to me that you did not get much by way of any sort of useful instruction in how actually to live and these things have a way of coming home to roost. It was not your fault. I mean you were just a child. You did not choose to have a father who treated you in the way that he did or your mother in the way that he did to her. You were then disfigured as a child. You then went into care and of course it is plain that that was a disaster for you. These early events in your life no doubt have a role to play in the sad manner in which your life has panned out, in the poor decisions that you have made and paths that have led away from being a contributing member of society, paths that you have taken. You cannot just shake that history off. That was after all your life and it seems to me that it was a pretty miserable preparation for adolescence and then adulthood. So, I take into account your dysfunctional and, in my judgment, disadvantaged background as far as I am able to and it seems to me that it is appropriate to afford some reduction in your culpability. Let me turn then to some of the other matters that are raised in mitigation.
Guilty plea
25. You have pleaded guilty and you have done that at the earliest opportunity. I take that into account. That is important. You have facilitated the course of justice. You have taken responsibility for your crimes. The community has been saved the time, the cost and the effort associated with a committal and for that matter a trial up in this court. Witnesses have been spared the experience of giving evidence and that can sometimes be a stressful event especially for the primary victim who relives the event often enough when giving evidence. There is a utilitarian benefit in pleading guilty. It must be adequately recognised by the Court. I take into account your early guilty plea and also your full co-operation with the police and I will pass a lesser sentence owing to those factors.
Remorse
26. Your counsel argues that you have a level of remorse here and I accept that you do. You have made the full admissions that you made on the day of the police interview and pleaded guilty at the earliest opportunity. It would perhaps be more useful to you and to the community if you could factor in in advance of offending the likely impact of the offence and steer away from then subjecting another human to this sort of frightening event but that process of reasoning seems to be beyond you but I do find that after the event, you do actually feel some remorse for the crime and some victim empathy and that at least is a positive. I take it into account in mitigation.
Rehabilitation
27. As to your prospects of rehabilitation, your counsel really could put it no higher than suggesting that there were some prospects but they were poor. Your age and criminal history and long term struggles with drugs over close to 30 years can give me no cause for optimism at all. Nor the report of Mr Ball that I have hardly mentioned. I take into account that report by the way and it is useful to my task. There is no suggestion that any of the principles from the case of Verdins apply here, plainly they do not, but Mr Ball comments on your level of functioning and your many needs in the future by way of treatment, structure and supervision. You are institutionalised to a large degree with social isolation, a long history of drug use and relapse and a crushingly low self-esteem. In a way you are comfortable enough in a prison setting which is most disturbing. He says you have an anti-social personality disorder. It will take massive efforts and resources to prise you free of drugs and the criminal justice system. Recent efforts taken in the Magistrates Court by way of monitoring you on community corrections orders have not been successful. I believe that your prospects of rehabilitation are really quite dim. I will not write you off but I can really only find quite minimal prospects of rehabilitation in this case.
The Offences
28. Let me turn to the offence. I say offence as I will barely mention the drug offences as they are totally overshadowed by the robbery. This was a soft target robbery. It was committed upon a female cashier in her workplace. She should have been safe there but of course she was not. You made the demand and then repeated it and you came in closer to her around her side of the counter. There was a concerning physical presence obviously.
29. You made full admissions. It is clear enough that there was some level of premeditation here. That is not to say it was a highly sophisticated offence. Plainly it was not. You rode your bike to the IGA so you had a “getaway bike”. However, you carried away from your home a wig and other bits and pieces described in the summary and donned the wig, gloves and a face covering before entry. I put aside altogether as I have said the carriage of the knife as I am dealing with robbery, not armed robbery. It is true as your counsel says that there was no actual physical force or contact or threat or colourful or violent language. Had there been so it no doubt would have represented a more serious example of the crime of robbery. Often enough completed robberies or even armed robberies do not descend to actual force. A demand is made and fear is caused and compliance is achieved. You made the demand, then you re-enforced it with another demand. You caused fear, make no mistake about it and it is accepted that you did. You took $605 but you did not get far. Apprehension was swift indeed. That is hardly mitigatory though at least the cash was recovered. But for the presence of some hardy souls who were courageous enough to step in, no doubt you would have just ridden off. Your offending though has all the hallmarks of a pretty desperate crime but your addiction to drugs is not put forward as being mitigatory and it is not. The drug offences themselves are scarcely worth mentioning. They were very small amounts no doubt for personal use so they are really the least of your troubles.
Purposes
30. I have to consider a number of purposes of sentencing and I do pay regard to your prospects of rehabilitation as that after all is one of purposes of sentencing that I must have regard to. Those prospects are poor indeed. There are other sentencing purposes which I must also give weight to. Your counsel urges me not to let your past bad conduct swamp other considerations and lead to the imposition of a disproportionate sentence, that is to say disproportionate to the objective features of the crime. I am required to punish you justly and proportionately for your crime. Proportionality is a fundamental matter in this case as in every sentencing task and I do not lose sight of that fact.
31. Punishment is an important sentencing purpose here. So too is denunciation of your conduct.
32. I must pay due weight to deterrence. There is the need for this court to seek to deter you and others from offending in the future. Specific deterrence is self-evidently very important here. Courts have tried over the years to lead you away from crime or to deter you from committing it at least but with limited success. I will try again. You must get it into your head that you cannot commit this sort of offence. Community protection is also important here. Your counsel submitted that community protection looms large. He is right. There is a need to protect the community from you.
33. General deterrence is a powerful purpose in this case. I do not accept the submission made in paragraph 18 of your counsel’s submissions that you are not an appropriate vehicle for general deterrence as you are said to be a longstanding drug user living on the margins of society. Very many soft target robberies and for that matter armed robberies are committed by people significantly under the influence of drugs or in the quest to fund a drug habit. That is only rarely mitigatory. A large proportion of such offenders might be described as living on the margins of society and in dire need of help and I do accept that you do need a large amount of help to toe the line. You just have not profited from that help in the recent past. I believe there is no particular reason to in any way significantly moderate the weight to give to general deterrence in this sentencing exercise. It is very important that this Court send a message to the many likeminded potential future offenders who may think of committing this style of serious and potentially dangerous offence. There is a strong need to protect vulnerable shop attendants and cashiers. The Court must convey the message through the sentences imposed that stern sentences will be imposed on those who choose to commit crimes such as yours.
34. I must have regard to the maximum penalty as well as the impact of your crime. I do pay regard to current sentencing practices but it is not a single controlling factor.
35. I have looked briefly since I stood down earlier today at the relevant portions of the Judicial College of Victoria sentencing manual (see Judicial College of Victoria overview and summaries dealing with this offence, 32.15.3.1&3&4).
36. The Sentencing Advisory Council snapshot is very much dated for this offence but I have looked at the more up to date online SACStat figures for the offence of robbery.
37. At the end of the day though, I am exercising a sentencing discretion. I am sentencing you for your crimes. It is not a mathematical task. So the statistics and other cases do not provide the answer to my task. Other cases are not precedents and statistics always have inherent limitations. Your robbery is plainly not the most serious to come before the courts and that is owing to the absence of some of the aggravating features mentioned such as direct physical violence, contact or force or threats. However, it is not at the bottom of the range of offence seriousness for the reasons I have announced including of course the selection of a female victim in her workplace, the physical proximity to the victim and the clear evidence of some planning afoot here. Many of the robberies referred to in the materials I have examined involve incidental meetings in a public place or for that matter targeted approaches to known victims. Often enough there is very little premeditation or planning. Your crime involved the decision to enter commercial premises. It was a targeted entry. You took a disguise. You wore it. It is a fair way removed from the lowest level examples of the offence though happily there was no physical force or extravagant language or threat. There is certainly no great reduction in your culpability. You knew exactly what you were doing, I am satisfied of that beyond reasonable doubt. I have already commented on the reduction in culpability derived from your disadvantaged background.
38. I take into account all of the submissions made by each party. I take into account also the written materials placed before me on the plea.
39. Plainly I have only one option here and that is to send you to prison. I take into account the fact that in doing so I will be maintaining the distance between you and your mother. She is one of the few positives in a pretty bleak life and you regret being absent from her life and you worry about that. It will be very difficult for her to visit. I understand that she has not yet been able to visit. Even though you are more than used to prison, I sense there is a slight increase in your burden cast by these factors. You will be wondering if you will see her again, you will be worrying about her predicament even though there are those others who are dealing with her physical needs. So I take that slightly increased burden into account but it just cannot be a sizeable mitigatory matter here. After all, you left your mother’s home to commit this crime and a decent prison term and her absence from your life and your absence from hers was the inescapable outcome if you were caught. It is a great shame you did not focus on that fact as well as the likely impact upon any victim that you selected. Had you done so, maybe you would have pulled back from the brink and not committed this crime.
40. Prison is always a disposition of last resort. Your counsel abandoned the call for a combination sentence, sensibly so. Quite independent though of that concession, I do not believe it is open to me in the sound exercise of my discretion in this case to release you on a combination type order. This was serious offending by a man with highly relevant prior criminal history. General and specific deterrence are powerful purposes of sentencing here. So too community protection, denunciation and punishment. Rehabilitation though not unimportant, it never is, it must surrender significant ground to these other purposes. I do not believe that a combination type disposition could give adequate weight to those purposes. In any event, as was apparent, your counsel explicitly abandoned his submission as to the availability of such an order.
41. I will provide for the possibility of your early release by fixing a non-parole period. I must proceed on the footing that you will serve every day of the head sentence that I will soon pronounce. I am not able to take into account the possibility of your release on parole. The Adult Parole Board will make that decision as to whether you can be released. It has nothing to do with me at all.
42. I must consider whether the effect of the sentences is just and appropriate and for that matter commensurate with your overall criminality. I am going to order total concurrency in relation to the sentences imposed on Charges 2 and 3.
Ancillary orders :Disposal
Disposal
43. Let me deal with the disposal order. Application is made for a disposal order in this case. There is no opposition to the making of the order and upon convicting you of a Schedule 1 offence, I am satisfied that the property referred to in the schedule is appropriate to be made the subject of the order and I order, pursuant to s.78 of the Confiscations Act, the forfeiture to the State of the property referred to in the schedule and that it be handled and dealt with in a manner contemplated by the signed order which I have signed and pronounced at this point.
44. Mr Tambakis, could you stand up please?
Sentence
45. On Charge 1, that is the charge of robbery, you are convicted and sentenced to 30 months or 2 ½ years' imprisonment. That is the base sentence.
46. On Charge 2 and 3, possession of loraxepam and the heroin, I believe it is open to impose an aggregate prison term for those matters. You are convicted and sentenced to an aggregate period of two days' imprisonment. That two days will be served concurrently with the base sentence of 2 ½ years imposed on Charge 1.
TES
47. It follows then that these orders produces a total effective sentence of 30 months or 2 ½ years' imprisonment.
Non-parole period.
48. I fix a period of 16 months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention.
49. You have already served 261 days of this sentence by way of pre-sentence detention and that declaration is to be entered into the records of the court.
Section 6AAA.
50. Finally, I have told you that I have taken into account your guilty plea. I have. If you had pleaded not guilty, you obviously would have done worse and indeed if you had pleaded not guilty and been found guilty of these offences by a jury, I would have convicted and sentenced you to three years and 10 months' imprisonment. I would have fixed a non-parole period of two and a half years. So that statement is also to be entered into the records of the court.
51. Grab a seat then for a moment. I will see if there is anything else I need to attend to. Are there any other matters at all? No?
52. MS BOLTON: No, Your Honour.
53. MR BARREIRO: No, Your Honour.
54. HIS HONOUR: All right. So you will go down and see your client downstairs then, Mr Barreiro?
55. MR BARREIRO: I will, Your Honour.
56. HIS HONOUR: Yes. All right. Well, that completes the matter then. So, Mr Tambakis, you will able to go downstairs in a moment and Mr Barreiro will come down and have a chat to you downstairs. All right?
57. So, Mr Tambakis can be removed. Thank you.
58. MR BARREIRO: My client is gesturing that he wishes to speak to me, Your Honour.
59. HIS HONOUR: All right. Yes.
60. MR BARREIRO: May I approach?
61. HIS HONOUR: Yes, do it briefly here, yes, but you will be able to see him downstairs as well. Yes.
62. MR BARREIRO: I am grateful, Your Honour.
63. HIS HONOUR: Yes. All right. Thank you.
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