Director of Public Prosecutions v Taute

[2018] VCC 958

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00436

DIRECTOR OF PUBLIC PROSECUTIONS

v

DENNIS TAUTE

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2017
DATE OF SENTENCE:	25 June 2018
CASE MAY BE CITED AS:	DPP v Taute
MEDIUM NEUTRAL CITATION:	[2018] VCC 958

REASONS FOR SENTENCE
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Subject:
Catchwords:              Armed robbery, Prohibited person possess firearm, Prohibited person                use firearm, Handle stolen goods.
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms J. Ellis	Office of Public Prosecutions
For the Accused	Mr D. Care	Dowsley & Associates

HER HONOUR:

1Dennis Taute, you have pleaded guilty to the following four offences.  Armed robbery, a prohibited person possessing and using a firearm and handling stolen goods.  You have also agreed to have dealt with by me, and pleaded guilty to the following related summary offences.  Commit an indictable offence whilst on bail, contravene bail conditions, fraudulently use registration label, unlicensed driving and dealing with property suspected of being the proceeds of crime.

2The maximum penalties for these offences are as follows.  Armed robbery, 25 years.  A prohibited person possessing or using a firearm, 1200 penalty units or 10 years imprisonment.  Handling stolen goods, 15 years.  Commit an indictable offence on bail or contravening bail conditions, 30 penalty units or three months imprisonment.  Fraudulently using registration label, 60 penalty units or six months imprisonment.  Unlicensed driving, 25 penalty units or three months imprisonment.  Dealing with property suspected of being proceeds of crime, two years.

3As to Charges 1 and 2, armed robbery and a prohibited person using a firearm, on the evening of 18 September 2017, Ms Tibi Lee was working alone at her family owned milk bar in St Albans.  At approximately 6.20 pm, she was sitting behind the counter and you came in holding a firearm.  You approached her and pointed the firearm at her chest.  Ms Lee speaks only limited English and said to you "I don't know, I don't know", indicated she did not understand what you were saying.

4You then handed her a bag and reached over the till, taking cash from the register.  You then gestured her towards the cigarettes and started to count to three.  Ms Lee was visibly upset and you then walked around behind the counter, still with the gun in your hands and took cigarettes.  The total value of goods stolen was $200.  Ms Lee screamed for help in Vietnamese and you ran out of the milk bar.  She chased you and you got on a motorbike that you parked out the front of the shop.  Another unknown person on a different motorbike was waiting for you and you both drove off together.  Ms Lee called her husband who rang the police. 

5On 14 November 2017, police attended a motorcycle collision in Sunshine that involved your partner.  The police recognised you as being wanted in relation to the armed robbery at the milk bar.  The blue motorbike you were riding had previously been stolen and bore registration plates that had been stolen on or about 11 November.  That is the conduct regarding Summary Charge 8, fraudulently use a registration label and Summary Charge 17, dealing with the proceeds of crime.  You were unlicensed at the time, that is the Summary Charge 9.

6At approximately 7.50 pm, police attended your home in Altona Meadows.  After executing a search warrant, police located five stolen registration plates, that relates to Charge 3, handling stolen goods.  A Yamaha motorbike, Summary Charge 18.  A sawn-off shotgun which was located concealed in a wall cavity, underneath a poster outside the laundry door.  The firearm was loaded with two shotgun cartridges.  That is Charge 4, being a prohibited person possessing a firearm.  I was informed by your counsel that this was the same firearm that was used in the armed robbery. 

7Between 18 September 2017 and 14 November 2017, you were on bail for unrelated dishonesty offences.  That relates to Summary Charge 3, committing an indictable offence whilst on bail.  Between 13 September 2017 and
14 November 2017, you failed to report on bail every Monday, Wednesday and Friday, as was required by the conditions of bail.  That is Summary Charge 16. 

8When you were interviewed by police, you admitted that you did not have a licence and to not reporting on bail.  You said you could not recall what you were doing the day of the armed robbery.  You denied your involvement and said you did not know where the milk bar was and said you only ever went to St Albans to visit a friend.

9You told police that the distinctive helmet that you were wearing at the motorbike collision scene, the same helmet that was captured on CCTV as being worn by you at the armed robbery, belonged to a friend Matty.  You said that he owned the shotgun and although you traced its outline on the tool board, that was up on the wall, that he, that is Matty, had taken the shotgun away.  You maintain that it must be a mistake that your fingerprints were located inside the cash register at the milk bar.  You made a mixture of admissions and denials regarding registration plates and the stolen motorbike.

10You were arrested on 14 November and have been on remand since that date.  I was informed that a victim impact statement had been sought from Ms Lee, but she declined to provide one.  It is clear from the events that I have just summarised, this would have been a terrifying experience for her.  Your choice of weapon and target made her particularly vulnerable.

11You are currently aged 35.  You were born in New Zealand and moved to Sydney with your parents when you were aged two.  You have one younger sister and three half-sisters.  Your parents have both suffered from drug and alcohol issues and you were a witness to domestic violence.  As a consequence of that upbringing, you lived at times with your grandmother and spent time as a 14 year old, at the Silverwater Boys Home.  When you were 15, you witnessed a friend being shot dead in a drive by shooting at Campsie in New South Wales.  After this traumatic incident, you went back to New Zealand with your grandmother.  You managed to finish high school in New Zealand at Gisborne Boys School, which had a sporting academy where you played rugby league.  You continued playing rugby in minor leagues in New Zealand and also England.

12After finishing school, you returned to Sydney and got work.  You qualified as an advanced scaffolder, after obtaining relevant tickets.  You have been regularly employed either as a scaffolder or working in mines, again on scaffolding.  You have worked here, in New Zealand and English consistently up until 2015.  You have two children aged nine and four.  You were in a relationship with their mother for about seven years.  In 2015, you were working offshore at a mine in Barrow Island, Western Australia, carrying out stints of up to twenty-six days straight and then returning for nine days.  Your partner left you for someone else over this time and the end of that relationship saw you engage in increased drug use. 

13You have a long term history of drug use, commencing with cannabis when you were aged about 13.  You progressed to using speed, acid and ecstasy.  You commenced using ice when you were working in scaffolding, when you were aged about 19 and continued to do so until 2015.  Apart from one period in custody in Western Australia, you have used ice on a daily basis from 2015, up until you were remanded for these matters.  Your living arrangements were (indistinct) and you had no contact with your children or their mother.

14The end of your relationship also began your descent into crime.  Your first convictions relate to matters in Western Australia in 2016 and 2017, when you were aged 33 and 34.  Including for possessing a firearm for which you received a term of imprisonment.  You were also involved in a police pursuit on a motorbike and sentenced to six months imprisonment.  I was informed that you have two outstanding matters for dishonesty offending and you were on bail for those offences at the time of the commission of these offences.

15I accept that you had a difficult childhood and that you managed to overcome adversity for an extended period of your life, up until your relationship with the mother of your children broke down.  It was in this context that your offending and increased drug use occurred.  These circumstances may explain your offending, but do not excuse it.  Since being incarcerated, you have not used drugs and have completed a number of clean urine screens between January and May of this year.  You are working five days a week, between 8.30 and 2.30 doing wielding and powder coating and using your time in custody productively.  You receive visits from your mother and a number of friends.  Additionally, I was informed that you have recently reconnected with your father and he was in court to support you.

16I was informed that it is likely that you will have your visa cancelled, as a consequence of this offending and you face the likely prospect of deportation.  Unlike many others in your predicament, you look forward to this prospect.  That is, returning to New Zealand.  During your period on remand, you have been in contact with your children and former partner.  They have returned to New Zealand and I was informed that you hold realistic hopes of joining them on your deportation, following completion of your sentence.  Other extended family members also reside in New Zealand.

17You have pleaded guilty to these matters at the first opportunity.  I accept that your guilty plea has significantly facilitated the course of justice and has the utilitarian benefit.  Ms Lee was not required to give evidence and relive the traumatic incident.  Despite your attitude and denials in the record of interview, I accept that your plea is indicative of remorse.  I was informed that you have appropriate victim empathy, recognising the terror that you would have instilled in Ms Lee.  Your counsel submitted, the prosecution did not dispute, that you have reasonable prospects of rehabilitation.  This, it was submitted, was so even though you had a long history of drug use given:

1.    Your good work history.  You have had extended periods of gainful   employment and are likely to be able to gain work again when you are        released. 

2.    Your limited prior history relating as it does, mainly to drug use.

3.    Your personal circumstances that led to this offending and increased     drug use.  It was submitted this period in custody has served as a circuit      breaker for you.

4.    You have provided clean drug screens and have not used whilst in custody.  I was informed that you are motivated to remain clean.

5.    You have a supportive family, some of whom are in New Zealand and     there is a real prospect of reunification at the expiration of your       sentence. 

18The prosecution accepted that your rehabilitation prospects were reasonable, dependent of course upon you remaining drug free.  In relation to Charges 1 and 2, the prosecution characterised this as a serious offending of this type.  You chose a soft target and a firearm as your weapon.  There was some planning in carrying out the offence with the use of a disguise and utilisation of another person for lookout.  Though it was not particularly sophisticated.

19The impact on Ms Lee would have been significant.  She was alone and you pointed the gun at her chest.  She was doing no more than trying to make a living.  I was referred to a passage in the R v Alashkar & Another, 2007, VSCA 182 at paragraph 36.  Those considerations regarding protection of soft targets apply in respect of your offending.  In relation to Charges 2 and 3, you have a relevant prior conviction of possessing a firearm with circumstances of aggravation.  This related to a handgun found under the bed at your house in Western Australia. 

20Principles of totality apply.  There will be a degree of cumulation between Charges 1 and 2, given that you were a prohibited person.  Further, I accept that substantial concurrency is warranted in relation to Charges 2 and 3.  Your counsel conceded that the only appropriate disposition was a term of imprisonment.  It was submitted that given your rehabilitation prospects, limited criminal history and motivation to re-establish yourself in New Zealand, that I should impose some more lengthy parole period.  People in our community are entitled to feel safe in their work environment.  Their circumstance of work or small business, may make them particularly vulnerable having to work alone.  Those like you, who are minded to terrorise such individuals in the manner in which you did, should be aware they will receive stern punishment.  Specific deterrence is also a relevant consideration.  Community denunciation and just punishment are also matters I take into account, in the sentencing exercise.  These must be balanced against the matters put in mitigation on your behalf, including your plea of guilty and reasonable rehabilitation prospects.

21If you could please stand up, Mr Taute.  In relation to Charge 1, armed robbery, you are convicted and sentenced to a term of imprisonment of four and a half years.  In respect of being a prohibited person possessing a firearm, you are convicted and sentenced to a term of imprisonment of one year.  In relation to being a prohibited person using a firearm, you are convicted and sentenced to a term of imprisonment of one year.  I think I have probably got those around the wrong way.  Charge 2 is the use charge.  Charge 3 is the possess charge.

22ASSOCIATE:  Charge 4 is the possess charge, Your Honour.  Charge 3 is the handle stolen goods.

23HER HONOUR:  I think that was changed on the plea.  Has anyone got the - I have an indictment here.  Sorry, I will start again.  In respect of armed robbery, Charge 1, you are convicted and sentenced to a term of imprisonment of four and a half years.  In respect of using a firearm, a prohibited person, you are convicted and sentenced to a term of imprisonment of one year. 

24In respect of Charge 3, handling stolen goods, you are convicted and sentenced to a term of imprisonment of six months.  In respect of Charge 4, being a prohibited person possessing a firearm, you are convicted and sentenced to a term of imprisonment of one year.  In respect of the summary offence, committing an indictable offence on bail, you are convicted and sentenced to one month imprisonment.  In respect of Summary Charge 8, forging the registration label, you are convicted and sentenced to a term of imprisonment of one month.

25In respect of unlicensed driving, Summary Charge 9, you are convicted and sentenced to a term of imprisonment of one month.  In respect of Summary Charge 16, contravening bail conditions, you are convicted and sentenced to a term of imprisonment of one month.  In respect of Summary Charge 17, dealing with property suspected of being proceeds of crime, you are convicted and sentenced to a term of imprisonment of three months.

26In respect of Summary Charge 18, you again, dealing with property suspected of being proceeds of crime, you are convicted and sentenced to a term of imprisonment of three months.  Five months of the sentence in respect of Charge 2 and one month of the sentence imposed in respect of Charge 3 will be cumulative, which gives a total effective sentence of five years.  I set a non-parole period in relation to this matter of two years and six months.  In respect of your licence, under the Summary Charge 9 which is unlicensed driving, there will be a two year disqualification period of you obtaining your licence.  Pre-sentence detention is at 223 days?

27MS ELLIS:  Yes, Your Honour.

28HER HONOUR: I declare pre-sentence detention of 223 days and pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have sentenced you to a term of imprisonment of seven years, with a non-parole period of five.  Are there any other orders I need to make?

29MS ELLIS:  No, Your Honour, that's all.  Thank you.

30HER HONOUR:  Very well, thank you.

31MR CARE:  As Your Honour pleases.

32HER HONOUR:  I will stand down.  Thank you.

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