Director of Public Prosecutions v Tichy
[2017] VCC 52
•8 February 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00594
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES TICHY |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 July 2016 | |
DATE OF SENTENCE: | 8 February 2017 | |
CASE MAY BE CITED AS: | DPP v Tichy | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 52 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Armed Robbery; Committing Armed Robbery in Breach of Bail.
Sentence: Total Effective Sentence of 20 months’ imprisonment and 18 months’ Community Corrections Order upon release.
Section 6AAA declaration 4 years’ imprisonment with a minimum period to serve 3 years.Compensation order totalling $300.00.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. R. Cordy | Office of Public Prosecutions |
| For the Accused | Mr K Reynolds | James Dowsely & Associates |
HIS HONOUR:
1 James Tichy, you have pleaded guilty to one charge of armed robbery, which offence carries a maximum period of imprisonment of twenty-five years and one summary offence of committing an armed robbery in breach of your bail, which offence carries a maximum penalty of thirty penalty units, or three months’ imprisonment.
2 The circumstances of your offending are set out in the Prosecution Opening, about which there is no issue.
3 You entered a service station with an imitation firearm which you pointed at your victim who, under that threat, opened the cash register and handed over to you the contents of the register, namely, $300.
4 While no Victim Impact Statement has been provided in this instance, it was put on behalf of the prosecution that your victim was seriously affected by your conduct and that he has not provided a Victim Impact Statement by reason of his fear that he may be exposed to a reprisal.
5 Your personal circumstances may be summarised as follows. You are thirty-six years of age, having been born on 24 January 1981. Both of your parents are employed as Corrections Officers at the Loddon Prison. Throughout your life they have supported you and continue to support you.
6 You were educated at the St Anne’s Primary School in Sunbury. You attended the Salesian Boys’ College in Sunbury. You left that college at Year 10 and at a relatively young age commenced and completed an apprenticeship in roof tiling.
7 You are the father of two children. Your son, who is fifteen, currently attends the Sunbury Downs Secondary College and lives with your parents in Castlemaine. Your daughter, who is thirteen, lives with her mother, from whom you are separated.
8 You have a long history of illicit drug use, which commenced with your use of cannabis on a casual basis at the age of fifteen and progressed to the use of amphetamines some two years later.
9 Approximately five years ago, you commenced using methamphetamine on a regular basis. Immediately prior to your arrest, you were using methamphetamine on a daily basis and consumed between 0.5 to 1 gram per day. As your use of methamphetamine grew, any stability in your life dissolved. While your parents sought to support and assist you to overcome your drug dependency in every way possible, including the provision of accommodation for you, your wife and children, that assistance had no effect, the endpoint of your drug dependency being that you have a number of convictions, which I am satisfied probably directly arise by reason of your drug use and that you now appear before me on these charges.
10 I am satisfied that your offending in this instance occurred in circumstances in which you were a drug addict and you were under the influence of that addiction at the time of your offending. It comes as no surprise, in these circumstances, that your offending was unplanned and spontaneous. Equally, your victim, the service station attendant, was exposed to the trauma of having what appeared to be a useable handgun produced by someone who was drug affected and made demands upon him for money. Your target is appropriately described as being a soft target and your victim had no protection.
11 On your behalf it is put that you have entered a plea at the earliest possible opportunity, which I accept, and that you have reasonable prospects of being rehabilitated, given the support of your family and the fact that you are currently drug free.
12 In the course of his evidence, your father, described the fact that he had always had a good relationship with you and that he would continue to support you. He spoke about the relationship difficulties that you have had in your life, your daily use of drugs at the time of this offending and the attempts by both he and your mother to assist you to deal with your drug addiction, which did not succeed. He said that the change in you since your detention with respect to these charges had been remarkable; that you appeared to be nearly back to your old self, that you were very remorseful and that you have taken responsibility for the offending in this instance.
13 Your father described the change in you since your imprisonment as being such that he has, in recent times, been able to recognise your behaviour as that which is consistent with the son he knows and loves and not the drug addict which he has had to deal with for a number of years.
14 The evidence by your father is reinforced by the information provided to me by Mr Reynolds this morning.
15 In her report dated 20 May 2016, Dr Carla Lechner, describes you as presenting with symptoms of a Stimulant Use Disorder and an Adjustment Disorder with Depression, the latter condition being reactive to a number of environmental stresses, including the death of your friend and your destructive intimate relationships. She comments that your recent period of abstinence from drug use has enabled you to reflect on the impact of your behaviour both upon yourself and others, and that you have expressed deep regret and shame for your actions.
16 While Ms Lechner opines that you have been depressed for some years, I am not satisfied that any relationship between your depression and your offending has been appropriately identified as being relevant to the sentence that I should impose, having regard to the clear influence upon your mood and behaviour of your drug addiction.
17 It is clear that during your period of detention in Port Phillip Prison you have undertaken a number of courses in respect of which Certificates of Attendance have been tendered. In addition, a number of references have been tendered on your behalf, which described you as a sensible young man whose life spiralled out of control in association with his drug addiction but who, at the current time, appears to be free from drug use and is committed to regaining his life as a responsible member of the community.
18 You have penned a letter to me expressing your remorse which I accept is genuinely held given the evidence of your father who I found to be an extremely impressive witness. His evidence satisfies me that you have, in your current controlled environment, made real progress in addressing your addiction.
19 The position of the prosecution is that this is an instance of serious offending visited upon a soft target which is far too prevalent in this community and in respect of which my obligation to denounce the conduct and make an appropriate statement as to general deterrence combine to obligate me to impose a sentence of imprisonment alone.
20 At my direction you underwent a detailed assessment as to your suitability for the imposition of Community Corrections Order. Notwithstanding your relevant history, you have been assessed as being a suitable candidate for the imposition of a Community Corrections Order. That assessment rated your risk of reoffending as being moderate.
21 Your crime involved very serious offending, it must not be forgotten that your crime exposed an innocent employee, who was just doing his job, to a terrifying situation in which he was threatened with a firearm.
22 Further you committed this crime within 12 days of being placed on a Community Corrections Order the duration of which was 18 months.
23 Notwithstanding that, I am satisfied that your drug addiction influenced your behaviour; that you chose to reoffend so soon after giving the undertaking involved with the making of that order; and that this behaviour significantly increases the culpability associated with your offending.
24 I am satisfied that the need to deter others from this type of offending in this instance given the prevalence of crimes of this type. That violent crimes are an ever present problem in the community and that they can have devastating effects upon the victims of those crimes.
25 The seriousness of this offence is demonstrated by the fact that first charge carries with it the potential of a sentence of imprisonment of up to 25 years and involves an incident of serious offending.
26 Given your age, and your supportive family I am satisfied that your prospects of rehabilitation, whilst guarded, are still positive if you can gain and maintain control of your drug addiction. The fact that you have gained control of your drug use whilst in custody is something that bodes well for your prospects of successful rehabilitation.
27 The community is well served by the rehabilitation of offenders into the community. The fact that you may yet make a positive contribution to the community when considered in the context of your level of remorse and the other factors which I have previously referred to, should in my opinion be given appropriate weight in the sentence I Impose in this instance.
28 The Court of Appeal has made a number of statements that crimes of this type must be dealt with by harsh punishment which sends a clear message to would-be offenders.
29 Weighing:
· The circumstances of your offending involving as it did the use of a firearm;
· The timing of that offending namely that it was committed whilst you were on a Community Corrections Order;
· The timing of your plea, your remorse and your prospects of rehabilitation;
· The programs available to you and recommended as being part of a Community Corrections Order should one be imposed in this instance;
I am satisfied that your sentence should involve the combination of a Community Corrections Order and a period of imprisonment. I am equally satisfied that the current period which you have served should be extended for a further period before you are released and commence that order.
30 Upon the charge of armed robbery you are you are convicted and sentenced to a term of imprisonment of 20 months which sentence of imprisonment is to be combined with the imposition of a Community Corrections Order which is to continue for 18 months.
31 That order is to contain each of the recommendations set out in the assessment report dated 20 January 2017 namely that you undergo:
· Supervision;
· mental health assessment and treatment;
· drug assessment and treatment testing; and
· programs to reduce reoffending.
32 As to the summary offence of committing an armed robbery in breach of your bail you are sentenced to 1 month imprisonment which sentence is to be served concurrently with the other sentence which I have imposed.
33 Having regard to the period of imprisonment associated with this sentence I do not consider it appropriate that you be required to undergo unpaid community will work as part of your community corrections order.
34 Pursuant to s.18(4) of the Sentencing Act I declare that the total period of pre-sentence detention to be taken into account as time served in respect of this sentences is 406 days and that this declaration be entered in the court record.
35 But for your plea of guilty I would have imposed a term of imprisonment of 4 years in total with a non-parole period of 3 years.
36 I propose to make the compensation order which is sought in this instance by the prosecution.
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