Director of Public Prosecutions v Tilev

[2023] VCC 2260

*

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00408

Indictment No. N12743315

DIRECTOR OF PUBLIC PROSECUTIONS

v

ERIC TILEV

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2023,
DATE OF SENTENCE:	4 December 2023
CASE MAY BE CITED AS:	DPP v Tilev
MEDIUM NEUTRAL CITATION:	[2023] VCC 2260

REASONS FOR SENTENCE

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Catchwords:  Armed robbery - Soft target (BP service station) - 39 years of age at time of sentence - Lengthy criminal history - Offence within months of release from prison - Poor rehabilitative prospects - Early plea - Worboyes v The Queen [2021] VSCA 169 - Some remorse - R v Verdins [2007] VSCA 102, limbs 2 and 5.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Stevic	Office of Public Prosecutions
For the Offender	Mr L. Barker	SLKQ Lawyers

HIS HONOUR: 

1     Eric Tilev, earlier today you pleaded guilty to a single charge of armed robbery laid on the indictment filed in this court.

2     The maximum penalty for this crime is 25 years' imprisonment.

3     You have admitted a lengthy prior criminal history which is of obvious relevance to my task.

4     The matter was opened to me this morning by the prosecutor, Ms Stevic, in accordance with a summary dated 2 November 2023 which was marked as Exhibit A on the plea.

5     Mr Barker who appears for you told me it is an agreed summary. There is therefore no point setting out all of the agreed facts in these my reasons. I will sentence pursuant that agreed statement.

6     However, I suppose without some brief statement as to the facts appearing within my reasons, anyone who happens to access these reasons would find it impossible to understand the nature of your crime and the reasons for my ultimate sentence. So I will give a very brief summary of what is pretty straightforward and commonplace offending. 

7     On 15 December of last year, you attended in the early hours at a BP service station in Bell Street, Preston.  There you robbed the unfortunate 23-year-old console operator and at the time had with you an offensive weapon, namely a multi-tool with a blade. It was about 4:40am and you saw the doors open and ran inside. You were disguised with a home-made 'balaclava' cut from a shirt. You produced the multi-tool with the open blade and you demanded money. You held the blade towards the operator and you demanded cigarettes and money. At one point you said, 'Can you please give me money' and 'I haven't got nothing'. You said you were desperate. You had been told by that stage that only the manager could access the money. You demanded tobacco. You took some cigarettes and tobacco, put them in a bag that you were carrying and said, 'Thank you man, have a nice night' and left. That parting comment says a bit about your capacity to fully appreciate the effect of your conduct on others, something which is spoken of in the expert report. For, of course, your victim was not having a nice night. It was completely marred by your crime committed upon him in his workplace.  He was scared by your attendance and thought he was going to be killed. He called Triple 0.

8     This all took place on 15 December 2022. You were identified as a person of interest and on 21 December police executed a warrant at your address, namely Room 9, 412 Waterdale Road. You were arrested. The police seized some of the clothing you had been wearing. You were assessed and were judged to be fit to be interviewed. Now initially you were not truthful with the police. That is not a matter of any aggravation or importance. It is just the fact.  However, soon enough you made detailed admissions to the police. You described making the face covering in advance. You said that you were aware of the outlet and the fact that the door was not secured and that you left on an electric bike. You took the Rebel sports bag and a change of clothes, left the bike away from the service station and walked on foot. You described the armed robbery and the fact that you then left and changed your clothing and disposed of the other clothing that you had worn in the course of the offence in a vacant block. You also got rid of the weapon. You agreed that the police found the bottom part of the shirt from which you had fashioned the face covering.

9     You have been in custody since your arrest and you have pleaded guilty at the earliest stage.

10   So much then for my brief summary of the summary. That is all it is.  As I have said, I will sentence pursuant to the more detailed agreed summary dated 2 November, which is marked as Exhibit A on the plea.

Impact

11   There is no impact statement in this case, though obviously it is a crime that has had impact. The summary itself describes the immediate impact. However, it is impossible for me to reach any view about any sizeable ongoing impact. It would just be speculative. Though your counsel makes arguments as to the polite nature of some of your interaction with the console operator, the fact remains that you wanted him to comply. You had the blade, that is why you were brandishing it. He was scared and feared for his life. I have no doubt at all that your victim will never forget your crime.  

In mitigation

12   Mr Barker conducted the plea in mitigation on your behalf.  He relied upon a lengthy report from a psychiatrist Dr Zimmerman. Mr Barker had prepared some written submissions which were very complete.   

13   Either by reference to the oral or written submissions, or the expert report that was placed before me, I was informed of your personal, educational, drug use and mental health history.

14   Mr Barker made submissions to the court on a variety of topics including the level of objective gravity of the offence and the relevant sentencing purposes in play here. He conceded the relevance of your criminal history and said that you had poor prospects of rehabilitation.  

15   In the plea conducted on your behalf earlier this morning Mr Barker relied mainly upon the following matters:

·   Your early guilty plea with some heightened benefit owing to the global pandemic backlog (Worboyes[1]);

·   The presence of some remorse in this case; and

·   The application of the second, the fifth and the sixth limbs from the well‑known decision of Verdins.[2]

[1]Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’)

[2]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (‘Verdins’)

16   He conceded that there was the need for weight to be given to deterrence and community protection. He conceded that prison was warranted here and of a duration exceeding your existing pre-sentence detention. He argued that you could be released at some later time onto a suitably conditioned community corrections order.  So he was asking for what is often referred to as a combination type order.

Prosecution

17   The prosecutor, Ms Stevic, had prepared some written sentencing submissions dated 1 December. They were marked as Exhibit B. She made some brief oral submission supplementing the written document. The prosecution written submissions were on the whole uncontroversial and so I shall not set them out. The prosecution made some submissions as to the presence of planning and so obviously took issue with any claim as to the spontaneity of the offending. This was a soft target armed robbery committed upon a vulnerable target, they said, with some preplanning. They did accept that there was an early guilty plea and some remorse. They argued that your prospects of rehabilitation were extremely poor and that such weight as might be given to Verdins would be necessarily limited. They mentioned that you seemed to be doing reasonably well in prison with no signs of relapse. You spoke to the expert of having had no significant difficulties in prison and in fact finding life a bit easier in prison than out in the community. They queried the application of the sixth limb in the circumstances as there had been no sign of any relapse to date. Though the written submission suggested that a combination type order was 'the appropriate outcome', they altered their stance stating in their oral submissions that such a disposition would be open to the court.  Whether the prosecution say such an outcome is open or appropriate is no more binding upon me than your counsel submitting that such a course is open or appropriate.  

18   Whilst of course I will not ignore any submission made by either party, I have to reach my own view as to the appropriate sentence to be imposed here. I am the person exercising a sentencing discretion.  I am not bound by either of the submissions placed before me. Indeed, I stand by my provisional view that such an outcome is simply not open or appropriate in this case.

19   I will come back a bit later to consider the various submissions made by the parties.

Background

20Firstly though, I will turn briefly to your background. Briefly, as I have no reason not to accept the personal and family background placed before me. I do accept it, and there is just no utility in slavishly setting out that detail.

21Very briefly indeed then, you were born in November 1984 and so you are 39 years of age. You were brought up by your parents who were of Macedonian background. It was not a happy background and included strict discipline, and there was also reference in the materials to some sexual abuse – not at the hands of an immediate family member, as I understand it.  Education was a challenge You were expelled from school at the age of 15. You can read and write. Earlier still there is reference to your having been injured by your grandmother, when pushed down some stairs. You have had very minimal employment. You have received the disability support pension for most of your adult life, and that is, as I infer, for the serious mental health condition which afflicts you, namely, schizophrenia. It is plain from the materials that you do yourself no favours by not taking your prescribed medication from time to time and taking illegal drugs frequently.  They are very much problematic for someone with that diagnosis.

22Back to your family background.  Your parents divorced when you were in your teens, and as I understand it, the catalyst for that was the imprisonment for some years of your father. He remarried and you had no meaningful relationship with his new wife.  Your counsel in his written submission describes the fraught relationships that you had with your parents and the numerous intervention orders taken out by them in the past.  You took to drugs quite early on, and of course they have been massively problematic in your life, mainly ice in recent times. Your mental health issues have been long-standing, and they are referred to at length in the written submissions and in Dr Zimmerman's report.  I see no need to set out that non-contentious history. It is a serious mental illness that you suffer from, there have been a number of admissions over the years, no question about that.

23Homelessness has also been a major issue as well.  So we have a serious mental illness, on occasion non-compliance with medication, we have illegal drug use, homelessness and offending.

24There is reference in the written submissions to your release from custody into a half-way house or short-term boarding house accommodation. See paragraph 25. The medical review shortly before the offending was not suggestive of you faring too well in the community. Of course you were back on illegal drugs and seemingly medication non-compliant, as has been common enough, so it is hardly surprising that your mental health had slipped.  You do understand the link between drug use and deterioration and yet you keep using Ice. That is not an aggravating feature, I make that clear.  Again, it is just a fact, one that must surely come into focus when I look at your future risk.

25I understand that in this current remand, your father died. That was quite recent and you could not go to the funeral, as I understand it, and you have been deeply affected by that sad event.

26You have been taking medication while in custody and doing some courses and some education. That is at least a positive. See paragraph 29.

27Regrettably, you have a lengthy criminal history. It is plainly relevant to my task. I see no need to set out much detail of that history in my reasons. The details are set out in the document itself and they will not alter. You have not taken the chances offered to you by the courts. You have a long list of convictions for many styles of offending. Amongst them, dishonesty, violence, drugs, family violence order breaches, property damage and Bail Act offences. Your counsel says you have received 16 prison sentences to actually serve over the years. I have not done the maths myself, but it is obvious that time and time again you offend and you are sent to prison. Time and time again you get out and you reoffend. You have breached many community corrections orders. You have received sentences with non-parole periods that have been fixed - you just keep offending and sometimes it has been serious enough offending.  In fact you had only been out of custody for a handful of months when you committed this crime. I was told that you had recently been released from that sentence which had been imposed at the Heidelberg Magistrates Court on 16 February 2022.  That was a nine-month term imposed for a large enough consolidation of offending.  So you had been released only for about four months before the commission of this offence that I am dealing with, an armed robbery.  You received a six month term back in August 2021 and a nine month term in combination with a community corrections order in June 2020. That community corrections order was breached.  So too the one before which was also in combination with a prison sentence. The suggestion that I ought deal with you by way of a community corrections order, in combination, has no attraction at all given your past lack of response to such orders. You have demonstrated an incapacity to comply with such orders and I am dealing with an armed robbery.  Community protection obviously must loom large in my task.

28I have mentioned your criminal history, but I make it plain to you that you do not fall to be sentenced a second time for any of your past crimes. You received those past sentences and served them. Your past criminal history does not in any way aggravate this particular offence. I must pass proportionate sentences. However, the criminal history assumes some importance as I have to make judgements as to your prospects of rehabilitation, the extent of the need to deter you, your risk of reoffence and the weight to be given to protection of the community.  Past court orders have not deterred you. I must try again to deter you from offending. As your counsel puts it, you lurch between offending, imprisonment and psychiatric admission.

29I do take into account your background as far as I am able to. It was not an easy background though Mr Barker quite explicitly stated that the principles from Bugmy[3] and Herrmann[4] did not apply here. That may be so, but still there is a basis to exercise some mercy here. It was not an easy background by any stretch of the imagination and your life is very complicated. It is quite a complex sentencing exercise in some respects.  I take into account your background as far as I am able to.

[3]Bugmy v The Queen [2013] HCA 37.

[4]DPP v Herrmann [2021] VSCA 160.

Guilty plea

30   I turn then to the other matters raised on the plea and the first of those is your guilty plea. I will treat it as a plea at the earliest opportunity, that is what it was. You made admissions earlier still and you were co-operative with the police.  I take that into account as well. You have taken this early responsibility for your crime.

31   As a result of your guilty plea, the time, the cost and the effort of a hearing in the Magistrates Court or a trial up in this court has all been avoided. All of the witnesses have been spared the experience of giving evidence. Giving evidence can actually be a stressful experience, especially for a victim such as your console operator, recounting a traumatic event. Your victim has not needed to do that. You have spared him that experience.

32   You have facilitated the course of justice in these various ways and you must be rewarded for doing so.

33   This matter settled in March and at that stage we had not yet completely cleared the backlog referable to the global pandemic.  

34   I believe we are close to the point in time now where any future decision to plead guilty will not be met by any heightened sentencing benefit. That is because not only have we moved beyond the pandemic, but the pandemic backlog in this court has now been cleared. We are operating at pre-pandemic levels as the Chief Judge recently announced to the profession. That may be so but this case settled at that earlier point in time, and though to an extent the backlog was then being brought under control, it still seems appropriate to give some heightened benefit to the fact of the guilty plea in this case in line with the principles from the case of Worboyes.  So I will treat your guilty plea as worthy of some extra weight for the many reasons set out in that decision.

35   I take these various matters into account in mitigation. 

Remorse

36   Your counsel argued that there was some remorse here. He was not suggesting it was particularly fulsome. You have pleaded guilty at the earliest opportunity and a guilty plea is usually indicative of at least some remorse. The fact is though that here there are the limits spoken of in the expert report.  Your mental health condition makes it difficult for you to really have any full understanding of the likely impact of your conduct. That illness limits your expression of remorse in a way.  I am though prepared to find that you do have some remorse. and I take that into account in your favour.

Verdins

37   I turn then to the Verdins submissions.  Mr Barker argued that the second, fifth and sixth limbs from the case of Verdins applied here. That is to say that your condition was relevant to the kind of disposition selected and the conditions in which it should be served, that there was an increased custodial burden arising from your condition and also a serious risk of significant deterioration in your mental health.  That case that I have mentioned, Verdins, is one from our Court of Appeal and deals with the impact upon the sentencing process of mental health or psychological conditions existing at the time of offence or sentence, or both, and how that sort of thing might be taken into account by a court. That is a simplification of the case law, I make that plain, but it is sufficient for present purposes.  

38   Mr Barker explicitly disavowed any reliance on the first, third and fourth limbs in that case and said that there was no realistic connection such as to reduce your moral culpability and no Verdins basis at least to reduce the weight to be given to general and specific deterrence.  The condition relied upon to enliven the second, fifth and sixth limbs is your schizophrenia.  It is a serious enduring illness. It is significantly complicated by your failure from time to time to actually take the appropriate medication and your desire to use illegal drugs. Though you speak of commands directing this offending in your discussions with the expert, that is not given much weight by her, or by me. This was a rational crime, committed rationally, and by a man who had made clear in the lead-up that he was using ice. You would not contemplate stopping drug use. See paragraph 64 of Dr Zimmerman’s report. You acknowledged that drug use worsened your mental health.  See paragraph 65.

39   I could spend five pages setting out slabs of the report of Dr Zimmerman or the submissions from your counsel, but what really is the point?  There is no doubt that you suffer from schizophrenia. There is just no question about that, you always will suffer from it. You also of course meet the criteria for methamphetamine use disorder. The material in support of the fifth and sixth limbs is sparse indeed, as far as I am concerned.  Your psychotic symptoms means that a sentence has the potential to be more challenging for you than for someone without the condition - well lots of thing have 'potential'.  It seems to me you are travelling reasonably well at the moment.  Will the potentiality eventuate? It is hard to know but I am prepared to give some modest weight to the fifth limb in this case.  I give weight also to the second limb as well but the seriousness of your offending and the poor track record of non-compliance with community- based dispositions leaves this court with no choice as to where you will be serving the sentence to be imposed.  As to the sixth limb, that potential for a worsening of your condition will depend to large degree on your refusing to take the medication that you know you should take. I am being told that you are displaying some level of insight in that respect, and that you are medication compliant and have not to this point experienced any significant downturn, we are 348 days into your remand.  If you refuse to take your medication, your condition may well deteriorate. If it does sufficiently then there is the prospect of transfer to Thomas Embling where the decision can perhaps be taken out of your hands.  To give weight to that possible deterioration, which if it actually does arise, will be a situation brought about by your own decision not to treat your condition is just not something I am prepared to act on. Take your medication.  If you do not, it is possible your condition will deteriorate, but if it does, one can expect the ship will be righted by treatment in Thomas Embling.  In any event, I cannot even conclude at this point that you will not take your medication or that the possible deterioration referred to is even likely.

40   Ultimately then, I do accept that the second and fifth limbs have some application here.

41   I should say that though no weight is placed on Limbs 1, 3 and 4, the fact that those limbs are not engaged does not render irrelevant you mental health condition. Of course it does not.  I am sentencing you, the person with that serious enduring mental illness, that is what it is. I have regard to it, just not in a Verdins fashion other than in relation to the two limbs I have just mentioned.  Verdins or not, you are a person with some complex and complicated issues and I do accept your counsel's submission in that regard at paragraph 30.

42   Mr Barker placed no submission before me as to any past or future increased custodial burden arising from COVID 19. This was no doubt in recognition of the fact that by the time you entered custody in December of last year, the impacts of the pandemic on prisoners had eased.

Rehabilitation

43   Let me turn to your prospects of rehabilitation, and I can do this swiftly enough. The crown argued that those prospects were extremely poor. Your counsel was not suggesting that those prospects were strong. Indeed, Mr Barker submitted that you had poor prospects.  You had a lengthy criminal past history, a serious and enduring mental illness which was not always controlled, and a long-term use of illegal drugs which complicated an already complicated position. You had the track record of non-compliance with court orders. Nor was there any real support structure. If we throw in homelessness, his ultimate submission was a sensible one.  I do, though, accept that you have some desire to change your life – well why would you not?  The trouble is, though, that time and time again you complicate your life by not always accepting appropriate treatment and medication and by frequently using illegal drugs. Ice is a disastrous drug for you to use, probably for anyone to use really, and yet you do. You know it causes deterioration and still you use it and you say that you are likely to upon your release from prison.  What is waiting for you outside prison? There is a sort of a sense of hopelessness in your position, spoken of in the report. You have no support on the ‘outside’ in the sense of no home, and there is that sense of hopelessness.  It is very sad.  I have no reason to be in any way optimistic about what lies ahead for you. You have seen the inside of a prison frequently enough and that has not deterred you. You have been given orders with a community- based aspect to them and you have breached them. You just keep offending, and this offending occurred within months of being released from prison.

44   Your counsel really, I think, was suggesting that I should find that you had at least some prospects of rehabilitation, that they were poor but they were not altogether extinguished, and I certainly will accept that submission. Those prospects are poor, as presently viewed, and the risk of offending is sizeable, but at least there are some prospects.

The Offence

45   The agreed summary describes your offence. I will not say much more about it. It is a soft target armed robbery. I do not accept your counsel's submission about it being particularly spontaneous or not accompanied by planning. Indeed, as I said on the plea, it had perhaps a bit more planning than many such offences have. You knew the service station, you knew that the door was not secured, you really were not just wandering aimlessly on the streets, though I accept you were not in a good space. You were living in sub-standard accommodation, no doubt, with very little going on in your life.  The fact is though, you prepared in advance for this offence and you had made the face covering by cutting a shirt out. Whether it was done out on the street or in the comfort of your own room is really neither here nor there, though I note the remainder of the shirt was found within your room. Wherever it was done, it was done to prepare. You have taken a bag and a change of clothes and parked the bike away from the scene and gone ahead on foot. You have taken the weapon. You put on the home-made face covering. You have exited at the end of the offending and discarded the clothes that you knew would link you to the offence and charged into the other set. You have discarded the blade.  This really was not spontaneous offending.

46   I am not suggesting, and I said this in the course of the plea, that it was ‘the crime of the century’ or some high-level example of armed robbery - plainly it was not.  But there is very often little to differentiate between different examples of soft target armed robberies that are brought before the court. There are some that occur without any planning at all, with for instance a chance meeting out on the street and a confrontation and a demand being made for a phone or runners, or some other item of property – a crime where there had not been one moment's thought about it until it actually took place.  I am not dealing with that sort of spontaneous offence at all.  I do accept that you did not issue any threats.  There was no actual physical violence or even extravagant language, or overtly threatening presentation over and above the fact that you were there brandishing a blade.

47   It obviously was relatively unsophisticated. Most soft target armed robberies are.  The yield was not large. They virtually never are.  It was brief enough. Most of them are.

48   Your counsel concedes the prevalence of this type of offence, and he is correct. It is a prevalent offence.  There were some unusual aspects, including your using the word 'please' and wishing your victim well at the end – 'have a nice night.'

49   It is conceded, though, that you have committed a serious crime, and that is notwithstanding where Mr Barker says this crime falls on the spectrum of offence seriousness, and that is because armed robbery is an inherently serious offence.  I do accept that this one, obviously falls a mile from the highest end of offence seriousness. It is a soft target armed robbery, and whatever planning there was, it was relatively unsophisticated.  However, it is not a low-level example of a soft target armed robbery given the target and the level of planning engaged in.   It is more serious than many instances of the crime brought before the courts.  Armed robbery, as I say, is an inherently serious crime punishable by 25 years' imprisonment.  This one does not sit at the lowest level at all and nor was Mr Barker suggesting that it did.

Purposes

50   I have to consider a number of purposes of sentencing and one purpose is rehabilitation. I do not ignore that.  I do hope you can be rehabilitated but as presently viewed, your prospects are poor.  There is obviously a serious enough risk of reoffending in the future.  

51   I must punish you justly and proportionately.  I must also denounce your conduct.  This is serious conduct, to go into another person's workplace and to act as you did.

52   Specific deterrence relates to the need to deter you and it is of obvious importance here, as is conceded by Mr Barker.  I must deter you from offending in the future.  Courts have tried in the past. I will try again.

53   Community protection is also of importance. This was a totally innocent member of the public working in a vulnerable setting. You intruded into his workplace and robbed him whilst holding a weapon. Plainly community protection is of importance in this case.

54   General deterrence relates to the need to deter future offenders, and that is also important here given the nature of this crime.  It is, as your counsel says, a prevalent offence.  I must send future like-minded offenders a message in the endeavour to cause them to actually reconsider their position and to not offend in the way that you did.  

55   I have to pay regard to the maximum penalty.  This crime has, as I have said, a 25 year maximum term of imprisonment, and I am required also to take into account the impact.

56   I also must pay regard to current sentencing practice for this offence. Current sentencing practice is not a single controlling factor.

57   The prosecutor referred me to the Sentencing Advisory Council online data.  I have looked at that material.

58   I have looked also at the Sentencing Advisory Council Snapshot for the crime of armed robbery - Snapshot No. 261 of 2021.  I note that the most common sentence when prison was selected fell between three and less than four years. There are though a large range of sentences imposed spanning sentences of less than a year to a sentence exceeding 10 years.

59   I have looked also at some instances of sentences imposed in the past for the offence of armed robbery which are set out on the Judicial College of Victoria sentencing site. I have in fact focused on the collection of sentences where there was a sentence below five years' duration.  Many sentences that are in the higher brackets have a level of sophistication and seriousness which is plainly not present in this case.

60   The fact is though that statistics have inherent limitations. All the details which would explain the reasons for a particular sentence are omitted from statistical data. No amount of looking at other cases or the statistics can ever provide the answer to my task.  Sentencing is not some statistical or mathematical task, I am engaged in exercising a discretion.

61   Each case must be determined on its own facts.

62   I am after all sentencing you for your crime, taking into account the matters in mitigation and aggravation which exist in this case. In your case.

63   Prison is a disposition of last resort. Your counsel, Mr Barker, concedes that prison is warranted here but he submits that it might be open to structure a combination type sentence which would involve a further period in prison with your ultimate release in the future onto a suitably conditioned community corrections order.

64   If such a disposition could achieve all the purposes of sentencing, I would be required to deal with you in that way, and that is because a court is really never permitted to impose a more severe sentencing outcome than is actually required to achieve the various purposes of sentencing.

65   I have said earlier, you have breached a number of community corrections orders in the past, including orders imposed in combination with a prison sentence.  You regrettably have no home. You have few, if any, supports. You had been released for only a handful of months when you committed this crime. This crime involves something of an escalation in offending. It is a crime of some seriousness.  I would have no confidence that you would comply with such an order even if I released you today.  Further, as it is conceded that necessarily there would be some additional time in custody, what do I really know about the attitude that you would take to such an order, or your state at the time of your release from prison? I would just be engaging in what I would judge to be a ‘shot in the dark’. I said on the plea that the Adult Parole Board would surely be in a vastly superior position to make judgements as to your level of risk. They would also have available very strict conditions which could be the subject of a swift mechanism to reclaim you if you breach them, as opposed to the very leisurely way in which a community corrections order breach tends to drift back to this court.

66   It is clear to me that in the circumstances of this case a combination type order is not open. It would not adequately reflect the need to punish or deter you. It would not adequately deter others.  Such an outcome would not give appropriate weight to community protection.

67   Given the dimensions of the sentence that I will soon impose, I am required by law to fix a non-parole period and I will in that way provide for the possibility of your early release on parole and for a decent enough period. I am not permitted to consider whether you will be actually released on parole. That is prohibited.  I must proceed on the assumption that you will serve every day of the head sentence I will soon pronounce. Whether you are released on parole will be in the hands of the Adult Parole Board. I suppose it will really be between you and them, and there are no doubt things that you can do to improve your prospects such as taking your appropriate medication, controlling as best you can your illness and doing such courses as they specify. However, whether you are actually released on parole or not, has nothing to do with me. You do have some complex issues and needs, with homelessness, serious mental health issues and long-term problematic drug use. Structure is important for you. It is concerning to me that you are back in prison, and you say that you missed the structure provided by prison when you were living outside the prison. Short term accommodation in a boarding house potentially surrounded by other offenders and drug users is just setting you up to fail. Plainly a straight release with no structure would be very problematic. Ultimately though, it will be for the Adult Parole Board to make their own assessment of your level of risk and your likely compliance with a parole order, should one be made. I will though provide my reasons to them as well as the report of Dr Zimmerman. They may be of some assistance.

Sentence

68   So, Mr Tilev, would you please stand, thank you.

69   On Charge 1, it is the only charge before me, the charge of armed robbery, you are convicted and sentenced to two years nine months or 33 months' imprisonment.    

Total Effective Sentence

70   That is the only sentence, and it follows then that the total effective sentence is two years nine months or 33 months' imprisonment.

Non-parole period

71   I fix a period of 18 months during which you will not be eligible for release on parole.

Section 18 pre-sentence detention

72 You have already served 348 days of this sentence by way of the pre-sentence detention and that is declared pursuant to the provisions of s18 of the Sentencing Act and entered into the records of the court.

Section 6AAA.

73   Finally, I have told you I have taken into account your guilty plea and I have reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of this offence, following a trial before a jury, I would have convicted and sentenced you to four and a half years' imprisonment.  I would have fixed a non‑parole period in that setting of three years.

74   Just grab a seat then just for a moment. I will see if there is anything else I need to attend to.  Anything else from your perspective Ms Stevic?

75   MS STEVIC:  No, Your Honour. 

76   HIS HONOUR:  Mr Barker?

77   MR BARKER:  No, Your Honour.  Thank you, sir.

78   HIS HONOUR:  I will get these reasons back in due course.  My practice is to revise them generally on the day that I get them but it sometimes takes a little bit of time to get them, but once I have done that I will make them available to the parties anyway.  Will you go down and see your client downstairs, Mr Barker?

79   MR BARKER:  I won't now, Your Honour, no, I will - - - 

80   HIS HONOUR:  But either you or someone else will be in contact with him.

81   MR BARKER:  Yes, absolutely, sir.

82   HIS HONOUR:  You can have a quick chat now if you want to and just - - - 

83   MR BARKER:  Thank you, if I may.

84   HIS HONOUR:  Yes, go ahead.

85   MR BARKER:  Thank you, Your Honour. 

86   HIS HONOUR:  Alright.  So Mr Tilev, no doubt your legal team will be in touch with you again to discuss what has occurred here today and your rights in relation to the sentence, but that completes the matter then.  So Mr Tilev can be removed then now, thank you.  I will sign that order in chambers.  Ten-thirty tomorrow then, thank you.

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