Director of Public Prosecutions v Timbira

[2017] VCC 1887

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02308

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMUEL TIMBIRA

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2017
DATE OF SENTENCE:	8 December 2017
CASE MAY BE CITED AS:	DPP v Timbira
MEDIUM NEUTRAL CITATION:	[2017] VCC 1887

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director	Mr R. Gibson	OPP
For the Accused	Ms E. Clark

HIS HONOUR:

1       Samuel Timbira, you have pleaded guilty to one count of armed robbery.  This offence carries a maximum penalty of 25 years' imprisonment. 

2       I have heard a summary of the offending.  It is not my intention to repeat the whole summary.  It has been tendered as Exhibit A in these proceedings.

3       Briefly, at 1.05 pm on 12 January 2017, you were one of a group of young men involved in an armed robbery at Holloway Diamonds, 110 -114 Canterbury Road, Canterbury.

4       At 9.30 am on that morning, you attended at the Bunnings Store in Thomastown with Wayel Mana.  You were with him when he purchased a yellow handled sledge hammer.  This sledge hammer was subsequently used in the armed robbery.

5       After midday on the same day, two vehicles drove in convoy from Melbourne to Canterbury.  Mana drove one vehicle, a Holden Commodore, and Pan drove the other, a black coloured Lexus.  You were in the Lexus and at different times during the trip, you had phone contact with Mana.  At one stage you told Mana to overtake your vehicle, so you could follow him.  You also had a discussion about stopping at a petrol station to fill up with petrol.  At 12.49 pm, the Lexus stopped at the BP service station in Kew East to purchase petrol.  You paid for the petrol.

6       Both cars drove to the area where the robbery was to take place.  There were four passengers in Mana’s vehicle, Chol, Sari, Gatluak and another unknown person.  Both cars were seen by a number of witnesses in Chaucer Crescent, Canterbury.  This is just around the corner from Holloway Diamonds.

7       The four men who had been in Mana’s vehicle, ran to the front locked doors of the jewellery shop.  They were armed with sledgehammers and axes.  There were six people inside the store at this time, four employees and two customers. The customers were both 72 years old. 

8       The four men smashed the doors and gained entry to the store.  The employees and the customers ran into the back room where, fearful for their safety, they barricaded themselves. 

9       The four men smashed multiple cabinets and stole approximately $525,000 worth of jewellery, before running back to where the vehicles were parked.  The two vehicles went in separate directions.  You were in the vehicle with Pan, Harik, Chol and Sari.  Pan drove onto the Monash freeway and headed south, while Mana drove towards Collingwood and then Caroline Springs.

10      Pan drove the vehicle to Dandenong South and parked it one street from his home.  He then organised an Uber through his friend and went into the city.  You and Harik went with him.      

11      The three of you were arrested at 5 pm on the same day.  You denied any involvement in the offending and you were released, pending further investigation.  You were charged on 10 April 2017 and released on bail.

12      Clearly, this is very serious offending.  This was a planned and sophisticated operation, mounted against a soft target.  Your co-offenders were armed with sledgehammers and axes.  They used those items to force their way into the store.  They did so during normal business hours, when staff members would most certainly be present and customers would most likely be present.  The entry was violent and terrifying.  The group got away with jewellery worth more than half a million dollars, none of which has been recovered.   

13      I have read the victim impact statements.

14      The staff members have been profoundly affected.  One of them, who has worked as a jeweller for 46 years, has ceased that work because he now feels it is too dangerous.  Another has had to attend upon a psychologist to help her cope with the after effects of this crime.  All the victims have had trouble with anxiety and trouble sleeping.  Each of them has suffered from hypervigilance and ongoing feelings of unease.  For some of them, the distress they feel at what happened to them has been compounded by a sense of anger, that they have been subjected to such a frightening experience.  

15      The two customers have not been as profoundly effected as the staff members. No doubt the fact that they do not have to return to the place where the offending occurred, makes it a little easier for them.  Even so, both these victims have suffered from disrupted sleep and the female has suffered anxiety and hypervigilance. 

16      Mr Timbira, this is a serious example of armed robbery.  With offending this serious, appropriate weight must be given to the principles of general deterrence, just punishment and denunciation.

17      I now move to matters concerning your background and matters in mitigation.

18      You are 20 years old.

19      You were born in Sudan.  Your parents fled Sudan when you were a child.  The family spent time in a refugee camp in Egypt, before moving to Australia.  You were seven years old when you arrived in Australia.  You initially found it difficult at primary school because of the language difficulties.  Once this resolved, your schooling proceeded smoothly. 

20      You completed Years 7 to 10 at St Monica’s College in Epping and then completed Years 11 and 12 at the Melton Christian College.

21      After completing secondary school, you commenced a massage therapy course at SAGE College.  You deferred after six months.  You were unemployed from mid-2016 until May 2017.  This was an unsettled time for you, with escalating use of cannabis and heavy drinking. 

22      After your arrest for this offence, you tried to get your life back into order.  I was told that you ceased using cannabis and moderated your drinking.  In May 2017, you commenced a Certificate II in Building and Construction.  In July 2017, you discontinued that course to take up full-time employment with New Horizon Development.  I was told that this is a small company, comprising your employer, a 4th year apprentice and yourself.  I was told that you work five to six days per week doing building and construction work and that your employer is prepared to offer you an apprenticeship.  I accept your counsel’s submission that full-time work has had a significant positive impact on your life.

23      You are a young offender with no prior criminal history.  This means that the principle of rehabilitation is a highly relevant consideration in sentencing. However, when I am dealing with a very serious offence such as this one, the weight to be given to rehabilitation is reduced to some extent and I am required to give appropriate weight to those other principles that I have already mentioned.  

24      It is significant, as I have said, that you have no prior criminal history.  It is a highly relevant matter to an assessment of your prospects of rehabilitation.  It also means that the sentencing principle of specific deterrence has little weight in this hearing.  However, as your counsel quite properly conceded, the serious nature of this offence requires me to give some weight to community protection.

25      You have pleaded guilty.  The plea is an acceptance of responsibility.  I accept that you are now remorseful for what you have done.  The plea has also saved the victims from the stress associated with giving evidence and that is an important consequence arising from your plea.  In addition, your plea has saved the community the costs involved in a criminal trial.  You will be given appropriate credit for all these matters.

26      I accept that you did play a lesser role in the offending and your sentence will reflect that fact.  However, you knew there was going to be an armed robbery on a jewellery shop in Canterbury, in which the assailants would be armed with sledge hammers and you decided you would participate nonetheless.

27      I accept that you have good support from your parents and your three sisters. You are still living with your parents and they stand by you, even though your behaviour has been a source of great sadness for them.

28      You have been on bail since your arrest on 10 April.  You have used this time to commence further studies and then to find employment.  This is to your credit.

29      Given your lack of prior criminal history, your strong family support and your behaviour since your release on bail, I accept that you have good prospects for rehabilitation.

30      Finally, I need to make a comment on the issue of parity with your co-offenders. Gatluak, Chol, Pan and Sari were all under 18 when they offended.  Indeed, three of them were 16.  They appeared in the Children’s Court, where the principles that govern sentencing are very different to the principles that apply for adults.  The orders made in the Children's Court are generally not comparable with the orders made for adult offenders.

31      Mr Timbira, even though there are strong matters in mitigation, the fact remains that you were a willing participant in a most serious armed robbery.  It is the seriousness of this matter that speaks against the order proposed by your counsel, namely a community corrections order.  However, I am persuaded by your youth, lack of prior history, good prospects for rehabilitation and other matters in mitigation, that it would be appropriate to sentence you to a period of detention in a youth justice centre.  You have been assessed as suitable for such an order.   

32      Would you please stand.

33      Mr Timbira, you are convicted and ordered to be detained in a youth training centre (YJC) for a period of 24 months.

34      I make the disposal order sought by the prosecution. 

35      I also order you to undergo a forensic sample.  The seriousness of the offending warrants the making of the order.  In addition, you consent to the making of the order.  I must warn you that if you fail to co-operate with the authorities in the taking of the sample, reasonable force can be used to obtain it.

36      For completeness, I do need to announce what order would have been made, had Mr Timbira been found guilty, after pleading not guilty. In such a case, I would have imposed a three year period of detention at a youth training centre. 

37      MR GIBSON:  As Your Honour pleases.

38      MS CLARK:  As Your Honour pleases.

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