Director of Public Prosecutions v Tina

[2016] VCC 1122

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00243
CR-16-01262
CR-16-01263

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY TINA

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2016
DATE OF SENTENCE:	5 August 2016
CASE MAY BE CITED AS:	DPP v Tina
MEDIUM NEUTRAL CITATION:	[2016] VCC 1122

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Weavers	Office of Public Prosecutions
For the Accused	Mrs C. Woodward	Victoria Legal Aid

HIS HONOUR: 

1Anthony Harold Tina, you pleaded guilty to two indictments, the first (F13249379) contained one charge of armed robbery, committed by you on 2 August 2015 while having with you an offensive weapon, namely a knife.

2The second indictment (C16120768) contained four charges of theft, committed on 29 February 2016, 6 April 2016, 8 May 2016 and 30 May 2016.  You also pleaded guilty to a relevant summary charge, Charge 7, that you did commit those indictable offences between 29 February 2016 and 30 May 2016 whilst on bail.  These were the offences alleged and which you pleaded guilty to on the second indictment.

3The summaries of the circumstances of the offences were tendered and exhibited and will be retained on the court file.  For purpose of this sentence, it will suffice to describe briefly the offences in this way.  You entered a pharmacy on 2 August 2015 in the afternoon.  After walking around the store and speaking to the assistant about particular goods, you left after ascertaining from the assistant that the closing time was later that evening. 

4Just after 9 pm, you returned, you approached the same assistant, you walked behind the counter and said, "I'm sorry, you need to open the till, I'm not going to hurt you, I need you to open the till."  When the assistant said, "Please don't hurt me," you produced a knife which you showed to her, a young woman.  She opened the register and you took $800 in cash and left.

5In her statement she says she was terrified, felt shocked and threatened.  Although there is no victim impact statement from her, I can reasonably infer she would have been traumatised by this event.

6You were arrested in September mid-2015 and were interviewed.  You told the police you apologised to her as you left.  You also agreed that you had gone to that pharmacy previously on that day, you admitted taking the opportunity to return when it was quieter and not as busy.  You disavowed an intention to use the knife but admitted weighing up risk factors.  You used the knife to scare and plan the robbery.  You told police your incarceration would be a life-changing event which will shake up your life and you acknowledged that the victim would have been traumatised.  You used the money to pay debts, accommodation and food.  You expressed your apology to the assistant.

7On 29 February 2016 at 7.30 in the evening, you entered a supermarket in Croydon.  The hood from your jumper was covering part of your face, you stole a carton of cigarettes after a brief exchange with an attendant.  You were arrested at a nearby railway station and you made admissions to the police when interviewed.

8On 6 April 2016 at 8.45 am, you went to a supermarket in Lilydale by bicycle.  Using a hammer, you smashed a glass cabinet containing mobile phones and removed nine phones.  When you were approached by attendants, you jumped on your bike and rode away with the phones.

9On 8 May 2016 at 4.25 pm, you went to a Cash Converters in Ringwood.  You made enquiries about a phone, you made an offer to purchase one.  When the attendant put the phone on the counter, you took it and rode away on your bike.

10On 30 May 2016, you went to a supermarket in Croydon, selected items and placed them in a backpack.  You left the store without paying for any of the items, which were assorted drinks, snack foods, meats and items of clothing.  Later that day, you reported on bail at the Mooroolbark Police Station when you were arrested and the items were found in the backpack you were carrying.  You were interviewed and made some admissions.

11It is noteworthy that after one day of detention over the armed robbery offences, you were bailed on conditions which were then varied in October.  Following your non-appearance at a committal case conference in early December 2015, a warrant was issued for your arrest and after your arrest you were again released on bail on 8 January 2016.

12The next committal case conference was on 22 February 2016, when you entered a plea of guilty, which I regard as a plea offered at the earliest opportunity for purpose of this sentence.  However, only one week later, whilst n bail, you committed the first theft.

13Following your arrest for that charge, you were again bailed to appear in August.  But whilst on bail you again committed the thefts in April and May.  Notably you attended the County Court on 11 May when you entered a plea on the armed robbery.  That was adjourned and you failed to appear on 25 May when a plea was mentioned and again adjourned. 

14You then committed the offences of 30 May when you were finally remanded.  Your bail on the armed robbery was revoked when the plea was adjourned on 8 June 2016.  On 19 July you entered pleas of guilty to the theft charges on a straight hand-up brief.

15This brief chronology serves to empathise that despite being dealt with by the police by arrest, interview and charges, being subject to bail obligation and despite being the subject of court proceedings and potential serious repercussions for you, you have continued undeterred, in effect, in your behaviour and transgressions.

16Despite your protestations during the first interview as to your regret and as to the need for a reckoning and a salutary wake-up call after your arrest for the armed robbery, you continued to offend and did so whilst on bail.  Two days after your bail was varied in October 2015, you were admitted to Court Integrated Services Program at an intensive care management level, this meant that a plan was organised upon bail which included treatment and support for your history of illicit drug use and mental health care plan, to deal with your depression and anxiety, an assistance with accommodation at the Gateway Salvation Army Crisis Housing Service in Croydon. 

17You then failed to attend an alcohol and drug assessment on 23 October.  You did not attend the first mental health care plan appointment, but attended the second.  You did not, however, maintain regular contact with your case worker, particularly as you moved to a private rooming house.  Your case manage was unable to provide an opinion regarding your therapeutic process.  I was told that despite these efforts, your accommodation was not successful, drugs were present at that accommodation and you fell back into hopelessness and drug use.

18You pleaded guilty to the second presentment at the committal mention.  So in that respect, your plea was an early plea in relation to the second presentment as well and will attract the discount on your sentence.  I will take into account an apportion and appropriate discount in relation to those matters, acknowledging also not simply the plea and its accompanying remorse, but the utilitarian value which the plea has in this matter of having avoided a trial and witnesses' inconvenience and expense to the community.

19I have outlined a chronology, as I have said, in order to highlight the pattern of your offending in considering your culpability and prospects of rehabilitation.  This pattern, in my view, highlights your difficulties.  Your addiction is no excuse or explanation at all for your offending and your prospects must be very guarded until this aspect of your life is addressed.  Abstinence and therapy is the only remedy for any future rehabilitation prospects.  However, your culpability arising out of this obstinate offending, arising out of an addiction which remains a voluntary act, must be denounced and acknowledged. 

20Your recalcitrant and contumacious behaviour is deserving of just punishment which will protect the community, deter others who are like-minded generally and deter you specifically without extinguishing hopes of reclamation.

21You have a criminal history which exemplifies your past and your addiction.  These priors cover offences were committed both in Victoria and New South Wales and concern many appearances for many thefts and a drug offence since 1999, with various non-imprisonment dispositions.  They confirm the caution in the assessment of your prospects for rehabilitation, which I have expressed.

22Armed robbery, like the one committed by you, is a serious criminal offence.  The prescribed maximum penalty is 25 years which reflects its seriousness.  In these circumstances, I consider it serious offending, which involved a degree of planning, since you carried out a recognisance of the place earlier in the day.  You scheduled the event at a vulnerable time, aimed it at a vulnerable and easy victim, and facilitated it by the display of a dangerous weapon as a threat.  This behaviour is totally unacceptable.  It may be unsophisticated and of short duration and did not luckily end in any injury, but it was not spontaneous or impulsive and is rightly seen as highly culpable.

23In your favour you have demonstrated remorse, you expressed apology in your admission and plea.  The thefts are shop thefts, such criminality is more than nuisance value, or victimless, and strikes at the heart of orderly commerce in our community, and was brazen and utterly contemptuous of the businesses involved and the people around you.  In the case of the phones where you smashed a cabinet with a hammer, that would have caused considerable dismay in the shop concerned.

24I take your personal circumstances into account.  You are 40 years old and a single man.  You were born in Rotorua in New Zealand.  Your mother had you when she was very young and separated from your father six months later.  You were raised by a maternal grandfather and his second wife alongside your mother.  Violence was used to discipline you and you were exposed to abuse and serious anti-social behaviour as a child.  Your father came back into your life at age 13, but he was a violent man involved in drug use.  In order to safeguard you, you were sent to live with an aunt and uncle in Sydney at a young age.  Unfortunately that relationship was marked by violence as well.

25Your biological mother married and moved to England.  You went to the UK at age 16, but there you experienced difficulties with her partner and you therefore returned to New Zealand before definitely returning to Australia.  As a consequence to this disrupted young life, your educational history was somewhat disrupted also, but surprisingly you completed Year 12 in 1994.  You also attended a school of performing arts in Sydney.  You have the ability to write and communicate and speak well and you are obviously intelligent and capable.

26You have had a number of jobs including work at Australia Post, a bank, a telephone company and a take-away food business.  It was your father who introduced you to marijuana which you used for a while.  Your main drug of concern has been amphetamine, progressing to methamphetamine use, particularly ice.  All of your criminality relates to this use it appears.

27From time to time you have lived a transient lifestyle involving survival on the streets and homelessness.  At other times you have needed quick money to pay your drug debts.  These offences with which I must deal are clearly derivative and consequential upon your drug use.  You have had a number of relationships which have, in one way or another, been marred or affected by your drug use and which have led you back to drug use after their demise.

28You told Ian Joblin, an experienced forensic psychologist, that you were remorseful and ashamed of your behaviour and expressed appropriate insight into your offending, particularly the armed robbery.  You appear to have some motivation to improve your situation, and whilst in custody you have sought to involve yourself in worthwhile activities.  Mr Joblin does not find in you anti-social personality, but a host of psycho-social issues. 

29One positive aspect is the support of an ex-girlfriend, who remains supportive and is the only person to have visited you in prison.  She has written an impassioned letter, which I take into account and which speaks of your insight and remorse and your commitment to improve to become better than you have been.

30I have viewed the relevant certificates, which attest to your completion of certain courses of education and those efforts stand to your credit.  Those include a program on depression, on legal process, food safety, workplace safety and work-related learning.  

31I have taken into account the handwritten notes by you to me and to the victim of the armed robbery, which you hoped would be communicated to her.  In those letters, you acknowledge your past criminal behaviour and aspire to recovery and transformation, through strategies of sobriety and a better version of yourself.  This period of reclusion will no doubt make clear to you that this path on which you say you wish to embark upon is the only hope of reclamation that you have and is entirely dependent upon your will to do so.

32There is the further issue posed by the possibility of deportation.  It was conceded that the risk of deportation of you (as a New Zealand citizen) remains speculative at this time, though a possibility, due to the steps which such a determination would entail.  I should not and will not speculate as to the outcome, if such determination is called upon to me made by the authorities based on your record.

33However, I will take into account that such a possibility, that is of being deported to New Zealand after so many years in Australia, may well weigh heavily on your mind during your period of imprisonment and will be of serious concern to you. 

34I will sign disposal and forensic sample orders made.  This will be your first period of sustained incarceration beyond the presentence detention already served and such a period first served that your age will impact, hopefully in a salutary fashion upon you.  I note for the court's record that you have spent 69 days in presentence detention excluding today.

35Please stand, Mr Tina.  On the armed robbery, you are convicted and sentenced to be imprisoned for three years.  On the second indictment, on Charge 1 of theft, you are convicted and sentenced to three months' imprisonment, on Charge 2 you are convicted and sentenced to six months' imprisonment, on Charge 3 you are convicted and sentenced to three months' imprisonment and Charge 4, you are convicted and sentenced to three months' imprisonment.  On the related charge of committing shop theft whilst on bail, you are convicted and sentenced to one month imprisonment concurrent with the other sentences.

36I order that one month, on Charges 1, 3 and 4, and two months on Charge 2, be cumulative upon the other sentences and on each other, upon the first presentment, making a total of three years and five months.  I order a non-parole period of two years.

37But for your plea, I would have sentenced you to four and a half years, with the non-parole period of three.  Take a seat.  Are there any other ancillary order that I need to make?

38MR WEAVERS:  No, Your Honour. 

39HIS HONOUR:  Are there draft disposal form and 464ZF orders?

40MR WEAVERS:  Yes, Your Honour, I have those in triplicate to hand over.

41HIS HONOUR:  Yes, thank you, I will sign them.  Mr Tina, at some point a request will be made of you for a scraping from your mouth, it is not a painful procedure.  If you do not consent to that happening at the time, an authorised police officer can use reasonable force to take a blood sample from you, do you understand?

42OFFENDER:  Yes, Sir.

43HIS HONOUR:  Yes, thank you, you can remove Mr Tina, thank you.  Thank you, Mr Weavers, Ms Woodward, thank you, you are excused.  I will stay behind with the school group.

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