Director of Public Prosecutions v Toro

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-19-00626

DIRECTOR OF PUBLIC PROSECUTIONS

NATHAN TORO

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	19 July 2019
DATE OF SENTENCE:	25 July 2019
CASE MAY BE CITED AS:	DPP v Toro
MEDIUM NEUTRAL CITATION:	[2019] VCC 1141

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords:   Plea of guilty – one charge of armed robbery – one charge of attempted armed robbery – offender armed with small knife to demand money from milk bars – objective seriousness mid-range for this type of armed robbery – young offender – offender aged 18 at the time of offending – significantly disadvantage background is mitigatory – combination sentence – in the public interest that causes of offending be addressed to reduce risk of reoffending.
Legislation Cited:  Crimes Act 1958, Bail Act 1977, Sentencing Act 1991.
Cases Cited:Azzopardi v The Queen (2011) 35 VR 43, Luchian v The Queen [2019] VSCA 145.
Sentence:  Total effective sentence of 18 months imprisonment, together with a community correction order for a period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms H Baxter	Office of Public Prosecutions
For the Accused	Mr J Barrera	Stary Norton Halphen

HIS HONOUR:

Introduction

Nathan Toro, you have pleaded guilty to one charge of armed robbery contrary to s 75A of the Crimes Act 1958 which carries a maximum penalty of 25 years imprisonment (Charge 1) and one charge of attempted armed robbery contrary to s 321M and s 75A of the Crimes Act 1958 which carries a maximum penalty of 20 years imprisonment (Charge 2).
You have also pleaded guilty to one related Summary Charge 2, commit indictable offence whilst on bail contrary to s 30B of the Bail Act 1977, which carries a maximum penalty of 3 months imprisonment or 30 penalty units.
You have also admitted your prior criminal record.

Circumstances of the offending

A prosecution opening was tendered on the plea and may be summarised as follows:
At approximately 4:00pm on Monday, 31 December 2018, you entered the milk bar located at 48 Blandford Crescent, Bayswater North. You were barefoot, wearing a white T-shirt with a black logo on the chest, navy blue shorts and a balaclava that covered your face. You were holding a small, dark coloured knife in your right hand as you entered the milk bar.
Qiong Liang was serving at the front counter of the shop at the time. You approached and began making demands while still holding the knife. Ms Liang does not speak English and could not understand what you were saying while you were shouting at her. Ms Liang stated that she ‘felt very scared from this incident’.
Ms Liang stepped back from the counter to protect herself and as she did, you reached over the counter and took hold of the cash register. Ms Liang attempted to pull the cash register back towards her by pulling on the power cables, however you overpowered her and took hold of the cash register.
Ms Liang’s son, Junzhe Zhu, who had been in the back room, heard Ms Liang screaming from inside the store and came out to assist. Mr Zhu chased you as you fled the store with the cash register which contained $300 in cash. You then threatened Mr Zhu with the small knife and told him to back off at which time Mr Zhu retreated. You ran to a waiting car and left the scene. It is these facts that relate to Charge 1, armed robbery.
At 5:00pm on 31 December 2018, you entered the milk bar located at 158 Nangathan Way, Croydon North. This milk bar is located 8.5km from the milk bar at Bayswater North.
You were dressed in the same clothing described in Charge 1 and were still wearing the balaclava. You entered the milk bar holding the same small, dark coloured knife in your right hand.
Vera Liu was working in the milk bar at the time. You approached the counter waving the knife and yelled, “Money! Money! Money!”. You reached over the counter and grabbed the cash register. Ms Liu used a mop to strike you while her husband, Kent Zhou, picked up a display case containing cigarette lighters and threw it at you. You were unable to take control of the cash register and fled the store. You ran to the same waiting car as described in Charge 1. It is these facts that relate to Charge 2, attempted armed robbery.
On Tuesday, 1 January 2019, investigators matched a palm print located on the door of the milk bar at 158 Nangathan Way to you. You were arrested on 2 January 2019 and conveyed to Ringwood Police Station. You were interviewed, answered no comment and were remanded in custody.
On Wednesday, 13 February 2019, investigators reviewed phone calls made by you whilst in custody. During the phone calls, you referred to having committed the armed robbery and attempted armed robbery. You stated that you “shouldn’t have done it, especially on New Year’s”.
On 26 November 2018, you were bailed on your own undertaking with respect to an allegation of theft from shop and possess a controlled weapon without excuse. You were therefore on bail at the time of the commission of Charges 1 and 2. It is these facts that relate to Summary Charge 2, commit indictable offence whilst on bail.

Nature and gravity of the offending

Armed robbery and attempted armed robbery are both serious offences which is reflected by the maximum penalties of 25 years and 20 years imprisonment respectively. Although in relation to Charge 2 you did not leave the scene with the cash register, the circumstances were very similar to those represented by Charge 1 and in my view would have been no less frightening for the shopkeepers who you confronted.
In both cases you were brandishing a knife and were wearing a balaclava. You were shouting demands while holding the knife and then reached over the counter in order to grab the cash registers. In relation to Charge 1, Ms Liang’s son tried to confront you and you threatened him with the knife while making your escape. In relation to Charge 2, the victim and her husband made some attempts to prevent you from taking the cash register. Ultimately, you were unable to take it and you fled from the milk bar.
Your targets were small family operated milk bars. Clearly these types of small family operated businesses are vulnerable soft targets. The occupiers at the time were simply going about their business when you approached in an aggressive manner wearing a balaclava and holding a knife. While no formal victim impact statements were tendered, there can be no doubt that your conduct would have been a terrifying experience for the victims in each instance.
It is always difficult to categorised the level of seriousness of cases such as this, however I note that Ms Baxter who appeared on behalf of the Director of Public Prosecutions, submitted that the objective seriousness of the offending falls within the mid-range of this type of armed robbery. Mr Barrera who appeared on your behalf did not take issue with that categorisation. In all the circumstances I accept that submission.

Personal circumstances

You are 19 years of age and were 18 at the time of the commission of the offences. Your father left prior to your birth and you lived your early years in the care of your mother and grandmother.
At approximately five years of age you were diagnosed with oppositional defiance disorder and ADHD. In your younger years at school you were bullied by peers in relation to your inability to read and your limited emotional intelligence. You attended a number of different primary schools. You then attended Croydon Community School and Alexandra Secondary College but ceased attending school in your early teens. You have never been employed and have relied on the disability support pension as your main source of income.
You did not relate well to your peers and did not have any friends at school. Your mother conveyed to your psychologist that when you were aged around nine or 10 you began to threaten to hang yourself and would hit yourself with sticks. At around the same time you offended against your younger sister and were placed in the care of your maternal grandmother and you were placed on a therapeutic treatment order. You left your grandmother’s home because you did not like the discipline she demanded. You were using alcohol around this time and began to self harm.
You have had difficulties with alcohol and drugs. You were first exposed to alcohol at five years of age and by nine you were consuming alcohol on a daily basis. You reported that just prior to your incarceration in January this year, you were consuming between two to three bottles of spirits every day. You began smoking cannabis at age nine and within five years you were using regularly. You began to smoke methamphetamine at age 10. You describe yourself as a heavy ice user and report that you would use as much as you could get your hands on. By 16 years of age you progressed to intravenous use. You reverted to smoking methamphetamine and were heavily using in the period leading up to the offending.
At age 15 you were admitted to the Box Hill Hospital following threats of suicide and aggressive behaviour. At the time you were on bail under the care of the DHHS living in a residential property. You were reported to have been alcohol affected. In October 2016 you were again admitted to Box Hill Hospital reporting threats of suicide at the DHHS unit where you were living. You were observed to have mild lacerations to your forearm and you presented as alcohol intoxicated. You were determined to be a chronic risk to others and you were released from the hospital into a Salvation Army care facility.
In November 2016 you were assessed in police custody by a psychiatrist who formed the view at the time that you were a high risk of harm to others and presented with borderline and dissociative personality traits. However you were not assessed as being in need of psychiatric assistance and were discharged back into police custody.
Your criminal history began in 2016 and you have had a number of appearances in the Children’s Court resulting in supervisory orders and a number of orders detaining you in Youth Justice Centres.
A report was prepared by Dr Loretta Evans, clinical neuropsychologist, and tendered on the plea. Dr Evans’ report contains details in relation to your medical and psychiatric history and I have taken the contents of that report into account. Dr Evans notes that despite your poor literacy, you are able to define concepts such as remorse, regret and shame. She notes in summary that you responded in a manner that revealed sufficient awareness and insight about your criminal behaviour. She also reports that you have a basic understanding about the nature of proceedings and respond in a manner which indicates your appreciation of the likely consequences of your actions. That said, she notes that you did not spontaneously express remorse or regret, rather your concerns typically related back to your own circumstances and needs.
Formal psychometric testing was undertaken however no formal conclusions were drawn as one of the tests raised serious concerns about whether you were putting forth your best effort thus making the results difficult to reliably or validly interpret. Dr Evans concludes that while you do not present with the various risk factors associated with cognition, the nature and extent of cognitive functioning was unable to be determined. As such she was unable to offer any opinion about the level of cognitive function or diagnostic clarification.
A reference from your grandmother, Anna Krol was tendered on the plea. Ms Krol was also present at the plea supporting you. In her candid letter she largely corroborates your difficult background and in particular, the difficulties you have faced in looking after yourself since leaving State residential care from about the age of 15. Ms Krol states that when you are not affected by drugs or alcohol, you are a person with a very caring nature. She also notes that in her view you prefer being in custody because you feel safer and you cannot drink or take drugs. You had indicated to her that you have on occasion committed a crime in order to be placed in custody. While there is no direct evidence here that that was your intention in this instance, it is clear that your offending was desperate and brazen and it was inevitable that you would be caught and placed back into custody.

Sentencing considerations

Mr Barrera who appeared on your behalf, outlined a number of matters in mitigation. First was your plea of guilty. The matter resolved prior to the first committal mention. As such your pleas of guilty have avoided the need for a trial and most particularly have avoided the need for the witnesses to have to give evidence and relive the trauma of the event. Your plea also demonstrates an acceptance of responsibility and a willingness to facilitate the course of justice.
Over and above your plea of guilty it was submitted on your behalf that you made expressions of remorse, most particularly to neuropsychologist Dr Loretta Evans. You noted that you knew what you did was wrong, that you regretted your actions and that you embarrassed your family. It was also submitted that you demonstrated insight into the impact on the victims noting that they would have been “scared for their life”. You also made the comment that “everything I’ve done is stupid”. As noted, Dr Evans opined that you demonstrated sufficient awareness and insight about your criminal behaviour and appreciated the likely consequences of your actions. While these sentiments in my view demonstrate a combination of self pity and embarrassment to yourself and your family, I am satisfied that you also have gained some insight into the effect your actions have had on your victims however, in my view, you have some distance to go to fully appreciate the impact of your conduct.
I also acknowledge that during an intercepted call from prison while you were on remand, you stated to a family member that you “shouldn’t have done it, especially on New Year's”.
You are clearly a young offender. You were 18 at the time of the offences and you are now 19. As such reliance was placed on the well-known principles in relation to young offenders that rehabilitation should be the primary sentencing consideration. While I accept the well-settled principles in relation to young offenders, and that they do have application in your case, I must weigh those considerations with the seriousness of the offending in this instance and your considerable prior criminal history.
In Azzopardi v The Queen[1], having reviewed the established authorities in relation to young offenders, Redlich JA said at paragraph 44:
The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospects of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.
[1] (2011) 35 VR 43.
I also take into account the significant disadvantage you experienced in your younger years. You have never know your father and you have had an unsettled upbringing with your mother and grandmother. You had great difficulty at school as a result of your low intelligence and emotional difficulties. You have had a significant alcohol and drug history from a very young age which has at times also manifested in self-harm and suicidal ideation. You have been in and out of custody since the age of 15. You were not able to settle in the normal educational setting and moved around between many schools as a result of that difficulty. Even before being involved in the criminal justice system you were in residential care away from your home as a result of your behavioural difficulties.
I accept therefore that you will be vulnerable in custody. A number of justice health records were tendered and made references to your self-harm and suicidal ideation during the last few times that you were in custody. In relation to this offending, this is your first time in adult custody. In March of this year you were transferred to the Penrhyn Unit at Port Phillip Prison which is the youth unit for those aged between 18 and 25 at risk of suicide. Ultimately you have settled in the Marlborough Unit. It is a unit for those with cognitive impairments and it was submitted that your mental health has improved since being in that unit.
As to your prospects of rehabilitation, it was submitted that although you are for the first time in adult custody, this has had a positive effect. A letter was submitted from the disability coordinator at the Marlborough Unit, Ms Michelle Enbom. She reports that you have settled in well at the unit participating in full day educational classes twice per week and that you work in the horticultural program. Ms Enbom notes that you are a valued member of that community. You have also made an application to participate in the Disability Forensic Assessment and Treatment Service at Port Phillip which provides a 12-week program for those with disabilities within the criminal justice system.
The fact that you have begun to settle in the prison environment and demonstrated that despite your disadvantages, you are making real efforts to improve yourself, in my view enhances your prospects of rehabilitation. For similar reasons your youth must still feature prominently in the sentencing equation.
Despite your youth, general deterrence is still an important sentencing consideration together with denunciation of your conduct and protection of the community. Specific deterrence is also relevant given your criminal history however, in my view, the causes of your offending are complex and as you are still a very young offender with a number of difficult hurdles to overcome, rehabilitation must remain prominent in the sentencing equation in order to reduce the risks of you reoffending.
Mr Barrera submitted that a combination sentence pursuant to s 44 of the Sentencing Act 1991 is in all the circumstances the most appropriate disposition. Although you have completed some six and a half months on remand it was submitted that after the deduction of pre-sentence detention, the available prison component of an order pursuant to s 44 is within range. Mr Barrera referred to the very recent authority of Luchian v The Queen[2] where a not dissimilar approach was taken. There, the appellant faced a charge of armed robbery, was 25 years of age and had a significant criminal history. While each case is unique, I have taken that case into account given the parallels with this case.
[2] [2019] VSCA 145.
In all the circumstances in my view the relevant sentencing considerations are able to be met by a combination sentence pursuant to s 44. As was reemphasised in Luchian, it is greatly in the public interest that the causes of your offending be addressed in order to reduce the risk of reoffending[3], particularly in circumstances where you are still a very young offender.
[3] Ibid at [69].

Sentence

Mr Toro please stand.
On Charge 1, armed robbery, you will be convicted and sentenced to 16 months imprisonment. On Charge 2, attempted armed robbery, you will be convicted and sentenced to 14 months imprisonment. In relation to Summary Charge 2, commit indictable offence while on bail, you are convicted and sentenced to one month imprisonment.

I direct that two months of the sentence on Charge 2 be cumulative on the sentence on Charge 1. That makes for a total effective sentence of 18 months imprisonment as the prison component of the sentence pursuant to s 44.
In addition to the prison component of the sentence, upon your release you will be placed on a community correction order with conviction for a period of three years. The community correction order will have a number of therapeutic conditions.
You will be required to complete programs to further address your drug use and your alcohol use. You will be required to engage in programs to deal with your mental health. You will be required to engage in programs to reduce reoffending. You will also be subject to supervision.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 204 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today. Therefore after the s 18 declaration, the result is a term of imprisonment (after the deduction of the presentence detention) of less than one year which complies with s 44.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 3 years' imprisonment with a non-parole period of 2 years.
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[2019] VCC 1141

25 July 2019