Director of Public Prosecutions v Tovale
[2016] VCC 611
•12 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01382
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK TOVALE |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 May 2016 | |
DATE OF SENTENCE: | 12 May 2016 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Tovale | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 611 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Sentencing Act 1991; Crimes Act 1958
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms S. Holmes (at plea) Ms A. McLure (at sentence) | Office of Public Prosecutions |
| For the Accused | Mr J. Gullaci (at plea) Ms M. Carroll (at sentence) | Emma Turnbull |
HER HONOUR:
1 Mark Tovale, you have pleaded guilty to one charge of armed robbery, one charge of theft and three charges of assaulting a police officer in the execution of duty. The maximum penalty applicable to the offence of armed robbery is 25 years' imprisonment, theft, 10 years' imprisonment and assaulting a police officer, five years’ imprisonment.
2 Your offending arises out of events which took place on 13 April 2015, relevant to Charges 1 and 2. Charges 3, 4 and 5 relate to your arrest on 4 May 2015.
3 The victims involved in your offending relevant to Charge 1, armed robbery was Christopher Tabone, and Charge 2, theft, Amanda Markic. Police Officers Kokkoris, Verbeek and Onbashi were the victims in Charges 3, 4 and 5.
4 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the prosecutor consistent with the Prosecution Opening (Exhibit A).
5 I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient, for present purposes, to simply say the facts in this case are most serious and disturbing.
6 I turn to a brief summary of your offending.
7 On Monday, 13 April 2015 at approximately 4.04 am, you and your unknown co-offender, attended McDonald’s restaurant in Derrimut. You both entered the store through a rear open door. You had a knife with you and your unnamed co-offender had a hammer.
8 You approached a male employee, Mr Tabone, from behind and placed a knife against his throat and said “Get the money”.
9 You kept hold of Mr Tabone and you both walked to the register. Mr Tabone tried to open the register but was not able to, and his manager, Naomi Cross, came over and opened the register. You and your co-offender then removed money from the register.
10 You then directed Mr Tabone to the manager’s office demanding the safe be opened. The safe was already opened and you told Mr Tabone, “Just fill the bag”. You kept one hand on Mr Tabone’s shoulder and held a knife in the other hand. Mr Tabone filled the bag as directed by you (Charge 1). As Mr Tabone was filling the bag, you reached into the handbag of Amanda Markic and removed a wallet and packet of cigarettes (Charge 2).
11 Before leaving you told Tabone “Sorry bro, that’s all we wanted, that’s all we wanted”. You and your co-offender then left through the rear of the store.
12 This incident was captured on closed circuit television and you were identified as having a distinctive tattoo on your back, the same as seen in photographs taken by police at the time of your arrest.
13 The CCTV footage shows you wearing blue jeans and a blue and white coloured jacket with the hood pulled up. You had a mask covering your face and green coloured gardening gloves. This CCTV footage also shows you carrying a silver coloured knife.
14 I viewed that CCTV footage in Court and discussed it with your counsel. I have no doubt your offending was absolutely frightening for Mr Tabone.
15 Turning to Charges 3, 4 and 5. On Monday, 4 May 2015, police attended Walter Street, Ascot Vale and went towards a unit they believed you were staying at. On entering Walker Street, police saw you walking down the street with two females and approached you. Detective Acting Sergeant Bradley Kavanagh, asked your name and you gave your brother’s name, “William”. Kavanagh asked if you had any identification and you replied “No, nothing”. Kavanagh said he thought your name was Mark, which you denied.
16 You then fled, jumping a number of fences into nearby houses. At approximately 3.25 pm, police attended Unit 1/11 Walter Street, Ascot Vale and when they entered the premises found you in a rear bedroom hiding behind a cupboard door.
17 Police attempted to arrest you, however you resisted and attempted to jump out an open window.
18 Acting Detective Sergeant Kokkoris attempted to hold onto you by your waist and Senior Constable Verbeek was holding onto you by your legs. You continued to struggle with the police members.
19 Detective Senior Constable Willey deployed OC spray onto you from the ground below and you were then arrested.
20 During the struggle, Officers Kokkoris, Verbeek and Onbashi received minor injuries.
21 Officer Kokkoris sustained a minor injury to his right elbow and forearm. Officer Verbeek a small laceration to her right eyebrow, which bled at the time of your offending. Officer Onbashi sustained soreness to his right pointer finger and knuckle.
22 You were taken to the Sunshine police station, where photographs were taken of your tattoo, and you were interviewed in a record of interview on 4 May 2015.
23 Regarding the allegation of armed robbery, you made ‘no comment’ answers, which of course was your right, however, did state “I tried to run away. I didn’t try – yeah – I tried to run away and yeah you got me and come back here.”
24 “I don’t remember about anything … to be honest, yeah. I know I have been doing some bad things … but I was just – I can’t remember. I do remember but some things just blank out, you know. Like – like I wake up in the morning, like, whoa, what the fuck where am I, you know?”
25 Regarding drug use, you said “fuck I’ve been smacking fucking a lot for the past month”, referring to ice.
26 There are a number of aggravating features of your offending, wearing a disguise, that your offending occurred in company with another person and pre-planning.
27 Your co-offender has not been arrested. Therefore, parity issues do not arise when sentencing you.
28 Your counsel referred to your plea of guilty to these charges. I note the progress of your matter through the court system, with a number of court hearing dates between 12 August 2015 until the final resolution of this matter on 14 April 2016. Various hearings related to issues with your representation, including changes of solicitors. Once Ms Turnbull’s office became involved on your behalf in 2016 discussions occurred with the prosecution, in an attempt to resolve this matter. You entered your plea of guilty relatively late on 14 April 2016, however I accept this was the earliest available to you in the circumstances. You have pleaded guilty, and you are entitled to have that fact taken into account in your favour, and I do so. The community has, by your plea of guilty, been spared the time and cost of a trial, and witnesses have been spared the ordeal of having to give evidence upon your trial.
29 In the circumstances, I am prepared to accept that your plea of guilty indicates some remorse for your offending, although I am concerned about the genuineness or extent of your remorse given your prior history of offending including for similar offences.
30 You have a very disturbing criminal history which I discussed at some length with Mr Gullaci, from the time when you were approximately 17 years of age, including offences of armed robbery, robbery, and injury charges. You have in the past been on a Youth Supervision Order, which you breached. You have also previously breached a suspended term of imprisonment and also previously breached a Community Corrections Order.
31
I also note with concern that the armed robbery charge dealt with on
24 February 2012 involved you producing a knife. Your criminal record is very disturbing for someone who at this sentence is 22 years of age.
32 You had, prior to this offending before me, also spent two separate periods of approximately three months each in custody. Unfortunately that experience did not deter you from this current offending.
33
Your offending before me breaches the Community Corrections Order
re-imposed on 1 December 2014. You are, of course, not being sentenced by me for that breach, however it raises concerns regarding your rehabilitation prospects. Your prospects are at best, guarded.
34 Mr Gullaci, who appeared on your behalf, prepared a written outline of submissions (Exhibit 1), and addressed those during the course of your plea hearing.
35 He conceded your offending was serious, and called for the imposition of an immediate term of imprisonment. You had at your plea hearing spent 364 days on remand for these offences.
36 Ultimately Mr Gullaci submitted there were two sentencing options available, firstly, the imposition of a term of imprisonment of no more than two years combined with a Community Corrections Order. Alternatively, a head sentence with a non-parole period, which would give you the opportunity to spend a significant time on parole.
37 Mr Gullaci conceded your offending involved a "soft target" and in the early hours of the morning. Also that both you and your unidentified co‑offender were armed. He conceded the victims of the armed robbery would have been terrified, in particular Mr Tabone.
38
Mr Gullaci submitted there was, however, no physical violence used during the armed robbery. I discussed this with Mr Gullaci. The CCTV footage clearly shows Mr Tabone was "manhandled" by you during the armed robbery.
I accept, however, no punches were thrown by you, nor other such assaults to Mr Tabone, however do not regard the lack of "physical" violence of great significance, given your use of the knife.
39 Mr Gullaci submitted you apologised to Mr Tabone after you had got the money from him, saying that that was all you wanted.
40 Mr Gullaci also referred to you having committed this offending when you were 21, with a significant ice addiction at the time, although was not relying on your ice use in mitigation of sentence.
41 Turning to the theft of items from the handbag, Mr Gullaci described this as opportunistic offending in the context of the armed robbery. I accept that is so.
42 Regarding the three charges of assaulting police officers, Mr Gullaci submitted the minor nature of the injuries sustained would result in significant concurrency of sentence.
43 Turning to matters relevant to sentence, he referred to your plea of guilty, which had not required a contested committal or trial. That your plea had utilitarian benefit, and that you were entitled to a discount for it. I have already referred to this.
44 You are 22 years of age at the time of sentence. Mr Gullaci relied upon the principles in R v Edwards[1] and R v Mills[2] as having some application. It is clear there is always the need to consider the rehabilitation prospects of a young offender when sentencing. It is also clear that the principles in cases such as Mills are not necessarily of automatic application.
[1] (1993) 67 A Crim R 486
[2] [1998] 4 VR 235
45 The principles in Mills are general propositions and, as I say, not of usual or automatic application. Each case depends on its own circumstances, including the circumstances of the offence, as well as the offender (see DPP v Lawrence[3])
[3] (2004) 10 VR 125
46 In Connolly[4], Coldrey J referred to the principles in Mills and stated:
"No doubt a sentencing court will endeavour to implement these principles as far as is possible in sentencing a youthful offender but they are not to be regarded as immutable. In the context of the variety of fact situations and offenders with which courts have to deal, such factors as the seriousness of the offences committed (and just punishment therefore); the need for deterrence (specific and general); the offender's prospects of rehabilitation; and the need to protect the community may need to be reflected in the sentence imposed."
[4] [2004] VSCA 24
47 See also R v Tran[5], Justice of Appeal Calloway said:
“The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not the only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true in the case of a youthful offender that rehabilitation is usually far more important than general deterrence. But the word I have italicised is there to remind us that there are cases where just punishment, general deterrence and other sentencing objectives are at least equally important.”
[5] (2002) 4 VR 457 at [462]
48 Mr Gullaci submitted you were remorseful, as evidenced by your plea of guilty and the comments you made in your record of interview. I accept, as I have said, your plea of guilty is indicative of some remorse. Further, he submitted your record of interview indicated you had some insight into the impact of your offending on your victims, in particular Mr Tabone and Ms Markic, and also insight into the detrimental effects of your consuming drugs. I have no doubt you were aware then and now of the impact of your offending on your victims and the detrimental effects of ice use. You are not "new" to the Court system.
49 Mr Gullaci referring to your prospects of rehabilitation, referred to you having already spent 12 months in custody on remand for these offences and that you were currently drug-free. He was to provide further material in that regard. This provides some hope, although your resolve is yet to be "tested" in the community.
50 In relation to your current drug-free status, Mr Gullaci submitted you had urine screen documentation confirming you had not been using drugs in custody, and he sought to forward those to me as well as some references prior to sentence.
51 My Associate, Ms Jackson, followed this up with Mr Gullaci and as a result four urine analysis screens were tendered immediately prior to me handing down this sentence. Each being negative for all substances tested (Exhibit 4). I did not receive any other material.
52 I have also been told that whilst in custody you have been working as a cleaner.
53 Whilst, as I have said, your rehabilitation is a significant sentencing consideration, given your age, I have, as I have said, at best guarded optimism regarding your rehabilitation prospects. In that regard I note your extensive prior criminal history, including for offences of a similar nature to that before me, and your breach of various court orders in the past. To date also, as I understand it, apart from not accessing drugs in custody, consistent with the negative urine screens provided, you have not specifically addressed your drug use. If you do address your drug use through formal counselling, it is hoped your rehabilitation prospects will greatly improve. Ultimately, that will be a matter for you. I must however, when sentencing you, seek to maximise your chances of rehabilitation as they may be.
54 Mr Gullaci also relied upon two reports by Dr Aaron Cunningham, Forensic Psychologist, the first dated 18 September 2015, prepared for the breach of Community Corrections Order hearing in September 2015. Reference was made in that report to your background and history.
55 You were born in New Zealand, and have one younger brother and one younger sister. You described "difficulties" living with your father as contained within that report. When you were 10 years of age your mother left the family home and took the children with her to live in Victoria with relatives. You had a stepfather from the age of 12, however, did not have a good relationship with him. You were sent to New Zealand for a short time in an attempt to control your behaviour, living with your father before returning to your mother’s home. You then went back to New Zealand for a year, as your mother deemed you to be “uncontrollable”. You eventually returned at age 18 to your mother’s home.
56
At the time of this first report, you said you had been in a relationship with Grace from the age of 17, with a 3 year old son of that relationship. There had been difficulties in the relationship, not surprisingly as a result of your drug abuse and peer associations. In the updated report of Dr Cunningham, of
29 April 2016, you said that relationship had ceased.
57 You attended a number of secondary schools, being expelled from all schools for fighting. You completed half of Year 11, and thereafter had intermittent short periods of employment in building and construction.
58 You began using cannabis at age 14, and methylamphetamine from age 18. You also described in the past being intoxicated with alcohol on a daily basis and being dependent on methylamphetamine when in the community.
59 You had previously played rugby, however, that ceased when you began using methylamphetamine.
60 Turning to the mental state assessment, your dominant emotion, you said, was anger. When you were depressed or anxious you became angry. You were also at times paranoid, believing people were plotting against you maliciously.
61 I note at that first interview with Dr Cunningham, you were then incarcerated and had also then ceased your drug use. You however, following release from the jail sentence, which was imposed in December 2014, again resorted to ice use, as stated in your record of interview at the time of your offending before me.
62 You met the diagnostic criteria for post-traumatic stress disorder as a result of your childhood abuse.
63 Your cognitive functioning was assessed by Dr Cunningham. You were assessed as having an IQ of 77. At the time of his September 2015 report you said you were motivated to cease abuse of drugs and alcohol when in the community, and it was the opinion of Dr Cunningham you presented as motivated to engage with rehabilitation. I have already referred, however, to your return to drug use.
64 In the recent report dated 29 April 2016, Dr Cunningham said you had recently been focusing on fitness and personal development in custody. Your offending behaviour, he said, was motivated by your continuing drug use, and that your drug and alcohol abuse would have aggravated your symptoms of anger and contributed to your violent behaviour.
65 Mr Gullaci was not relying upon the principles in Verdins & Ors[6] when sentencing you for these offences. That was an appropriate concession on the material before me.
[6] (2007) 16 VR 269
66 Mr Gullaci submitted you now appreciated that continued use of drugs and likely re-offending would continually impact adversely upon your life, and likely leading to you serving more periods in custody.
67 Whilst it appears you may have some appreciation of your need to avoid drug use, it is somewhat concerning that in the past, unless it had been part of a court order, you have not undertaken or attempted to address your drug use, which has obviously been a problem for you for a number of years. I hope this now becomes a priority to you to avoid further offending and ultimately further terms of imprisonment being imposed following any further offending.
68 In his sentencing submissions Mr Gullaci referred to the decision of Boulton & Ors v R[7].
[7] [2014] VSCA 342
69 There is no doubt the decision of Boulton has made it clear that sentencing courts need to rethink the conventional wisdom about whether prison is really the only option. The Court in Boulton also emphasised the grave disadvantages of imprisonment and the advantages to an offender’s rehabilitation by way of a Community Corrections Order.
70 It has, of course, always been the case that a term of imprisonment to be served must always be the last resort of the Court after all other dispositions have been considered.
71 Boulton has been considered and addressed in a number of cases since, including DPP v Maxfield[8], Alam v The Queen[9], Marocchini v The Queen[10] and Hutchison v The Queen[11], and most recently Gul v The Queen[12].
[8] [2015] VSCA 95
[9] [2015] VSCA 48
[10] [2015] VSCA 29
[11] [2015] VSCA 115
[12] [2016] VSCA 82
72 I did not, however, understand Boulton to remove the need for a sentencing judge to take into account all of s.5 Sentencing Act 1991, nor did I understand Boulton to mean that previously stated sentencing principles relevant to this type of offending, in particular armed robbery, now amounted to naught. Nor did I understand Boulton’s decision to remove the instinctive synthesis required when sentencing.
73 I also did not understand Boulton to remove the need for me to be mindful of the maximum penalty as set by Parliament for this type of offence. In particular I am referring to the offence of armed robbery.
74 Mr Gullaci referred to s.501(3A) Migration Act and submitted that as a result of being sentenced to a term of imprisonment of 365 days or more, you would likely be deported to New Zealand following completion of your sentence, and initially urged that that would mitigate your sentence.
75 Ms Holmes, who appeared on behalf of the prosecution, briefly addressed this in her sentencing submissions referring to Konamala v The Queen[13] and Nei Lima Da Costa Junior v The Queen[14], which confirmed the position in Guden v R[15] as still applicable. I have, since that plea hearing, read those decisions.
[13] [2016] VSCA 48
[14] [2016] VSCA 49
[15] [2010] VSCA 196
76 Following my request for same, I received brief submissions from Mr Gullaci, regarding the applicability or otherwise when sentencing you.
77 Mr Gullaci, in correspondence to me, dated 2 May 2016, said:
“After reading the recent decisions of Konamala v R [2016] VSCA 48 & Lima Da Costa Jnr v R [2016] VSCA 49 it cannot be submitted, on behalf of Mr Tovale, that deportation is inevitable. See Konamala v R [2016] VSCA 48 at [27] to [32].
I withdraw the submission made during the plea that deportation is inevitable and that it ought be taken into account as anadditional punishment in this case. “
78 I have since your plea hearing read Schneider v The Queen[16], in particular paragraphs 24 and 25. Whilst there is no evidence before me regarding the impact of deportation upon you, and I accept your imprisonment will be more burdensome for you, being aware you may be deported. Beyond that I cannot say any further.
[16] [2016] VSCA 76
79 Mr Gullaci urged a Community Corrections Order with a term of imprisonment would appropriately reflect all sentencing considerations in your case. I have carefully considered that submission.
80 Ms Holmes, on behalf of the prosecution, submitted the combination of a Community Corrections Order with a term of imprisonment would not adequately reflect all sentencing considerations and would not be an appropriate sentence.
81 Ms Holmes referred to the aggravating features of your offending. She also referred to your prior serious offending.
82 In relation to the assault upon police, she submitted it was a significant struggle, as you needed to be sprayed with capsicum spray to enable the arrest to be made.
83 Ms Holmes conceded the timing of your plea of guilty and the chronology associated with that, as I discussed with Mr Gullaci, was accurate.
84 There was, she submitted, the need for specific deterrence when sentencing you. I agree.
85 In my opinion, to accede to the primary sentencing submission by Mr Gullaci would not appropriately or adequately reflect all sentencing considerations in your case, and to impose such a disposition would, arguably, be manifestly inadequate in all the circumstances.
86 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account matters such as general deterrence which is of considerable importance in a case such as this.
87 There is also the need for specific deterrence when sentencing you, given your extensive criminal record.
88 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I remain concerned about this. I hope you address your drug use whilst in custody and when finally released.
89 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of you conduct and generally to impose a just punishment.
90 In sentencing you, I apply the principles of totality and I sentence you as follows.
91 On Charge 1, you are convicted and sentenced to 3 years and 6 months’ imprisonment.
92 On Charge 2, you are convicted and sentenced to 12 months’ imprisonment.
93 On Charge 3, you are convicted and sentenced to 6 months’ imprisonment.
94 On Charge 4, you are convicted and sentenced to 6 months’ imprisonment.
95 On Charge 5, you are convicted and sentenced to 6 months’ imprisonment.
96 Charge 1 is the base sentence and I direct the following in relation to cumulation.
97 I direct that 3 months of Charge 2 be served cumulatively upon Charge 1.
98 I direct that 1 month of Charge 3 be served cumulatively upon Charge 1.
99 I direct that 1 month of Charge 4 be served cumulatively upon Charge 1.
100 I direct that 1 month of Charge 5 be served cumulatively upon Charge 1.
101 For clarity, the orders for cumulation are upon each other and upon the base sentence.
102 That results in a total effective sentence of 4 years’ imprisonment, and I direct that you serve a period of 2 years and 6 months before you are eligible for parole.
103 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these offences following jury verdict, in other words if you had pleaded not guilty to this charges and been found guilty of them, I would have sentenced you to a term of imprisonment of 6 years with a non-parole period of 4 years.
104 Pursuant to s.18(4) Sentencing Act 1991 I declare you have spent 374 days (up to and including 11 May 2016) by way of pre-sentence detention and I direct that that be entered into the records of the court.
105 The prosecution made application for a disposal order. That was not opposed by counsel on your behalf, and I make the order in the terms sought.
106 The prosecution also made application for a forensic sample pursuant to s.464ZF Crimes Act 1958. This was not opposed by counsel on your behalf, and I make the order in the terms sought. I make the order on the basis of the seriousness of this offending and your prior offending history. This will be for a saliva sample and I must advise you the authorities may use reasonable force in order to obtain that sample.
107 Have a seat. Any other orders? What about the PSD, is that right?
108 MS MCLURE: Your Honour, I think we calculated it as 374 not including today.
109 HER HONOUR: When did he go in?
110 MS MCLURE: 4 May 2015.
111 HER HONOUR: So he went in on 4 May. Ms Jackson, work it out. Get out the calendar. Get your calendar out, both of you, everyone get your calendar out. Every day matters when you are doing the time. It has got to be right. You need to do it month by month, it has got to be accurate to the day. Was there a leap year? I think there was.
112 ASSOCIATE: It's 374.
113 HER HONOUR: Just keep going. We now have a change to 374. It sounds like that is right but I want you to be sure about it because as I say, every day counts to Mr Tovale. How did we go?
114 MS CARROLL: 374.
115 HER HONOUR: 374, everyone's in heated agreement then by the sound of it, all right, so s.18(4) Sentencing Act 1991, 374 days will be declared as pre-sentence detention up to and including yesterday, 11 May 2016. All right, anyone want help with the maths or have you got that all sorted? The cumulation, you got all that worked out? All right, excellent. Anything else? No, right, thanks Mr Tovale.
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