Director of Public Prosecutions v Townsend

[2013] VCC 1746

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

AT MELBOURNE

CRIMINAL DIVISION

CR-13-01376

DIRECTOR OF PUBLIC PROSECUTIONS

v

NEALE TOWNSEND

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	1 November 2013
DATE OF SENTENCE:	13 November 2013
CASE MAY BE CITED AS:	DPP v Townsend
MEDIUM NEUTRAL CITATION:	[2013] VCC 1746

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:             SENTENCE – Armed Robbery (synthetic drugs) – Compensation order made in relation to value of drugs taken – Issue of legality of synthetic drugs at the time of offence

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S. Flynn Mr L. Crosbie	Mr C. Hyland, Solicitor for Public Prosecutions
For the Accused	Mr D. Sala	Victoria Legal Aid

HER HONOUR:

1       Neale Townsend you have pleaded guilty to one charge of armed robbery –this offence has a maximum penalty of 25 years' imprisonment which reflects the seriousness with which it is regarded.

2       Your matter was opened by the learned prosecutor as follows:

3       You were born on 9 September 1988 and are now aged 25. You were 24 at the time of the offence.

4       On Thursday 25 April 2013 at about 1:00 pm, you entered the front door of a shop in Prahran.  The business is called “Inya” and part of their product range was synthetic drugs.  At the time you entered, there were two people present; the owner, Christopher Anderson, and a customer, Ashley Smart.

5       You had your head covered by a hat and you had your top pulled up over your nose, covering part of your face.  At the time, you were holding up a 25 centimetre long chef’s knife in your right hand at throat level. 

6       You held the knife about 10 centimetres from the victim Mr Anderson’s face and said him: “stay back, stay back”.  You pulled open the top drawer and closed it again before pulling open the second drawer.  The victim realised that you were looking for the synthetic Marijuana and Cocaine.  He indicated to you where it was and opened the drawer for you.  You reached in and grabbed 16 packets of a product called 'White Bull', apparently a synthetic Cocaine, and 2-3 packets “White Lite” which is synthetic crystal Methamphetamine.  You also took about 10 packets of synthetic Marijuana. These items, which were legal at the time, were worth $2299.50, I was told.   You repeated to the victim to "stay back" as you were taking the packets.

7       As you were taking the packets out of the drawer, Mr Smart was on the phone, contacting Police.

8       You ran out of the shop.  Mr Smart observed you run into a nearby dead-end laneway.

9       You returned to your rented share house at Commercial Road, Prahran which was located above a business.  You rushed into the room of your flatmate, Gaurav Sharma, and told him that you had done something wrong and the police would be there soon.  Mr Sharma did not take you seriously and left the premises to buy some food.  As he walked outside, he saw two uniformed Police officers.  He called them over and ascertained that they were looking for you.  He took them to your premises where they found you hiding under your flatmate’s bed.  You were holding a syringe at the time and threw it on the ground.  You were arrested.

10      Police located a large knife on the table near the door, as well as packaging for synthetic drugs.  I was told the knife they found was in fact the knife that was used in the armed robbery and a photo of the knife was tendered on the plea hearing. 

11      You were interviewed by Police later that day after being given the opportunity to sleep for a number of hours, as Police believed you were substance affected.  You predominantly answered “no comment” in your record of interview but stated that you knew the shop as it is where you had purchased synthetic cocaine and synthetic marijuana.  You said that you usually paid $20 a gram for synthetic marijuana and between $120 to $150 a gram for synthetic cocaine.  You said that you injected it and that the effect on you was almost identical to that of ‘ice’.

12      Mr Townsend, this was a nasty offence that you committed. You held a sizeable chef’s knife close to the face of your victim, and did so whilst there was a customer in the shop. You did so in the context of being addicted to synthetic drugs in circumstances where you were desperate to obtain more for your own use. This heightens the dangerousness of your conduct on that occasion. There was a crude level of planning involved, in that you had taken a knife with you and you partially covered your face. This was a most frightening experience for the victim as he has said in his victim impact statement which was read aloud at his request. It has had a significant impact upon him, as you would expect. In fact, the victim knew you, and in spite of his terror and the trauma he has suffered since the attack, he speaks well of you overall. However, the victim has struggled with the trauma of this event and I take this and all of the matters which are contained in his victim impact statement into account in sentencing you.  You must be punished in all of the circumstances and your offending must be denounced. Further, strong weight must attach to general deterrence in a bid to deter others from behaving as you have.

13      You have a relevant criminal history although I accept that most of the offences were the subject of Children's Court proceedings and are somewhat dated. Your most recent prior conviction was one for violence, recklessly cause serious injury, which occurred four years ago. This offence occurred in the context of you assisting another in respect of a dispute over some property. Unfortunately, a meeting to recover the property turned sour, I was told, and you seriously assaulted the victim on that occasion with your hands, that is, no weapons were involved. However, I do accept that before the offending for which I now sentence you there was a substantial period when you did not commit offences, which, I was told had everything to do with finding stability in your life in terms of accommodation, employment and a happy family life with your then-partner and having a child with her. When this relationship broke down, your life unravelled and you returned to drug use, albeit in the form of synthetic drugs which were legal at the time you consumed them, and at the time you committed the armed robbery.

14      I take into account your background. You hail from New South Wales as does your family who still lives there. As you were growing up, you enjoyed a close relationship with your parents and siblings. Due to your father’s work, you moved around a good deal and it may have been because of this itinerant existence that you were often bullied at the various schools you went to, as you were new to them. You fell out with your family when you were 14, left school and left home. You went off the rails, keeping company with older males who introduced you to heroin. I was told you went to Queensland and lived on the streets or anywhere that you could. When you were 16 you moved to Melbourne, again living on the streets and you eventually fell foul of the law. However, in November 2005, by virtue of a Youth Supervision Order, Juvenile Justice arranged for you to obtain accommodation which had a positive effect on you. You first obtained some work in a bakery but then started some work as a butcher, which was work with which you were familiar as your father had this expertise. When you were 19 you met a Miss Watson who was then 17. You had a child together who is now 6 years old. This was the period during which you led a most productive life, working hard to support your family. Aside from some minor offences in 2007 and 2008, you did not commit any offences from 2005 until 2009, which was the offence to which I have already referred. However, save for this matter, your life stayed on track, and in 2010/ early 2011 you decided that you wished to become a chef. Your determination to pursue this role was so strong you visited numerous restaurants in Melbourne requesting that you be taken on as a chef ‘s apprentice until finally you were accepted. You worked very long hours in your new role which took a toll on your relationship, which, unfortunately, ended in 2011. You kept working but it appears that your life was falling apart. You saw your child less frequently and things were going from bad to worse. Five months before the armed robbery you turned to synthetic drugs in a bid to subdue your renewed longing for heroin and marijuana which were your drugs of choice. You did so, so as to act within the law and at the same time, stem the pain that you were experiencing. You left your job as a chef and returned to butchering, and you had a good rapport with your employer. However, your need for drugs grew to a stage where you committed the offence for which I now sentence you.

15      Although you hid from police and did not co-operate in the record of interview, I was told that this was in the context of you still being affected by drugs which you had imbibed just before your arrest. You pleaded guilty at an early stage which, together with your sentiments in the report to Carla Lechner and your willingness to pay compensation to the victim, indicate to me that you are now remorseful and have appropriate insight into your offending. Your early plea of guilty entitles you to a significant discount in the sentence which you would otherwise receive, as you have saved the witnesses, especially the victim, the time and trauma of giving evidence and you have saved the community the time and expense of running contested proceedings.

16      I also factor in that you chose not to apply for bail so as to ensure that you became drug free whilst in custody. Although I was not provided with any urine screens to confirm that you have been drug free, I am prepared to accept that this is the case. This means that you have been drug free for about 6 and a half months. Since your incarceration, you have been visited by members of your family who have come here from New South Wales, and I was told you propose to re-engage with them by returning to New South Wales upon your release from gaol (if you can obtain permission from the parole board to do so).

17      In all of the circumstances, I consider that your prospects of rehabilitation are fair. On the one hand, you have a relevant criminal history, although this is to be seen in the context to which I have previously referred. You have committed the offence before me in the context of drug abuse which you have turned to again when life became difficult, so there is a risk factor there for the future. On the other hand, you have not offended in 4 years before this offence, you have taken responsibility and expressed remorse for this offence, you have abstained from drugs for a fairly significant period, you have a solid work ethic and have reconnected with a most supportive family. For these same reasons, I place a moderate weight on specific deterrence and the need to protect the community. The greatest challenge for you will be to stay off the drugs and for this, you ought get some help when you are released from gaol as this may well be a difficult battle for you for many years to come.  Do you understand that?

18      PRISONER:  Yes, Your Honour.

19      HER HONOUR:  Upon being invited to do so, the Crown submitted that a sentence of between 2 and 3 years imprisonment with a non-parole period of between 15 and 18 months was appropriate in your case. Your Counsel did not disagree with this but submitted that any sentence imposed ought carry with it a longer than usual parole period to facilitate supervised rehabilitation in the community. I have done what I can to accommodate this, whilst giving appropriate weight to all relevant sentencing considerations. Insofar as the compensation order was concerned, I have had considerable misgivings about the propriety of compensating the victim for losing synthetic drugs to which you and, no doubt, others and were addicted, especially in circumstances where these are now deemed to be illegal. Even though such substances were not banned at the time it seems to me that a preparedness to sell these bespeaks a certain lack of moral fibre. However, I suppose that we compensate victims who have had packets of cigarettes stolen from them, despite the abject effects of these, although I am not sure that they are on the same category of wrongfulness as synthetic drugs. In the end, I have reluctantly come to the view that the victim ought be compensated, an order which you do not oppose, despite some misgivings and misgivings that your Counsel also expressed in this regard.

20      Stand up Mr Townsend

21      I make the compensation order to the victim in this matter in the sum of $2,299.50 in accordance with the document which has been handed to me by the Crown.

22      I make an order for retention of the forensic sample that previously has been taken from you.  The basis on which I make the order is because it is not opposed by you, because of the seriousness of the offending, your prior convictions and because it is in the public interest to make such an order.

23      On the charge of armed robbery you are convicted and sentenced to 3 years imprisonment but I direct that you serve 16 months' imprisonment before becoming eligible for parole.

24      I make a Disposal order in respect of the knife.

25      I declare that you have already serve 202 days as part of this sentence.

26      If not for your plea of guilty I would have sentenced you to 4 years imprisonment with a non-parole period of 32 months.

27      Is there anything arising from that - - - ?

28      COUNSEL:  No, Your Honour.  Those are the only matters.

29      HER HONOUR:  Very well, thank you.  If you could remove the prisoner, thank you, sir.

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