Director of Public Prosecutions v Tripp

[2019] VCC 395

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02297

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL TRIPP

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2019
DATE OF SENTENCE:	29 March 2019
CASE MAY BE CITED AS:	DPP v Tripp
MEDIUM NEUTRAL CITATION:	[2019] VCC 395

REASONS FOR SENTENCE
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Subject:  Criminal law – Sentence

Catchwords:  Armed robbery – low-end example – no criminal history – early plea – voluntary steps to advance rehabilitation – strong prospects of rehabilitation

Legislation Cited:
Cases Cited:

Sentence:Community Corrections Order for years and 6 months, with 250 hours of unpaid community work, as well as alcohol and mental health treatment conditions

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Dawson	Ms E. Danks
For the Accused	Mr S. Gardner	Mr T. Bell

HIS HONOUR: 

1Daniel Tripp, you have pleaded guilty to one count of armed robbery.  You may be seated for the moment.

2OFFENDER:  Thank you, Your Honour.

3HIS HONOUR:  On 26 May 2018, around 5 am, you hailed a taxi in front of the Royal Melbourne Hospital.  You were drunk.  You asked the driver to take you to St Kilda.  He asked for payment of the fare upfront.  You gave him a $50 note.  You tried to engage him in conversation.  You became agitated when he ignored you.  You removed a box cutter from your carry bag and put it in your jacket pocket.  You persisted with the conversation but when the driver still would not engage with you, you let him know you had the box cutter.  Angry, because you felt he had not given you good service, you demanded the driver pull over and give back your $50.

4He pulled over but refused to refund your money.  You screamed at him to return your money and pulled out the box cutter from your jacket pocket.  There was a scuffle between you.  You made a stabbing motion towards him, making contact with his left arm.  He felt some pain and sustained a small laceration to his left hand.  In the scuffle you had cut his jacket and also your thumb.  You tried to grab his identification card before getting out of the taxi.  The driver started to drive away but then stopped to avoid causing you injury.  You got back in the cab.

5Inside the cab, you pulled the taxi meter from the dashboard, got out, and ran towards the aquarium, where you threw the taxi meter into the Yarra River.  The driver reported the incident to police.  Police arrested you on 11 July 2018.  When they interviewed you, you made full admissions.  You told police you were intoxicated and flagged down a taxi to drive you home.  That the driver asked you for money upfront and you gave him $50.  That you tried to chat to the driver but he ignored you and you got annoyed.  You asked him to pull over and demanded your $50 back. 

6When he refused, you told him you had a box cutter and threatened to cut him with it.  You did not want to hurt him and you tried to get his identification card so you could report him.  You grabbed what you described as, "The monitor thing", and threw it away because he kept your $50.  You also said you had never done anything so stupid like that in your life and you would never do it again.  You explained you had the box cutter for work and you got into the scuffle with him because the $50 note was the only money you had to get home.  You acknowledge you had no excuse for your actions.  Police released you on bail and at committal mention you pleaded guilty to the charge of armed robbery.

7You have no criminal history.  You were born on 3 June 1988.  You were 29 at the time you offended and are now aged 30 years.  Your personal history is set out in the report of Dr Matthew Barth, Exhibit 3.  You are an only child.  Your parents separated when you were two years old.  You have maintained a close relationship with both of them.  Your mother raised you and when you were five years old she remarried.  Your step-father was verbally and physically abusive toward you.  When you were 13 years old, your mother left him.

8When you were six years old you were sexually abused by a neighbour.  Thirteen years later you reported the abuse.  The perpetrator was charged.  You gave evidence at his trial and when he was acquitted you were profoundly affected.  You describe yourself as a below average student but you completed year 12.  You told Dr Barth from a young age you were confused about your sexuality.  At school you were the victim of homophobic bullying.  As an adult, you have had several relatively short same-sex relationships.

9When you left school you started but did not complete a TAFE course in Business Management.  You then started working in telephone call centres and subsequently in hospitality.  At the time of your offending, you worked as a sales attendant at a BWS liquor store.  You have a long history of emotional problems and have seen a number of mental health professionals who have trialled several antidepressants.  More recently you have been prescribed Pristiq with Temazepam and Valium which you currently take for major depression and anxiety, confirmed by Dr Brianna Domingo at the St Kilda Superclinic medical centre.

10Unsurprisingly, Dr Barth is of the view that without sustained treatment and intervention you remain at risk of further substance abuse and behavioural problems.  He recommends mental health treatment, substance abuse treatment and anger management training for you.  You have outstanding support from family and friends.  I have read 14 references from people who know you well.  Many of them have been in court to support you.  They all describe you as a good person who is loving and kind.  They view your offending as very much out of character and describe you as remorseful for what you have done.

11Two of your referees, Mr Francis, a lawyer and Ms Peterson, a drug and alcohol counsellor, both gave oral evidence before me.  They told me since your offending you have taken significant steps to advance your rehabilitation.  Principally, you have abstained from alcohol consumption save for a small celebration on your 30th birthday.  A magistrate had imposed onerous bail conditions including that you not consume alcohol, that you not use taxis or similar fee-charging transport, that you submit to random alcohol breath testing by police and you participate in the CISP bail program.

12As part of the CISP program you were referred to Windana Drug & Alcohol Recovery for counselling.  Initially you attended four allocated sessions.  A further 15 sessions have been arranged and of those you have completed five.  Program coordinator, Ben Venker, in a letter dated 13 March 2019, described you as, "An active and willing participate at all sessions".  Ms Peterson told me you have also sought a mental health program from your treating GP for additional holistic counselling.

13Since your arrest your father has employed you in his wheelchair and aged care equipment, sales and repair business.  He is working closely with you to help you get your life back on track.  You are very close to your mother who is battling cancer and her diagnosis has distressed you. 

14Your counsel, Mr Gardner, in written and oral submissions relied on the following factors in mitigation of penalty.  Your lack of any criminal convictions, your early plea of guilty, your genuine remorse, your substantial steps towards rehabilitation and the substantial support of your family and friends.  He properly acknowledged any offence of armed robbery is serious, aggravated in your case by an attack on a soft target.  But it was submitted, taking into account the lack of premeditation, the relatively low level of physical violence and the short duration of the armed robbery, your case falls within the low-end range of examples of the crime.

15In refreshingly helpful submissions, counsel for the prosecution, Ms Dawson, pointed to the significance of the principles of general deterrence and just punishment for a crime of this type.  However, she fairly acknowledged your offending was at the low end of the range, you have prior good character, you have shown genuine remorse and with strong family support you have voluntarily advanced your rehabilitation, the prospects for which she categorised as strong.  She submitted, again, fairly, specific deterrence is less significant in your case. 

16As to your disposition, Mr Gardner submitted a community correction order provides sufficient scope for your sentence.  Ms Dawson submitted such an order in the circumstances of your case is within proper sentencing range.  Accordingly, I have had you assessed for a community correction order and you have been found suitable.  A community correction order can enable all the purposes of sentencing to be served even in the case of serious crimes such as yours is, in preference to imprisonment which, given the significant steps you have taken to rehabilitate yourself since your release from custody would be undesirable. 

17Mr Tripp, please stand.  On the charge of armed robbery, you are convicted and placed on a community corrections order for two years and six months.  You must do a number of things within the community corrections order in order to punish you and also to assist in your rehabilitation.  You are required to undertake 250 hours of unpaid community work.  You must engage in treatment and rehabilitation for alcohol abuse and treatment and rehabilitation for your mental health.  I direct that 50 hours of treatment and rehabilitation which you undertake may be credited as hours of unpaid community work.

18You must undertake the programs community corrections consider appropriate to reduce your risk of reoffending and you must be under the supervision of a community corrections officer.  You will also be subject to my supervision by way of judicial monitoring.  There are a number of other core conditions that apply to every community corrections order.  The chief one is that you do not reoffend.  When the order is printed, I will direct your counsel to go through each and all of the conditions with you and he will ask you whether you understand the conditions of the order and whether you are prepared to consent to it.

19Whilst the order is being prepared, there are two other matters I need to attend to. Firstly, because of the seriousness of the offence for which you have been convicted, I make an order under s.464ZF of the Crimes Act for the taking of a forensic sample, which in your case will be what is called a buccal or mouth swab of your saliva. I must inform you, if necessary, a police officer may use reasonable force to enable the procedure to be conducted. And pursuant to s.6AAA of the Sentencing Act I declare that but for your plea of guilty, I would have imposed a sentence of 15 months' imprisonment. 

20The order has been prepared, Mr Gardner.  I'll give you the opportunity to approach the dock and show that to Mr Tripp. Please explain the conditions to him and ask him whether he understands them and whether he's prepared to consent to the order.

21MR GARDNER:  It's been explained, understood and signed, Your Honour, on my instructions.

22HIS HONOUR:  Thank you.  Mr Tripp, I'll make the order.  The order will include a condition that you attend this court before me on 6 September 2019, at 9.30 when I will have received a report as to your progress on the community correction order.

23OFFENDER:  Thank you, Your Honour.

24HIS HONOUR:  The orders have been made.  Thank you.  And Mr Tripp can leave the dock.  You can take a seat in the court, Mr Tripp.  Ms Dawson,
Mr Gardner, thank you for your assistance.  We'll adjourn till 10.30 please
Mrs Ryan.

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