Director of Public Prosecutions v Tubb
[2015] VCC 2013
•30 October 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01309
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| CHRISTOPHER KNEWSTUBB |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 October 2014 | |
DATE OF SENTENCE: | 30 October 2014 | |
CASE MAY BE CITED AS: | DPP v Tubb | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 2013 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms N. Warda | OPP |
| For the Accused | Mr R. Martini | VLA |
HER HONOUR:
1 Christopher Knewstubb, you have pleaded guilty to one charge of armed robbery and one uplifted summary offence of possess a prohibited weapon. The offending the subject of these charges occurred at around 6:30AM on 28 April 2014 at a 7-Eleven store in Balaclava.
2 You entered the store wearing a beanie and a scarf which you were using to cover your face, carrying a shoulder bag. You remained in the store for some time, walking up and down the aisles and pretending to use the ATM. You were in there for about 20 minutes before you approached the attendant at the front counter, and asked him if you could purchase some mobile phone credit, on credit. He said that would not be possible. You then told him to open the cash register and to give you all the notes. You pulled out a black gun, which was later discovered to be an imitation handgun, and having shown it to the attendant, then put it back in your pocket. He gave you $300 in notes from the till and you left the store. As is common these days, there was CCTV camera operating, and all of this was caught on camera.
3 When the police came to the 7-Eleven store, the attendant told him that he recognised you, that you had been in the store about four hours earlier and had purchased cigarettes and some energy drinks.
4 It did not take long for the police to find you. Although you initially denied the offending, you very shortly thereafter made full admissions to the armed robbery and took the police to the place where you had hidden the handgun, and then participated in an interview where you again made admissions. You told the police that you had committed the armed robbery to obtain money to repay an old friend. You said you had recently run into this old friend and were told that if you did not get the money to repay a drug debt, you would be stabbed.
5 You told the police that you had dumped the scarf and beanie, and you took them to the dumpster where you said you had placed them, but that had been emptied by the time the police got there. You took them to the place where you had disposed of the bag you were carrying, and that was still there. The other clothing that you were wearing was found by the police at your home, or where you were living, as were some cap gun rounds for the imitation handgun. The police also found two packets of cigarettes and two energy drinks which matched the till receipt that the store attendant has identified as relating to the purchase made by you some hours earlier that night. And they also found a metal sword with a wooden handle. It is possession of that sword that gives rise to the second charge to which you have pleaded guilty, an uplifted summary charge of possession of a weapon.
6 You have therefore come to be sentenced for armed robbery, which carries a maximum sentence of imprisonment of 25 years imprisonment, and possession of a prohibited weapon, which carries a maximum of two years imprisonment, or 240 penalty units.
7 Consistently with the admissions that you made from very shortly after your arrest, you indicated your intention to plead guilty to these charges at the earliest opportunity. As a result of that your plea was entered at the committal mention, and you were then fast tracked to this court for your plea to be heard. So it comes that you are sentenced within about six months of the commission of the armed robbery. You have spared the victim the ordeal of having to give evidence, of having to re-live the events as a result, and your plea obviously has significant utilitarian value. Your cooperation in showing the police where you had concealed the items also adds to the utilitarian value of the plea had you not pleaded guilty, or changed your mind. You, by your own mouth and conduct, provided the police with evidence they may not otherwise have had which would have incriminated you, and I give those matters weight for their utilitarian value and their facilitating the course of justice.
8 Although no victim impact statement has been filed by Mr Sun, the store attendant, his witness statement makes it clear that he was subjected to what he regarded, and understandably so, as a frightening ordeal. He describes being scared and shaken up. He was not to know the gun was an imitation, and you by your conduct obviously intended him to believe it was real, or at least intended to induce in him a fear that he could not be confident that it was not real, and therefore to assist you to ensure that he complied with your demand for money.
9 It is clear therefore, that subject to considerations personal to you, denunciation, just punishment and deterrence both general and specific must be given proper weight in the sentencing process.
10 Your victim, Mr Sun, was just doing his job, working behind the counter of a small convenience store. He was, as Ms Warda correctly submitted, a soft target. Being held up is not, and should not, be seen to be an occupational hazard for people who work in small suburban shops and convenience stores that service the basic needs of their local community. People such as you who threaten the safety of people who work in these stores by brandishing a gun at them, whether it is an imitation one or real, and stealing from them, or attempting to steal their takings, must understand that they will be punished for such conduct, and punished in a manner which appropriately reflects the community’s denunciation of such conduct. The prospect of the meagre returns from the cash register from a convenience store must be weighed not only against bearing some responsibility or feeling of guilt for the harm caused to the victim and for the wrongness of stealing just because you want it and you are not prepared to get it by honest endeavour, but also be weighed against the significant loss of liberty that is going to flow for an offender who commits such an offence.
11 You were 25 at the time of the offending. You have since turned 26. You have a significant and relevant criminal history. You have been before adult courts on seven separate occasions since 2009. You have a number of convictions for violence, assault and causing injury, as well as contravening a family violence final intervention order, for making threats to kill and for possession of prohibited weapons. You have a conviction for robbery and many for stealing. The robbery and the stealing include snatching people’s possessions and shop stealing. Included in your convictions are two separate instances of snatching, or demanding then snatching, mobile telephones from young people on public transport, and using, or threatening to use, violence on your victims to achieve that end. In addition, you have been convicted of property and related dishonesty offences, including burglary and attempted burglary, going equipped to steal, possession of proceeds of crime and property damage. You also have convictions for possession and use of cannabis, and for drunkenness.
12 In addition, you have also been convicted of failing to answer bail, and have breached and been convicted of breaching an intensive correction order and each of the community-based orders that have been imposed on you over that nine-year period. This offending itself breaches a partially suspended sentence that you were serving at the time. Serious as much of the other offending is, it was all dealt with in the Magistrates Court. This is your first time in this court, and the first time you have faced a charge of armed robbery.
13 You have clearly not been prepared to take advantage of the many rehabilitative sentencing opportunities afforded you. In fact, your offending has escalated, not diminished. Nor has increasing maturity acted to reform or deter you. Mr Martini described you as a youthful offender and submitted that the sentence should be moderated to reflect your youth and immaturity and that, consistently with the principle in Mills’ case,[1] more weight should be given to encouraging rehabilitation, because you are a young offender, than it would to an older offender. I disagree that Mills’ principle is applicable in these circumstances. There is nothing in the materials presented to me to suggest that you are immature or that your offending was due to immaturity. You have had a considerable experience in the criminal justice system and you have already served a number of short terms of imprisonment. You could have been under no illusion about the seriousness of your behaviour or its likely consequences. Although it is correct to describe you, as Mr Cummins did in his report, as a relatively young man, you do not, in my view, fit the category of youthful offender as that term is used in Mills’ case.
[1]Mills [1998] 4 VR 235.
14 You are now 26. You have some, but limited, family support. I was told your mother maintains contact with you, although she was not present at court. You have had no relationship with your father since he and your mother separated when you were four. It would appear that you have seen him briefly only once since then, when he visited you in hospital after a motor vehicle accident in 2008 to which I will refer shortly. You report to Mr Cummins being exposed to your father’s repeated violence to your mother before separation, and you described her subsequent partner, who became your stepfather and the father of your two stepsiblings, as verbally abusive and violent. You seem to have no contact with your older sister, and I was told nothing about whether there was any contact with your younger stepsiblings.
15 Your primary schooling was unremarkable, and your secondary schooling disrupted by being bullied and by your own challenging behaviours. Amongst other things, you reported to Mr Cummins that you set fire to the school gym and were expelled from that school as a result, were found carrying a knife at school and were expelled there, and were again expelled from a further school after threatening a teacher. You started abusing drugs, initially cannabis and alcohol, in your early teens and since then you have used, it would appear, most illicit drugs that are commonly available. You acknowledge your drug-taking and associated lifestyle were the reasons you had not, apart from two months work sanding furniture soon after leaving school, ever engaged in work, study or training before the motor vehicle accident in 2008, to which I shall shortly refer in more detail.
16 I was told that you attribute your offending, on this occasion and in the past, to the abuse of alcohol and drugs. Your criminal record, as well as the material Mr Martini placed before me, reflect a long history of substance abuse. You have apparently undergone a number of short term detoxification admissions, but have never engaged in any drug or alcohol counselling or treatment. That includes, as I understand it, not demonstrating any commitment to meaningful participation in drug and alcohol counselling and treatment when such were made a condition of the intensive corrections order and the community-based orders on which you have previously been placed by Magistrates Court orders.
17 Mr Cummins, in his helpful report, expresses the opinion that you require long-term residential drug rehabilitation. You have not shown any inclination to date that you are prepared to give up alcohol and drugs and engage in such rehabilitation. If you do not, you will likely continue in a cycle of substance abuse, offending and imprisonment. If you do change your mind and attitude and engage in long term drug and alcohol rehabilitation programs, you have a better future ahead of you. It is up to you. As matters presently stand, your prospects for rehabilitation can best be described as poor. Mr Cummins describes them as currently very guarded. I urge Corrections to assess you for suitability for participation in drug and alcohol treatment programs in custody and on parole, if they see fit to release you on parole, and to provide them to you if you are willing to participate in them.
18 Your history of substance abuse predates the serious motor vehicle accident in which you were involved in 2008. You there sustained serious injuries and the driver and another occupant of the car in which you were travelling lost their lives. Your injuries included a closed head injury, fractures to your cervical and lumbar spine and your right leg, and a perforation to your bowel. Although you have made a reasonably good physical recovery, you suffer, and will continue to suffer, the consequences of the collision. You continue to suffer pain in your back and neck, and you are unfit to perform weight-bearing or heavy manual work. That is significant, as your employment options were already limited by the fact that you did not complete secondary school. You have no post-secondary qualifications and, in fact, no history of any gainful employment before or after the motor vehicle accident. That explains why, when asked your occupation at the time of arraignment, you described it as “none”.
19 A neuropsychological assessment conducted after the motor vehicle accident revealed that, fortunately, you did not suffer any lasting or permanent brain injury, and your brain functioning was assessed to be consistent with your pre-morbid, that is, pre-accident, functioning. Your brain functioning has to some extent been impaired by your substance abuse, according to the reports, but not to the extent that there is any organic impairment in behaviour, impairment in reasoning or impairment in your capacity to know right from wrong.
20 According to Mr Cummins, you still suffer from some residual post-traumatic stress disorder symptoms attributable to that motor vehicle accident. At the time of the compensation claim or the assessments made for the purpose of your compensation claim, recommendations were made that you undergo mental health assessment and treatment for the post-traumatic stress disorder symptoms that you were then suffering from. It would appear that you have not followed up on those recommendations. Despite that, there appears to be a diminution in symptoms between the time of the reports that were provided to me that were prepared for the compensation claim following the accident and the assessment by Mr Cummins in 2014.
21 I note that you have had a psychiatric admission, which appears to be the result of a drug-related psychotic episode. Mr Cummins otherwise rules out any mental illness, intellectual disability or deficit in intelligence, or personality disorder which might explain your behaviour or bear upon the weight to be given to deterrence, moral culpability or prospects for rehabilitation.
22 Although you appear to have made some improvement in your recovery from the post-traumatic stress disorder symptoms between 2010 and 2014, I nonetheless accept the recommendations in Mr Cummins’s report that you would benefit from engaging in mental health treatment to assist you in dealing with those residual symptoms and recommend that you be assessed for suitability for such treatment and that, again, it be provided to you if you are prepared to engage in it whilst in custody or on parole.
23 I was provided with a bundle of reports which were compiled for the purposes of the compensation claim.
24 From that, it appears that you have made a full recovery from that head injury, but I accept that you still suffer and will continue to suffer pain and limitations in strength, movement and mobility from the injuries you sustained to your bowel and to your neck and back. These permanent injuries limit your opportunities for engaging in manual work, particularly any weight-bearing manual work. It is to be hoped that during your time in prison you will reflect on your future prospects and engage in some meaningful vocational training, so as to equip you with the skills to engage in paid employment, or further vocational training upon your release, compatible with your physical limitations and capable of giving you something meaningful to do with your time.
25 Although money is no adequate compensation for the suffering you have experienced as a result of the accident and the residual disabilities you will continue to carry, you have received a substantial sum, $400,000, in compensation. Fortunately, given the lifestyle you have led and you have been leading, that is held in trust in the Supreme Court, so it has not been dissipated on drugs and alcohol. It is available to help support you and, I would hope, could be disbursed in part to assist you to engage in long-term residential drug rehabilitation on your release from prison, to engage in counselling or treatment for your mental health and to assist you to engage in vocational training upon your release, if you wish to avail yourself of any of those opportunities. I am saying that expressly so that these reasons for sentence can be conveyed to the Associate Justice in charge of the list so it can be considered when further applications are made by you for drawing down funds.
26 Although you expressed regret for your actions when arrested and showed the police where you had dumped the gun, the clothing and the bag you had with you at the time of the armed robbery, I do not consider your expression of concern for the effect on your victim as genuine. You told the police you felt you had no choice; it was get money or get your head kicked in. You no longer maintain that you were under immediate pressure to pay money for drugs either already supplied or about to be purchased. That makes your decision to advance your own interests in getting money for your own purposes, either to pay for drugs already supplied or to pay for some more, and inflicting harm on someone else to spare yourself what you said was going to be the consequences of not paying for your own drug debt, seem to me to be a more realistic and likely explanation for your conduct. Such an explanation does not sit comfortably with the genuineness of an expression of remorse for the consequences for the victim. There is nothing in the materials before me to suggest that they are anything more than empty words expressed after being caught and confronted.
27 I accept Mr Cummins’s conclusion at [45] of his report that your prognosis is currently very guarded both with respect to your prospects for long-term rehabilitation and, hence, with respect to your prospects for refraining from further criminal offending. He said, “In my opinion, anything the court could do to assist him to commence and remain in long-term residential drug rehabilitation is likely to be of considerable benefit to this still relatively young man”.
28 It is obvious that this offending requires a term of imprisonment with a component immediately served and longer than the time you have already spent in pre-sentence detention. I can only hope that you will use this as a time to circuit-break, to not avail yourself of the all too easy availability of drugs in prison, but to use the time to dry out, to give yourself a considerable period of not using drugs or alcohol, of learning how to withstand temptation, learning to understand in a controlled and structured environment, what the triggers are for your using, and to start to develop some skills and understanding of that so that you can withstand temptation and understand and enjoy what it is like to live a life that is not moving from one drink to the next or one hit to the next.
29 That should, if you take advantage of it and you use the time to reflect about where you have been and where you would like to be, be an opportunity to help you build upon that on structured release on parole, if the parole board sees fit to release you, and then on unstructured, unsupervised release once parole has finished. It is entirely up to you, Mr Knewstubb, but it is just such a waste to see a man of 26 who has done so little meaningful with his life and has amassed such a significant criminal history. You have clearly got the potential to do better, and it is only to be hoped that you will try and do something about it and take advantage of the help and assistance that is around you to assist you to do that. Otherwise, I am afraid we are just going to see you back before the Magistrates Court and before this court, and maybe the Supreme Court, for the rest of your life, and that is not a way to live your life. You have got much more going for you and much more you could do if you wanted to.
30 Could you now please stand.
31 On the two charges, the indictable charge and the uplifted summary charge, to which you have pleaded guilty, you are convicted.
32 On the charge of armed robbery, you are sentenced to be imprisoned for a period of three years and six months.
33 On the charge of possession of the prohibited weapon, you are sentenced to be imprisoned for a period of three months, and I direct that one month of that be served cumulatively upon the sentence for armed robbery.
34 That makes a total effective sentence of three years and seven months, and I direct that you serve a period of two years and four months before being eligible for parole.
35 I declare that you have spent 185 days in presentence detention, and direct that that be counted and reckoned as part of the sentence already served. Pursuant to s.6AAA of the Sentencing Act1991, I declare that, but for your pleas of guilty, I would have sentenced you to a total effective sentence of five years and two months imprisonment and would have fixed a non-parole period of four years.
36 I have been asked to make compensation and disposal orders, and they have been consented to, and I propose to make them. You can take a seat while I sign those.
37 Do the orders that I have pronounced reflect what I said I intended to do, is the arithmetic correct and are there any further orders that are required to be made?
38 MR MARTINI: Nothing further, Your Honour, as far as I am concerned.
39 MS WARDA: No. No, Your Honour.
40 HER HONOUR: The orders correctly reflect what I said I intended to do?
41 MR MARTINI: Yes, Your Honour.
42 MS WARDA: Yes, Your Honour.
43 HER HONOUR: All right. I have signed the disposal and compensation orders. Could you remove Mr Knewstubb, please.
44 MR MARTINI: As Your Honour pleases.
45 MS WARDA: As Your Honour pleases.
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