Director of Public Prosecutions v Uranga
[2019] VCC 1404
•23 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02307
Indictment No: H12322807
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDRES URANGA |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 August 2019 | |
DATE OF SENTENCE: | 23 August 2019 | |
CASE MAY BE CITED AS: | DPP v Uranga | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1404 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Trial – Sentence – Armed robbery – Imitation firearm – Victim impact statements.
Legislation Cited: Sentencing Act 1991
Sentence: 10 years’ imprisonment with a non-parole period of 8 years’ imprisonment; 736 days pre-sentence detention.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Buckland | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr D. McGlone (for the trial). Ms N. Valos (for the sentence) | Valos Black & Associates |
HIS HONOUR:
1 Andres Uranga, after five days of pre-trial argument, on 13 June 2019 you were arraigned and pleaded not guilty to an Indictment containing five charges of armed robbery. On 21 June, a jury convicted you on each charge of armed robbery.
2 You were remanded in custody with your plea listed for 9 August.
3
Tendered as Exhibit A was the plea opening after trial that was read aloud in court. Your offending can be shortly stated. At about 5.30 pm on
12 February 2017, you committed an armed robbery at the United petrol station on St Albans Road, St Albans. Your victims were Karan Singh and Yew Lee, attendants working behind the counter at the service station. You rode a bicycle to the store and entered the store brandishing a weapon that appeared to be a handgun, and which ultimately turned out to be an imitation firearm. You yelled, 'Give me all the money'. Singh fled. Lee handed over approximately $400 from the till. You left the scene on the bicycle (Charge 1).
4 At about 7.06 pm on 21 May 2017, you committed an armed robbery at the Pharmasave chemist situated in Station Road, Deer Park. The victims were the pharmacist, Boa Truong, and his assistant, Karen Huyn. Upon entering the store, you walked directly to the counter, pointing your firearm at the pharmacist and saying, 'Give me the money and no one will get hurt'. The pharmacist removed $300 from his wallet. You then made demands on the pharmacist to open the cash register, during which you held the imitation firearm to the pharmacist's head. At this time, your second victim, Karen Huyn, was present at the counter. The victims handed over all the notes from the till. You demanded that your victims lie down on the floor while you exited the pharmacy (Charge 2).
5
At about 5.52 pm on 18 June 2017, you committed an armed robbery at the Woolworths petrol station situated on Neale Road, Deer Park. Your victim, Kerry Medlicott, was working behind the counter at the petrol station as an attendant. You produced an imitation firearm from a navy and grey backpack and made demands on Medlicott for money. You stole $200 in cash before fleeing (Charge 3). The following day, at about 4.40 pm, you committed an armed robbery at Your Chemist pharmacy, situated in Main Road West, St Albans. Present in the pharmacy was the pharmacist, Ms Le, and a sales assistant, Ms Selmic. You approached the counter behind which Ms Selmic was standing and produced an imitation firearm from your backpack and pointed it at Ms Selmic saying, 'Give me the money'. Ms Selmic gave you cash from the till, but not content with that, you demanded personal property from
Ms Le, who denied having anything in her pocket. You left the pharmacy and rode away on a bicycle (Charge 4).
6 On 10 July 2017, at about 12.30 in the afternoon, you committed an armed robbery at a milk bar situated in Porter Court, Deer Park. Your victim was the milk-bar owner, Guo Feng, who was working behind the counter in the shop. You entered the store, removed an imitation handgun from your backpack and menaced Mr Feng with it. You demanded money, and Mr Feng handed cash from the till over to you. Immediately thereafter, you jumped over the counter and stole a number of packets of cigarettes from a cabinet behind the counter. You stole approximately $400 in cash and some cigarettes. In respect of this offence, you were seen on closed-circuit television arriving and leaving in the area close to Porter Court, Deer Park in a blue Holden HZ SV6 Commodore sedan (Charge 5).
7 You were arrested on 17 August 2017 at 30 Tenterfield Drive, Burnside Heights, the address of a friend with whom you were then temporarily staying. You were interviewed under caution that evening and made denials. Searches of the Tenterfield Drive address and your normal address of 4/23 Lennon Parkway Derrimut were conducted on 17 and 18 August 2018. These searches produced items of clothing, footwear, backpacks and an imitation firearm that, when compared with the closed-circuit television footage of each of the armed robberies, demonstrated to the jury's satisfaction that you committed each of the five armed robberies.
8 As at the time of your plea, you had spent 722 days by way of pre-sentence detention.
9 The maximum penalty for armed robbery is 25 years' imprisonment.
10 Tendered as Exhibit B on the plea were the victim impact statements of Karen Huynh (Charge 2), Kerry Medlicott (Charge 3) and Guo Feng (Charge 5). The contents of Mr Feng’s victim impact statement demonstrate that he is a stoic. The same cannot be said of Ms Huynh or Ms Medlicott, who have been profoundly affected by your conduct. Ms Huynh describes her life prior to the armed robbery as being one in which she lived to the fullest. However, as at the time of signing her victim impact statement, she felt robbed of her sense of composure and mental clarity, and had been left in a sense of fear, anxiety and trauma. The trial process, and particularly the cross-examination of her, significantly affected how she managed her studies. In addition, she was too scared to resume work immediately after the armed robbery and she took some two months' leave in order to regather herself. She found that on returning to work she was unable to properly function and carry out her usual duties. She was unable to resume her usual shift work and this reduced her income, and she was subsequently made redundant in her job. Additionally, she found herself failing most of her subjects, as well as being temporarily jobless. She describes herself as, 'I was forever deemed as "the girl who got robbed at gunpoint" and was no longer viewed as the "hardworking student" anymore. Due to the trauma I no longer wish to work in a community pharmacy anymore and my career as a pharmacist is limited due to what has happened', and generally speaking, she no longer feels safe.
11 Ms Medlicott experiences nightmares in which she dreams that you will find her and kill her. She is afraid to get out of her car at night, or to attend or leave her workplace in the dark, for fear that you will come back and kill her. She experiences panic attacks when anyone comes into her place of work wearing a hoodie. She feels exposed and unsafe at work. Your conduct has affected her ability to feel safe and secure even in her own home. Your conduct has had an economic effect on her and she is afraid to accept shifts at work at night, and this has reduced her income. In short, she feels extremely unsafe at her workplace.
12
Tendered by Mr McGlone, counsel on your behalf, were Exhibit 1, his submissions; Exhibit 2, the report of Carla Lechner, psychologist, dated
9 July 2019; Exhibit 3, a bundle of certificates of courses undertaken by you whilst you have been on remand and; Exhibit 4, a number of urine analysis results that demonstrate that you are clear of illicit drugs, but confirm that you are presently on methadone at a therapeutic level.
13 You are 36 years of age and are the third of four children born to your parents, Nora and Juan. You were born and raised in Montevideo in Uruguay. Your parents separated at about 15 years ago and you have maintained a close relationship with your mother, but have had no contact with your father since that time. You told Ms Lechner that your parents were of the Jehovah's Witness faith and that your upbringing was very strict, with no birthday celebrations permitted and no Christmas celebrations, and that it was compulsory to attend church three times a week. Your father disciplined you physically, but was never violent towards your mother. You reported to Ms Lechner that you were sexually abused at the age of six or seven years by a slightly older family member. Although this aspect of your background was not expanded upon during the course of the plea, you reported to Ms Lechner that you could not recall any lasting impact from that experience.
14 In respect to your education, you completed Year 9 at school. You had very few friends at school because of your religion and you were discouraged by your parents from socialising outside school. After leaving school, you worked as a gardener for about three years and when you turned 18 years of age you left the Jehovah's Witness faith, which enraged your father. The deterioration between you and your father prompted you to contact a paternal uncle in Australia and you obtained a 12-month tourist visa in 2002 to come to Australia. On arriving in Australia, you worked for your uncle as a cleaner in order to repay him for the cost of your airline ticket.
15 When you arrived in Australia, you had no English and learned English from television and radio. You instructed Ms Lechner that you can speak and read and write English, and that you only have problems with 'some words'.
16 You felt that you were exploited by your uncle and left his home and commenced to work as a painter. You continued to work as a painter until about five years prior to your arrest, when you took up carpentry and worked with a former brother-in-law. While working as a carpenter, you suffered a workplace injury in 2015, when a portion of a nail flew into your left eye. The lens of your left eye was damaged, resulting in you having permanent blurred vision in that eye. You were a recipient of WorkCover payments from 2015 until 2017. You reported to Ms Lechner that you became extremely depressed subsequent to this injury and that your consequent inability to work, and as you were the sole provider for your then partner and child.
17 You married Rubenia Fernadis in 2005. You have a daughter, Sofia, who is now aged 13 years. As a result of this marriage, you were able to obtain permanent residency in Australia. Mr McGlone, on your behalf, informed me that you were introduced to illicit drug use by your brother-in-law, and it was during your marriage that you began to use heroin and cannabis. It was put on your behalf that your drug abuse contributed to the dissolution of your marriage. Subsequent to your industrial accident, you commenced to use methylamphetamine, or ice, and your habit at or about the time of your offending was approximately $150 per week. You also used cocaine sometimes. It is to be noted that you are prescribed methadone while in custody. In respect of alcohol, you commenced drinking at the age of 18 and were drinking heavily at the time of your divorce. You have a prior criminal history that principally involves drink-driving offences.
18 For a period after your divorce, you effectively became homeless and lived in your car until you commenced a relationship with a Ms McNally, to whom you have a daughter.
19 While in custody awaiting trial, you were visited by both your wife and current partner, and your children. I was informed by Mr McGlone that the relationships between you and your former wife and your most recent partner are at an end; however, they both wish for you to have a relationship with your children. However, it is to be noted that their frequency of visiting you has diminished over time from once per week to perhaps once per month. In all likelihood, because of the length of the sentence that I must impose on you, the frequency of visits by your former partners and your children will reduce and eventually become non-existent.
20 The remainder of your family continue to reside in Uruguay, save for your paternal uncle, with whom you have no relationship. Accordingly, you will be isolated within the prison system and I must take this into account when arriving at an appropriate sentence in your case.
21 Ms Lechner assessed you as being within the 'average' range of intelligence and that you are presently depressed, that results from the combined effect of your industrial accident and a reaction to your present situation.
22 Each of the armed robberies you committed were serious examples of crimes of the kind. You committed armed robberies on soft targets, you were aggressive and demanding in your demeanour and you were armed with an imitation firearm. Your victims were not to know that the firearm was an imitation, and you used the firearm to threaten each of your victims and, in particular, the pharmacist, the subject of Charge 2. I regard the offending the subject of Charge 2 the most serious because of your conduct towards your victim, the pharmacist. I regard the least serious example of your offending as Charge 1, as your victims were protected behind a counter and stainless steel cables although your conduct was threatening and caused one of your victims to flee. Charges 3, 4 and 5 were committed in a period of approximately three weeks and are all of equal seriousness in my view. However, the frequency of the last three armed robberies is of concern, and in the last you jumped the counter in the shop to steal cigarettes. Each of the offences is deserving of condign punishment.
23 You are an appropriate vehicle for the application of the principles of both general and specific deterrence and your conduct must be denounced publicly.
24 Upon release from prison, in all likelihood, you will be deported back to your homeland and this will weigh upon you while you serve your sentence.
25 As to your prospects of rehabilitation, I have no insight into this matter at all and can make no finding in respect of you. You pleaded not guilty and ran your trial, and accordingly, you have demonstrated no remorse for your conduct and you maintained your innocence to Ms Lechner.
26 I pause at this moment. Can I confirm pre-sentence detention is 736 days?
27 MR BUCKLAND: Yes, Your Honour.
28 HIS HONOUR: Thank you. By this sentence, I must punish you, publicly denounce your conduct and deter you and others from committing these kinds of crimes. Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows.
29 On Charge 1, four years' imprisonment. On Charge 2, six years' imprisonment. On Charge 3, five years' imprisonment. On Charge 4, five years' imprisonment. On Charge 5, five years' imprisonment. I order that 12 months of the sentences imposed on Charges 1, 3 and 5 be served cumulatively upon each other and on the sentence imposed on Charge 6. This results in a total effective sentence of 10 years' imprisonment and I fix a period of eight years' imprisonment as being the period of imprisonment that you must serve before you will be come eligible for parole. I declare that you have spent 736 days by way of pre-sentence detention, not including today. Are there any other matters?
30 MR BUCKLAND: No, Your Honour.
31 MS VALOS: No, Your Honour.
32 HIS HONOUR: Remove the prisoner.
33 (At a later stage.)
34 HIS HONOUR: Mr Uranga, I apologise to you for this inconvenience and to counsel. I believe that I announced the basis for your sentence in error and made a slip when I announced it, so I accordingly - your sentence remains the same but the orders for cumulation should read, I order that 12 months of the sentences imposed on Charges 1, 3, 4, 5 and 6 - no, sorry, 1, 2, 3, 4 and 5 be served cumulatively upon each other and on the sentence imposed upon Charge 2. I believe I announced in open court Charge 6 in error. So that this results in a total effective sentence of 10 years' imprisonment and I fix a non-parole period of eight years' imprisonment as being the period of imprisonment that you must serve before you will become eligible for parole. Mr Buckland, what did you have as - - -
35 MR BUCKLAND: Look, what I did is I typed six and I remember correcting to two, but I thought that was because I was looking at this (indistinct) sentence and I thought I heard it - typed it in error. So, I am sorry.
36 HIS HONOUR: In any event, the error I believe I made has been corrected. I apologise once again to counsel and to you, Mr Urana. Ten-thirty Monday morning. Would you remove the prisoner please.
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