Director of Public Prosecutions v Urch

[2019] VCC 813

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 18-02074

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOEL URCH

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JUDGE:

HIS HONOUR JUDGE MCINERNEY

WHERE HELD:

Melbourne

DATE OF HEARING:

22 February and 27 May 2019

DATE OF SENTENCE:

3 June 2019

CASE MAY BE CITED AS:

DPP v Urch

MEDIUM NEUTRAL CITATION:

[2019] VCC

REASONS FOR SENTENCE

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Subject:

CRIMINAL LAW

Catchwords:

Plea of guilty – armed robbery

Legislation Cited:

Crimes Act 1958; Criminal Procedure Act 2009; Sentencing Act 1991

Cases Cited:

DPP vTokava [2006] VSCA 156; R vMerrett, Piggott & Ferrari [2007] VSCA 1

Sentence:

Convicted and sentenced to 220 days imprisonment, a community correction order for a period of three years and fined $5,000. Pre-sentence detention of 220 days imprisonment declared pursuant to s.18 of the Sentencing Act as already served under this sentence.

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APPEARANCES:

Counsel

Solicitors

For the Director of Public Prosecutions

Ms. E. Strugnell

Office of Public Prosecutions

For the Accused

Ms A. Beech (At plea)

Mr. T. Bell (At sentence)

Galbally Rolfe

HIS HONOUR:  Joel Urch is 21 having been born on 23 December 1997.  At the time of this offence he was 20.  On the plea in this matter, Ms Beech appeared on behalf of Mr Urch and his solicitor, Mr Bell, appears today. 

Ms Strugnell has appeared on behalf of the Director throughout.  Today was tendered as Exhibit C, the report from the Department of Justice, which I ordered last time and in regard to that report, I want to thank Mr Dillon for his attention to that matter.  The report is dated 27 May.  It is a positive report, which is in Mr Urch's favour. 

The indictment in this matter is J11873888 and Mr Urch was charged in regard to that, on 17 July 2018, the matter resolved by October 2018. 

The charge in that indictment is an offence under s.75A of the Crimes Act, a charge of armed robbery, but for murder, the most serious charge in our criminal statute, and as a result thereof, a 25 year maximum is imposed by Parliament. 

Under current legislation it is now a Category 2 offence for which there are particular requirements by way of immediate imprisonment and minimum parole periods, however fortuitously for Mr Urch, this offence did not attract those particular legislative matters having come into effect October following the commission of this offence.

Mr Urch comes before the court with no priors.  To come before the Court with no priors and on an offence of armed robbery is about as big a leap as you can make into criminal activity. 

The circumstances were that the victim in this matter, Mr Paudel, was on a bench in a street close to the Werribee Station. He was then attacked by Mr Urch and another, when a demand was made for money, for which a knife was used.  That knife was set out in the photograph, Exhibit B, which was tendered herewith. As a result of this armed robbery, Mr Urch and his companion received $50 and a mobile phone, which was subsequently broken. The stupidity of this offence is demonstrated by those two circumstances.  The armed robbery produces $50.  As a result Mr Urch becomes before this Court facing an offence for which the maximum penalty is 25 years imprisonment. 

I have also been asked to take into account, a further offence under s.145 of the Criminal Procedure Act which is committing an offence while on bail.  These were possession matters in regard to drugs.  The maximum penalty applicable is one of 30 penalty units and/or three months gaol.

The summary of this matter is bleak as I have described, and was set out in Exhibit A by the learned prosecutor.  The matters and facts therein were accepted by counsel, Ms Beech, as the facts upon which I am to sentence.

When conducting the record of interview Mr Urch said he had no real recall of the circumstances, and noted that he was 'flying high,' and had been for some time. 

Pre-sentence detention is 220 days.

There is no victim impact statement, albeit that the victim in this matter was contacted.  I have signed the disposal orders in regard to the knife and also forensic sample orders.  It is hoped that they will never be needed and that Mr Urch will never be before a court again.

Insofar as the plea is concerned, counsel tendered as Exhibit 1 the defence plea and submissions dated 15 February 2019.  The plea noted the time spent in gaol which has been agreed at 220 days and sought an adjournment essentially of the sentence in this matter, so that Mr Urch could attend an Odyssey House program. 

That document which was tendered on the last hearing, or put to the court but only identified as Exhibit 6 today, shows that in addition to the drug-free status that Mr Urch has just attested under oath of 11 months, he's undertaken this preliminary procedure at Odyssey House.  It was an eight week course aimed to educate and assist residents in developing an awareness which hopefully will lead to a situation where they give up drugs. 

In addition, at the last hearing, his uncle provided a letter, Exhibit 9, that is Mr Brookshaw, indicating that should he be lucky enough not to be gaoled today, there is a job awaiting him.

Albeit that he comes before the Court with no priors, we know that in fact after he was remanded there were other matters at the Sunshine Court, and as I said essentially they were possession matters.

He was in fact arrested four days after these crimes and charged with attempted trafficking and was placed on the CISP program by the Sunshine Court on 30 April 2018. 

The period during which he was incarcerated produced Exhibit 5, and they are four negative drug screens taken in the period 23/08/18 to 19/12/18.  Prior to that time, the CISP program progress was reported and is set out at Exhibit 7, they are three reports from the CISP program dated 30/04/18, May of 2018, and June of 2018, and then also an ACSO letter.

It is noted in that ACSO report that even despite these crimes, he was still participating in drugs. As I just pointed out to Mr Urch, he has had two opportunities in employment in his life, and messed up both of those with drugs. 

The plea essentially proceeded along the basis that I had indicated, seeking from this Court a determination which allowed Mr Urch to stay out of gaol, despite the serious matter in this case. 

The program was completed at Odyssey House over the period 25/2 to 3/5 of this year, and as I said, Exhibit 9 shows that such was positive. 

The personal circumstances relied upon are set out at paragraph 4, and as I say, the impact of drugs is obvious from those. There is not much that can be said about the offending, although it was pointed out that there were certain matters objectively that put it at not the highest culpability for an armed robbery, and that is, that the offending was brief, no pre-planning, to say the least it was unsophisticated, given that CCTV cameras were able to lead to the identification of the victim.

However, of course, it must be noted that there was a serious use of the knife in this crime.  Of course that does not aggravate it, because that is the very element of an armed robbery.  There was recognition by your counsel as to how serious the crime was. 

As I have already indicated, your counsel relies on the early plea of guilty, on your limited priors, upon the excellent character references and in particular now your uncle's reference, Exhibit 9, which talks about, hopefully, you having good employment. You have obviously got the capacity, and further she relied upon your remorse, as demonstrated by your plea and cooperation.

The fundamental issue for you is to rehabilitate and live your life crime-free, and the only way you are going to do that, as I just said to you, is being free of drugs. 

There is, in your life, one positive circumstance and that is the way that you have remained drug-free according to your oath, for the last 11 months, and in particular, the steps you have taken, most recently, at the Odyssey House program.

As I say, there were strong character references in regard to you from your father, from your grandmother, from a family doctor.  I have spoken about the other tests and there was also a psychological report tendered on your behalf from Ms Lechner. That psychological report is dated 27 December 2018 and was tendered, as I said, as Exhibit 2. 

In that report you appeared to have been quite honest, when reporting to her, long-standing drug abuse, specifically with problems of stimulants and cannabis-use disorder.  She noted that you were in early remission, given that at the time you were in prison.

Clearly you were a person who used many drugs over the period, you acknowledged in your interview with Ms Lechner, the seriousness of your criminality. 

Ms Lechner said that, which is obvious, your offending has arisen in the context of a stimulant and cannabis use disorder from which you were suffering, now in early remission.  As I said earlier, really you apparently had no understanding of what you had done, given that you were drug-addled at the time. 

Ms Lechner thought at interview, you impressed as cognitively, socially and emotionally immature, with somewhat limited ability to reflect on the impact of your behaviour, both on yourself and others.  She thought from a purely psychological perspective, that you are a youthful offender who would benefit from a period of community supervision. 

Your counsel stressed your youth and the importance of rehabilitation.  I might say Mr Urch that it has not been an easy determination for the Court as to what to do with you.  We are dealing here with very serious criminality for which the community rightly expects this Court to impose an appropriate penalty.  The maximum provided by Parliament gives an indication of what that can be.

That is one of the reasons why, having considered all these matters in the last week, I felt that I should hear from you, and also that it should be very clear from the evidence you have given under oath today, that if you mess up again, the consequences will be clear.  You will not really need counsel next time, you just need to bring your toothbrush, you understand?

OFFENDER:  Yes.

HIS HONOUR:  Because of your young age, it is necessary for this Court to try and balance all of the factors, not only the need for general deterrence and specific deterrence given the seriousness of this crime, not only the factor that Parliament has imposed such a harsh penalty for such a serious crime, but the other factors set out in our Sentencing Act which this Court must take into account, and those are the factors that your counsel has put to me, and in particular, the issue of rehabilitation. 

This Court has always been assisted by the words of the current President, that is, of the Court of Appeal,  firstly, in DPPvTokava [2006] VSCA 156 where, [21], the President said:

'A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred.  Even in the case of a serious offence, if, in the long term, the community interest will be best served by that course.' 

The President further said in The Queen v Haydn Frank Merrett, Piggott and Ferrari [2007] VSCA 1, [49]:

'The sentencing court looks to the future as well as to the past.  There is very great benefit to the community at large as well as the individuals themselves and their immediate families, if future criminal activity can be avoided.  It is important that this court, by its own sentencing dispositions, recognises and rewards efforts at rehabilitation, just as we should support trial judges who do so.  It is important to reinforce in the public mind, the very considerable public interest in the rehabilitation of offenders.  The preoccupation with retribution which characterises much of the public comment on sentencing, is understandable, but it focuses on only one part of what a sentencing court does.'

Mr Urch, given the positive CCO report prepared for you, I have determined that it is appropriate, as your counsel requested, to pass upon you a sentence which involves both imprisonment and the service of a community correction order. 

That community correction order if you consent to it, will have all of the conditions recommended in the report, all of these being designed to get you on the right path. 

It will also have a condition that you abstain from drugs, and I warn you now, if you come before this Court having breached that CCO in the next three years, then you know what to expect. 

I also intend to impose a fine on you of $5,000, given your employment position, I accept that that may take some time, so I am prepared to impose an initial stay of 12 months, however I would expect if you sought any further than that, a considerable amount of that money to be paid before any application was made to me or Mr Bell for any further extension.

My intent is that the 220 days served should be the period of imprisonment under this joint order, and that there will then be immediately imposed today a three year community correction order with the conditions that I have indicated and a fine of $5,000. 

I understand Madam Prosecutor, that the correct way to make these orders that comply with the Court of Appeal, is that I make that order and then I make the declaration under s.18, so that it is clear. If you read it, I do not know whether you need to do that, but the Court of Appeal has been very clear, they want the declaration made.

As to the summary charge, I sentence you to 14 days gaol to be served concurrently with the sentence imposed in the indictment.

MS STRUGNELL:  Yes, Your Honour. 

HIS HONOUR:  Mr Bell, do you want to explain to your client what all that means in simple English.

MR BELL:  Yes, Your Honour.  May I approach the dock, Your Honour.

HIS HONOUR:  Yes.

MS STRUGNELL:  Just noting that Your Honour does have also the power to impose testing as part of the treatment and rehabilitation for drugs.

HIS HONOUR:  That is requested, isn't it?

MS STRUGNELL:  It is not specifically mentioned in the report, Your Honour.

HIS HONOUR:  I will impose that as well. 

MR BELL:  Thank you Your Honour.

HIS HONOUR:  Mr Urch the point of this sentence, if you stand up please, is to - for once and for all - force you in your own interest, to give up drugs and that is why there will be drug testing, and a provision that you are not to consume drugs. 

It is intended to be harsh, because you have committed a very serious offence, but also to try and make you in the future a worthwhile member of the community, so that you use the skills that you have got, and you are not in gaol.  Do you understand?

OFFENDER:  Yes, Your Honour.

HIS HONOUR:  Mr Bell, do you tell me that your client is fully appreciative of that?

MR BELL:  Yes, Your Honour.

HIS HONOUR:  Yes, well that is what I propose to do.  Pursuant to the provisions of s.6AAA to the extent that I can take into account just one factor, that is, the plea of guilty, can I indicate that had Mr Urch not pleaded guilty, the sentence I would have imposed would be a period of four years with a minimum of two years to serve before being eligible for parole. 

Mr Urch, the Parliament requires me to tell you that had you not pleaded guilty, the sentence you would have got is one of four years with a minimum of two years, not 220 days with a CCO.  Do you understand?

OFFENDER:  Yes, Your Honour.

HIS HONOUR:  So that perhaps gives you some indication what you might be getting if you come back.

Yes, anything else I have to attend to Madam Prosecutor?

MS STRUGNELL:  No the only - is Your Honour minded to impose community work hours?

HIS HONOUR:  Yes, that has been recommended, hasn't it?

MS STRUGNELL:  Has Your Honour - Your Honour hasn't stipulated the number of community hours.

HIS HONOUR:  Yes, I have not stipulated it.  All right, I thought I did.  Yes well, over the three years, I will impose a period of 150 hours.  That should not be too hard. 

MS STRUGNELL:  As Your Honour pleases.

HIS HONOUR:  That takes into account the fact that hopefully he will be working during that period.  Anything from your point of view, Mr Bell?

MR BELL:  No, Your Honour.

HIS HONOUR:  All right, you can take a seat Mr Urch and we will prepare those documents, and he can sign them and we will be on our way. 

MR BELL:  Can I just approach the dock, Your Honour?

HIS HONOUR:  Yes. 

MR BELL:  Thank Your Honour.

HIS HONOUR:  Yes, Mr Urch, I wish you good luck.

OFFENDER:  Thank you, Your Honour.

HIS HONOUR:  Do not disappoint your family and the community or the Court, all right?

OFFENDER:  Yes, Your Honour.

HIS HONOUR:  Yes.

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