Director of Public Prosecutions v Vaughan, Craig

[2013] VCC 129

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

AT WARRNAMBOOL

CRIMINAL DIVISION

Case No.  CR-12-00937

DIRECTOR OF PUBLIC PROSECUTIONS

v

CRAIG VAUGHAN

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JUDGE:	HIS HONOUR JUDGE LECKIE
WHERE HELD:	Warrnambool
DATE OF HEARING:	26 November 2012; 28 November 2012; 29 November 2012; 3 December 2012 (in Warrnambool)
DATE OF SENTENCE:	21 February 2013 (in Melbourne)
CASE MAY BE CITED AS:	DPP v Vaughan, Craig
MEDIUM NEUTRAL CITATION:	[2013] VCC 129

REASONS FOR SENTENCE
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Subject:  Plea - Armed Robbery        
Sentence:                 7 years imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D. Piekusis	OPP
For the Accused	Mr D. McKenzie	VLA

HIS HONOUR:

1       Craig Vaughan, you have pleaded guilty to one count of armed robbery.  The maximum penalty for this offence is 25 years' imprisonment. 

2       The circumstances of your offending are set out in the agreed summary of prosecution opening, which is Exhibit A.  In summary, they are as follows:

3       On Monday 9 March 2009, the final day of the Port Fairy Folk Festival, the Port Fairy IGA Supermarket ceased trading at 8 pm.  The front doors were closed and locked.  The cashiers on duty placed the takings in the safe at the rear of the store and left.  The duty manager of the store, Garry Burns, remained and checked that the front doors were locked.  At about 8.24 pm, you and a co-accused, Christopher Smith, who has since committed suicide, entered the supermarket via a rear door of the store and hid behind some boxes.  At approximately 8.55 pm, Mr Burns commenced turning off the lights throughout the store and locked the back door.  He then checked that the safes were locked and placed the keys in an office.  As he stepped out of the doorway, he heard a voice say, "G'day mate," in a non aggressive manner.  He then saw a shortened long arm firearm pointed at him and he thought it was a .22 rifle.

4       You and Mr Smith then confronted Mr Burns.  Mr Smith was holding the firearm and wearing a balaclava.  You were also wearing a balaclava and were armed with a black torch, which you were holding at waist height pointed at Mr Burns' chest area.  Initially Mr Burns thought the torch was a firearm.  You were also carrying a knapsack and both of you were wearing gloves.  You then both approached Mr Burns and said, "This is a hold up."  He responded by raising his hands and stepping back.  Smith asked about the whereabouts of another store duty manager, whereupon Mr Burns responded by saying she was not at the store. 

5       Threats were issued, which terrified Mr Burns, and he began shaking.  You then told him you wanted the cash from the safe and Mr Burns ultimately opened the safe and you then took the takings for that day, together with the takings for the long weekend.  The total amount stolen was $65,032.  During the time that you were stuffing the money into the bag, Mr Smith kept his firearm pointed at Mr Burns.  Mr Burns was extremely terrified by your behaviour and wanted to go to the front of the store, but was prevented from doing so and told "To sit on a crate and not move."  You both then exited the back of the store.  As soon as you had left, Mr Burns called the police.  You were finally apprehended, on 15 May 2009, by police in South Australia.  When interviewed about this offence you made a "no comment" record of interview. 

6       This is a most serious offence.  It involved the use of a firearm, both of you wore clothing to try to avoid identification and it was clearly a planned and well executed robbery.

7       Your counsel submitted you had played a lesser role than your co-accused, but I do not accept this submission.  Although Mr Smith carried the firearm, you were acting in concert with him and I see no reason to accept that your role during the robbery was any less than his.

8       The effect of your crime on the victim, Mr Burns, has been significant, as was evidenced by his victim impact statement, which was Exhibit C.  The emotional and psychological trauma he suffered on that day is graphically set out in that statement and it endures to this present day.  Mr Gray, a psychologist, in his report, dated 15 June 2009, this report attached to the victim impact statements, stated that in his opinion Mr Burns was suffering an acute stress response in the aftermath of the robbery.

9       There are a number of mitigating factors, however, as pointed out by your counsel.  You have pleaded guilty and I will take that into account in your favour.  Your plea has saved the community the time and cost of a trial and victims the ordeal of giving evidence at a trial.  I note that in the judgment of His Honour Judge Tilmouth, on 3 June 2011, you indicated that you intended to plead guilty to this charge and that the committal held in this matter was uncontested.  Although the matter was listed for a trial in Warrnambool, in December 2012, this was done, I am informed on the advice of your counsel, but after some preliminary discussion you entered a plea of guilty.

10      In these circumstances I am prepared to accept that you have some remorse for your actions.  This was reinforced by the submission of your counsel that you did not want the victim, Mr Burns, to be subjected to any further stress. 

11      I have been informed of some of your personal history and circumstances.  You are now 44 years of age.  You had a sad and difficult upbringing, the details of which are set out in a letter to the court, dated 17 February 2013, from your sister, which was Exhibit 2.  Your parents fought a great deal and separated and divorced.  In this dysfunctional environment, you never were able to form a loving relationship with either of your parents.  Your mother abandoned the family and your father was left trying to bring up four children.  When you were about 14 or 15 you were placed in a foster home.  You left school aged around 16, having completed Year 10 and part of Year 11.  You have worked in various forms of employment, but have developed no specific skill. 

12      About 12 years ago you formed a relationship with one Cheryl Ellis who had children from a previous relationship.  That relationship endures and your partner continues to support you whilst you have been in custody. 

13      You have admitted before me to prior convictions.  There are 23 such convictions arising from nine court appearances between 1988 and 2006.  The most significant of these was a conviction for armed robbery in 1988, when you were 19 years of age, for which you were sentenced to a total effective sentence of six and a half years with a minimum of three years.

14      In 1988, you were again incarcerated for breaking and entering and assault.  For these matters you received 27 months with a minimum of 18 months.

15      In 2005, you were sentenced to 20 months' imprisonment with a minimum of eight months for firearms and other offences.

16      

In 2006, you were convicted of aggravated trespass and sentenced to

19 months' imprisonment with a minimum of five months.

17      Considering this record, one would have to be very guarded about your prospects of rehabilitation. 

18      However, since your apprehension in May 2009 and your incarceration in South Australia, you have completed a series of courses which are evidenced by the certificates and other documents which were tendered and are included in Exhibit 1.  You also have negative results from drug testing, although I understand from the plea that alcohol and drugs have never been a serious problem in your life.  This material persuades me that you have been making some positive efforts towards your rehabilitation and consequently I should try to encourage these endeavours as best I can.

19      However, as well as these matters personal to you which I have taken into account, including your prospects of rehabilitation, I must also take into account such matters as deterrence.  Both specific and general deterrence are of considerable importance in this case.  I must also consider the protection of the community from you and bear in mind the likelihood of you re-offending. 

20      I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally impose a just punishment.  The seriousness of your offending in light of your prior convictions, in my view, leaves no alternative but a period of imprisonment and a period of imprisonment of some substance.  However, the matter is complicated by the fact that you are currently serving an interstate sentence and have been transferred under the Prisoners Interstate Transfer Act 1983 to answer this charge.  You also, I am informed, intend to apply to be transferred back to South Australia to complete any sentences that you finally end up with.  To fully understand the position, it is necessary to recite some of the history of the matter.

21      On 25 November 2008, you committed an armed robbery in South Australia.  About four months later you committed the armed robbery in Port Fairy, which is the matter being dealt with today.  You were then apprehended on 15 May 2009 in South Australia.  You were tried and convicted of the first armed robbery and sentenced on 6 June 2011 to a total effective sentence of eight years and nine months with a minimum term of six years and six months.  The period of imprisonment for the armed robbery was eight years.  This sentence was backdated to commence on the date of your apprehension, being 15 May 2009, as is the practice in the State of South Australia.  I am informed that you have now completed three years and nine months of that sentence. 

22      In approaching my task in sentencing you for this matter, I have taken into account, first of all, the principle of proportionality, but also importantly the principle of totality.

23      On the charge of armed robbery, you are convicted and sentenced to a term of seven years' imprisonment.

24 For the avoidance of any doubt, I record my intention that this sentence is to be served concurrently with the uncompleted portion of the South Australian sentence, pursuant to s.16 of the Sentencing Act 1991.

25 Pursuant to s.14 of the Sentencing Act in Victoria, I would fix a new non parole period of four years and nine months.  This minimum term has been set to take into account the three years and nine months you have already served in South Australia. 

26      Pursuant to s.6AAA, I state that but for your plea of guilty I would have imposed a sentence of eight years with a minimum term of six years and six months. 

27      I have made orders in relation to disposal and forfeiture and signed those orders.

28 I also make an order pursuant to s.464 of the Crimes Act 1958 that you provide a forensic sample by way of a buccal swab.  I am obliged to inform you that should you not comply with the order, a properly authorised police officer may use reasonable force to obtain that sample.

29      (Disposal order signed and acknowledged.)

30      (Forfeiture order signed and acknowledged.)

31      (Section 464ZF order signed and acknowledged.)

32      Any issues or queries about the sentence?  I have used the formula used by His Honour Appeal Justice Redlich, I have plagiarised that from his sentence in Barbaro.  What it means, as I understand it, is that he has five years left to serve in relation to the South Australian sentence, but the sentence of seven years which will run concurrently with that means that when the five year elapses he will have two years left, so he gets two years on top of his head sentence.

33      MS PIEKUSIS:  Yes.

34      HIS HONOUR:  In relation to the minimum term, as I endeavoured to explain in my sentence, he has done three years and nine months of the minimum term from South Australia.  My minimum term of four years and nine months will mean that he will have a minimum effectively of eight years and six, which again means two years on top of his minimum term, because it will run from today according to our Act.

35      MS PIEKUSIS:  Yes, Your Honour.  Thank you for that.

36      MR McKENZIE:  Thank you, Your Honour.

37      HIS HONOUR:  It does not, in my view, offend the Sentencing Act, s.14, which states that the new minimum term must not be such as to render the offender eligible to be released on parole earlier than would have been the case if the further sentence had not been imposed. So although it is a lower minimum term than previously, because it runs in the way it does it is not less than and he will not be released earlier than he normally would be. Effectively he has got two years on top on each.

38      MS PIEKUSIS:  Thank you, Your Honour.

39      MR McKENZIE:  Thank you, Your Honour.

40      HIS HONOUR:  No further queries about the matter?

41      MS PIEKUSIS:  No.

42      HIS HONOUR:  No perceived errors in relation to that?

43      MS PIEKUSIS:  No, Your Honour.

44      HIS HONOUR:  Do you wish to raise any - - -

45      MR McKENZIE:  Yes.  I was just going to raise one issue.  The Appeal Costs Fund certificate relating to the earlier trial.  My understanding is that the documentation is undertaken by Your Honour's staff rather than us completing the paperwork.

46      HIS HONOUR:  I do not follow and I do not remember.  Was there any application made for a certificate under the Appeal Costs?

47      MR McKENZIE:  Yes, there was.

48      HIS HONOUR:  What for?

49      MR McKENZIE:   For the failure of the first trial.

50      HIS HONOUR:  The failure of the first trial?  Why was there a failure of the first trial?

51      MR McKENZIE:   Because the jurors were a problem and we had to discharge the jury, through no fault of the accused.

52      HIS HONOUR:  I do not remember, but.  There seems to be some - my associate remembers the detail of that.  I think it was unclear as to who was to prepare what documentation.

53      MR McKENZIE:   I am not pointing the finger or anything, Your Honour, I just want it sorted out.

54      HIS HONOUR:  No, well I think that - - -

55      MR McKENZIE:   It was in the transcript as well, Your Honour did actually indicate that an Appeal Costs Fund certificate would be provided.

56      HIS HONOUR:  Ms Juric, can you prepare that document.

57      ASSOCIATE:  Yes, Your Honour.

58      HIS HONOUR:  I will leave it to you two to ensure that it gets to me and I sign it.

59      MR McKENZIE:   Thank you very much, Your Honour.

60      

HIS HONOUR:  Otherwise it will not get done, I can tell you right now. 

All right

?

61      MR McKENZIE:   Thank you.

62      

HIS HONOUR:  Thank you.  You may remove the prisoner, thank you. 

Do you wish to be excused?

63      MS PIEKUSIS:  Yes, Your Honour.

64      MR McKENZIE:   If it please Your Honour.

65      HIS HONOUR:  Yes, thank you for your assistance, you are both excused.

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