Director of Public Prosecutions v Vendy
[2024] VCC 1707
•28 October 2024
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01948
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GAVAN VENDY |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 24 October 2024 | |
DATE OF SENTENCE: | 28 October 2024 | |
CASE MAY BE CITED AS: | DPP v Vendy | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1707 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Attempted armed robbery – Damaging property – Possess registered category A longarm without licence – Prior criminal history – Genuine remorse – Very good prospects of rehabilitation – Verdins.
Legislation Cited: Crimes Act 1958 ss 75A, 321M, 197(1); Firearms Act 1996 s 6(1); Sentencing Act 1991 ss 6AAA, 44.
Cases Cited:The Queen v Alashkar [2007] VSCA 182; Williams v The Queen [2018] VSCA 171.
Sentence: Imprisonment for a period of 8 months with a Community Correction Order for a period of 2 years. On Charge 2 and Summary Charge 4 convicted and fined $500 on each charge.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Moore | Office of Public Prosecutions |
| For the Accused | Ms D Lamovie | Victoria Legal Aid |
HIS HONOUR:
Introduction
1Gavan Vendy, you have pleaded guilty to:
(a) one charge of attempted armed robbery contrary to s 75A and 321M of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 20 years imprisonment (Charge 1); and
(b) one charge of damaging property contrary to s 197(1) of the Crimes Act, which carries a maximum penalty of 10 years imprisonment (Charge 2).
2You have also pleaded guilty to a related summary offence of possess a registered category A longarm without being the holder of a licence contrary to s 6(1) of the Firearms Act 1996, which carries a maximum penalty of 120 penalty units or 2 years imprisonment (Summary Charge 4).
3You have also admitted your Criminal Record.
Circumstances of the offending
4A prosecution opening was tendered on the plea and may be summarised as follows:
5The victims in this matter are Sara Wigmore and Maria Thomas, who were both employed at Bakers Delight Pty Ltd located at Shop 3, Park Lane, Daylesford. You and the victims were unknown to each other at the time of offending.
6At approximately 2:45pm on 11 May 2023, you entered Bakers Delight and stood behind an unidentified member of the public, who was being served by Ms Wigmore. You exited the store and sat on a brick wall in the laneway.
7After waiting for all customers to leave Bakers Delight, you re-entered the store.
8Ms Wigmore was at the cash register when you approached the counter and said, ‘get all the money out of the til now’. Ms Wigmore looked at you and observed that you were holding a knife in your right hand, with the blade towards her. You repeated your demand for Ms Wigmore to open the cash register.
9Ms Wigmore did not open the cash register or give any money to you.
10You leant over the counter towards Ms Wigmore, placing the tip of the knife against her rib area.
11Ms Wigmore stepped away from the register before you leapt over the counter demanding her to open the register, pointing at the register with the knife. You told Ms Wigmore, ‘it’s not worth it, getting hurt’ (Charge 1).
12Ms Thomas was in the staff area of the store. She told you they were unable to open the register. Ms Thomas was holding her mobile phone attempting to call triple zero. You grabbed the phone from Ms Thomas hand and said, ‘no you’re not’ before jumping over the counter and running out of the store.
13Ms Thomas chased you on foot through a laneway towards Vincent Street. You threw the mobile phone back towards Ms Thomas where it landed on the ground causing damage to the screen (Charge 2).
14Ms Thomas returned to the store and waited for the police to arrive.
Arrest and interview
15At approximately 9:45am on 27 June 2023, investigators attended an address in Mount Franklin where you were arrested and a search warrant was executed.
16Upon your arrest, you made admissions to the commission of the offence, which was video recorded by police.
17During the execution of the search warrant, investigators located and seized a category A longarm air rifle. You do not hold a longarm firearms licence to possess the rifle (Summary Charge 4).
18You were conveyed to Ballarat Police Station where you were interviewed and made full and frank admissions to attempting to commit an armed robbery with a knife you had in your vehicle.
19You made admissions to committing the offending to obtain $300 for your son as your son was unable to pay rent.
20Investigators located a ‘slug gun’ underneath your bed in your bedroom that had belonged to your father.
Nature and gravity of offending
21Attempted armed robbery is a very serious offence which is reflected in the maximum penalty of 20 years imprisonment. While you are charged with attempted armed robbery as you were unable to obtain the cash from the register, in my view the impact on the victims is no less significant. In this instance the victims are rightly described as vulnerable soft targets.
22In The Queen v Alashkar[1], Kellam AJA noted:
There is no need to recite any of the many statements by this Court concerning the gravity with which the robbery of persons who are sometimes termed “soft targets” is viewed. It is both a reality and a necessity in our community for many people to work in isolated situations that render them vulnerable to criminal attack. Taxi drivers, service station and convenience store attendants, and persons operating small family businesses, such as milk bars, spring readily to mind in this context. They must be able to rely upon the full protection of the law and those who contemplate exploiting their vulnerability in the fashion of the appellant, must anticipate that the consequences for them may very well be the imposition of a substantial gaol term.
[1] [2007] VSCA 182 at [36].
23I respectfully adopt the comments of Justice Kellam.
24Whilst no victim impact statements were prepared, there is no doubt that your conduct which involved confronting the victims with a knife and making demands would have instilled great fear. In relation to the first victim, after placing the tip of the knife against her ribs you then leapt over the counter making further demands and threats.
25It was submitted on your behalf that your motivation for the offending was to obtain money in order to assist your son to pay his rent. It was submitted that the offending was ‘opportunistic and spontaneous’, however you entered the store initially when customers were present only to then exit and wait outside until customers had left. Further, it was submitted that the knife was kept in your car to be used in the context of your farm work, however you chose to take the knife with you when leaving your car. Thus, in all the circumstances in my view your offending cannot be described as opportunistic and spontaneous and represents a relatively serious example of this type of soft target armed robbery.
Personal circumstances
26You were born in 1972 and are 51 years of age. You lived with your parents and older brother in Frankston until you were 16. You describe your parents as emotionally distant and critical of you and that you never felt good enough for your parents. You report that you maintained a close relationship with your grandparents who lived on a farm in Mount Franklin.
27You state that you were introverted and withdrawn as a child. You attended Mornington Primary School and Peninsula Grammar until year 9 when you attended technical school. You left school after completing year 10. You state that you always struggled academically.
28After leaving school, you met your partner Leith Hudson. You subsequently moved in with her and lost contact with your family. You state that at this time, you were both battling substance abuse issues. You maintained employment as a mechanic and your partner worked as a nurse. You have three children together.
29At age 37, you returned to the family farm in Mt Franklin where you currently live and work, assisting your elderly parents.
30You state that your partner has recently lost work which has put strain on your family’s financial position. You have been borrowing money from your parents and eldest son to manage your family’s finances.
31A report of Alison Mynard dated 22 September 2024 and an addendum report dated 23 October 2024 were tended on the plea. The reports detail your complicated relationship with your family. Ms Mynard opines that your constant feelings of failure and negative core beliefs are an underlying cause of your long term depressive symptoms. She notes that these core beliefs are largely triggered by longstanding intense emotions from early childhood. Ms Mynard recommends that you would benefit from regular mental health treatment to assist you in understanding the maladaptive patterns in your thoughts, feelings and behaviours. She notes this type of therapy will allow you to confront and reshape these deep-seated beliefs.
32The report also details your long history with substance abuse. You state that you have used substances to avoid your negative emotions and block your depressive symptoms. You reported to a corrections officer that you had been using heroin in the days prior to the offence and on the day prior to the offence, you had used between ‘a point and a gram’. Although you report you are now drug free, you sought assistance and commenced a methadone program in August 2024. Ms Mynard opines that your prognosis without the relevant treatment and therapy is lowered and is concerned that you may relapse into substance use to cope with a deteriorated mental health state.
33Following the offending you sent a text message to the informant indicating your desire to send a letter to the victims in order to apologise for your conduct. You also sent an email to your lawyers expressing your contrition, remorse and concern for the victims and the impact your offending has had on them.
34A character reference was also tendered on the plea and details the stress and desperation you felt at the time of offending. It states that you are family orientated and would do anything for your children and again, attests to the remorse and regret you feel.
35You currently live at home with your partner and your two youngest children. You state your partner is on medication to manage her depression. Your family are aware of these charges and remain supportive of you.
Sentencing Considerations
Matters in mitigation
36Ms Lamovie who appeared on your behalf detailed a number of matters that ought to be taken into account in mitigation.
37I first take into account your plea of guilty. Your plea was entered at the committal hearing and can be considered to be a plea at the earliest practical opportunity. Your plea has avoided the need for any witnesses to be cross examined and has saved the time and expense of a trial, thereby facilitating the course of justice.
38Over and above your plea of guilty it was submitted that you have expressed genuine remorse. Ms Mynard is of the view that you expressed empathy for the victims stating that they did not deserve to go through such trauma. You made full admissions and expressed remorse in your record of interview. Further, you sent messages to the informant and to the victims apologising for your conduct, which in this instance I accept is genuine. In all the circumstances in my view you have indeed expressed genuine remorse for your conduct and that you have insight into the impact such conduct has on victims of this type of offending.
39Turning to your prospects of rehabilitation, I note that while you have some prior criminal history, you have only one prior matter for violence in 2004 for which you received a fine. Indeed, you have not received a sentencing disposition above a fine. You enjoy the ongoing support of your partner and parents who were in court to support you, and in terms of your longstanding struggle with heroin, you have now actively engaged with medical treatment and commenced on the methadone program. In all the circumstances I assess your prospects as very good.
40It was submitted that Verdins principles 3, 5 and 6 are enlivened based on the opinions of Ms Mynard. Ms Mynard is of the view that your Major Depressive Disorder and Generalised Anxiety Disorder would mean that any time in custody would be more onerous on you and exacerbate your conditions. As discussed during the plea hearing, in my view Verdins 5 and 6 can be given some weight in the sentencing discretion. In terms of Verdins 3, I do not accept that the nature and severity of your mental health symptoms support any moderation of general deterrence. As such, Verdins 3 is not enlivened.
Other sentencing considerations
41General deterrence and denunciation of your conduct are prominent sentencing considerations. The victims of your crime were simply going about their work when you entered the store with a knife demanding money. Soft targets like the victims in this instance are entitled to feel safe at their place of work and a strong message must be sent that those contemplating conduct such as yours will be met with stern consequences. As to specific deterrence, in my view in all the circumstances it need only carry little weight. As noted, you have shown genuine remorse for your conduct, you have strong supports in the community and you have no prior criminal history of this nature.
42Ms Lamovie submitted that a community correction order would be an appropriate disposition. Mr Moore who appeared on behalf of the Director of Public Prosecutions, submitted that the seriousness of your offending calls for a term of imprisonment, however that a combination sentence is within range. I agree that a term of imprisonment is required. However, I am also of the view that in all the circumstances the relevant sentencing considerations are able to be met by the imposition of a combination sentence pursuant to s 44 of the Sentencing Act 1991 (‘Sentencing Act’).
43In Williams v The Queen,[2] the Court noted:
As was made clear in Boulton, in an appropriate case a CCO provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. A CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender's rehabilitation. And although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, a CCO may remain open, even in cases of very serious offending.[3]
[2] Williams v The Queen [2018] VSCA 171.
[3] Ibid, at [47].
Sentence
44Mr Vendy would you please stand.
45Gavan Vendy, on Charge 1 attempted armed robbery, you are convicted and sentenced to 8 months imprisonment as the prison component of the combination sentence.
46Following your release, you will be placed on a community correction order for a period of 2 years. In addition to the standard conditions that apply to all community correction orders, you will be subject to treatment and rehabilitation conditions in relation to drug use, mental health and offending behaviour programs. You will also be subject to supervision.
47On Charge 2, criminal damage and related Summary Charge 4, prohibited person possess category A longarm, you are convicted and fined $500 on each charge.
48Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentence you to a period of 2 years imprisonment with a non parole period of 12 months.
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