Director of Public Prosecutions v Vinen

[2014] VCC 1117

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00716

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICKOLAS ALAN VINEN

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 July 2014
CASE MAY BE CITED AS:	DPP v Vinen
MEDIUM NEUTRAL CITATION:	[2014] VCC 1117

REASONS FOR SENTENCE
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Subject: armed robbery, robbery
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions
For the Accused

HIS HONOUR:

1Nickolas Alan Vinen, you have pleaded guilty to one charge of armed robbery and one charge of robbery.  The prosecution tendered a summary of the offending and the exhibit will be retained on the court file for future reference.  In terms of the circumstances of the offences, it is sufficient to state that in the early hours of 3 May 2012, you went to a 7-Eleven store in the south eastern suburbs of Melbourne.  You entered the store wearing a mask over your face, a hoodie and gloves.  You had a knife and a wheel brace.  You stepped into the service area, you menaced the attendant who was working alone, pointed the knife at him.  You then stole $400 in cash, 50 packets of cigarettes and ten packets of tobacco valued  at $1250.  You left via the back door.  CCTV footage captured the armed robbery.

2A couple of hours later you went to another 7-Eleven store, seven kilometres from the first and you entered while the attendant was alone.  You were wearing the same items, hiding your head and face.  You asked for a bag for the contents of the till and you threatened to shoot the attendant if he pushed the alarm.  No weapon was visible to him on this occasion.  You demanded the victim's wallet and took $200 from him.  After some time, rummaging through the service section, you left.  The offending was again captured on CCTV footage. 

3Between the first and second robbery, you posted on Facebook in an effort apparently advertising the fact, that the cigarettes in your possession that you had stolen, being available for sale.  After a number of responding comments, you again mentioned the proceeds of the robbery and said there was more coming.

4On 20 May 2012, police searched your residence and seized a number of items including balaclavas and a number of other items including shoes.  When you were interviewed on 23 May, you gave a tentative alibi and denied the offences.  You told police you had been taking Xanax for three years and your memory was poor.  You told police that you have also taken amphetamines since the age of 13.  You have denied owning or ever using the balaclava.

5Later, in mid July 2012, a covert operative was placed in a cell at Dandenong police station where you were being held and some discussions were had about the offences.  You admitted the balaclava was yours and that you were pretty sure you had committed the offences but you could not remember because of your drug use.  You told the operative that you had acted alone and the offences involved 7-Eleven stores.  You told him the two offences occurred on the same night, that you had got about $1000 from your endeavours, bought the drug ice with the cash, you had sold the cigarettes at Waverley Gardens.  You also said that people started hassling you and that is why you committed the offences.

6In this chronology, it is important to understand the impact of another couple of dates which refer to other offending which is relevant to this sentence.  Although strictly speaking not priors, you had in fact in the same period committed another two armed robberies in similar circumstances on 16 May, 13 days after these matters and four days before the search warrant was executed on your premises.  The circumstances of these matters were very similar to the current offences except that they were committed with another male who was also sentenced on a previous occasion.  It is unfortunate that despite the proximity of commission, a number of circumstances conspired to have these two set of offences seemingly pass each other like ships in the night, without those responsible for investigating each of them realising until much later in time that you were involved in them and that they had been committed in the same month.  No doubt if the connection had been made and promptly followed up, all these matters would have ideally been dealt with at the same one time, enabling one court to dispose of them by one overall sentence.

7

As this stands in November 2012, Her Honour Judge Lawson sentenced you to a period of youth detention for the later armed robberies which you committed with another co-offender.  On 16 May, you again had gone to two

7-Eleven convenience stores, disguised with a dark balaclava and wearing a mask and gloves and with a metal pole or a wheel brace.  On both occasions, your behaviour was pretty much the same as on 3 May, the day I am dealing with.  You stole cash and cigarettes and made personal threats to the attendant who was working alone, including demanding personal property from one of them.  The same aggravating features were noted by Her Honour as being present in those matters for which she passed sentence as those that exist in the offences before me, that is, you were armed, took steps to disguise your identity and you chose vulnerable targets operating alone at night. 

8You pleaded guilty to those offences as you have here before me and it is noteworthy that whatever failure can be sheeted home to the police or prosecutorial authorities for the matters not proceeding together, to some extent this was aided and abetted by the silence on the matters by you and your representatives.  This was despite the fact that you wrote a letter of apology to the court expressing remorse and made admissions to police in relation to those other matters.  Irrespective of any fault which I do not have sufficient evidence to resolve, the reality is that those offences were in my view really in the nature of a course of conduct during May 2012 similarly executed and motivated in the need for money and particularly cash for drugs.

9Some other matters are worth noting as to the chronology before I return to the issue of totality.  Firstly, on being charged with the later offending you were remanded in custody and served 185 days in pre-sentence detention at the adult setting of the Melbourne Remand Centre in protective custody.  Her Honour declared that period as pre-sentence detention noting it for the record of her sentence, for the records of the court and clearly took it into consideration in imposing the sentence she handed down of two years and six months which resulted from two years on each of the armed robbery charges with six months cumulation of one to the other.

10Secondly, you have two relevant priors.  In December 2009, the Children's Court dealt with you for multiple dishonesty offences; driving, drugs, criminal damage and weapons offences.  In July 2011, you were again dealt with for multiple offences including on that occasion; theft, criminal damage, armed robbery, attempted armed robbery, recklessly cause injury and going equipped to steal and affray.  On both occasions you had been placed on a youth supervision order without conviction.  The last such order had expired on 14 April 2012, just a few weeks before the offending covered in this indictment.

11In the apology which Her Honour received from you in September 2012, you explained that you were at a low ebb when you committed these offences.  You were addicted to ice, Xanax and cannabis, had lost your job and needed money.  That led to an early resolution of the charges.  Although in relation to these charges, once they were laid, there was an early plea and an acceptance of responsibility, it is somewhat strange that three days after the 20th, when you had made admissions to the later armed robberies, you denied the earlier armed robbery which I am to deal with today.  Perhaps, this inexplicable difference may be derived from your state of mind at the time and reflective of the effect of the substance abuse on you.

12The delay accompanied by the lack of connection and subsequent very late charges, have rendered this sentence difficult.  The primary circumstance that I need to consider in setting the appropriate disposition, in my view is the principle of totality which I am bound to apply.  I received the victim impact statement by one of the attendants and I take it into account.  The armed robbery has naturally impacted on that person's emotional wellbeing.  He remains fearful of night work.  Similarly, I will infer that the other attendant who has not provided a victim impact statement suffered frightening trauma as a result of your actions and I take this impact into account.

13You have pleaded at the earliest opportunity by the committal mention in April 2014 and you have therefore ultimately accepted responsibility for your actions and spared the witnesses the additional trauma of having to give evidence on your trial, saving the State expense and inconvenience.  Having facilitated the course of justice, your sentence must therefore receive a discount by the operation of law.

14Armed robbery is a very serious criminal offence.  The parliament has indicated its severity by its 25 years maximum penalty.  Robbery carries 15 years as a maximum.  The principle of general deterrence, denunciation of this behaviour and punishment must be paramount in any sentence for such a serious offence.  In my view, these offences lie in the middle range of offending given the matters I have outlined before.  Specific deterrence, in my view, given your prior history, is also a valid consideration to address. 

15Your youth is of great significance.  This aspect was addressed in the sentence of Her Honour Judge Lawson who sentenced you when you were 19 years old at a time when you were a youthful offender and rehabilitation was considered by her to be of paramount importance, outweighing general deterrence. 

16You are now 21, not for that fact does the consideration of your youth become less important.  In the case of young offenders like you, your relative youth must remain a significant matter to address by a sentence which does not extinguish your prospects of reclamation but which enhance efforts at rehabilitation.  I intend to ensure this by my sentence and assign appropriate weight to this important and relevant factor.

17One matter in this context has to impact upon disposition.  Not only have you served 185 days in adult remand before the November 2012 sentence, but having been returned to youth detention in December 2013 for parole breach, you had yourself transferred to adult prison as of May 2014 until today.  I doubt the wisdom of this transferral although I note that it was accepted by the parole board and it does not render the consideration of your youth any less important but the reality of your reclusion in an adult environment is not a reality that can be either avoided or made better except in its length.  You initiated this transfer, it was said, for practical and pragmatic reasons enabling you to "settle into the environment" which would inevitably result in this sentence.  You are currently at Marngoneet as a protected prisoner and you have already experienced some difficulties with other prisoners.  I note that your ex-partner and the children and your father do have some contact with you, although infrequent because of their residence some way away from prison. 

18I have read the earlier report of Bernard Healy dated 18 August 2012 prepared for the plea before Her Honour Judge Lawson and the report of the Department of Human Services by Warren Gardiner dated 15 November 2012.  These documents contain background histories, psychological testing and opinions.  I have now also received and read the report of Dr Aaron Cunningham dated 1 July 2014 which again recited your history and gives a mental state of assessment. Dr Cunningham reports that the assessment is not consistent with a mental illness but you present with a risk of institutionalisation based on the difficulties you experienced during your period after the release in May 2013 after seven months of youth detention in which you "felt overwhelmed and impaired in day to day living", consistent with such a risk.  I am unsure whether your request to transfer into an adult prison is further evidence of such risk but I will take this opinion into account in setting an appropriate sentence which is not crushing of rehabilitative prospects.

19You had a disadvantaged and troubled childhood with DHS intervention from age three.  Both of your parents had substance abuse problems being addicted to heroin.  You were removed from parental care and placed in your grandmother's care.  There, unfortunately you were exposed to your uncle's drug use.  Your home environments were volatile and often violent.  Your education was seriously disrupted and as a result your academic achievement is poor.  By a young age you smoked cannabis and by 13 you were living with family friends.  You dropped out of school at Year 8 and delinquent behaviour and associations followed and by age 15 you first came to the attention of the courts.  Also in 2009, aged 16, you commenced a relationship and at 17 you had your first child.  You attempted independent living in 2011.  Substance abuse was by then and by the time of these offences in May 2012 central themes of your life.  At that time I accept you were a heavy user and running amok.  Shortly after the sentence in November, your second child was born.  You did reasonably well in youth detention, completing a certificate in engineering at Malmsbury and working in various jobs.

20In May 2013 you were paroled.  Ultimately, however, you soon returned to drug use.  You separated from your partner.  Your parole was breached for non-compliance.  In Marngoneet, you have had visits from your ex-partner and father, who has sorted himself out, has visited you regularly, has been in court during your court hearings in support of you and can offer the prospect of employment upon release.  This is to his credit and assists you for your future, no doubt.  He was in court supporting you and this is an important aspect. 

21Bernard Healy found you to have a full scale IQ of 78 accompanied by impulsivity and immaturity.  Dr Cunningham has emphasised that the support which you received does reduce your risk factors and should these coincide with abstinence from drugs, employment and stable accommodation as well as drug and alcohol and psychological treatment, your prospects may well be positive.  As things stand, such hope is guarded in my view but should not be discouraged.  Your lack of reoffending during the six months in the community is a positive indicator.  I take this into account.

22I take into account the delay caused by the disjointed way these matters have come before the court.  This has in effect deprived you of the opportunity to serve your sentence in a youth facility.  I take into account the principle of totality and the context in which it has arisen.  Although, as I said during the plea, I can take into consideration the fact that had these matters been dealt with by Judge Lawson, a maximum of three years in youth detention would have been available to her.  The same constraint does not apply to my sentence although in my view this is an important factor to take into account in moderating my sentence.

23Your current sentence will conclude on 28 November 2014, less than five months from now. Upon your transfer, you became subject of the Adult Parole Board and the period of detention served prior to the transfer is deemed to have been a non-parole period and you are currently serving the head sentence of the term of imprisonment. A youth detention order is not available to me, nor is a suspended sentence for the armed robbery. Because you are not undergoing a non-parole period, I am not obliged to fix a new non-parole period pursuant to s.14 of the Sentencing Act but I intend to do so. 

24On the armed robbery, you are convicted and sentenced to two years' imprisonment.  On the robbery, you are convicted and sentenced to 18 months' imprisonment.  I order that three months of Count 2 be served cumulatively on Count 1, making a total effective sentence of two years and three months - 27 months.  Under the circumstances, I consider that a longer non-parole period than usual is properly reflective of the matters to have taken into account which I have mentioned.  I order a non-parole period of 14 months.  As I have imposed sentences of imprisonment in respect of these offences, you will first serve the non-parole period fixed in this court, in respect of this sentence and any head sentence due to the parole breach remaining.  As I make no order for cumulation, the head sentence will be served concurrently.  That is, the five months remaining on the current sentence will run concurrently with the head sentence in this sentence today.  I have signed orders for disposal.  I have signed compensation orders.  I think that that is all that I need to attend to.  I will hand those down.  In relation to his pre-sentence detention, in my view there is in fact no pre-sentence detention period to be accounted for. 

25COUNSEL:  That is correct, Your Honour.

26COUNSEL:  But a s.6AAA declaration is required.

27HIS HONOUR:  Yes.  But for your plea, I would have sentenced you to a period of three years and six months with a non-parole period of 22 months.  Despite the fact that I remanded him on the last occasion, he is serving the parole period and I do not believe that that period from which I remanded him to now is accountable as pre-sentence detention.  It is simply part of what will be, if you like, subsumed under the head sentence which I have imposed today.  Do you both agree with that proposition?

28COUNSEL:  Yes, I do, Your Honour.

29COUNSEL:  I do. 

30HIS HONOUR:  Yes, thank you.

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