Director of Public Prosecutions v Vitale

[2014] VCC 806

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00183

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH VITALE

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 May 2014
CASE MAY BE CITED AS:	DPP v Vitale
MEDIUM NEUTRAL CITATION:	[2014] VCC 806

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper

For the Accused Mr A. Malik

HER HONOUR:

1Joseph Vitale, you have pleaded guilty to four charges of armed robbery.  The maximum penalty for armed robbery is 25 years' imprisonment.

2The prosecutor sought an order for the disposal of certain items. The making of that order was not opposed.  The prosecutor also sought an order for compensation of $265 to one of the establishments that was robbed.  The making of that order was not opposed.

3The circumstances of your offending are set out in the Crown Opening on Plea which was tendered as Exhibit A.  There have also been some submissions from defence in respect of the circumstances.

4Your offending involved a spate of armed robberies between 30 October 2013 and 12 November 2013. 

5The circumstances of Charge 1 were as follows. On Wednesday 30 October 2013, at about 5 am, you went with Nazir Aden to an adult venue in Brooklyn.  You had a discussion about the robbery beforehand.  There was a female manager on duty at the front desk.  Neither of you were disguised.  You were taken to a waiting room and went into the staff office which adjoined the front counter.  You both then went behind the counter and confronted the manager. Nazir Aden produced a knife and threatened the manager demanding cash.  There was a short struggle between you and the manager.  Between you you opened the till and took $2125 cash and an iPhone.  You ran off and drove away to your home.

6The circumstances of Charge 2 were as follows.  On Friday 8 November 2013, at about 11.56 pm, you, Aden and another co-offender, Kahlid Omer, went by taxi to an adult shop in Footscray.  There was a male store attendant who was working alone.  The three of you went to the counter, Omer had a black scarf around his face. Omer produced a blue box cutter and demanded cash and cigarettes.  The attendant produced $407 from the till. You took some of the money and left the shop.  Omer then produced a tyre iron and pointed it at the attendant and demanded cigarettes.  He was given a pack of synthetic cannabis cigarettes and a box of electronic cigarettes.  He ran out to the taxi where you and Aden were waiting.

7The circumstances of Charge 3 were as follows.  On Monday 11 November 2013 you, Omer and Aden discussed doing an armed robbery.  You, at that stage, had driven firstly to the West Footscray area.  Omer used a piece of cloth to conceal a 30 centimetre carving knife.  Omer and you walked to a relaxation centre. It was about 3.55 pm. The proprietor was at the front counter. You were wearing sunglasses.  You stayed near the door as lookout while Omer produced the knife and demanded money from the proprietor.  Omer walked behind her and took $365 from the cash till. He also stole an iPad.  You both ran off dropping some money and the iPad.  You fled in a car driven by Aden.

8The circumstances of Charge 4 were as follows.  At about 3.10 pm on Tuesday 12 November 2013 you, Omer and Aden went to an adult establishment in Hoppers Crossing.  Omer was driving, Aden armed himself with a blue box cutter.  You and Aden went into the venue. You were let in by the female manager.  Aden produced the box cutter and threatened the female manager and demanded money.  He went behind the counter and started searching that area. He took two mobile phones.

9You were arrested on 14 November 2013. You made full and frank admissions.  You told police about the discussions leading up to the robberies and you said you did not receive any of the proceeds.  You said you did not want to be involved but were pressured into it by Omer and Aden.  You told the police that there was no intention to harm anyone.

10A psychiatric report from Dr Nicholas Owens was tendered as Exhibit 2.  In sentencing you I have taken into account your personal circumstances as outlined in that report, and by your counsel.

11You are now 28 years old. You were born in New Zealand.  You had a troubled early life.  Your father tended to be violent and your parents had frequent separations.  You, with your mother and three siblings, moved between New Zealand and Australia on a number of occasions, and within Australia on a number of occasions.  You finally settled in Melbourne when you were 18.

12Your parents reconciled about 11 years ago and are both in court to support you.  You completed Year 9 at school.  You had difficulties at school with your academic work but it appears you were successful at sport.  You have mainly worked in upholstery and furniture removals and you were employed until about 2012.  You had a daughter from a relationship in 2008 but have not seen her for many years. 

13You commenced smoking cannabis at 14 years old and have used cannabis except when you were in prison.  You told Dr Owens, and there is no evidence to the contrary, that the only time you had used methamphetamines was during this offending.  You have previously abused alcohol over a long period but stopped drinking alcohol in 2012.

14Of particular significance in your life is the diagnosis of schizophrenia that was made in 2010 while you were in custody.  You were on a Community Treatment Order after you were discharged from the Thomas Embling Hospital in 2010.  You have been being treated while on remand with anti-depressant and anti-psychotic medication.  You told Dr Owens that this had helped your psychiatric symptoms.  You told Dr Owens that at the time of this offending you had had your depot injection but had not had your oral medication.  From what your counsel said your last depot injection had been in early October 2013.

15Dr Owens says that there is some evidence that your condition has deteriorated over the last four years.  He refers to your inability to work and becoming more confined to home.  Dr Owens says that you have been provided with psychiatric care by your local mental health service but your compliance with treatment has been patchy.  It is your patchy compliance that has resulted in the need for a Community Treatment Order to mandate treatment.

16Dr Owens is of the opinion that your chronic cannabis dependence has likely worsened your condition.  He says that it is good that you have stopped using alcohol but your cannabis use, and more recently your methamphetamine use, had resulted in worsened outcomes in terms of your psychotic illness, with significant relapse of your symptoms.  Dr Owens is of the opinion that you require ongoing drug and alcohol treatment.

17In respect of the offending Dr Owens says the following:

"Firstly he was partially non-compliant with his anti-psychotic and anti-depressant medication.  This resulted in worsening psychotic symptoms, hallucinations and paranoid thoughts, which in my opinion was likely to have affected his ability to understand the wrongfulness of his actions to think clearly and to make calm and reasoned decisions and appropriate judgments.  Secondly, he was using methamphetamine and cannabis which were likely to have resulted in disinhibition of his behaviour and reduced his control over his responses, especially to the inducements of the co-offenders."

18Dr Owens says that you have expressed remorse and regret over your actions and that you were able to understand the likely effect of the offending on the victims.  Dr Owens says that being in custody is not conducive to recovery from a psychotic illness.  He says that opportunities for rehabilitation, including occupational therapy and psychosocial programs, are limited.  Dr Owens says however that you continue to obtain the medical treatment that you require and that will be available to you in prison.  Dr Owens assesses your risk of reoffending as moderate to high.

19You have admitted a significant prior criminal history.  You had a court appearance in 2013 for attempting to commit an indictable offence and attempted robbery.  You were placed on a 24 month Community Correction Order.  You have previous court appearances for robbery, recklessly causing injury, burglary and other charges.  You have previously served short terms of imprisonment.

20In sentencing submissions your counsel relied on (a) your plea of guilty, (b) your remorse, (c) your full and frank admissions to the police, (d) your limited role in the offending, (e) that the offending was highly unsophisticated, (f) your limited involving in planning, and (g) the application of Verdins principles.

21The prosecutor submitted that due to your psychiatric condition there ought to be some moderation of sentence in recognition of a reduction of moral culpability and the need for general deterrence to be reflected.  He submitted that any moderation of sentence should not be to a great degree.  The prosecutor also accepted that there would be limited opportunities for certain types of therapy in custody.

22The prosecutor accepted that you had pleaded guilty and accepted your responsibility, and that the offending had occurred over a short period of time.  He did submit that this type of offending required a sentence which emphasised general deterrence, denunciation, just punishment and specific deterrence, noting that you have a relevant prior criminal history.

23Joseph Vitale you have engaged in serious offending.  The maximum penalty for armed robbery reflects the seriousness with which the Parliament on behalf of the community takes this type of offending.  The circumstances of your offending meant that it must have been very frightening for those involved.  When others in the community hear about this type of offending it undermines their sense of safety.  You preyed on people who were working in relatively isolated circumstances, particularly with the offending in Charge 1 which was very early in the morning, and Charge 2 which was late at night.  The targets against whom you committed the armed robberies are appropriately described as 'soft targets.' 

24For the purposes of sentencing you I accept that although there was no significant age difference between you and Aden, and Omer was considerably younger than you, you were vulnerable to pressure from the other two.  I accept that they armed themselves and you did not.  I also accept that they planned the targets and did not share the money with you.  The offending as a whole was unsophisticated.  You did not go disguised, apart from wearing sunglasses on one occasion, which does not amount to serious attempt at disguise.

25I am, however, satisfied beyond reasonable doubt that you knew that you were going out to do armed robberies.  You knew that this was wrong.  You knew that you were going to add your physical presence to assist the others.  This is very clear from your record of interview.  You have a large and imposing build and your presence must have added to the fear felt by the victims. In respect of Charge 1 just you and Aden were involved and you physically were involved in a struggle.

26You told Dr Owens that you had smoked methamphetamine or ice before each occasion of armed robbery.  You said it made you feel "powerful, invincible and awake."  You did not back out of what was going on after the first armed robbery but kept on going for another three occasions.  You had a serious involvement in these offences.  Your behaviour on each occasion appeared to be relatively calm and was not bizarre in any way.  You did not appear to have been actively affected by any type of hallucination at the time.

27It is very important that others be deterred from attempting to get money or goods by committing armed robberies.  A sentence of imprisonment is warranted for purposes of denunciation, general deterrence, just punishment, specific deterrence and community protection.

28After careful consideration of Dr Owens’ report I do not accept that there is a significant risk of imprisonment having a significant adverse effect on your mental health.  I do accept Dr Owens’ opinions and accordingly accept that the other five Verdins principles do apply.  The application of those principles ought result in sensible moderation of the sentences to be imposed on you and the non-parole period to be set.  There will be sensible moderation of the sentences but moderation does not remove the need for the sentences to reflect the sentencing purposes to which I have referred.

29You are entitled to a significant discount for your plea of guilty.  Your plea of guilty has saved the time and expense of a trial.  It has also saved the trauma that might be caused to any witnesses who would have to give evidence.  You made full and frank admissions to the police and I accept that you are genuinely remorseful.

30You have a prior criminal history and it is of concern that this offending was committed while you were on a Community Correction Order with treatment components, and on a Community Treatment Order.  Under both of those orders you ought not to have been using the illegal drugs that you were using.

31You do have family support.  I note the content of the references that have been provided.  It appears that you have many very good qualities which were remarked upon positively by your family.  It appears from what Dr Owens said that you do have some insight into your medical problems and that you do understand that medication will assist in the reduction of your psychiatric symptoms.

32Hopefully with continued compliance with your medication and the cessation of the use of alcohol and drugs there will be a significant reduction in your risk of re-offending and in your psychiatric symptoms.  I consider that your prospects of rehabilitation are moderate.  Some weight needs to be given to specific deterrence.  A sentence needs to be imposed which discourages you from further offending.

33I have taken into account that this offending occurred over a short period of time.  I have also taken into account that this would be the first significant sentence of imprisonment that you will have served.  I have applied the principles of totality and proportionality in setting the individual sentences and the degree of cumulation. 

34On Charge 1 of armed robbery you are convicted and sentenced to a term of imprisonment of two (2) years and six (6) months.

35On Charge 2 of armed robbery you are convicted and sentenced to a term of imprisonment of two (2) years and six (6) months.

36On Charge 3 of armed robbery you are convicted and sentenced to a term of imprisonment of two (2) years and six (6) months.

37On Charge 4 of armed robbery you are convicted and sentenced to a term of imprisonment of two (2) years and six (6) months.

38The sentence on Charge 1 is the base sentence.  Six months of each of the sentences on Charges 2, 3 and 4 are to be served cumulatively on each other and on the sentence on Charge 1.

39The total effective sentence is four years imprisonment.  I fix two years and eight months as the period you are required to serve before being eligible for release on parole.  I declare that you have served 193 days of this sentence by way of pre-sentence detention to be deducted administratively.

40But for your plea of guilty I would have sentenced you to a term of imprisonment of five years and nine months with a non-parole period of three years and nine months.

41I have made an order for disposal of certain items and I have made the order for compensation that was sought.  Thank you could you please sit down Mr Vitale?  Now Mr Roper, Mr Malik, are there any things that need to be repeated?

42MR MALIK:  No Your Honour.

43MR ROPER:  No Your Honour.

44HER HONOUR:  All right.  And is there anything that I've left out that I need to attend to?

45MR MALIK:  No Your Honour.

46MR ROPER:  No Your Honour.

47HER HONOUR:  All right, thank you both very much.  Mr Vitale I hope you do take your medication and try and do what you can while you're in custody to plan on how you're going to avoid getting into this situation again when you are released.  That's very important.  Yes thank you the prisoner can be taken down now, thank you.

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