Director of Public Prosecutions v Williams
[2021] VCC 1365
•17 September 2021
m
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 19-00706
Indictment No. J13205648
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Brett Steven Jacob WILLIAMS |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial 5 -16 August 2021. Verdict 16 August. Plea 15 Sept | |
DATE OF SENTENCE: | 17 Sept 2021 | |
CASE MAY BE CITED AS: | DPP v Williams | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1365 | |
REASONS FOR SENTENCE
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Catchwords: Attempted armed robbery. Intentionally Causing Injury x 2. 34 years old. Lengthy criminal history. Long Delay. Offending in August 2016. Trial verdict August 2021. A number of offences and appearances since. Offer to plead to lesser offences. Over 800 days PSD with efforts taken in custody by way of programs/courses
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Triandos | Office of Public Prosecutions |
| For the Accused | Mr M Kozlowski | Emma Turnbull Lawyers |
HIS HONOUR:
1 Brett Steven Williams, on 16 August of this year following a relatively short trial, a jury found you guilty of one charge of attempted armed robbery and two charges of intentionally causing injury. The first of those charges of intentionally causing injury (Charge 2) related to the victim of the attempted armed robbery, Mr Adams. The other charge of intentionally causing injury (Charge 4) related to Mr Maciag who was coming to Mr Adams' aid. Additional verdicts were not taken on a number of lesser alternative charges relating to that first incident.
2 You were also acquitted of a number of charges relating to a second attempted armed robbery occurring minutes after the first and but a short distance away from the first. Plainly, the jury was not satisfied beyond reasonable doubt of your guilt in relation to that second incident.
3 You have been in custody for a very long period of time. All but 6 months of that period is referrable to these matters and will be declared as pre-sentence detention.
4 You have admitted a lengthy criminal history.
5 You were born on 9 April 1987 and are 34 years old now. You were 29 years old when you committed these offences back in August 2016.
6 Attempted armed robbery carries a 20 year maximum term of imprisonment. Intentionally causing injury has a 10 year maximum term of imprisonment.
Facts
7 I must sentence in a manner consistent with the jury verdict. For any factual matter or finding which would aggravate the matter, I must be satisfied of that beyond reasonable doubt.
8 On Wednesday, 17 August 2016, at about 6:15pm, Jacob Adams walked to an overpass in Church Street, Cremorne to collect his girlfriend who was getting off a train at the East Richmond railway station. There was an incident as he waited on that overpass in Church Street. There was no dispute that Jacob Adams was accosted by a drug affected male at that location. No dispute that a demand was made for his bag with a person saying, ‘Give me your bag Cunt’. No dispute that there was a struggle for the bag and that he was slung to the ground. There was no dispute that a passer-by then intervened. That good Samaritan was Mr Stanley Maciag. The offender at the scene was heard to say he was going to cut that person. There was no dispute that the man who had been attempting to rob Adams then turned his attention to Mr Maciag and swung at Mr Maciag with his right hand. Plainly enough there was a knife of some description in that hand for Mr Maciag sustained a cut to his left hand which he had put up defensively. Mr Maciag saw a flash of metal.
9 At that point, Mr Adams saw the knife in the offender’s hand and he was then prevailed on again by the offender who was still holding the knife. The struggle for the bag continued and he was slung to the ground and hit his head and sustained a scratch or graze.
10 DNA matching your DNA was found on some sunglasses which were found at the scene. The sunglasses at the scene had obviously been worn by the offender who could be seen on CCTV footage from a range of cameras in the vicinity before and after the incident that I have described. When the person came back from the direction of the first incident the sunglasses were conspicuously absent from the peak of the baseball cap where they had been visible when heading in the direction of the incident only a few minutes before. The inescapable inference, of course, was the offender had dropped those glasses during the course of the struggle.
11 In your police interview which was conducted, it must be said 12 months after the event, you admitted that you frequented the Richmond area in the relevant time frame but had no memory of committing any of these acts and did not believe that you had.
12 Quite some time after this event, Mr Maciag had, in a photo folder identification procedure, selected your photograph and said he was 80% sure that the picture he selected was the offender. That was before any of the DNA evidence actually came to light.
13 The results from the DNA analysis were not challenged.
14 You stood mute at your trial as was your right and called no other evidence.
15 I see no real need to set out much more of the factual setting here. The witnesses gave their evidence in conformity with the way the case had been opened and that conformed with the written summary of prosecution opening that had been filed in this matter.
16 Clearly what was in dispute was your presence at the scene as the offender and of course the jury have answered that question by their verdicts. So too have they spoken as to your state of mind. That is, of having an intention to injure each of these men.
17 Mr Adams' injury was quite slight and did not even require medical treatment. Mr Maciag on the other hand did require treatment. He was taken by ambulance to hospital and required some sutures to a finger. There is a medical discharge summary at page 180 of the depositional materials. He was not making a big thing of his injury in his evidence before me.
18 The Crown relied upon coincidence reasoning to establish your involvement in a later incident which befell Mr Sinclair a very short distance up the same road outside the library. The prosecution relied upon the similarity in terms of description of the offender and the improbability of there being another offender acting in that same way in the same location at the same time. Well, as I have said, the jury was not prepared to draw that inference. They were not satisfied beyond reasonable doubt of your guilt of those charges. So I put aside altogether that allegation. You must get the full benefit of your acquittal and that is so despite my learning on the plea, as I have, that you were offering to plead to a lesser offence of attempted robbery and the charge of intentionally causing injury for that second incident.
19 As to the offending I am dealing with, you were obviously behaving erratically. You were plainly under the influence of drugs. The CCTV footage and observations of witnesses makes that very clear. That is not mitigatory. However I do accept that this was disorganised and unsophisticated offending with an absence of any real planning. I regard it as likely that you endeavoured to rob Mr Adams of the bag and used the knife only when there was some level of resistance and once Maciag had stepped in. Plainly you had it with you and by that later phase, it was very much visible. So I accept your counsel’s submission in that regard. See para [1] of the Defence Outline.
20 As I have mentioned, I was told of the offers you made to settle the case. You were not prepared to admit the attempted armed robbery of Mr Adams. You were initially offering to plead to attempted robbery on him and recklessly causing injury upon Mr Maciag. These were the lesser alternatives. That offer was rejected. You later offered also to plead to the lesser alternative of attempted robbery and the intentionally causing injury for the second incident involving Mr Sinclair. That offer also included a plea to attempted robbery and two charges of recklessly causing injury for the first incident. That offer was also rejected. As I have said, you have been acquitted of the later conduct and you must get the full benefit of that acquittal.
21 There was though, no impediment to you pleading guilty before the jury to the lesser alternatives. You chose not to. Instead, you have run a defence challenging altogether your presence as the offender at either scene. Your counsel has placed before the jury various exculpatory factual scenarios and even challenged the reliability of the photographic identification procedure.
22 At one point for instance, it was suggested by Mr Kozlowski in his closing argument to the jury that your DNA may have been explained by your being at the scene at almost the precise time this offending took place and having observed the sunglasses on the ground, you might have picked them up as an innocent passer-by, put them in the location they were found and hence left your DNA with that innocent act. There was of course not one jot of evidence in support of this theory.
23 He raised also the risk of DNA contamination and the failure to obtain other CCTV footage which would have disclosed, as he put it, the ‘real offender’.
24 This is not a case where you have been convicted of the offences to which you had offered to plead guilty. I will come back to consider this aspect as I have actually not found it easy conceptually. Your counsel submitted that your plea offer was not worth a lot here but was worth at least something.
25 There is a plea addendum document filed by the Crown, which sets out a chronology and some other procedural matters.
Impact
26
There is no impact statement from either of the victims here. As I have said, neither physical injury was in any way severe. I have said already, only
Mr Maciag required medical treatment. However, this was obviously an alarming event occurring completely out of the blue on a busy street at around peak hour. Mr Adams was minding his own business and then he was in a struggle with a man who went on later in the exchange to wield some form of knife. Mr Maciag had seen your conduct in attacking Adams and had stepped in to assist. He told you to “leave him alone” and then, as he put it, thought he was in some trouble himself when he saw the glint of metal. In case I overlook it later, let me say that Mr Maciag is to be congratulated for courageously stepping in where many would not. In doing so, he took a big enough risk and this could have turned out far more seriously for him and for you actually.
27 You would have presented on this night as someone best avoided. That is obvious from the footage. You imposed yourself upon Mr Adams in a public place. You then attacked the man who came to defend him and wounded him with a knife. It is frightening stuff and it was not just them, of course. Other civilians at the scene were worried about what they saw, noting your obvious aggression and erratic behaviour. There is no evidence of long-term impact here but I’m sure that this was a frightening event for each of the victims.
In Mitigation
28 Mr Kozlowski conducted the sensible and economical plea on your behalf and had prepared an outline of written submissions dated 14 September. He relied upon those submissions as well as a letter from your mother. There was also a large range of other written materials including a letter from you, one from a Buddhist chaplain and various course certificates, results and reports.
29 The case was adjourned on the day of the jury verdict to allow for preparation of an expert report but though one was commissioned, it was not placed before the court. Mr Kozlowski told me that having read the report himself, there was nothing relevant in the report. Any suggestion then of an acquired brain injury or some level of reduced functioning such as to attract any of the principles from the well-known case of Verdins[1] is simply not made out on the materials placed before me at all. That is very clear. Nor was there ultimately any submission that there was any material in support of a Verdins type argument.
[1] [2007] VSCA 102; 16 VR 269; 169 A Crim R 581
30 Mr Kozlowski told me about your personal and family background including details of your educational and employment history and also your relationship history. He detailed the issues you had in the past with illegal drugs.
31 He made submissions as to the relative objective gravity of the offending and the matters of sentencing principle coming into play here. He made submissions about the existence of family support and your prospects of rehabilitation and he relied on the lengthy period of pre-sentence detention, a period where you had very much cleaned up your act. He conceded that you had a lengthy prior criminal history but pointed out that at least there were not matters of robbery or attempted robbery or armed robbery disclosed within.
32 Mr Kozlowski relied upon the following matters in mitigation;
· Your offer to plead guilty to some offences
· The significant delay since this offending and your efforts in that sizeable period especially in the period where you have been in custody;
· The impacts of COVID 19 upon your prison experience to date and continuing;
33 He conceded that a prison sentence with a non-parole period was inevitable here.
Prosecution
34 Mr Triandos argued on behalf of the Director of Public Prosecutions that you had lengthy criminal history and that general deterrence, specific deterrence, just punishment, denunciation and community protection were relevant sentencing considerations in this case. The Director argued that a head sentence and a non-parole period would be required here. Well, so much had already been sensibly conceded by Mr Kozlowski. I will return in one moment to discuss the various submissions made on your behalf as well as the matters raised by the prosecution. Firstly though, I turn very briefly to your background.
Background
35 I have no reason not to accept what I have been told about your background. There is just no utility in my repeating it all in these reasons. Very briefly then, you were born on 9 April 1987. You are 34 years of age. You were one of two children. You have an older sister. You were brought up by your parents who are still together. It was a relatively stable background. There were some behavioural issues and limit testing as an adolescent. You were expelled from a number of schools. You were educated to year 9 level. There was a serious incident involving a fall from a train when you were 16 that required hospitalisation and a sizeable period of rehabilitation that disrupted your studies. You have held down a number of jobs in the past, the longest being for 6 months or so when you were 19 years old. That is a long time ago now. You have not had paid employment since 2011. Drugs have been a massive issue over the years. Ice has been the major problem. You are a father of two children, an 8 and a 6 year old. I was told that the children were removed from your and your partner’s care by Department of Health and Human Services. They are in your parent’s care and have been for many years. The relationship that you had with their mother was the longest you have had but it formally ended in 2020. By then of course you were well and truly in custody. You have had frequent periods of unstable accommodation in the past.
36 Your parents very clearly stand by you. Your mother speaks of the steps you have been taking in custody. You are behaving very appropriately and decently to your children. That is, of course, encouraging. The conduct she speaks of is hard to imagine emanating from the man we know was behaving violently out on Church Street on this night in question. The same really could be said of the letter you have written in support of an earlier application for bail or at least in contemplation of such an application. The man out on that street couldn’t have thought those thoughts or written such an account, even if he had thought them.
37 Prison has been, in this way, a valuable circuit breaker here. Though a valuable circuit breaker, it has not been easy and you have been in custody for the entirety of the COVID-19 crisis. This has no doubt impacted your prison experience with a number of limitations spoken of in the written submissions at paragraphs [20]-[21]. There was also a period of quarantine when you moved to Port Phillip Prison. You have taken part in meditation and in fact took over running those classes when you were up at Fulham prison. That was until you moved to Port Phillip at the time of the trial. I am told you have been drug free. There is a single drug screen outcome provided to me. You hope to study meditation upon your ultimate release and perhaps work in that field. Your mother’s letter is an impressive one. Your parents will support you upon your release including with accommodation if required. There is also the large body of materials I spoke of a moment ago dealing with courses and programs you have done, a clean urine screen and an insightful letter written by you in support of a contemplated application for bail. You also performed very well in the 24 hour alcohol and drug treatment program back in 2019.
38 You have a lengthy criminal history which is conceded to be of relevance to my task. I want you to understand that you do not fall to be sentenced a second time for any of that past offending. You have served those sentences which were imposed and that criminal history does not remove the need for me to pass proportionate sentences here. But I have to make judgements as to your prospects of rehabilitation and the need to deter you and protect the community from you. I cannot just ignore your past history. You have really been troubling the courts pretty consistently since 2005.
39 I am not going to waste your time or mine conducting a line by line audit of that criminal history in these reasons. There is just no point doing that. You know that you have committed a large range of offences including crimes of violence and dishonesty. There is a single aggravated burglary dealt with back in 2010 which is the most serious matter disclosed in that history. You received a prison term with a non-parole period. There are many drug and street offences. There are only a few appearances for violence offences but they include a suspended jail term imposed for intentionally causing injury. There are also weapons offences, both matters by way of prior conviction but also some subsequent matters I have been told about. It is true there are no robberies or armed robberies or attempts at either. However, as I say, you have been troubling the courts for over 15 years and have been given many chances by the Courts. You have breached multiple orders designed to keep you in the community. You have been sent to prison from time to time and that has not deterred you, at least from this offending. You have committed offences beyond the commission date of the ones I am dealing with and even breached a Court order imposed for those matters. The need to deter you is clear enough. However, I have already spoken of the benefit of the very sizeable circuit breaker posed by the pre-sentence detention in this matter. The time you have spent in custody represents by far the longest time you have ever spent in prison and you have actually done well whilst you have been in custody.
40 I turn now to consider the various other matters raised by your counsel.
Offer to plead
41 I turn firstly to the offer to plead but have already dealt with some aspects of that earlier in these reasons. I am not going to repeat everything I have said already. It was your right to run a trial. Adopting that stance is never and can never be a matter in any way in aggravation. It just isn’t. It is just that someone who actually pleads guilty has available a range of benefits in that setting. There is the utilitarian benefit, there is the taking of responsibility and there are also judgements that might be made as to the existence of remorse implied from the fact of a guilty plea.
42 You did not plead or offer to plead guilty to any of these actual offences for which you were convicted.
43 This was not a case of being convicted of the offences to which you had offered to plead. Had you been convicted of those lesser alternatives there would be a much stronger argument unfolding on this plea. In that setting you would be judged to have coming your way the full utilitarian benefits captured by an actual plea. In such a setting, which does not exist here, the offender should be afforded the discount they would have been given had the plea offer been accepted, and that is in recognition of the lost utilitarian value of the offer.See the cases of Carr v The Queen[2] and Zarghami[3]. That is not what happened here. As I said, you were not convicted of the lesser offences to which you had offered to plead. So your ultimate conviction does not reflect a previously rejected plea offer.
[2] [2012] VSCA 299
[3] [2020] VSCA 74 at paras [21]-[23]
44 An unaccepted plea offer may also demonstrate an acceptance of responsibility, the presence of remorse and a willingness to facilitate the course of justice. Once your plea offer was rejected, of course, you had a choice. You could have pleaded before the jury to the lesser alternatives in relation to the first incident for instance. That would also have been of some value at this point as it would have involved you placing yourself at the scene as the offender and recognising by that plea before the jury, your wrongdoing, but with the question reserved only as to whether it was an attempted armed robbery, your state of mind as to the injury and whether you were connected up to the second incident. What you did instead, by way of choice, was to run a full blown contest challenging any involvement in any of this offending. Your offer to plead is not of great value here and does not permit me to find the presence of any remorse given the way the case then unfolded. Still, as I said in the course of the plea, I have found it conceptually quite difficult in this sense. I am not critical of the Prosecution for rejecting your plea offer. I suppose they were right to, given the guilty verdict on these 3 charges. Nor am I critical of them rejecting the offer in relation to the second incident. In a way, in fact you may be very fortunate they rejected your offer. An attempted robbery and intentionally causing injury in the setting of the second incident would likely have placed you in a more serious predicament than you are in currently, by way of sentence. To your credit though, you offered that. You made that offer, I can’t just ignore that. It was rejected but the problem is, of course, you have then crossed your fingers and run a trial taking issue altogether with your involvement across the board. I do not ignore your offer to plead but I cannot give it anything like the weight it would have warranted had you been convicted of the lesser offences to which you had offered or even absent that, if I could infer remorse from the fact of the offer. I cannot do so here for the reasons I have disclosed. Mr Kozlowski conceded that it is not a matter of great weight and I agree but I agree also with his submission that it must be worth something. You were making those offers and many do no such thing. And as I say, I can’t just ignore that fact. I give it some weight.
COVID-19
45 Your counsel relied upon the impact of the Covid 19 pandemic upon your prison experience to date and into the future for that matter and I accept his submissions.
46 Prison undoubtedly has been a more stressful place owing to COVID-19 virus. For as long as there have been restrictions on prisoners arising from COVID-19 pandemic, you have been subject to them as you have been in custody throughout. You have no doubt been deprived of in person visits and the full range of courses for a sizeable enough chunk of the last 17 or 18 months. You spent some time in quarantine owing to your movement to Port Phillip to be available for your trial.
47 No doubt there has been worry about catching the virus in a prison setting where unlike someone in the community, there is really no level of autonomy that can be exercised.
48 As to what lies ahead with the pandemic, it is impossible for me or anyone else really to know. As you know, the impacts of the virus upon prisoners had been lessening, with visits and courses getting back underway earlier in the year. We have been experiencing ups and downs as the events of the last few months make plain enough. You probably recall, we had the circuit breaker lockdown in February that led to the temporary suspension then of prison visits. We have had the issues since including further community lockdowns. Community lockdowns translate into prison restrictions. We are currently in a lockdown in Metropolitan Melbourne until at least the end of September and the road map out of the lockdown is far from clear. There is uncertainty as to how things will play out for prisoners into the future. I am sure you will have some ongoing anxiety as to how you will fare in the future. In the short term, of course, you would certainly face the ongoing suspension of in-person visits and some reduction in the full range of courses available to you. I take these things into account. I cannot know if limitations in prison will be prolonged or if once lifted, whether they may start up again down the track and I am not free to speculate about that. I take into account the impact of the virus in the ways urged upon me by your counsel.
Rehabilitation
49 I turn now then to your prospects of rehabilitation. If I just focused on your criminal history and your many failures on Court orders in the past, well I would probably throw my hands up in the air and declare that you have no hope at all. None. But I don’t take such a dim view actually. People can change. It is not unheard of for someone at your age to actually change. Of course, you have not taken the many chances offered to you. You do not need me to tell you that. Of course, your ongoing rehabilitation will very much depend on abstaining from drugs. Keep using drugs and you better get very used to prison life, for you will have no realistic prospects at all. However, you have had sizeable time to reflect on the life you have led. You have had time to reflect on the way you wish to live in the future. Your mother’s letter was actually of real use to me. The conduct she speaks of is suggestive of someone who, with the right supports in place, may yet make a go of it. You still hope to play a meaningful role in your children’s lives. That is a factor that may spur you on and was mentioned in one of the alcohol and drug letters. Keep using drugs and you won’t play a meaningful role in their lives. It’s as simple as that.
50 There are some cases where a grant of bail is a very positive thing for an accused. That is so for instance where someone bailed then uses their time wisely and also stays out of trouble. I had a case like that yesterday with someone spending close to a year as a resident at Odyssey house. But a grant of bail can also backfire badly, for instance, when someone continues to offend. Now you’d been on summons in relation to this matter but I note that in the lead in to you ultimate remand in late 2018, you’d been offending. I suspect in a way, it may be quite lucky you were not bailed. It may be fortunate that you have remained in custody, though I am sure it would not have felt that way at the time.
51 But that is because you have done pretty much everything you can do in prison to assist yourself and to prepare for you ultimate release. I cannot just ignore that. You have cleaned up your act. I have the courses and certificates as well as the report on your efforts in the 24 hour Alcohol and Drug Program. I have your own letter. It is actually insightful. I also have your conduct in the course of the trial behaving impeccably throughout the proceeding in a manner which would have been totally beyond the capacity of that earlier version of you we see in Church Street back in 2016.
52 No doubt the time you have spent and the time you will spend in the future undergoing this sentence will serve to deter you to a degree. I am actually, notwithstanding the lengthy history, prepared to find that you have realistic prospects of rehabilitation. I suspect if I’d seen you on a plea date closer to the offence date, I could not have reached such a view as that. The delay here from the date of offence has been very significant. I take it into account. Once before the Court, COVID-19 delayed the trial.
53 Now this is not one of those cases where your counsel can point to a period of total compliance with the law in the period since the offending. That is not the way it is raised here. You have committed further offences and even breached a further court order. But the reality is, here you are now, after over 2 ½ years in custody. Over 5 years removed from the date of this offence. I think you do actually have a real chance. Parental support will be important. Stable accommodation will be critical. Structure in your life will be critical. Abstinence from illegal drugs is absolutely critical. Can you abstain? Well, it will be difficult. I hope that you can. If you can, your prospects will rise very significantly.
54 I am not just going to look at your criminal history and write you off. In fact I will not write you off. Ultimately I accept your counsel’s submission that you have reasonable prospects of rehabilitation. You may just be at that age where you are ripe for change. If not now, then when? Your life is passing you by. The test will come as it always does, upon your release from prison. As I have said, in a way the delay here has served you well as it permits me to have a more optimistic view of your prospects of rehabilitation. That is because, of course, I have available the written materials placed before me as to your efforts in the interim. Materials that may well not have exited had you been out on bail. Nor do I ignore the fact that you had the uncertainty of the matter hanging over your head for many years.
The Offences
55 I turn now to the offences and there is little need to say too much about them. I have already described the offending as disorganised. It was. You were significantly affected by drugs and you were not thinking very clearly. You were no doubt disinhibited by them. That is not mitigatory but your offending had no real planning. It was pretty spontaneous. You could barely stand on occasions as we can see from the CCTV footage. You were walking along the street bumping into people. You selected your victim for no good reason. You had no idea what items of value might be resting in his bag. No reason to think there were any. The attempted armed robbery was undoubtedly though a serious offence of course. The fact is many soft target armed robberies or attempted armed robberies have very little by way of planning.
56 Attempted armed robbery is inherently serious as an offence but this instance is a long way removed from the most serious examples of the offence. The first intentionally causing injury charge is very intimately connected up with that attempted armed robbery so much so that I believe full concurrency is available to me. It was almost unnecessary to separately charge it. The second intentionally causing injury (to Mr Maciag) is quite different. It was extraordinary conduct to be attacking such a man with a knife. You were attacking a man who was going to the aid of your first victim. It was extremely dangerous conduct. This was happening in a busy public place against a totally innocent victim, one who was acting as a good Samaritan. For his trouble he was wounded and sent to hospital briefly. You intended to injure him and the verdict is hardly surprising given that mechanism. Having a knife in your state was bad enough. Using it on an innocent member of the public in such a setting is far worse. As I said earlier, this incident could have played out far more seriously for him and for you. Injury, however, covers a multitude of outcomes including some that are actually quite serious, but without meeting the legislative definition of ‘serious injury’. Mr Maciag’s injury was relatively minor. It required brief medical treatment. There is no suggestion of any great impact upon either victim. The mechanism of Charge 4, the use of a knife, is a serious one. The mechanism of Charge 2 is less serious, as is the nature of that injury itself.
Purposes
57 I am required consider a number of matters and they include the nature and gravity of offending, the impact of the crimes and the maximum penalties.
58 I have to consider a number of purposes of sentencing. Rehabilitation is one such purpose. As I hope I have made plain, I don’t ignore that purpose at all. I give it some weight, more than I would have had you not made the efforts that you have made whilst in custody. More than I would had you been at large on bail and continued to offend in the interim.
59 But I cannot ignore the other purposes of sentencing including specific and general deterrence, protection of the community, denunciation and punishment.
60 On that last topic, of course you must be punished and it must be just and proportionate to your crimes.
61 I must also denounce your conduct.
62 Then there is deterrence, both general and specific. I must seek to deter you from offending in the future. That principle known to us lawyers as specific deterrence is obviously of some importance here. Time and time again, courts have tried to deter you from offending with very limited success.
63 General deterrence relates to the need to deter others. It is also an important purpose of sentencing for this style of offending. The Court must send a loud message to other individuals in the community who might be minded to commit these sorts of offences. The use of a weapon in a public place must be strongly discouraged.
64
So it is then a loud message must be sent to those who may consider engaging in the sort of conduct that you engaged in. General deterrence is an important sentencing purpose in this case and that much is conceded by
Mr Kozlowski.
65 Community protection is also of some importance given the nature of this conduct.
66 I have to pay regard to current sentencing practices. That is not a single controlling factor. It is just one of the many matters that I must have regard to.
67 I have looked at the up to date on-line statistics for each offence. Also, Snapshot No. 240 from the Sentencing Advisory Council for the crime of intentionally causing injury. The formal Sentencing Advisory Council Sentencing Snapshot for attempted armed robbery dates right back to 2007 and is of no use at all.
68 I have also looked at relevant cases listed in the sections of the Judicial College of Victoria sentencing manual. There is no specific section dealing with attempted armed robbery but I am well familiar with sentencing practices for this crime. Often of course there is very little distinction between the conduct that founds an attempt and the conduct that founds the completed offence. A demand is made and either complied with or it isn’t. I don’t lose sight of course of the fact that I am dealing with an attempt. The completed offence has a higher maximum penalty.
69 Statistics have inherent limitations. They tell me nothing at all about the finer detail of the crime. They tell me nothing about the matters in mitigation or aggravation. Many of the cases upon which the statistics are based would, of course, have been guilty pleas. This one wasn’t.
70 I must deal with you for your crimes taking into account the matters in mitigation and aggravation in this case. Taking into account your personal circumstances. The statistics provide no answer to my task. Nor do other cases actually. I have got to sentence you.
Totality
71 I take into account the principle of totality of sentence. That includes a consideration of the period that you have spent in custody which is not referable to this matter. You have been in custody continuously since December 2018 and that is what is important. There is a period of six months that is not wrapped up in the pre-sentence declaration, but I have regard to the whole period. I don’t ignore that matter at all and accept your counsel’s submissions.[4]
[4] Outline of Defence Plea Submission dated 14 September 2021 (Exhibit 1) at para [19]
72 I have engaged in a last look at the sentences imposed by the court and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon you and to ensure that the overall effect is commensurate with your overall criminality. As I said earlier, I believe there can be complete concurrency as between the sentences imposed on the attempted armed robbery and the intentionally causing injury upon that same victim. The intentionally causing injury upon Mr Maciag however is very different. Though, of course, it is in the same tight time frame, it involved a quite separate victim and it was serious separate conduct. A decent measure of cumulation is called for here. That is so despite the obvious tight time frame. He is not to be rendered some meaningless statistic. It was a serious enough crime committed upon him as he went to the aid of your first victim.
73 Prison is always a disposition of last resort. Your counsel correctly concedes that I must impose terms of imprisonment, some level of cumulation and arrive at a head sentence. He argues for a non-parole period that will provide for the possibility of a relatively long time on parole.
Ancillary order
74 There is an ancillary order that is sought, it is a disposal order that is consented to and I have signed that formal order. It is an order sought pursuant to the provisions of s78 of the Confiscations Act 1997 for forfeiture of some items of clothing and some other bits and pieces set out in the schedule. There is no issue taken with it by your counsel and pursuant to the relevant provisions of the Confiscations Act s78(1) I am satisfied it is appropriate to make the order. I direct that the items listed in the schedule be held and dealt with in the manner contemplated by that signed order.
Sentence
75 Let me then pass sentence here and I will explain what it all means towards the end of it and once I have fixed the non-parole and made the s18 declaration.
76 On the charge of attempted armed robbery, this is upon Mr Adams, (Charge 1) I am going to convict you and sentence you to 3 ½ years' imprisonment.
77 On Charge 2, the charge of intentionally causing injury upon Mr Adams, I convict and sentence you to 9 months' imprisonment
78 Charge 4, is the charge of intentionally causing injury upon Mr Maciag, On that charge I convict and sentence you to 2 years 3 months' (or 27 months) imprisonment.
Cumulation
79 The base sentence is therefore the 3 ½ years that I have imposed on charge 1.
80 I direct then that 9 months of the sentence imposed on charge 4 is to be served cumulatively upon the base sentence. The sentence on charge 2 will be served concurrently with all other sentences. You are probably trying to do the maths as you are sitting there.
Total effective sentence
81 What this results in, is a total effective sentence of 51 months or 4 years 3 months' imprisonment.
Non-parole period
82 Given the dimensions of that sentence, I am required to fix a non-parole period. I am not allowed to speculate as to whether you will be released on parole or not. That is entirely in the hands of the Adult Parole Board. I guess it is between you and them really. I will provide my reasons to them. My reasons may assist you and them in their task.
83 I direct that you serve a period of 30 months or 2 ½ years before becoming eligible for release on parole.
Section 18
84 You have spent already the period of 805 days in custody by way of strict pre-sentence detention and that period is declared as having already been served under this sentence.
85 So as you are probably thinking through as you are hearing these numbers, on those figures, it is not too long until you could apply for parole.
86 It is also possible that there may be some allowance, if not a decent allowance made for emergency management days in your favour. I cannot know if you will receive them or not, so I do not and cannot take that sort of matter into account. I suppose you will know what, if anything, is coming your way. I mention it in passing as it may even be that you are able to apply for parole almost immediately.
87 This is, on any view of it, a critical time for you. You are growing older. Your criminal history is growing lengthier. Whenever you do emerge from prison, it will be after the longest sentence you have ever served. Courts will pay less and less regard to your prospects of rehabilitation should you return to court down the track with further offending. Probably far less weight than I am giving them today actually. So what I encourage you to do is to seize your opportunity. Whenever you are released from prison, what you need to do is to seek such supports as are available to you to try to leave drugs and crime and prisons behind you. You will need to continue on with the level of application you have shown whilst in custody and transfer those efforts to a different and obviously far more challenging setting; That is, life in the community where you are far freer to make the wrong choices. Of course I hope that you can succeed and I hope that you can leave that former life behind you and continue on upon your release in the way that you are dealing with some of these issues whilst in custody.
88 Are there any other matters? From your perspective, Mr Triandos, any other matters I need to deal with?
89 MR TRIANDOS: No, Your Honour.
90 HIS HONOUR: Mr Kozlowski?
91 MR KOZLOWSKI: No, Your Honour.
92 HIS HONOUR: I am assuming you will speak to your client - we can leave you online with your client. Mr Kozlowski, do you want to use the video link just while we have got it?
93 MR KOZLOWSKI: Yes, I'd like that, thank you.
94 HIS HONOUR: I am not entirely sure whether it's going to be entirely private or not. I think it will be, so it won't be one of those ones where my staff are listening in. I obviously won't be. I will be leaving the Bench but it will be a circumstance where you will be made the host, it will be you and your client and no one else tuned into that exchange so I will give you that opportunity so you can discuss what has occurred here today and your client's rights in relation to it.
95 All right, so Mr Williams, Mr Kozlowski is going to stay online and he'll have a chat with you about what's happened here today.
96 OFFENDER: Cheers, thank you.
97 HIS HONOUR: That completes the matter then. I think we will adjourn the court to 9am on Tuesday.
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