Director of Public Prosecutions v Zotos
[2021] VCC 1940
•25 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01878
Indictment No. M10323187
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZOTOS, ANGELO |
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JUDGE: | His Honour Judge Hannebery | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 November 2021 | |
DATE OF SENTENCE: | 25 November 2021 | |
CASE MAY BE CITED AS: | DPP v Zotos | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1940 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Armed robbery - Possession of a drug of dependence
Legislation Cited: Criminal Procedure Act 2009; Sentencing Act 1991
Cases Cited:R v Verdins & Ors (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571.
Sentence: 3 years and 6 months imprisonment. I direct that you serve a period of 2 years and 3 months before becoming eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F. Martin | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr C. Terry | Milardovic Legal |
HIS HONOUR:
Introduction
1Angelo Zotos, you have pleaded guilty to:
(a) Charge 1, armed robbery, which has a maximum penalty 25 years imprisonment; and
(b) Charge 2, a rolled-up charge of possession of a drug of dependence, which in circumstances where the possession was not for the purpose of trafficking has a maximum penalty 1 year imprisonment or 30 penalty units.
2Pursuant to sections 145 and 242 Criminal Procedure Act 2009, you have agreed to this court hearing and pleaded guilty to Summary Charge 3, a rolled up charge of commit indictable offence on bail. The maximum penalty for which is 3 months’ imprisonment or 30 penalty units.
Summary of Offending
3A Summary of Prosecution Opening was tendered and read aloud in court and I do not intend to repeat it in full.[1]
[1]Prosecution Exhibit 1.
4In short, your offending occurred between 30 January 2021 and 16 February 2021. Zen Areos was the co-accused for the offending that occurred on 30 January 2021.
5On the morning of Saturday 30 January 2021 you went in Mr Araos’ vehicle to a street near St Albans train station. The victim Ms Nguyen, parked her car approximately six bays near Mr Araos’ vehicle.
6You approached the victim’s vehicle and opened the front passenger door. You produced a knife. The victim described the weapon as a flick knife with a black handle and a silver blade, approximately 15cm long.
7You grabbed her brown Michael Kors handbag and said, “I will kill you, I will kill you”. The victim believed that you would use the knife on her if she did not give you her handbag. You left with the victim’s handbag which contained $400 in cash.
8You returned to Mr Araos’ vehicle and got into the front passenger seat. She got out of her vehicle and yelled ‘robber, robber’ in Vietnamese. Mr Araos pulled out of the parking bay and drove away. This is the conduct that comprises Charge 1, armed robbery.
9On 16 February 2021, police executed a search warrant on your parents’ house in Blackburn North. On police arrival you attempted to run out of the back door and were placed under arrest.
10During the search police located three 10ml vials of anabolic steroids in your bedroom, later confirmed to be Boldenone and Testosterone. This forms part of rolled-up Charge 2, possession of a drug of dependence.
11A record of interview was conducted. You admitted your presence in the vicinity of the train station, however denied any involvement in the armed robbery.
12A pat down search located five wrapped suboxone (Buprenorphine) patches in your underwear. This forms part of rolled-up Charge 2, Possession of a drug of dependence.
13At the time of the armed robbery you were on bail that was granted on 26 November 2020 in relation to charges of theft and driving whilst disqualified. The offending above is the subject of rolled-up Summary Charge 3, commit indictable offence on bail.
Impact on the Victim
14The Prosecution advised that the victim does not wish to make a Victim Impact Statement. It is evident, however, from the description of the incident provided by the victim that she was placed in fear for her life because of your conduct. Her significant distress was obvious from the CCTV footage. Pursuant to s 5 Sentencing Act 1991, the impact on the victim is a relevant sentencing consideration, but I am conscious not to allow it to overwhelm other sentencing considerations.
Nature & Gravity of Offending
15The offence of armed robbery is inherently serious. So much is evident from its maximum penalty of 25 years imprisonment.
16Your offending occurred in a public location, namely a train station car park. The crime was unsophisticated, but it was not devoid of planning. It was no coincidence that you and Mr Araos attended in the vicinity of the crime scene that morning, and you made sure that Mr Araos had the vehicle running in preparation for your escape. You were on bail at the time. The victim in this matter was a 46-year-old woman in her car. She was confronted by you, a then 47-year-old man armed with a knife, and had her life threatened. She was effectively alone and vulnerable at the time you chose to commit this robbery.
17The incident was over quickly and did not involve the physical assault of the victim. The value of the property taken in the robbery was relatively modest.
18It was put on your behalf, apparently based on your instructions, that your original intention in attending the car park was to meet with and then steal drugs from your drug dealer. It was submitted that this intention was less morally culpable than the suggestion that you have targeted and then robbed a random stranger.
19No evidence was provided to support this contention. There is no evidence that the victim was a drug dealer or connected to a drug dealer. As such, there is no basis for the submission. Even if there were, this matter would not have amounted to either a matter in mitigation or even the absence of a feature that would otherwise be aggravating.
20Overall, I consider Charge 1 to be a mid-range example of an inherently serious offence.
Personal Circumstances
21You were 47 years old at the time of the offending and are 48 years of age at sentence. You were born in Melbourne to a Greek family. Your mother came to Australia at age 18 and your father arrived separately a couple of years later. You grew up in the north-western suburbs of Melbourne. Your family was not well off, but you did not live in poverty, and you were not deprived of any material needs as a child.
22You had a difficult relationship with your father during your childhood. You instruct that he was both physically violent and emotionally unsupportive of you. Both he and your mother ran a takeaway restaurant at the Moonee Ponds market. You now have a good relationship with both parents.
23You have two sisters, one of whom runs a finance company and the other who is a microbiologist at a chemical company. It was conceded by your counsel that regardless of the imperfections of your upbringing, it was not one of disadvantage or deprivation such as to enliven the principles outlined in Bugmy.
24You struggled academically during your schooling. You left school after year 10 to commence work as an apprentice plumber. You completed that apprenticeship and have continued to be employed in that field for a variety of different plumbing companies throughout your adult life when not incarcerated.
25In 2008 you started your own plumbing business, which was ultimately unsuccessful due to difficulties with your business partner.
26You were a licensed plumber up until 2014, before a complaint from Victoria Police to the plumbing commission resulted in your license being cancelled. You are currently taking steps to have your license restored, and you hope to resume employment in this field upon your release from custody.
27Your prior criminal history is extensive. It is reflective of your long-standing problem with drugs, in particular heroin. The bulk of your prior offending has comprised of matters of dishonesty, though there have been several convictions for matters of violence. Your criminal record reveals consistent recidivism since 1994, without any significant gaps between your offending but for sentences of incarceration.
28Courts have previously imposed a range of penalties on you. These have included multiple occasions when you have been provided with opportunities to engage in drug and alcohol rehabilitation. No attempt at court ordered rehabilitation appears to have achieved any lasting outcomes.
29You were sentenced by this court in 1998 for armed robbery. You received 18 months imprisonment for that offence. It is telling that you stand to be sentenced again for that offence 23 years later.
30You have spent most of your period on remand for these charges at Fulham Prison. It was put on your behalf, without supporting documentation but from your own instructions, that you have returned negative drug screens whilst in custody. You are currently on a methadone program. You report that your dosage has reduced from 50mg at the commencement of your time on remand to 12mg now. You have recently been moved to Marngoneet, where you are employed as a laundry billet.
31I take into account that for the entirety of the period you have served on remand the prison system has been subject to restrictions as a result of the pandemic. These have included but are not limited to restrictions on visits and limitations on access to programs that would otherwise be available to you. These deprivations mean that the period you have served on remand has been more onerous than would otherwise have been the case. It is reasonable to anticipate that these restrictions to the prison environment will persist for the foreseeable future.
Parity
32On 29 July 2021, your co-offender Mr Araos pleaded guilty to a single charge of Assist Offender (Theft) and was sentenced to a without conviction adjourned undertaking for 12 months and was ordered to pay $500 into the court fund.
33There is no need to consider the principle of parity in relation to Mr Araos as he pleaded guilty to a lesser offence.
Plea of Guilty
34You pleaded guilty to this offending at the committal hearing on 31 August 2021. I consider your plea to be entered early, albeit not at the absolute earliest reasonable time. By your plea of guilty you have spared the time and resources that would otherwise have been expended on contested proceedings. In the context of the extreme pressures placed on court listings by pandemic restrictions, the utilitarian value of your plea is very significant.
35The plea of guilty is indicative of some level of remorse, notwithstanding the false denials you provided to police in your record of interview.
36I take into account the personal letter dated 25 November 2021 you provided to the court subsequent to the plea hearing.[2] In that letter you apologise ‘to all of those involved in this court case’ for your actions. You display some insight into the impact of your offending upon both the victim and your own family. I accept that you now have a significant level of contrition for your offending.
[2]Defence Exhibit 3.
Prospects of Rehabilitation
37As for you prospects of rehabilitation, I consider the following matters to be relevant.
38You continue to have family support. You have trade qualifications. You have previously shown the capacity to obtain and retain employment. You have remained drug-free whilst in custody and have engaged in some sensible planning for your life upon release. You have engaged with and made progress in a methadone program whilst in custody. You are now likely to have stable public housing available to you post-sentence. You have shown some contrition.
39At age 48 you are back before the court for a second occasion to be sentenced for armed robbery. Your prior history is indicative of an apparent inability to abstain from drug use and prevent the offending caused by it. Your recidivism over the past two decades suggests a repeating cycle of drug use, offending and incarceration. Whilst it is very much to be hoped that you may now have reached an age where you have the motivation and capacity to break that cycle, as things currently stand I assess your prospects of rehabilitation to be poor but by no means hopeless.
General Sentencing Principles
40I must impose a sentence that seeks to deter others from similar offending. In your case, your prior history means that specific deterrence acquires particular importance in the sentencing process. I consider that protection of the community and the denunciation of your conduct are both significant sentencing considerations. I must impose a sentence that represents a punishment that is just having regard to all the circumstances of the case, including the matters in mitigation.
41I must impose sentences of each charge that are appropriate for the matters applicable to each, then structure the sentence such that the total effective sentence properly reflects the entirety of the criminality represented by the charges on the indictment and all other relevant factors including the matters in mitigation. In this case I consider that Charge 2 is appropriately the subject of a modest fine, and that the sentence imposed on Summary Charge 3 be wholly concurrent with the sentence imposed on Charge 1. I do this to ensure that the aggravation that attaches to the armed robbery being committed whilst on bail is not doubly punished.
Sentencing Submissions
42Mr Terry on your behalf sensibly conceded the only appropriate sentence is a term of imprisonment with a head sentence and non-parole period.[3]
[3]Defence Exhibits 1 and 2.
43Ms Martin on behalf of the Director unsurprisingly agreed with this conclusion.
44Mr Terry very helpfully drew the court’s attention to several relatively recent sentences imposed for armed robberies involving the use of a knife. It is necessary to have regard for current sentencing practices, to the extent that they can be gleaned. It is also important to remember that each case reflects its own unique circumstances.
45None of the cases referred to by Mr Terry required the sentencing court to consider in mitigation the impacts of the pandemic upon the utilitarian value of the plea or the burden of imprisonment. The accused in all the cases referred to by Mr Terry were substantially younger than you at the time of sentence. A number of them were able to rely in mitigation upon the principles outlined in Verdins[4] and Bugmy,[5] unlike the present case. The cases are of limited use as direct comparators.
[4]R v Verdins & Ors (2007) 16 VR 269
[5]Bugmy v The Queen (2013) 249 CLR 571.
46That said, both the cases provided by Mr Terry and reference to the Sentencing Advisory Council snapshot number 236 for armed robbery sentences for the 5-year period concluding July 2019, do provide some general guidance as to the type of sentences that the courts have imposed for armed robberies broadly categorised as being mid-range examples of the offence.
Sentence
47Mr Zotos, On Charge 1, armed robbery, you are convicted and sentenced to 3 years and 6 months imprisonment.
48On Charge 2, possession of a drug of dependence, you are convicted and fined $200.
49On Summary Charge 3, commit indictable offence on bail, you are convicted and sentenced to one month imprisonment, to be served concurrently with the sentence imposed on Charge 1.
50That makes a total effective sentence of 3 years and 6 months imprisonment.
51I direct that you serve a period of 2 years and 3 months before becoming eligible for parole.
52Pursuant to s 18(4) of the Sentencing Act 1991, I declare that you have spent 282 days by way of pre-sentence detention, and I direct that be entered into the records of the court.
53Pursuant to s 6AAA Sentencing Act 1991, but for your plea of guilty I would have imposed a total effective sentence of 4 years and 9 months imprisonment with a non-parole period of 3 years and 9 months.
54The Prosecution made application for disposal of several items that were seized during the investigation. Counsel on your behalf did not oppose the application and I make the Order in the terms sought.
55Are there any other orders required?
56MS MARTIN: No, Your Honour.
57MR MILARDOVIC: No, Your Honour.
58HIS HONOUR: Thank you both. I will adjourn the court until 2 pm tomorrow.
59MR MILARDOVIC: As the court pleases.
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