DPP v Minogue
[2017] VCC 1594
•31 October 2017
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-17-01153
DIRECTOR OF PUBLIC PROSECUTIONS Prosecution
v
MATTHEW JAMES MINOGUE Defendant
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JUDGE: HIS HONOUR JUDGE MURPHY
DATE OF HEARING: 27 October 2017
DATE OF SENTENCE: 31 October 2017
CASE MAY BE CITED AS: DPP v Minogue
MEDIUM NEUTRAL CITATION: [2017] VCC 1594
REASONS FOR SENTENCE
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CRIMINAL LAW – Sentence – Armed robbery – Recklessly causing injury – Offender drove victim to a secluded area and demanded that the victim remove his clothing – Offender stole iPhone and wallet of victim – Use of pocket knife – Minor injuries caused as a result of swinging the knife towards victim – Whether Community Corrections Order appropriate – Whether purposes of sentencing met by imposing Community Corrections Order – Boulton v The Queen (2014) 46 VR 308, applied
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APPEARANCES: Counsel Solicitors
For the Crown Ms D Manova Solicitor for the Office of
Public Prosecutions
For the Defendant Mr B Wilkinson Brendan Wilkinson Lawyer
HIS HONOUR:
Matthew James Minogue, you have pleaded guilty to one charge of armed robbery and one charge of recklessly causing injury. The maximum penalties are 25 years and 5 years, respectively. The victim was Joel Salvestrin.
Circumstances of offending
The circumstances of offending were set out in the Summary of Prosecution Opening which was read in open court on the plea and which I incorporate by reference. The offending occurred on a single day, being 25 March 2017. In brief outline, you and the victim were acquaintances – you had purchased drugs from him and owed him some $300.
The victim contacted you to discuss the money that you owed to him. You arranged to meet him. You met the victim and told him to get into your car (you were driving your mother’s car). Thereafter, the two of you went on what you would call a cruise, and what the victim would call a nightmare.
You drove to meet a friend who was not far away from where you picked the victim up. After trying to make contact with your friend, to no avail, you drove the victim further up into the Kinglake West area into bushland.
Mr Salvestrin indicates that in the course of the car journey, you were becoming more agitated and the discussion moved to relationships and in particular, comments that he is said to have made about your former partner. You then started to abuse him, including punching him and pulling a pocket knife on him and threatening to injure him. There were various comments made about whether or not he had intentions in relation to your former partner.
When you finally got to some bushland area that you were familiar with near Wallan, you again pulled out the pocket knife and swung it at him, causing a small cut to his left hand. This constitutes charge 2.
Thereafter, you held the knife and forced him to remove all his clothing. You took his mobile phone and wallet and put them in the boot of your car. He was in shock and at that point, you also took a couple of photos of him naked and said “[a]ll my mates will know who you are, so if you do try and start shit again, the Comancheros will come after you". You then left him there. He was left in the middle of nowhere effectively. He went to a Melbourne Water Depot to try and call for help and was left there for some hours until the police arrived after locating where he was. The police arrested you a couple of days later and you made full admissions as to the events.
Police seized your phone and located the photos in the ‘Deleted Items’ folder, and also located the pocket knife.
You gave an explanation for the offence which you do not now maintain. Effectively, you alleged that there were threats made and discussion about your former partner and you wanted to humiliate the victim. You stated in your record of interview that you took the photos to shame the victim, but deleted them from your phone and Facebook when you got home. You made comments about the victim saying that “[h]e is not a nice person”, and your intention was to scare and threaten him.
10.As indicated in the Crown opening, and extracted from your record of interview, you expressed remorse by stating that you felt bad that the victim was crying, and if you had of seen him in the bush afterwards, you would have taken him back into the car and driven him home.
11.You then said:
“I was actually really distressed because I stuffed up like big time, I shouldn’t have done what I done.”
12.You were worried about your actions for the following three or four days, and stated that you were not proud of your actions. You said that you were a “better person than this”.
13.The victim has filed a victim impact statement which outlines the impact the ordeal had on him – a non-insignificant matter was that you punched him in the face. He went to see his General Practitioner, and although there was no infection in his hand, he still remembers the feeling of being punched in the face and having the knife pulled on him.
14.It affected him in relation to his mental well-being and his recovery was still ongoing as at the date the victim impact statement was made in August 2017. He said he feels a different and changed person – he is trying to cope and get his life back. He has lost out financially because he has been unable to work and he has become withdrawn, and your actions have had an impact on his confidence.
15.The contents of the victim impact statement, which I must take into account in sentencing you, indicate that this has had a not insignificant impact on the victim.
Seriousness of the offending
16.Armed robbery is an inherently serious offence. This is indicated by the fact that it carries a 25 year maximum penalty. Obviously, it can be committed in a wide range of circumstances. In characterising the armed robbery, the learned Crown prosecutor submitted that it should not be seen as being in the bottom of the range, as was asserted by your counsel.
17.It is difficult to characterise this type of offending, as it does arise out of a dispute between two acquaintances. It was not committed for financial gain, but to embarrass and humiliate the complainant. As you said in your record of interview, it was an “interpersonal spat”, associated with the fact that you were in the drug milieu together and also arose out of jealousy involving your former partner. This gives a partial explanation for the offending.
18.Further, during this time in your life you were using methamphetamine, which, of course, is well known to cause erratic behaviour by people who are otherwise generally law abiding citizens.
19.There was an aspect of pre-meditation in the offending in that you did have the pocket knife with you when you got into the car, and you drove to an area that you were familiar with and that you knew was secluded.
20.Taking all these matters into consideration, this offence falls at the lower end of the scale for this type of offence. It does have this aspect of a personal dispute between the two of you, rather than a robbery for the purposes of financial gain.
21.The second charge of recklessly causing injury falls at the lowest end of the assault type offences. It is clear that the injury was very minor.
Personal circumstances
22.Your personal circumstances were outlined on the plea by your counsel, Mr Wilkinson. The most significant matter is that you are now aged 33 and you come before this Court with no prior convictions, which does put you in a rather exceptional position, in that people who come before the court for armed robberies at your age often carry with them a number of prior convictions.
23.You called evidence from your mother to indicate you come from an intact family. You had been involved in a relationship that had broken down. You have a three year old son who you have been very close to. As a result of moving house, there were some financial difficulties. You were forced to move back into your parents’ house at one stage – this was in the context of depression associated with the breakdown of your relationship.
24.At this point, you started to use drugs that you had obtained from an acquaintance, who then introduced you to the victim in this matter. Your mother gave evidence that you completed year 12, and have been employed in full-time work since this time.
25.Also on the plea, Ms Nichol, a personal friend of yours, gave evidence in support of the fact that you have been suffering from depression recently as a result of the breakdown of your relationship. She said that apart from this, you were of stable good character and a strong supporter of her and the community. This is also testified to in a reference from your former partner. She also states that you have suffered from various medical problems. She states that you can be disillusioned sometimes and engage in disorderly thinking, and can become quite easily frustrated. She indicates that you have been under stress due to this breakup between the two of you.
26.Also tendered on the plea was a written reference of Mr McLarty, who indicates that you have been a strong supporter of him over the past 20 years and he has noticed the effects of the separation on you. He states that you have accepted your wrongdoing and that you are willing to do anything to rectify your actions. This is consistent with the evidence of Ms Nichol, who also indicates that you are remorseful for your actions.
Purposes of sentencing
27.The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
28.Your counsel tendered a letter from your employer indicating that you are working as a concreter. Also tendered was an admission discharge summary from the North West Mental Health Services who indicate that you had a four-day inpatient admission for mental health issues and polysubstance abuse in August 2017.
29.At that point, you were under the care of a psychiatrist and you were on various forms of medication, one of which was Zoloft.
30.Also tendered was a letter from your treating doctor who stated that earlier this year, he referred you to the Royal Melbourne Hospital on the basis that you presented with suicidal thoughts and thought that you needed urgent admission.
31.Your counsel submitted that a Community Corrections Order, with appropriate conditions would meet all the sentencing requirements. The learned Crown prosecutor submitted, on the other hand, that the offending was too serious to contemplate such a disposition, and that a term of imprisonment combined with a Community Corrections Order would be an appropriate disposition.
Comparable cases
32.During the plea, I was referred to five cases where different judges of this Court had imposed Community Corrections Orders where the principal offence was one of armed robbery.[1] Each of them is confined to their own facts. They do indicate, however, that in a very narrow range of cases, a sentence of a Community Corrections Order alone (without a period of imprisonment) for an armed robbery may be appropriate.
[1] Director of Public Prosecutions v Behrendt (unreported, County Court of Victoria, Judge Grant, 23 May 2016); Director of Public Prosecutions v Brennan [2016] VCC 1499; Director of Public Prosecutions v Yolcu [2016] VCC 1114; Director of Public Prosecutions v Ross [2016] VCC 1572 and Director of Public Prosecutions v Morgan (unreported, County Court of Victoria, Judge Wilmoth, 17 June 2016).
33.The closest case in terms of the factual basis for which you fall to be sentenced is Yolcu – however, this was distinguished by the learned Crown prosecutor on the basis that there was self-awareness on the part of the offender in that case.
34.In this case, while general deterrence is usually a prominent sentencing consideration, I give it less prominence due to the specific circumstances of this case. It has the hallmarks of an interpersonal dispute and with a lack of any financial motivation on your part, overlayed with the use of illegal drugs. Your personal circumstances, as I have outlined, including your lack of prior convictions, your stable work history and strong family support, lead to a consideration that a disposition that will encourage your rehabilitation is called for. This is particularly so now that you are out of the drug milieu.
35.Your counsel referred to the frequency cited judgment in Boulton[2] where the Court of Appeal emphasised that a Community Corrections Order may be an appropriate disposition where all the purposes of sentencing can be achieved without a sentence of imprisonment, or in combination with a sentence of imprisonment.
[2] Boulton v The Queen (2014) 46 VR 308 (‘Boulton’).
36.Also relevant to consider in sentencing is the admonition on sentencing judges to consider imprisonment as a sanction of last resort. This recognises that imprisonment is to be available where no other sanction can meet all of the purposes of sentencing. The fact that other judges in this Court have imposed a Community Corrections Order for similar offending does indicate, like Boulton, that all of the requirements of sentencing can be met by imposing a Community Corrections Order. This is, however, only in a narrow range of cases.
37.One such case is where it is appropriate to emphasise rehabilitation and not disrupt progress already achieved towards rehabilitation. Here, the evidence before me, particularly from Ms Nichol, indicates that you have insight into your offending and are remorseful. You are out of the drug milieu and moved on into a new relationship. You have steady employment and are supporting your young son.
38.You have strong support from your family and friends, as is evident from the plea material before me. This supports that this offending is out of character, just as your lapse into drug use was. It is also relevant that your mental health must have been significantly affected which resulted in your inpatient admission in August. As such, you have paid quite a personal price for these criminal proceedings.
39.As a result of your personal circumstances, and the circumstances of the offending as I have described, I see general deterrence as having less salience than it otherwise would. There was also no financial gain for you as a result of the robbery.
40.I have given this matter considerable thought and see this as a case where you are effectively at a fork in the road, and now moving towards rehabilitation for a man who is 33 years old, and who has never been before the courts.
41.The principles articulated in Boulton are applicable and an appropriately tailored Community Corrections order will, I am satisfied, achieve all of the purposes of sentencing.
42.Accordingly, on charge 1 of armed robbery and charge 2 of recklessly causing injury, you are convicted and sentenced to an aggregate 30 month Community Corrections Order. I order that you undertake 200 hours of unpaid community work, that you be under supervision for the duration of the order, that you engage in drug assessment, testing and treatment as required and that you engage in any mental health assessment as directed. I will also order that you undertake an offender behaviour program, including anger management programs.
43.These are onerous orders. I have reached the conclusion that all of the purposes of sentencing can be achieved by such an order. This order involves you, over the next 30 months, undertaking 200 hours of unpaid community work and participating in the programs and testing as I have described.
44.This order also means that you must be of good behaviour for the next 30 months. If you commit a criminal offence carrying a term of imprisonment, or breach the order, including any current Community Corrections Order or Intervention Order you are on, that breaches this order and you will come back before me for re-sentencing, and sentencing on the breach, which carries a maximum term of 3 months imprisonment. You will also be under supervision for the duration of the order – as such, you must present to appointments they arrange with you and advise them of a change of address, if necessary.
45.You must also participate in any drug, mental health, or offender behaviour programs that they direct you to attend. Failure to do so will breach this order. You must also provide urine samples for drug testing and analysis if directed.
46.I am giving you credit for being a 33 year old with no prior convictions. You have a full-time job and a young child you are trying to parent. You have since moved on from the breakdown of your previous relationship. Luckily, in this case, you are out of the drug milieu. I would encourage you to stay away from this, as it is what got you into this hole and led to your offending.
47.You must present to the Community Corrections Office within two business days and complete the induction program.
48.I will also make the Disposal Order as sought by the prosecution.
49.I declare, pursuant to s. 6AAA of the Sentencing Act 1991, that had you not pleaded guilty I would have sentenced you to six months’ imprisonment.
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