DPP v Pau
[2007] VSC 4
•1 February 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1421 of 2005
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ION PAU |
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JUDGE: | Hollingworth J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 and 31 October 2006, 1, 2, 3, 8 and 30 November 2006 | |
DATE OF SENTENCE: | 1 February 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 4 | |
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Criminal law – Sentence – Armed robbery (3 counts) – Intentionally causing serious injury (1 count) – Theft (2 counts) – Arson (1 count) – Crimes committed to get money to pay drugs debts – Early guilty plea – 1 prior conviction – In protective custody due to murder in custody of principal co-accused – Principle of totality applied – Some cumulation – Currently serving 6 year term for rape – Total effective sentence of 11 years 9 months – New non-parole period of 6 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M Williams S.C. | Office of Public Prosecutions |
For the accused | Mr J Singh | Galbally & O’Bryan |
HER HONOUR:
Ion Pau, you have pleaded guilty to armed robbery (three counts), intentionally causing serious injury (one count), theft (two counts) and arson (one count). The offences relate to two separate incidents.
I will start with the TAB incident. On 26 April 2005, Eleanor Baker was working at the TAB in Leonard Avenue, Noble Park. You arrived at around 1:00pm with your co-offender, Darren Parkes. You were driving a car which you had stolen from the Yarraman Railway Station earlier that day; that is the subject of the theft which is count 1 of the first presentment.
Parkes had armed himself with a sawn-off .22 calibre rifle and was wearing a dark-coloured balaclava. After you double-parked the car near the TAB, Parkes got out, entered the TAB and yelled, several times, words to the effect of “this is a hold up, everyone down”. The five or so customers and Ms Baker lay on the ground, as Parkes approached the counter area and began kicking the door to that area. Ms Baker opened the door and Parkes entered the counter area. Parkes directed Ms Baker to remove money from the register and place it in a dark coloured bag. Ms Baker did so. Parkes then went to the rear of the TAB and asked for all the money. During this time he was pointing the firearm directly at Ms Baker. He then went to another cash register and opened the cash drawer, but the register was empty. Parkes told Ms Baker to lie on the floor and he left the TAB. A total of approximately $1,280 was stolen from the TAB. These events are the subject of the armed robbery which is count 2 of the first presentment.
You then drove Parkes from the TAB to Kirk Street, Noble Park, where the two of you set the car alight and left in another vehicle. This is the subject of the arson which is count 3 of the first presentment.
I turn to the South Melbourne incident. Shortly after 5.30pm on Sunday 22 May 2005, Benedetto Riccardi finished work at the fruit stall which he owned and operated at the South Melbourne Markets. He left with the stall’s takings of approximately $15,200 and the float of approximately $500 in coins in several bags. He drove to a carpark in South Melbourne. His sister-in-law, Nancy Corrone, who worked at his stall, had arranged to follow him there.
You and Darren Parkes also followed Mr Riccardi. You were driving a red Saab sedan that had been stolen from St Kilda West almost a week earlier, on 16 May 2005; that is the subject of the theft which is count 1 of the second presentment. Parkes had with him the same sawn-off .22 calibre rifle that he had used in the TAB incident. Once again, he disguised himself with a dark-coloured balaclava. You were armed with a baseball bat and disguised yourself by wearing a baseball cap and a handkerchief covering your face.
Mr Riccardi entered the carpark and parked against one of the walls. You drove in and parked behind his car. Mr Riccardi had just got out of his car when Parkes jumped out and yelled several times at him to hand over the money. Mr Riccardi said several times that he did not have any money. Parkes then told you to get out and bash Mr Riccardi. You got out of the car and walked towards Mr Riccardi, with the baseball bat raised in a threatening position. There was a struggle between you and Mr Riccardi. During this struggle, Parkes shot Mr Riccardi once to the middle of his back, where the bullet lodged in his spine. The bullet passed through your right thumb before hitting Mr Riccardi. You dropped the bat at some stage during the struggle. Mr Riccardi fell to the ground. He had lost control of his lower body and was unable to get up.
Parkes then pointed his firearm at Ms Corrone and demanded money and property from her. Terrified, she handed Parkes her purse and mobile phone.
Parkes went to the front passenger seat of Mr Riccardi’s car and took the bag containing the stall’s float of about $500. He then went back to where Mr Riccardi was lying. Mr Riccardi had managed to flip over onto his back. Parkes stood about two metres from him and said “You might as well die now”. You said and did nothing to try to stop him firing again. Parkes shot Mr Riccardi a second time to the chest, just above his heart. Mr Riccardi started bleeding heavily. After that, he remembers being hit with something hard across the chest, which he believed was the bat. He could not say whether it was you or Parkes who hit him. I am not able to conclude on the evidence that you actually struck him with the bat at any stage, although you certainly wielded it at him in a threatening manner. These events are the subject of the charge of intentionally causing serious injury (count 3) and the two counts of armed robbery (counts 4 and 5).
You and Parkes left in the stolen Saab. You drove the car to York Street, South Melbourne, where you left it. Parkes then drove his own vehicle to Narre Warren, stopping at a pier in Mentone to throw the gun into Port Phillip Bay. After contacting various people, unsuccessfully trying to get a lift from South Melbourne, you eventually caught a train to a friend’s house.
Some days later, you went to Dandenong Hospital, seeking treatment of your thumb injury. You lied to hospital staff and police and told them that you had been the victim of an armed robbery in Dandenong on 26 May, during which you had been shot in the thumb.
After your arrest on 20 June 2005, you made full admissions to the police regarding the TAB and South Melbourne incidents. Particularly in relation to the TAB incident, the police had almost no independent evidence of your involvement except for your admissions.
Your actions have had terrible consequences for the victims of both incidents. After 18 years working at the TAB, Ms Baker no longer feels safe and secure working there. She finds herself looking over her shoulder all the time. She finds it hard to close the TAB on her own and has had to reduce her hours and work under supervision. She now suffers from depression, nightmares and anxiety.
Mr Riccardi has been left with serious and permanent injuries. He was initially treated in intensive care and then spent 3 months recovering in the Austin Hospital. He has not regained either the feeling or movement of his lower body. Aged in his early 30s, he is now classed as a paraplegic and confined to a wheelchair. He has lost control of certain bodily functions. Things that were once simple for him, such as having a shower and getting dressed, now take him two or three hours a day. His physical condition is permanent and has had absolutely devastating consequences for him. Mr Riccardi feels depressed all the time and is currently taking medication and receiving counselling. He is now more fearful. He has also found being dependent on others for his personal hygiene a degrading experience. The incident has damaged his sense of security and self-respect.
Mr Riccardi has also suffered financially from these events. He spent about $15,000 adjusting his home to suit his wheelchair, plus an additional $12,000 on home security. He estimates he lost $150,000 from the sale of his fruit stall business, because it had to be sold in the nature of a “fire sale”. He now lives on a pension.
Ms Corrone, the other victim of the South Melbourne incident, feels depressed, finds it hard to concentrate and has nightmares and sleeplessness. She feels too depressed to socialise and is now scared to trust people.
The maximum penalties for the offences to which you have pleaded guilty are as follows:
Theft 10 years’ imprisonment
Armed robbery 25 years’ imprisonment
Intentionally causing serious injury 20 years’ imprisonment
Arson 15 years’ imprisonment
The Crown case against you was put either in terms of extended common purpose or aiding and abetting. Your counsel agreed that the evidence would support either conclusion, and that in this particular case nothing would turn for sentencing purposes on it being one or the other.
It is clear that the car thefts and armed robberies were planned well in advance, particularly in relation to Mr Riccardi. Even if Parkes was primarily responsible for choosing the robbery targets, you agreed to and did participate in the robberies with him. In each case, Parkes asked you to steal and drive a car, which you were well aware would be used as part of an armed robbery. You intended and expected to receive part of the proceeds of each robbery.
The TAB robbery took place in broad daylight, in a place likely to contain members of the public. Parkes was in disguise, brandishing a dangerous weapon in a threatening manner. Although your role in this robbery was that of the driver of the getaway car, your participation was integral to the commission of the offence.
There is no actual evidence as to who made the decision to burn the car after the TAB robbery, or why it was not simply abandoned, as occurred on the later occasion. I assume that it may have been burned to destroy evidence.
You were far more actively involved in the South Melbourne armed robbery. Mr Riccardi had been carefully chosen as the target and you had followed him to an isolated location. You parked the stolen car so as to block him from escaping in his car. You and Parkes were both in disguise and brandishing weapons. This is a serious example of an armed robbery.
There is no evidence of any pre-planning to use actual violence against Mr Riccardi. Nevertheless, you were well aware on both occasions that your co-offender was armed with a gun. Your counsel conceded that you foresaw that, as an incident of Parkes taking the gun to commit the armed robbery, there was a possibility that he might shoot somebody. Further, you yourself carried and wielded a baseball bat as a weapon in the South Melbourne incident.
The robbing and shooting of Mr Riccardi are the most serious of your offences. The deliberate double-shooting of an isolated, unarmed man at close range and in the course of a robbery is a very serious example of that offence. The effects for Mr Riccardi have been particularly devastating: his life will never be the same again. It is true that you played a lesser role than Parkes, which reduces your moral culpability somewhat. Nevertheless, you were present by prior arrangement, knowingly assisting Parkes to commit a crime from which you intended to benefit.
I accept that the armed robbery of Ms Corrone was unplanned, an opportunistic offence, committed and executed by Parkes when he found her at the scene.
Your counsel submitted that you were anxious and scared about participating in the TAB incident, but were persuaded to do so by Parkes. He also submitted that Parkes threatened you with physical injury if you refused to participate in the South Melbourne incident. However, there is simply no evidence to support those submissions, which are contested by the Crown. I conclude that you were a willing participant in what occurred in both incidents.
The only other explanation offered for your offending is that at the time you were regularly consuming various drugs, including amphetamines, “ice”, Valium and Xanax, and were desperate to pay off drug-related debts. Notwithstanding your counsel’s submissions, there is no evidence as to what, if any, drugs you had used on or immediately before the days of offending, or that you were acting under the influence of drugs at any relevant time. But I accept that you were motivated to commit the crimes in order to pay for drugs. Unfortunately, the prevalence of armed robbery committed in order to finance drug dependence is well-recognised. There is clearly a need to deter others from committing such offences.
You are now 29 years old. You were 27 at the time of offending. You were born in a small village in Romania, the second eldest of 10 siblings. In 1986 you migrated to Australia with your mother and some of your siblings, where you were reunited with your father who had moved here some years earlier. You and your family obtained Australian citizenship and lived together in a flat in Dandenong.
You attended local primary and high schools. You spoke no English when you arrived in Australia and remained in remedial English classes throughout your schooling. You left school halfway through Year 11, because you wanted to “party and have fun”. You worked part time at the Dandenong market, and then later, when you were 18, you worked with your father in his panel-beating shop.
You met your wife when you were 17 and she was 16. Your first child, a son, was born in 1996 when you were 18. Your daughter was born in 2000. In order to support your family, you supplemented your income by working a second job at a construction site. You have various licences to work in the construction industry and some prospects of employment upon release from prison.
You and your wife married in 2000, shortly before the birth of your second child. It seems that the relationship was always immature and rather brittle and it deteriorated shortly after your daughter’s birth. You and your wife separated in late 2004, after being together about 11 years. It seems your mental health deteriorated in tandem with your marriage failing. Your children still live with their mother in Dandenong and she is opposed to them visiting you in custody or having any contact with you. You miss your children.
Your father is now 46 and in poor health with a severe back injury. Your mother is now 47. She and your siblings visit you regularly in custody when they can.
You started drinking alcohol at 15 and were drinking very heavily by 16 or 17. You started smoking marijuana at 16. You were a regular user of amphetamines and cocaine from when you were about 24 until you went into custody. It seems that you first developed psychiatric problems around June 2002, when you developed symptoms typical of a delusional disorder, likely to have been precipitated by extended marijuana use over the previous decade. Your former psychiatrist, Dr Rogers, prescribed medication for the disorder, which lasted about 3 months. By July 2004, Dr Rogers noted that you clearly understood the link between your drug use and your disorder.
You have only one prior conviction, from January 2005. Your wife took out an intervention order against you during a period where you were apparently using drugs very heavily. You had been sleeping in the garage of your home and had attempted to get into the house by breaking a window. The police came and took you away. For two counts of breaching an intervention order and one count of destroying property with intent you were sentenced to 1 month’s imprisonment, to be wholly suspended for 12 months.
Ms Wendy Northey, the psychologist who gave evidence at your plea, says that you have received good treatment in custody, both physical and psychiatric, and have ceased all psychiatric medications without any ill effects. Ms Northey suggests that this is likely to reflect the absence of illicit drug use in custody and supports the view that the delusional disorder which you suffered was directly linked to your previous drug use. She believes that you are well motivated to avoid drug abuse in the future and that your offending behaviour was primarily drug-related.
You spent most of your first year in custody at Port Phillip Prison, during which time you completed a First Aid course and worked in the workshop. In early 2006, you were moved to the Metropolitan Remand Centre, in circumstances which I will describe shortly. I accept that the opportunities to participate in rehabilitation programs have been more limited there than in Port Phillip.
Ms Northey’s view is that you were very immature at the time of offending and lacked an “internalised moral compass” when you “fell in” with Parkes. Her belief that Parkes was the initiator of these offences is supported to some degree by the fact that he was older and had an extensive criminal history.
Ms Northey believes that you are now committed to self-improvement and have turned a corner and matured. She says you have shown empathy for Mr Riccardi and remorse for your own actions. She says you have expressed an intent to avail yourself of all suitable rehabilitation programs whilst in custody, in order to better equip yourself to cease offending when you are released back into the community. Whilst she has not conducted any formal testing, she believes you have a level of intelligence adequate to address these issues. Ms Northey believes that although it will take some time, you have the capacity to rehabilitate yourself.
At times, I found that Ms Northey tended to rely rather uncritically on everything you told her. No doubt that Adult Parole Board will, in due course, have to evaluate to what extent you have in fact demonstrated the commitment to self-improvement and rehabilitation which she believes you now possess. Whilst there obviously remains some need for specific deterrence, for sentencing purposes I accept that you do have the capacity to rehabilitate yourself and may yet be a useful member of the community, if you are able to put your drug-dependence problems firmly behind you. I agree with your counsel that it would be appropriate to order a slightly longer than usual parole period, to enable you to undertake suitable counselling and learn to live in the community without drugs.
You are entitled to a discount by reason of having pleaded guilty to these offences. You have thereby spared the victims the stress of coming to court to re-live the traumatic events, and the community the cost of a trial. Both counsel agreed that for the purposes of sentencing I should proceed on the basis that you effectively pleaded guilty to all the offences at the first available opportunity.
The conditions in which you are being held in custody are also relevant to sentence. You were placed in protective custody in late March 2006, and have been there ever since. There is a dispute as to how long you are likely to be held in such conditions, which are more onerous than general prison conditions.
Evidence was given by Mr Michael Carroll, Director of Offender Management in Corrections, the person responsible for the assessment, placement and monitoring of prisoners. He said that you were placed in protection as a consequence of the prison murder in March 2006 of your co-offender, Parkes, and the receipt of reasonable intelligence that you might also be at risk if placed in the mainstream prison. Such risk assessments can vary over time, and it is hard to look into the future, given all the variables, but he thought you may need to remain in protection “for the short to medium term”.
On the other hand, the Crown believes that Parkes’ death was the result of a personal dispute with another inmate, which has nothing to do with the South Melbourne offences. The inmate is expected to be tried in respect of the death, presumably in the next year or two. Mr Carroll agreed that it may turn out that Parkes’ death is unconnected with the South Melbourne offences, in which case you may no longer be perceived to be at risk in the general prison population. Even if the events are related, as time passes you may be able to move out of protection by being sent to a lower security prison. Understandably, the prison authorities have adopted a cautious approach, until they can be certain that you are not at risk.
I am not in a position to assess how real or fanciful the risk of harm to you may in fact be. On the evidence before me, it seems that there is a real risk that you will have to remain in protective custody at least for the immediate future, and I take that into account in sentencing you.
In early 2004 you were charged with rape, as a result of a complaint by one of your wife’s close relatives, in relation to an incident that took place in 1999, when the victim was 13 years old. In July of this year, after a 4 day trial in the County Court, you were convicted of rape. In October 2006, you were sentenced to 6 years’ imprisonment with a non-parole period of 4 years and 6 months. You have lodged a notice of appeal against conviction and sentence.
You were remanded in custody for these offences on 20 June 2005. You were not remanded in custody in respect of the rape until your conviction on 6 July 2006. It is agreed that 103 days should be reckoned as time served in respect of the rape conviction, being the period between conviction on 6 July 2006 and sentence on 17 October 2006. I have had regard to that period served in sentencing you.
I have had regard to the range of sentences handed down in this court over recent years for the crimes to which you have pleaded guilty, bearing in mind that they can only provide general guidance and that each case must be assessed having regard to the individual circumstances of the offence and the offender.
On the first presentment, relating to the TAB incident, I sentence you to the following imprisonment:
Theft of motor vehicle (count 1) - 12 months
Armed robbery (count 2) - 4 years
Arson (count 3) - 12 months
Whilst there should be some concurrency to reflect the related nature of these offences, the theft and arson were separated in time from the armed robbery, and involved a separate victim and actions, and you had time to consider your involvement in each of the offences. I order that 9 months of each of the theft and arson charges be served concurrently with your sentence for armed robbery. That makes a total effective sentence on the first presentment of 4 years and 6 months.
On the second presentment, relating to the South Melbourne incident, I sentence you to the following imprisonment:
Theft of motor vehicle (count 1) – 12 months
Intentionally causing serious injury (count 3) - 6 years
Armed robbery (count 4 – Mr Riccardi) - 5 years
Armed robbery (count 5 – Ms Corrone) - 2 years
As well as involving another victim, the car used in this incident had been stolen almost one week before the offending, so there is considerable separation in time between that count and the others, and some need for cumulation. There will be some concurrency in respect of the armed robbery and serious injury charges. There will be only a small amount of cumulation in respect of the armed robbery on Ms Corrone, as that offence was opportunistic and carried out by Parkes. I order that 9 months of the theft sentence, 3 years of the first armed robbery and 18 months of the second armed robbery be served concurrently with the sentence for intentionally causing serious injury. That makes a total effective sentence of 8 years and 9 months on the second presentment.
In passing sentence, and considering concurrency issues, I am also required to have regard to the principle of totality and the need to avoid imposing a crushing sentence. The Crown has not sought to have a direction made under s.16 of the Sentencing Act 1991; accordingly, in sentencing you I have had regard to the fact that the term of imprisonment which I now impose will be served concurrently with the uncompleted portion of your rape sentence. I have had regard to all of these matters in calculating the extent to which there should be concurrency or cumulation between the sentences on the first and second presentments.
I order that 3 years of the total effective sentence in respect of the first presentment be served cumulatively upon the total effective sentence in respect of the second presentment. That means there is a total effective sentence in respect of both presentments of 11 years and 9 months.
I am also required to impose a single minimum term for all sentences that you are to serve before becoming eligible for parole. I fix a period of 6 years and 6 months from today’s date as the period you must serve before becoming eligible for parole.
I declare that the period to be reckoned as already served under the sentence which I am imposing is 381 days, being the period between your arrest on 20 June 2005 and your rape conviction. I direct that there be noted in the court’s records the fact that the declaration has been made and its details.
I order pursuant to s.89(4) of the Sentencing Act 1991 that your driver’s licence be cancelled and that you be disqualified from obtaining a further driver’s licence for a period of 6 years and 6 months from today’s date.
I will make orders for compensation and a disposal order in terms of the draft orders which have been handed to me.
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