DPP v Rough

[2019] VCC 34

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 18-02162

DIRECTOR OF PUBLIC PROSECUTIONS

v

TAYLAR ROUGH

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JUDGE:

HER HONOUR JUDGE GWYNN

WHERE HELD:

Melbourne

DATE OF HEARING:

DATE OF SENTENCE:

25 January 2019

CASE MAY BE CITED AS:

DPP v Rough

MEDIUM NEUTRAL CITATION:

[2019] VCC

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:

Counsel

Solicitors

For the Director of Public Prosecutions

Ms R. Khan

For the Accused

Mr T. Bell

HER HONOUR: 

Taylar Rough, you have pleaded guilty on indictment to two charges of armed robbery and one of theft.  The charges of armed robbery carry a maximum penalty of 25 years' imprisonment and theft carries a maximum of ten years' imprisonment.  These maximum penalties reflect the seriousness with which parliament regards these offences.

The circumstances of your offending are set out in a document entitled “Agreed Summary of Prosecution Opening”, dated 21 December 2018.  It is exhibited at P1 and is an agreed document.

In terms of your offending, in short compass, at approximately 1.45 am on
26 November 2017, you and your co-offender, one Mr Georgiou, parked outside a McDonald's restaurant in Altona North in a stolen motor vehicle.  Each of you were disguised.  You both ran into the McDonald's restaurant and approached the counter.  You were carrying an imitation handgun and Mr Georgiou carrying a knife.  As you approached the counter, you pointed the imitation handgun at staff.  Mr Georgiou lunged at the counter attendant with a knife, jumping on top of the counter, whilst you ran into the staff area behind the counter, effectively encircling that staff member on the register.  At least one other staff member was nearby.

When the duty manager, Ms Enright, approached each of you, you pointed the imitation handgun at her.  You both demanded that she open the cash register.  When Ms Enright complied with your demand, you each seized money from the cash register, placing it in a black bag.  You each told the victims to "Fuck off" and motioned to the victims to stand in the corner, which, not surprisingly, they did with their hands in the air.

You and your co-offender then fled the store with you pointing the imitation handgun at staff as you left.  You left the McDonald's store in a stolen Nissan Pulsar.  This event appears to have taken approximately one minute and
20 seconds.

There are no victim impact statements relating to this particular armed robbery but I accept as a matter of course, and from viewing the CCTV footage of the armed robbery, that they would have been terrified during this incident. 
Whilst it is accepted by the Crown that the gun you carried was an imitation, this would not have been known to any of your victims, nor was it intended to be.

It is relevant to the assessment of the objective gravity of this armed robbery that it was in company and clearly planned as each of you wore disguise and had accessed weapons to carry out the offence.  Observationally, it was conducted in a particularly aggressive manner.  I accept your counsel's concession that this is a serious example of a serious offence.  The facts which I have just outlined comprise Charge 1 on the indictment, armed robbery.

Charge 2, theft of motor car, relates to your use of the Nissan Pulsar vehicle during the armed robbery with the knowledge that it was stolen.  It is not suggested that you were involved in the physical theft of that vehicle or the subsequent arson of that vehicle and nor will you be sentenced for such.

Approximately four weeks after the McDonald's armed robbery, at 9.45 pm on 23 December 2017, you used your then partner, Carmyn Bills’ Toyota Corolla to commit an armed robbery of the Premix King bottle shop in Williamstown.  This was also an offence committed with Mr Georgiou who I note was only
17 years of age at the time.  I understand he has been dealt with in the Children's Court for his offending.  I do not consider parity to be a relevant matter, nor was it raised as such on your behalf.

Having driven passed the Premix King bottle Shop approximately nine times, the Toyota Corolla was parked outside the front entrance of Premix King. 
You and Mr Georgiou exited the vehicle and went into the store.  On this occasion, each of you were carrying firearms, which were pointed towards the solo staff member, Mr Dylan Ballaran.  You were again carrying an imitation firearm and Mr Georgiou was in possession of an over and under sawn off shotgun.  There is no evidence before me that his weapon was loaded. 
Again, as I have described, each of you were disguised.

On entering the premises, you both demanded money from the register, yelling to Mr Ballaran to “put it all in.”  You held out a bag as the money was demanded.  Mr Georgiou hit the cash register with the weapon he was carrying and
Mr Ballaran subsequently placed the money in the bag.  You both then fled the store with the money and drove away in the Toyota.  This event appears to have transpired in about 25 seconds.

CCTV without audio was also available for this armed robbery and has been tendered by the Crown and viewed by me as was the footage from the previous armed robbery.  

Not surprisingly, at all times, Mr Ballaran believed that the weapons you were carrying were real.  He has provided a victim impact statement to the court which is exhibited at P2.  The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice system by informing the court about the effects of the crime upon them. 
In his victim impact statement, Mr Ballaran speaks of the armed robbery affecting him financially, emotionally and socially.  Indeed, he had to leave his job at Premix King as he no longer felt safe in that environment.  The impact of your offending upon him is likely to be ongoing.

Again, in assessing the objective gravity of this armed robbery, it was in company.  You and your co-offender had accessed and used disguise and weapons and the offence was also committed in a particularly aggressive manner, even if relatively short-lived.

In terms of each of these armed robberies, they were committed on what is accurately described as soft targets.  Mr Ballaran, in particular, was on his own in the Premix King store.  Typically, those working at McDonald's are relatively young persons.  Your victims were all in their respective working environments, an environment in which they are entitled to feel safe.  I accept the concession made that this is also a serious example of a serious offence.

In my view, the principle of general deterrence looms large as does denunciation and the need to consider protection of the community. 

Subsequent to this offending, you made various attempts to protect yourself from potential investigation.  This included inveigling your younger brother, River Rough, to dispose of incriminating evidence.  You have not been charged with any offending in relation to this behaviour, nor will you be punished for such but it was raised by the Crown for a more fulsome understanding of your behaviour at the relevant time and to mitigate against submissions that were made on your behalf that you are remorseful for your offending.

You were arrested on 30 May 2018 and when interviewed by police, as is your right, chose to make a “no comment” record of interview.  You have been in custody on remand since that date.

Your partner at the time, Carmyn Bills, has been charged with the offence of assist offender pursuant to s.325(1) of the Crimes Act 1958 which relates directly to the assistance she provided to you whilst being aware that you committed the two armed robberies. She is to be sentenced by me at a later stage.

In carefully crafted written and oral submissions, your counsel has outlined your personal circumstances, which I am obliged to take into account. 
You were born in Sale, Victoria, to your parents Rhonda Brand and your father, Nigel Rough.  You make no complaint about your early years.  Your parents separated when you were relatively young.  There were four boys and one girl of your parents' union of which you were the second youngest. 
When your parents separated, the four male children went to live with your father in Lennox Head.  Your older sister, Eden, continued to reside with your mother.  I am told that your father was both a talented musician and a heavy drinker.

At a later stage, your mother and sister also moved to Lennox Head. 
Your mother re-partnered to man by the name of Doug.  I am told that he was a perpetrator of significant domestic violence against your mother and against you.  Apparently, you still have nightmares stemming from what you witnessed and experienced at this time.

This relationship necessitated various moves by your mother in order to escape that relationship with Doug.  The separation of your parents and your mother's re-partnering meant that you changed locations regularly as well as your school environments.  I am told that she has now re-partnered in a safe relationship.

It is approximately eight years ago that you commenced your relationship with Carmyn Bills.  This is a relationship that you hope would continue into the future despite your incarceration.  You have recently been told that Ms Bills does not wish to continue this relationship.

In terms of your education, you completed a Year 11 education.  In your school years, and for some years thereafter, you were a talented sportsman and you are also described as a talented musician.  You also volunteered at your local surf lifesaving club.

Unfortunately, you commenced using drugs from the age of approximately
14 years, primarily cannabis at the first instance.  You were using ice regularly from the age of 15 years.  It appears that you initially used drugs to cope with your childhood experiences.  This drug use is likely to have affected your ability to find stability in a working environment.  You estimate you have been employed approximately 40 per cent of the time since leaving school and your present remand.  You have worked in fields which include fencing, labouring, carpentry and horticulture.

According to the evidence given by Darren Richards from ATEL,
an employment agency, you had a work placement with a construction company from about September 2017 until early 2018 and reports of your performance in that context were good.  I am not sure if this is to your credit or not given, at that time, you were heavily using ice and each of the armed robberies occurred during that period.  Mr Richards did indicate that he can assist you further to find employment in the future.  He was unaware of your drug use.

You do have a relatively limited prior criminal history.  In July 2009, you were dealt with at the Sunshine Children's Court for the offences of criminal damage, which I understand relates to graffiti.  In July 2011, you were dealt with for similar offences in the Magistrates' Court of South Australia.  In May 2012, you were dealt with for possession of a knife by Brisbane Magistrates' Court. 
In June 2013, you were dealt with for a charge of common assault.  Three years later, in September 2016, you were dealt with by the Melbourne Magistrates' Court again for charges of criminal damage and for a charge of trespass.  All of these matters were dealt with by a non-conviction outcome.

You will not be punished for these matters again.  Rather, they assist in the assessment of your prior personal circumstances as well as your prospects for rehabilitation.  It is clear from the stark comparison between this history and the offending before me that there has been a significant change in your life that has contributed to your decision to offend in such a serious manner.  It would appear from the matters outlined before me the primary source of this descent into such serious offending has been your continued use of the drug ice. 
This of course offers you no excuse.

Your remand for these matters has seen you placed in a custodial setting for the first time.  It would appear from the materials tendered on your behalf that you have used your time wisely.  You have provided clean urine screens. 
In addition, it appears you have participated or are participating in courses relating to peace education, fitness, youth services, music, managing ice addiction and vocational programs.  You obtained the position of billet within your unit, a trusted position.  Hopefully this all goes well for your future prospects.

The references tendered on your behalf are reflective of a man vastly different from the one represented in the offending behaviour before me.  I received reference material from friends, Chase Britton, Nicholas Revell,
Shafayat Chowdhury and Saneel Patel.  Your aunt, Pamela Brand, and stepmother, Carol Steele, have also provided references on your behalf.  Whilst each of these persons has known you for a different time frame and in different capacities, each have taken the view that this level of offending is outside your normal character for the man that they otherwise know. You are described as being family orientated and as being extremely remorseful for your offending behaviour.  Referees also comment on your talent as a song writer and musician.  I take the contents of these references into account. 
They are of assistance in that indicate to me that you have considerable support within the community and will be well supported upon your release.  This of course will be of assistance to your rehabilitation.

Your mother, stepmother, brother and sister were all present for your plea amongst other friends and family members.  You have been visited regularly by family whilst in custody.  Your mother is prepared to have you come and live with her upon your eventual release.

You have also written your own letter to the court expressing your remorse and shame.  While such communications tend to be relatively self-serving, it does provide some insight to your current thinking and desire for positive change. 
I can only hope that you maintain such resolve upon your eventual transition and return to the community.

Also tendered on your behalf is a report authored by Carla Lechner, clinical psychologist, dated 12 December 2018.  I have had recourse to the contents of that report.  Perhaps, not surprisingly, she comments on your history of offending as having arisen in the setting of chronic and longstanding drug addiction, primarily to cannabis, methylamphetamine and Xanax.  Ms Lechner does comment that you appear to be insightful now that you are sober and are capable of reflecting on the impact of your behaviour on both yourself and on others.  You have come to understand the connection between your mental wellbeing, drug use and offending behaviour.

Ms Lechner also comments on your expression of regret and shame for your actions, including the trauma that you have caused "the victim".  Of course, your offending involved more than one victim, including those present at the McDonald's store in November 2017, the victim of theft of a motor car and of course, Mr Ballaran, the attendant at the Premix King at the time of your armed robbery in December 2017.

Ms Lechner's report is of limited assistance but combined with other materials, it assists me to form the view that you are presently showing insight into your offending, your need for absence from drugs and the remorse which I accept you have expressed.

Taking into account your lack of relevant prior convictions, your approach towards your own rehabilitation - albeit within the confines of the prison system - your extensive family supports and the offer of employment, I am satisfied that your prospects of rehabilitation remain live.  This is clearly contingent on your ability to remain abstinent from drugs and to transition the learnings that you have gained, and insight you reflect, into your return to the community.

I do accept that you have pleaded guilty at the earliest opportunity.  Your plea was entered as part of a committal case conference on 22 October 2018. 
I accept that your plea has saved the time and expense of a trial process as well as sparing the witnesses and your victims the inconvenience and trauma of having to give evidence and relive those events.  Based on the materials before me, which include the report of Ms Lechner and various references to which I have referred, I do accept that your plea is one of genuine remorse. 
All of those matters will be reflected in your favour in the sentence imposed.

I have already referred to the need in sentence to reflect general deterrence, denunciation and protection of the community.  In my view, weight must still be given to the need for specific deterrence in your case, given the serious nature of your offending with two such events a month apart and that your insight now displayed and effort to change is, at this stage, in its infancy.

I do make the ancillary orders sought for disposal of scheduled items and
I understand this order is made with your consent.

In terms of the basic purposes for which a court may impose a sentence, these are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  I am required to have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims.  I am also required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.

I have also taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act where relevant to your case.

Mr Rough, I do now turn to sentence. 

In relation to Charge 1, you are convicted and sentenced to three years and three months' imprisonment.  This is the base sentence.  In relation to the charge of theft, you are convicted and sentenced to nine months' imprisonment.  In relation to Charge 3, you are convicted and sentenced to three years and three months' imprisonment.  Fourteen months of Charge 3 and one month on Charge 2 are cumulative on each other and the sentence imposed on Charge 1.

In terms of the total effective sentence, it is one of four years and six months' imprisonment.  I fix a non-parole period of two years and ten months.  I have given you the opportunity for an extended period on parole in order to facilitate a supported return to the community in the interests of promoting your rehabilitation, whilst also protecting the community.  Two hundred and forty one days are reckoned has already been served under this sentence.

Section 6AAA of the Sentencing Act requires me to state the sentence that
I would have imposed if you had not pleaded guilty.  If not for your plea of guilty, I would have sentenced you to six years' imprisonment with a minimum of four years before being eligible for parole.

Anything arising?

MS KAHN:  No, Your Honour.

HER HONOUR:  If you could remove the prisoner, thank you.

(Offender removed.)

Thank you, Mr Bell, you're excused if you wish to be so.

MR BELL:  Thank you, Your Honour.

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