DPP v Teplin

[2020] VCC 846

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

CR-19-00472

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS TEPLIN

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JUDGE:	Her Honour Judge Hampel
WHERE HELD:	Melbourne
DATE OF HEARING:	12 June 2020
DATE OF SENTENCE:	12 June 2020
CASE MAY BE CITED AS:	DPP v Teplin
MEDIUM NEUTRAL CITATION:	[2020] VCC 846

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	Mr P. Kounnas	Office of Public Prosecutions
For the Accused	Ms P. Marcou	Malkoun & Co Lawyers

HER HONOUR:

1Nicholas Teplin, at approximately 5.30pm on 7 August 2018, you walked into a kebab shop at Southern Cross Station.  Two staff members, Nargess Safi and Deisy Labrador, were at the counter.  A number of customers were present in the shop.   

2You went to the counter and said words to the effect of, 'open the fucking till'.  Ms Safi said 'no' and Ms Labrador told you that she did not know how to open the till.

3You then reached over and tried to press the button on the till in order to open it but were unable to do so.  You swore again and left.  This constitutes Charge 1, attempted robbery, to which you have pleaded guilty.

4You walked further up Spencer Street and entered the Fresh Pantry store.  Yuanita Gondorejo and Citra Satria Ongkowijoyo were both working there when you entered.

5You approached Mr Ongkowijoyo, who was working at the counter, and demanded access to the till.  He said he could not open it. You opened your jacket and displayed the knife that you had tucked into your belt.  You used your left hand to point to it so that he could see it and repeated your demand for the register to be opened. At this point, Ms Gondorejo pressed the duress button.

6You then leant over the counter and tried to take the register with one hand whilst your other hand was inside your jacket and apparently grabbing hold of something. 

7Upon realising that you could not remove the register, you grabbed the tip jar, containing approximately $50 and which was unsecured, and ran outside onto Spencer Street.  It is this, the taking of the tip jar with the $50 or so in it, in the context of producing the knife and demanding access to the till, that constitutes Charge 2, armed robbery, to which you pleaded guilty. 

8You were not able to be arrested on the spot, but police found you at your parents' home the following day, 8 August.  You were arrested there and when interviewed gave a no comment interview and were remanded in custody, where you have remained ever since.

9The maximum penalty for these offences is one measure of their seriousness:  10 years for attempted robbery and 25 years for armed robbery.  The armed robbery, because of the showing of the knife and the circumstance in which it was shown, is clearly the more serious of the two offences, but they are part of a course of conduct.  They were brazen acts committed in broad daylight when people were commuting home from work and customers were present in at least one of the shops.  It was a busy, crowded area. 

10Although no victim impact statements have been filed, this must have been a terrifying attack for all four victims.  I was told none speak English as a first language and at least three were international students.  Whether the fourth was born here or also came to this country as a student, it was clearly a frightening experience for all of them.  People are entitled to feel safe in this country whether they are born here or whether they come here as students, whether they are working in secure workplaces with pass-key entry or whether they are working in what are called soft targets, like retail outlets.  Nobody in their workplace, just going about and doing their jobs, should be subjected to violent attacks or threats.   We are lucky in this country to feel generally that that is not the way we have to live.

11You were born in South Africa.  That was a country that was riven with a lot of violence and many people lived in great fear.  I hope that it is a particularly acute realisation for you that your parents took you away from a place of violence to a safer place and therefore that you should not be engaging in conduct that puts other people at the sort of risk your parents removed you from.

12That all you got from this was $50 shows the total disconnect between the fear that you must have placed your victims in, the harm they faced, and the gain for yourself.  You have undermined their sense of safety for a mere $50.

13Ms Marcou characterised the offending the subject of Charge 1 as lacking in features of physical threat or displays of violence.  That does sit somewhat at odds with your admitted conduct in slamming your hand on the counter and saying 'open the fucking till' or words to that effect.  Such behaviour clearly carries with it the threat of violence and you were physically very close to your victims.

14So far as Charge 2 is concerned, Ms Marcou relied on the absence of threatening words or physical threats.  Whilst I acknowledge that the knife was concealed, other than when you exposed it by pointing to where it was poking out of your waistband, and it was not brandished or wielded around as part of the offending, your tone and appearance were clearly threatening, sufficiently so that Ms Gondorejo activated the duress alarm and both she and Mr Ongkowijoyo were obviously put in fear by what you did and the potential, given you had a knife, of what you could have done.

15I accept, as Ms Marcou put, that both incidences were of short duration, that they were opportunistic, unplanned and unsophisticated in nature.  You made no attempt to conceal your identity and it was broad daylight with lots of people around.  I agree that it was a course of conduct and there should be substantial concurrency in the sentence between the two offences.

16Whilst I see it at the lower range of attempted robbery and armed robbery, I would not call it low-end offending because of the circumstances.  I acknowledge that the offending occurred in the context of your being substance-impaired and motivated to obtain a paltry amount of money to further fund getting a paltry amount of drugs. 

17If you were on bail at the time then these offences would constitute offences committed whilst on bail and that can be the subject of a separate charge, but I am not treating it as an aggravating circumstance or taking it into account in terms of any presumption of cumulation with the month-long balance of the sentence you are currently serving.

18Turning then to your criminal history. You were 34 years' old at the time of this offending and by then you already had two appearances before this court for armed robberies.  The first was in 2002 when you were 19.  On that occasion you were sentenced to nine months' imprisonment, which was fully suspended for two years, for one charge of armed robbery and one of aggravated burglary, which involved the use of an offensive weapon. 

19It is a big entry point into the adult criminal justice system to come straight to this court for offences of that nature, but of even more concern is the fact that, more recently in 2017 as a mature adult already over 30, you were before this court again on two charges of armed robbery.  On that occasion, his Honour Judge Montgomery was so taken by the evidence of your struggles with substance abuse, your engagement with rehabilitation and the significant family support that had been offered to you and that you were taking full advantage of, that he released you on a two-year community correction order.

20The hopes for your rehabilitation then expressed unfortunately were not able to be sustained.  In July 2018, you were sentenced to a short term of imprisonment of 38 days for dishonesty and drug possession offences, the dishonesty offences obviously relating to your substance abuse.

21Your history of armed robberies and dishonesty offences related to your substance abuse is clearly a significant matter in the sentence and it is clear that, subject to considerations personal to you, denunciation, just punishment and deterrence, both general and specific must all loom large in the sentencing mix.  Armed robberies and robberies committed against soft targets and on people who are entitled just to go to work and not be threatened in the way these people were, as part of their job, are prevalent in our community and the sentences to be imposed must serve to deter you from reoffending, to deter others likeminded from engaging in similar conduct and to denounce such conduct to reflect the community's attitude that it is not an acceptable or safe way that people should live.

22Turning then to your personal circumstances. You were born in Johannesburg in 1983.  When you were only seven in 1990 your parents emigrated to Australia and this became your home.  

23It would appear you have had a long history of drug use or substance abuse.  On your instructions you were smoking cannabis regularly from the age of 14 until about 20.  You began using methamphetamine from about 17 and from the age of 15 you started experimenting with heroin, initially smoking it and then, by the age of 15, progressing to intravenous use.  It is such a pity to see someone so young, with so much promise as you obviously had and such family support succumb to the lure of these drugs and then fall into the throes of addiction.

24Despite your substance abuse you have worked in various roles since you were 15, significantly including, not just unskilled work such as labouring or in call centres, but also in IT and recruitment.  Despite your substance abuse, you have at times been able to maintain full-time employment.  It was your substance abuse that precipitated your extended periods of unemployment, which no doubt maintained the cycle of abuse.

25You have been engaged in various therapeutic interventions over time to address your substance abuse, including most significantly during the CCO imposed in 2017.  You started that course of rehabilitation whilst on bail and awaiting sentencing for those armed robberies.  Unfortunately, so far your engagement with rehabilitation has not had the desired effect of managing and reducing your substance abuse or eliminating it in the long-term.

26I am told that your drug use ceased when you went into custody in February 2017 in respect of the two earlier armed robberies.  You spent about a month in custody before being bailed in March 2017 and then went to the Dayhab Addiction Treatment Program, which was a condition of your bail but nonetheless a voluntary admission on your part.  In September 2017,
Ms Green, a clinical counsellor at Dayhab, was able to speak positively of your progress.  In a report dated 28 September 2017 that was provided to me in respect of this plea, she said:

Nicholas exited his full-time intense treatment program on 13 June 2017, having completed all aspects successfully. I can report, Nicholas has committed to be a regular attendee at our aftercare program and has done so to date. I can report that Nicholas has also engaged with the twelve-step movement attending regular meetings of Alcoholics Anonymous and Narcotics Anonymous on a regular basis and has demonstrated a willingness to engage in the twelve-step process of recovery. Further to these efforts, Nicholas voluntarily elected to enter our Supported Accommodation Treatment Program on a fulltime basis and has participated in all recommended activities, whilst residing at our supported accommodation house, Serenity Lodge. The requirement of residing at our drug and alcohol-free support accommodation program Is that Nicholas must undertake weekly drug testing, participate in weekly house meeting, attend aftercare weekly, meet with his Case Manager weekly and attend regular 12 step meetings every week. Nicholas has complied with all aspects of our Supported Accommodation program and remained abstinent from all substances; evidenced by weekly drug screening … Nicholas has been accepted Into Oxford House supported accommodation program this week; to ensure a smooth transition into the community.

27After the Dayhab program, you were assessed by Dr Ranvir Sood and I have also had regard to his report of 29 March 2017.  Although you reported to him previous diagnoses of bipolar disorder, anxiety and schizophrenia, Dr Sood noted no evidence of formal thought disorder, perceptual disorder or delusions and was of the view that you do not suffer from schizophrenia.  Dr Alain Rose, your then-general practitioner, refers to possible borderline personality disorder, chronic depression and generalised anxiety, but I do not accept on the materials before me that you suffer from schizophrenia.  It is not an unusual differential diagnosis for somebody with the chronic substance abuse problems that you have endured.  But I note that no submissions are made seeking to enliven any of the limbs in Verdins[1] by virtue of any psychiatric disorder or psychological condition.

[1]R v Verdins (2007) 16 VR 269.

28After you were released upon the community correction order, a woman with whom you had been in a very short-term relationship became pregnant and gave birth to your daughter.  She, it would appear, also had substance abuse problems and you relapsed into drug use, including daily amphetamine use, weekly heroin use and also Xanax.

29That led to a short period in custody between May and July 2018.  That is the 38-day sentence to which I have already referred and it would appear that this did little to arrest the cycle of substance abuse that you had fallen into again.

30In August 2018, just two days before the offending, you were admitted to the Alfred Hospital for treatment.  It would appear initially that was for treatment of chronic ulcerating problems to your right leg.  You discharged yourself early and the next day were located lying under a car in Port Melbourne, having overdosed, and you were admitted again to the Alfred and again discharged yourself early against medical advice.  It was straight after that, your mother having picked you up from hospital, that these offences occurred.  There was apparently a disagreement between the two of you in the car whilst she was driving you home.  You got out of the car and ultimately found your way to Spencer Street.

31You are currently towards the end of a term of imprisonment imposed in respect of the breach of the community correction order imposed by his Honour Judge Montgomery for the two armed robberies.  On 31 January 2019, Judge Gamble resentenced you on those original charges of armed robbery to a total effective sentence of one year and six months with a non-parole period of nine months.  That sentence expires on 14 July this year.  Because you were also on remand in respect of these matters, I am told you did not apply for parole.  

32I am told you are currently prescribed methadone at 40 milligrams, but you want to eventually wean yourself off that so that you can be entirely substance-free.  You express a strong desire on your release to reconnect with the supports that you had so successfully engaged with during the time of the 2017 sentence. That is, particularly, to re-engage with Narcotics Anonymous and Dr Rose. You have obviously behaved yourself well in prison.  You are working as a food billet; that is a trusted position and requires you to have clean urine samples, to show you are drug-free, and to behave appropriately.  You certainly look healthier than you did in the CCTV footage and photographs I saw at the time of the offending.  

33You have continued to have and enjoy the support of your mother and your brother.  Your family is very supportive.  Your father is old and has been suffering from dementia for some time. I am told that he has, just in the last few months, had to go from being cared for in the home to full-time residential care.  But your mother and your younger brother have been and continue to be very supportive. 

34I do not want to single one out, it is not a competition between who is better between your mother and your brother, they both clearly have been enormously supportive in providing you with home and financial support.  Your brother paid for your rehabilitation following your release from prison in March 2017 and provided impressive character evidence before Judge Montgomery.  He then said:

I genuinely believe that having shown a willingness in rehabilitation that Nicholas can return to society as a valued member and contribute.  Fortunately my wife and I are in a strong financial position to assist him to get professional help.  Nicholas will continue to have our love and support regardless of his personal circumstances.

35In the reference he provided for you for this plea he continues to demonstrate his care and devotion towards you.  He does not excuse or justify your behaviour.  He treads that really sensible balance between giving you loving support but not condoning bad behaviour.  He said, amongst other things:

As I've done previously and upon his release I will continue to provide social support to Nicholas, but only insofar as he continues to demonstrate a willingness to engage with formal support networks and a newly found commitment to pursue a lawful lifestyle.  This would require Nicholas to maintain regular appointments with health care professionals to assist him with reintegrating into the community.

I will continue to encourage him to again seek counselling and rehabilitation services whilst being very aware that any successful outcomes rely on his active and willing participation.

36He also undertook to provide you with financial support to obtain stable accommodation on your release and understands that that is a strong protective factor against reoffending on release.  You are truly lucky to have a brother and a mother who continue to provide you with such unwavering support and I accept that as protective factors weighing in your favour when assessing your prospects for rehabilitation.  I also take into account the strong desire you expressed to re-engage with those rehabilitation services on release.

37I was also taken by the character reference provided this morning by Stephanie Rennie.  She has known you and your family for over 15 years and you have previously supported her business with IT support.  She says that your offending is not a true reflection of your character.  Without again making excuses for you, she spoke highly of your work when she did employ you and says that she will have a position available for you and will support you with your ongoing drug rehabilitation and management of your psychological and medical requirements.  Again, you have that support and I take it into account as a very positive factor.

38You have also expressed a desire to establish a relationship with your daughter.  She is cared for by her maternal grandmother under a care by the Secretary order and your mother has sought to connect your child to the paternal side of her extended family so that she can enjoy the support of both families.  You accept that you cannot be permitted any meaningful contact with her until you are drug-free, but you do want to be part of her life and to be a meaningful and positive part of it.

39That too provides an incentive for you to return to the path of addressing your substance abuse on release and maintaining it in the face of the difficulties that do confront somebody when they re-enter the community.  As I said to Ms Marcou, you are more fortunate than many people who have a long history of substance abuse and periods of imprisonment.  Your family support, their love for you, the prospect of stable housing and employment upon release, the prospect of a relationship with your daughter and your desire to re-engage with rehabilitation services are all clearly factors which will encourage your rehabilitation should you choose to accept and engage with them.

40However, that support has been available in the past and so far has not been successful for extended periods in mitigating your offending or your relapse.  Therefore, it means that, although you have got those positive factors, your prospects for rehabilitation can at best be described as guarded, having regard to your history and your age.  But the factors available to you give you much better prospects of doing something with that than many.  But as you know, and as those who have written letters of support clearly articulate, it will be up to you.

41I agree with Ms Marcou that these positive protective factors should be reflected in the sentence by a significant gap between the head sentence and non-parole period.  A structured return to the community will best serve the needs of community safety and minimise your risk of reoffending on release and help you to capitalise on your gains in remaining substance-free whilst in custody.  I urge Corrections and the parole authorities to give you the opportunity for a structured, supported return to the community and, when COVID-19 restrictions ease, to ensure that you have access to such programs in custody as will best prepare you for dealing with the inevitable temptations to relapse on release.

42Your plea of guilty to these charges was a late one.  I accept though that it has more value than a late plea of guilty usually has, because of the circumstances of the COVID-19 pandemic, and the additional delay and strain on court listings  had you continued to exercise your right to plead not guilty. I note too there was a prospect that there may have been significant difficulty in locating witnesses, which may have affected the outcome of the trial.

43Because of COVID-19, there are significant delays to the administration of justice. Your plea of guilty therefore has, in addition to its normal utilitarian value in advancing the course of justice, greater significance. You are entitled to a significant discount in the sentence that would otherwise have been imposed had you been found guilty by a jury. I accept Ms Marcou's submissions about the added weight to be given to the advancing of the interests of justice and the utilitarian benefits of the plea over and above what normally would come under s 6AAA by reason of COVID-19.

44I also accept that there is an added burden of imprisonment currently due to the COVID-19 pandemic.  The lockdowns associated with it, the reduction in programs available to those serving time, the restricted means of being able to communicate with friends and family by phone or internet only rather than by face-to-face visits and the fear of an outbreak in prison are additional hardships associated with imprisonment and which also, in my view, should operate to reduce the sentence otherwise appropriate.  Everybody at the moment is living in fear of COVID-19, perhaps not as much as they were a month or two ago, but still significant fear.  Those of us who are at liberty are better placed to be able to make our own decisions about how to best protect ourselves; those in custody cannot and I accept that is and will continue to be an additional hardship.

45Had this matter been dealt with at the same time as the resentencing for the breach of the Community Correction Order, I would not have imposed concurrency between the sentences to be imposed now and the sentences imposed following the breach of the CCO.  So although there is only one month left of that sentence, I would not, even if I had dealt with this matter much earlier, have considered it an appropriate case for concurrency.

46So your sentence is reduced from what it otherwise would have been by reason of your guilty plea, for the general reasons normally attributed to that and also by reason of the COVID-19 matters to which I have referred. But there is no reduction by reason of the current sentence having almost expired before this matter having been dealt with.

47I now come to the formal orders.  Nicholas Teplin, on the two charges to which you have pleaded guilty, you are convicted.

48In respect of Charge 1, you are sentenced to imprisoned for a period of 18 months.  That is the attempted robbery.

49In respect of Charge 2, the armed robbery, you are sentenced to be imprisoned for a period of three years.  The sentence on Charge 2 is the base sentence and I direct that six months of the sentence on Charge 1 be served cumulatively on the sentence in respect of Charge 2.  That makes a total effective sentence of three years and six months.  I fix a new, single, non-parole period from today of 22 months.

50I declare that you have spent 176 days in pre-sentence detention and declare that that be counted and reckoned as part of the sentence already served.

51I declare pursuant to s 6AAA of the Sentencing Act1991 (Vic) that, but for your pleas of guilty, I would have sentenced you to a total effective sentence of four years and six months and fixed a period of three years as time that you would have been required to serve before being eligible for parole.

52I direct that the related summary matter of commit an indictable offence whilst on bail be remitted to the Magistrates' Court to be heard and determined there.

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