R v Aguilar
[2020] VCC 1592
•12 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Suitable for Publication |
Case No.CR-20-00951
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ARVIN AGUILAR |
---
JUDGE: | HER HONOUR JUDGE LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 October 2020 | |
DATE OF SENTENCE: | 12 October 2020 | |
CASE MAY BE CITED AS: | R v Aguilar | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1592 | |
REASONS FOR SENTENCE
---
Subject: Armed Robbery
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S Davison (plea) Ms M Sargent (sentence) | Abbey Hogan Office of Public Prosecutions |
| For the Accused | Mr F Ralph | C. Marshall & Associates |
HER HONOUR:
1 Arvin Aguilar, you have pleaded guilty before me to one charge of armed robbery. The maximum penalty for this offence is 25 years' imprisonment.
2 You also consented to this court dealing with one charge of committing an indictable offence on bail. The maximum penalty for this offence is three months' imprisonment.
Summary of Offending
3 At 11.50 pm on Saturday 2 May 2020, you entered the 7-Eleven convenience store (the 7-Eleven) at 37 Swanston Street, Melbourne. Bhaskar Chundi (the victim) and Sundeep Manoth (Manoth) were present at the 7-Eleven, as the victim was to begin a shift at midnight and relieve Manoth for the night.
4 Upon entering the 7-Eleven, you moved towards the back part of the 7-Eleven where you selected a packet of chips from the display. You remained at the chip display for approximately three to four minutes, drawing the attention of both the victim and Manoth.
5 You then walked towards the exit of the 7-Eleven. The victim was standing between the counter and a sandwich display. You handed the packet of chips to the victim and turned to browse the sandwich display. You grabbed an egg and lettuce sandwich valued at $5.00 whilst placing your right hand into the pocket of your black hoodie and tried to walk out of the store. The victim said to you, 'You need to pay for that.'
6 You removed your right hand from your right jacket pocket and produced a 'weapon' directed at the victim. The victim suddenly stepped back, concerned for his safety, and you left the store, without paying for the sandwich. The police took statements from the victim and Manoth. The victim described the weapon as a 'razor blade', however Manoth recalled that immediately after the incident the victim told him that 'he was carrying some kind of small knife'. The victim provided a sketch of the object you were carrying.
7 You turned left on to Swanston Street before heading westbound on Flinders Lane.
8 At 12.17 am on Sunday 3 May 2020, police members attended at the 7-Eleven in response to the reported incident. Police reviewed the CCTV footage so that they could 'release further information to patrolling units as to what the offender looked like.'
9 After leaving the 7-Eleven you were tracked by a Safe City camera operator moving throughout the CBD before entering Flinders Street Station from the Elizabeth Street entrance. Your description and a location was broadcast over D24 Communications. You were observed by Public Safety Officers on Platform 4, Flinders Street Station. PSO officers broadcast an update on D24 communications and maintained observations until police units arrived.
10 You then boarded a train and were monitored by PSOs. Shortly after, police members arrived at Flinders Street Station, boarded the train and placed you under arrest. The arresting member, Constable Matthew Gudde, recognised you from the CCTV footage he had reviewed at the 7-Eleven although he noted that you had now 'swapped [items of clothing] which changed [your] clothing description'.
11 A pat down search revealed that you had a 'broken pair of scissors or clippers in the right front pocket of the black jumper' you were wearing. The item was seized and photographed by police.
12 You were placed into a divisional van and were transported to the Melbourne West Police Station where you were interviewed by the police. You made a number of admissions. You confirmed that it was you in the footage from the 7-Eleven. You said that you entered the 7-Eleven to get 'something to eat' because you were hungry. You said that you had taken an egg sandwich with your left hand and that your right hand had remained in your pocket. You admitted to entering the 7-Eleven with intent to steal something and admitted to stealing the sandwich. You admitted that your right hand was in your hoodie pocket but denied producing the 'scissors' or any item at the victim. You said that you did not use the 'scissors' in the offending and only had them on your person to 'cut things'.
13 You did not know the victim who is 24 years old. While no formal victim impact statements were tendered, it is clear from the evidence that your conduct shocked the victim and that he feels 'very unsafe at night.'
14 The facts in this case are very serious. The charge of armed robbery has been held by the courts to be 'a very serious crime usually warranting a stern sentence'[1] and that 'deterrence is a matter that should be given priority'.[2] The offence was committed late at night on a soft target.
[1]R v Kittson [2008] VSCA 77, [1].
[2]R v Bortoli [2006] VSCA 62, [23].
15 The aggravating aspects include that at the time of the offending you were on bail for two other incidents of alleged dishonesty offending (theft from shop). On 22 February 2020 you were granted bail from the Keilor Downs police station to appear at the Sunshine Magistrates Court on 23 June 2020 for two charges of theft from shop (shopsteal). On 27 February 2020 you were granted bail from the Sunshine police station to appear at Sunshine Magistrates Court on 26 March 2020 for charges of theft from shop (shopsteal) and commit indictable offence whilst on bail. This grant of bail was extended on 27 April 2020 and you were ordered to appear at the Sunshine Magistrates Court on 11 May 2020.
16 You commenced the Court Integrated Service Program at Sunshine Magistrates Court on 27 February 2020. You were exited from that program on 27 April 2020. A report dated 27 April 2020 prepared by the CISP case manager[3] records that you were unable to fully engage in the program due to your homelessness. At that time it was not known that you are suffering from schizophrenia.
Gravity of Offending
[3] Exhibit 3.
17 Your counsel submitted that the offending was an opportunistic and unplanned offence against a soft target. You made no attempt to disguise your face. Apart from the implied threat of producing small scissors when confronted, you did not apply force or say threatening words to the victim. The victim jumped back when he saw the weapon you produced and then you left the store. The offending was quick and over very quickly. The item stolen was a sandwich valued at $5.00 which was stolen for the purpose of feeding yourself. You profited very little from your criminality.
18 Your counsel submitted that whilst all forms of armed robbery are considered serious, this offence is at the lower end of the scale of armed robbery. Your counsel referred to Luchian v The Queen[4] and submitted that this offence is also 'properly to be viewed as towards the lower end of the range of seriousness.' The prosecution conceded that the offending can be categorised as at the lower end of the range of seriousness for the offence of armed robbery.
[4] [2019] VSCA 145, [53].
19 Having considered the whole of the evidence, I accept the submissions made by both the prosecution and your counsel that the objective seriousness of the offending falls within the lower range of the offence of armed robbery. It was motivated by your hunger. There is no evidence of extensive planning or premeditation. Although you were armed with scissors, the offending was unsophisticated, there was no actual violence and it did not occur over an extended period of time. You did not attempt to disguise yourself.
20 As has been pointed out by your counsel, there are some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. Further, I take it into account in your favour that you intimated your intention to plead guilty to these charges at the earliest opportunity.
21 You have accepted responsibility for the offending and acknowledged that the victim would have felt “threatened” by your actions. In the circumstances I accept that in your case your plea indicates some remorse for your actions.
22 I have been told something of your personal history and your circumstances. You were born in the Philippines on 18 May 1987 and are 33 years old. At the time of the offending you were 32 years old. You lived in the Philippines with your mother while your father worked in Australia as a labourer and sent money back to the family. You have one brother named Aaron who is 45 years old and a sister named Angel who is 43 years old. You were sexually assaulted by a neighbour when you were 10 years old.
23 You came to Australia when you were 12 years old and spoke no English. Your family resided in St Albans. Your father was an alcoholic who physically disciplined you. You were subject to some bullying and were expelled from three schools before you finally left school in year 9.
24 You worked at McDonalds for nearly two years after you left school. You then began 'bouncing' from one fast food restaurant to another. You worked four years in fast food until 2008. You then obtained a job in sales/telemarketing for several companies (AGL, Red Energy, TSA Group). From 2011-2016 you were 'bouncing' from call centre to call centre. Your employment has been inconsistent in menial, low paid jobs. You have been on Centrelink since 2016 and have not been employed.
25 You became a father with your short-term partner, Ms Faith Subala in 2012. You were together from 2011 until 2013. You are not romantically involved any more, but you are co-parenting together. Your daughter, Aisha Subala, is eight years old. Prior to being remanded, you visited Aisha once a week.
26 You began 'hearing voices' in 2015, however you have lacked any consistent treatment despite exhibiting schizophrenic symptoms for five years.
27 You were homeless for a short period of two or three months in 2018. You were couch surfing at friends' houses, dealers, and intermittently on the street. Your mental health declined significantly and you were sectioned at the Sunshine Hospital after attempting to drink bleach and kill yourself. The 'voices' told you to do it.
28 Your heroin use began at an early age in year 9 when you were 15 years old. More recently you would use 1.5 grams per day and a 'point' 0.1gm per day of ice. Your offending is linked to your heroin addiction as you were stealing from shops in order to fund your addiction to heroin or when you were hungry and/or drug-affected. You smoke heroin and do not inject it. The bulk of your criminal history consists of continuous shopsteal type of offences for which you have received relatively short periods of imprisonment.
29 At the time of the offending you were unemployed and 'couch surfing.'
30 You have admitted before me to prior convictions. There are 88 such convictions involving 10 court appearances between 2011 and 2020. The nature of some of those convictions including theft from shop (shopsteal), commit indictable offence whilst on bail, possessing controlled weapon and assault with a weapon are such that they are highly relevant to my task of sentencing you today.
31 Reports dated 4 October 2019 by Jennifer Sankaran and David Ball[5] and a report dated 14 September 2020 by Dr Jacqueline Rakov (Dr Rakov’s report)[6] have been tendered. I have read those reports and take the contents into account.
[5] Exhibit 2.
[6] Exhibit 1.
Rehabilitation
32 Your prospects for rehabilitation remain guarded. You have had the benefit of two prior community correction orders in 2010 and 2017 which were breached on three separate occasions. You have advised that you intend to remain on methadone, seek employment in a call centre, maintain your medication upon release and seek the assistance of a mental health clinic. With the formal diagnosis of schizophrenia made and appropriate mental health treatment now in place, your future rehabilitative prospects may be viewed as slightly more promising.
The application of the principles in R v Verdins[7] (Verdins)
[7] [2007] 16 VR 269.
33 In Verdins the Court of Appeal stated that impaired mental functioning is relevant to sentencing in at least six ways.
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends on the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the prisoner's mental health, this will be a factor tending to mitigate punishment.[8]
[8]R v Verdins (2007) 16 VR 269, [32].
34 The defence submits that principles 1 and 2 of Verdins have been enlivened. The defence does not seek to rely on principles 3 to 6 of Verdins. The prosecution concedes that limbs 1 and 2 of Verdins have been enlivened.
Verdins principle 1 – Was your moral culpability reduced?
35 In her report Dr Rakov opined:
Mr Aguilar has diagnoses of schizophrenia and substance use disorder. Both of these conditions can contribute to impaired judgment. His worsening overall function also saw him becoming homeless and behaving in a disorganised manner.[9]
[9] Exhibit 1, [12.2].
36 The court in Verdins identified a variety of ways in which the courts have held that impaired mental functioning might reduce moral culpability, as follows:
'Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of:
(a) impairing the offender’s ability to exercise appropriate judgment;
(b) impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d) impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; or
(f) contributing (causally) to the commission of the offence'.[10]
[10] (2007) 16 VR 269, [26].
37 Your counsel submitted that your schizophrenia impaired your judgment and contributed to your offending.
38 Having considered the evidence, I accept the defendant’s submission that your moral culpability is reduced because you suffer from schizophrenia.
Verdins principle 2 – should your mental condition have bearing on the type of sentence and conditions?
39 The prosecution accepts that the second principle in Verdins has some applicability. I accept the defence submissions that you would benefit from a substantial period of treatment and supervision in the community after you are released from custody.
40 However, as well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
Submissions on sentence
41 The defence referred to the judgment of the Court of Appeal (Maxwell ACJ Beach JA) in Luchian v The Queen[11]
The offence of armed robbery is always serious. In this case, while no victim impact statement was tendered on the plea, it takes little imagination to appreciate the terrifying effect the appellant’s crime must have had on his victim. At the same time, the crime was naïve and unsophisticated, with the appellant making no attempt to conceal or hide his identity. It was properly to be viewed as towards the lower end of the range of seriousness. Additionally, as we have said, it is significant that appellant’s crime was committed (at least in part) because of the circumstances he found himself in and a desire on his part to go back into custody.
[11] [2019] VSCA 145 [53].
42 The defence submitted that a combination sentence is within range for this offending. You have not received treatment for your underlying psychiatric conditions that directly contributed to your impulse offending. Lengthy involvement with a CCO condition would enable you to access mental health services. The community would best be served if you were able to receive lengthy continued access to treatment and monitoring by way of a community correction order.
43 As stated in Dr Rakov’s report
12.19 …If [Mr Aguilar] has stable housing, he may be able to engage in regular work. Stable housing would also allow him to establish and maintain a therapeutic engagement with an area mental health service. The multidisciplinary team there could assist him with appropriate socio-occupational functioning, as well as monitoring and treating his schizophrenia.
44 The prosecution submitted that a combination sentence comprising a term of imprisonment with a community correction order is reasonably open in this case because based on the offender’s own admission, the crime was motivated by hunger. Although the victims were extremely vulnerable, this was not a situation where the victim was alone. The prosecution submits that time served is not sufficient because it does not adequately reflect the objective gravity and seriousness of the offending.
45 As you know, I have sought and received a pre-sentence assessment report in this matter. That report indicates that you are considered a suitable candidate for a community correction order. Upon analysis of all the evidence and the submissions made by counsel, I propose to order that you serve a term of imprisonment for 12 months, followed by a community correction order for a period of two years. I am only able to make such an order if you consent to my taking such a course. So that you are in a position to make an informed decision in the matter, I should tell you something about the course I propose
.
46 First, the length of the order will be two years. Every community correction order, including the one I propose in this case, contains certain core conditions. They are:
1You must not commit another offence punishable by imprisonment during the period of the order.
2.You must comply with any obligation or requirement prescribed by the regulations.
3.You must report to, or receive visits from, the Secretary during the period of the order.
4You must report to the Werribee Community Correction Service within two working days after you are released from custody.
5.You must notify the Secretary of any change of address or employment within two working days after the change.
6.You must not leave Victoria, except with the permission of the Secretary.
7.You must comply with any direction given by the Secretary that is necessary for the Secretary to give, to ensure that you comply with the order.
47 The conditions that apply in addition to the mandatory terms are:
1.You must be under the supervision of a Community Correction officer for a period of two years.
2.That you undergo assessment and treatment for drug addiction, or submit to medical, psychological or psychiatric assessment and treatment as is directed.
3.That you submit to testing for drug use as directed.
4.You must undergo programs consistent with the purpose of treatment and rehabilitation, which may include, but is not limited to employment, educational, cultural, offence specific and personal development programs, as directed by the Regional Manager.
5.You must realise that if you breach the order, you should expect to be brought back to court and dealt with for such breach. You should expect to be imprisoned, perhaps be fined, and perhaps other sorts of orders would be made if that breach occurs.
48 Do you understand the conditions of the community correction order?
49 OFFENDER: Yes, ma'am.
50 HER HONOUR: Do you wish to speak to counsel about the meaning of any of those conditions?
51 OFFENDER: No, ma'am. No, Your Honour
52 HER HONOUR: Thank you. So you understand. Do you consent to the making of such an order?
53 OFFENDER: I don't understand, Your Honour. Sorry, what was that?
54 HER HONOUR: Do you consent to the making of a community correction order for the period of two years after you are released from custody?
55 OFFENDER: Do I agree with that?
56 HER HONOUR: Yes, do you consent to it?
57 OFFENDER: Yes. Yes, Your Honour.
58 HER HONOUR: Thank you. Very well. These are without doubt serious offences. In all the circumstances, I have no alternative to imprisonment. I propose to record convictions on both charges and sentence you to be imprisoned as follows:
Charge 1 – armed robbery – to a term of imprisonment for 12 months.
Summary charge 5 – commit indictable offence on bail - to a term of imprisonment of one month.
59 I order that the sentence imposed on Summary Charge 5 be served concurrently with the sentence imposed on Charge 1. That makes for a total effective sentence of one year as the prison component of the sentence.
60 On Charge 1, I will also impose a community correction order that commences upon your release from custody for a period of two years.
61 As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you have already spent in custody is 162 days. I direct that such be noted in the records of the court.
62 I order that the property referred to in the schedule of the disposal order (the property) which I have signed this day be forfeited to the Minister. I further direct that the property be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings and then destroyed.
63 Section 6AAA of the Sentencing Act 1991 requires me to state the sentence and non-parole period that I would have imposed but for the plea of guilty. Your plea has saved time, expense, and the need for witnesses to give evidence, and is reflective of remorse. But for your plea of guilty, I would have sentenced you to a term of imprisonment of two years and six months on Charge 1 and 45 days on Charge 2. I would have directed that you serve a period of 20 months before being eligible for parole.
64 Are there any further matters?
65 MR RALPH: Your Honour, was the pre-sentence detention declared?
66 HER HONOUR: Yes, 162 days.
67 MR RALPH: No other matters, Your Honour.
68 HER HONOUR: Ms Sargent?
69 MS SARGENT: No, Your Honour, nothing further.
70 HER HONOUR: Yes, thank you. Please adjourn the court.
---
0
5
0