R v Aitken and Chircop
[2013] VCC 1115
•7 August 2013
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-13-00502
CR-13-00510
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| ADAM SCOTT AITKEN NICOLE JANE CHIRCOP |
---
JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 27 May 2013; 29 July 2013, | |
DATE OF SENTENCE: | 7 August 2013 | |
CASE MAY BE CITED AS: | R v Aitken & Chircop | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1115 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S.A. Flynn | Office of Public Prosecutions |
| For the Accused Aitken | Ms M. Myktowycz | |
| For the Accused Chircop | Ms E. Bradley |
HER HONOUR:
1
On the evening of 9 June last year and into the early hours of 10 June, you, Adam Aitken, and you, Nicole Chircop, along with Jodie Rose, who is
Ms Chircop's sister and Mr Aitken's partner, spent time playing the pokies in two different hotels in Geelong. At some point Ms Chircop left the premises. At around 5 am Mr Aitken and Ms Rose left. They went to get some ice and then went to the home that the three of you shared.
2 It would appear that at this time, Mr Aitken, you had taken five Xanax pills and fell asleep. You were later woken by Ms Chircop and the two of you left the house together.
3 At around 7.30 in the morning of 10 June, Mr Wang, the owner of Munchies Milk Bar in Bell Park, entered the milk bar alone and began preparing to open up. When he opened the back store room you, Mr Aitken, grabbed him by his clothing around the shoulder and demanded his money and his wallet. In your right hand you held a knife about 20-30 centimetres long with a distinctive yellow handle. You had disguised yourself with a hat and a face scarf.
4 Mr Wang told you that all the money was in the cash register. You again asked for his wallet and let go of him once he had given it to you. He went into the shop to the cash register where you, Ms Chircop, were attempting to open the register. He opened it and the two of you then proceeded to empty it of its cash. There was somewhere between $350 and $400 in the cash register.
5 You then moved to the cigarette display, Ms Chircop, and began taking packets of cigarettes. You took between 40 and 50 packets with an approximate value of $800. At one point Mr Wang asked Mr Aitken if he could have his driver's licence back from his wallet so you, Mr Aitken, took his cash, about $1,000, from his wallet and threw the wallet back onto the counter. Once Ms Chircop had finished taking all of the cigarettes, the two of you left through the front door of the shop.
6
Police arrived there soon after and took samples of two blood stains that were found there. The first was near the cigarette stand and the second near the cash register. They also found $210 in cash on the ground nearby. Later testing of the blood samples confirmed that one was a match to you,
Ms Chircop, and the other a match to you, Mr Aitken.
7 CCTV footage from the surrounding areas was examined and that revealed a car, a Magna, driving down a laneway behind the shop where the milk bar was.
8 You, Ms Chircop, along with your sister, Ms Rose, were arrested at some stage later while driving a Magna of the same registration that which had been seen on the CCTV footage.
9 When you were interviewed by police on 18 September, you admitted you owned the car. You said you had used ice on the morning of the offending although you denied any involvement in the armed robbery and refused to accept that it was your car on the CCTV footage.
10 You, Mr Aitken, were arrested on the afternoon of the day of the offending and at the time of your arrest you were found to be in possession of $1,080 and an unopened packet of cigarettes. A Mr Daniel Westerman was with you and he told the police that the four packets of cigarettes he had on him had been purchased from you earlier that day.
11 On 11 June a search warrant was executed at your home. A yellow handled knife and ten unopened packets of cigarettes were located. Your fingerprints, Mr Aitken, were located on two of those cigarette packets. Despite these links and these findings by the police, when you were interviewed by them, on 10 and 11 June, you too denied any involvement in the armed robbery. You said you had purchased the cigarettes that were in your possession and that you had found the cigarettes that you had given to Mr Westerman. You said you had found them in your home and you did not know where they, and the rest of the cigarettes seized from your home, had come from You said that the knife was a vegetable knife.
12 Notwithstanding the denials made by each of you, you have now each pleaded guilty to, and come to be sentenced, for one charge of armed robbery of Mr Wang at the Munchies milk bar.
13 In his victim impact statement, Mr Wang referred to the great mental impact on him. He said when he recalls the incident he has great fear that it might happen again and he no longer feels safe.
14 This is an all too common example of an all too prevalent offence; an armed robbery in company on a soft target, a local shop in a residential area, committed by people looking for money to feed their drug habit. It is clear that considerations of denunciation, deterrence and punishment must all be given due weight.
15 Features that add to the seriousness of the offending include that it was a robbery in company; that it was two on one; that you were armed with a knife; that the victim was held and the knife held very close to him. There was a level of pre-planning as evidenced by the obtaining of the weapon, the selection of the target, the use of a car kept in the laneway behind as a get-away car and the use of clothing to conceal faces. When you went into the shop each of you, without apparent discussion or direction ocne inside, performed different roles; trying to open and take the money from the till; taking the cigarettes; seeking out Mr Wang in the back; and demanding his wallet and his money.
16 If I can deal then with your personal circumstances. You first, Mr Aitken. You are 37 and you have a long and sorry criminal history. According to the analysis made by your counsel, Ms Myktowycz, you have amassed 44 court appearances between 1992 and the time of the commission of this offence. You have spent three quarters of your adult life in gaol. 15 of the last 20 years approximately have been spent in custody. The longest continuous period you have spent in the community over that time has been, on her schedule, ten months, the shortest 17 days.
17 Your convictions span a wide range of dishonesty, violence related and driving offences. You have two previous convictions for armed robbery, the first in December 1993 when you were sentenced by this court to 16 months of youth detention; The second in September 2004 when you were sentenced to be imprisoned for a period of five years. On that occasion you were also convicted of recklessly causing serious injury and you received a total effective sentence of seven years with a non-parole period of five.
18 It is no surprise that this history of offending comes on the back of an unhappy and unstable childhood and upbringing. When you were only two your parents separated and your mother left. You had no contact with her after that for many years. Your father eventually re-partnered and when you were ten you found yourself, without warning, being taken by him and his new partner into New South Wales and placed there in a boy's home. After a year you were transferred back to Melbourne but to an orphanage there, and it was not until you were 15 that you returned briefly to your father's home before striking out on your own.
19 The materials before me indicate that from your earliest childhood your behaviour gave cause for concern and by the age of six you were noted to be uncontrollable, aggressive and antisocial. Even as a baby you had been referred for specialist intervention and in your childhood and adolescence you were again referred on several occasions for specialist intervention and assessment but it would appear with little success.
20 By the age of 13 you were abusing alcohol and drugs. By your mid to late teens you had progressed to heroin as well as other drugs.
21 You have no job skills and no employment history. Your schooling has been poor.
22 Shortly after your release from the second armed robbery sentence in 2008, you were hospitalised following a heroin overdose. You lapsed into a coma, became hypoxic and suffered a stroke. The medical reports, including MRI scans, revealed that you suffered a hypoxic brain injury as a result. A subsequent neuropsychological assessment was conducted, to assess any cognitive deficits. That revealed slight difficulties with executive functioning and higher order attention skills. The doctors who assessed you at the time noted that it was unclear how much the hypoxic event contributed to that mild impairment of cognitive functioning.
23 It would appear that at times since then you have been prescribed Epilim, usually prescribed as an anti-epilepsy drug, for the physical consequences of that hypoxic episode and stroke. In particular the Epilim has been prescribed for intermittent jerkiness in your arms and legs. You are currently being assessed to determine whether you suffer from epilepsy. That investigation has taken more urgency following your collapse, apparently from a fit during the first day of the plea hearing before me. You then reported that you had suffered fits or blackouts in the past.
24
It would appear that you are a poor historian and that, coupled with your long history of substance abuse and that cycle of imprisonment release and
re-imprisonment that I have referred to, has meant that your capacity to engage with medical practitioners for a comprehensive assessment and treatment of whatever conditions you do suffer from now, has been impaired. It is to be hoped that, now you are to be returned to custody again and with the history of the fitting now clearly documented, there will be appropriate and timely follow-up in respect of that and any other medical conditions from which you suffer.
25 In the time leading up to the offending that I am sentencing you for, you had expanded your menu of illicit substances to include ice. It was, I was told, a desire to get more money for ice that led to your involvement in this offending. It is hard to rank drugs in a scale of seriousness but it is clear that ice is one of the particularly pernicious drugs, not only for what it makes people do when they are under the influence of it but also for the desperation it engenders in people in their drive to get more once they start using it.
26 You have been in custody since August of last year. None of that time counts as pre-sentence detention in respect of this offence. That is because you have been remanded and sentenced in three separate hearings for other summary offences occurring at about the same as these offences. The other offending spans a range of activities. I am told that your current sentence or sentences expire on 18 December of this year.
27 I accept that had you been sentenced for this offence at the same time as the other offences that led to your remand in August and subsequent charging, that there would have been partial concurrency between this sentence and the other sentences. It follows that I should therefore adjust the sentence for this offence to take that into account.
28
Had I been sentencing you at the same time as you were sentenced for the other offences, I would have been able to take into account your pre-sentence detention as your remand in custody on other charges in August last year resulted in the revocation of your bail in respect of this charge. Had I sentenced you at the same as all of the other charges, I would have made
12 months of the sentence on this charge concurrent with those other sentences. To achieve this end, I propose to make this sentence concurrent with the sentences you are currently undergoing and to reduce the sentence that I would otherwise have considered appropriate by a period of eight months, so that is the four or four a bit months from now until the expiration of your current terms in December and eight months to make up the balance of the 12 months, that is the concurrency with the other sentences I would have otherwise imposed.
29 With a history of offending and drug abuse as extensive as yours and your two previous convictions for armed robbery, it is clear that considerations of specific deterrence and protection of the community arise. The bleak picture of your history of offending and substance abuse, that your history of offending and substance abuse reveals, is tempered by the material which suggests you have tired of the cycle of imprisonment, release and re-imprisonment, a consequence of your aimless drug affected life and related offending.
30 A recent assessment by Prison Psychiatric Services indicates that you have presented reporting feeling depressed in gaol. Apparently this is the first time imprisonment has had this affect on you. As a result you have been prescribed the antidepressant "Avanza" which appears to have had some impact on improving your mood. The Prison Justice Health notes reveal an assessment that you are developing insight and that you have a sense that you now have more to lose from incarceration than you had in the past. You can identify goals and hopes for the future.
31 Your partner, Ms Rose, is currently serving a sentence. It was not clear on the material before me whether that was for a robbery that she committed with you some hours before this armed robbery and which relates, for you, to one of the sentences imposed on you since August of last year or whether she is serving a sentence for something else. In any event, you express a commitment to a continued relationship with her and a quieter life.
32 Despite your feelings of rejection and abandonment by both your parents in your childhood, you have resumed contact with each of them and your mother in particular is supportive. She wrote an eloquent letter describing your troubled upbringing and demonstrating her continued support for you. She has been present in court on each occasion the matter has been before me.
33 You are fortunate to have a mother and partner who care for you and can give you some hope for a future life, a different one from the life you have led to date. I accept that this, together with your expressed desire to change, tempers those otherwise bleak prospects for rehabilitation.
34 Given your extensive history of being imprisoned, you are at risk of becoming, if you are not already, institutionalised. You have had limited opportunities to live under parole supervision. That is a product of the general nature of your past offending and the general nature of your past sentences. Most sentences have been relatively short, either below the period for which a parole period can be set or if parole has been set has had a very short period of parole. Many of the sentences, even if they were longer than the minimum period when parole could have been set, were effectively served by the time you came to be sentenced.
35 I accept Ms Myktowycz's submission that I should recognise this possibility for change in you by imposing a significant gap between the head sentence and the non-parole period so giving you the opportunity to see if you can benefit from the supportive structures that parole can provide.
36 You pleaded guilty at an early stage and you are entitled, of course, to reduction in your sentence as a result.
37 I accept Ms Flynn's submission that there is no basis for distinguishing between your role and that of Ms Chircop for sentencing purposes but your more significant criminal history, in my view, points to the need to impose a different sentence on you for the offence itself having regard to that history.
38 Mr Aitken, could you please stand.
39 Adam Aitken, on the one charge of armed robbery to which you have pleaded guilty, you are convicted. You are sentenced to be imprisoned for a period of 5 years and 4 months and I fix a non-parole period of 2 years and 10 months.
40 I declare pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty I would have sentenced you to a period of imprisonment of 8 years and I would have fixed a period of 6 years as the non-parole period.
41 For the reasons that I have already indicated, there is no pre-sentence detention to take into account. It follows from what I have said that had I been able to take into account your pre-sentence detention or be able to sentence you at the same time as you were sentenced for the original offences, the sentence I would have imposed in respect of the armed robbery would have been a sentence of 6 years but your actual sentence, for those reasons I have identified, is 5 years and 4 months with a 2 year 10 month non-parole period.
42 I have been asked to make disposal and restitution orders as ancillary orders. No opposition has been made to the making of those orders and I will make them.
43 Does the sentence that I pronounce in respect of Mr Aitken reflect what I said I intended to do?
44 MS MYKYTOWYCZ: Yes, Your Honour.
45 HER HONOUR: No further ancillary orders?
46 MS MYKYTOWYCZ: No thank you, Your Honour.
47 HER HONOUR: Thank you. Could you remove Mr Aitken please.
48 (PRISONER AITKEN REMOVED).
49 HER HONOUR: Nicole Jane Chircop, you are 34 years old and the sister of Mr Aitken's long term partner. When you were arraigned you said in response to the charge that you were "more guilty".
50 On your plea your counsel explained that by that you meant that you took responsibility for the decision to commit the armed robbery and for persuading Mr Aitken to commit it with you. That may be so but each of you is responsible for your own choices and I see no reason for distinguishing between your role and his for sentencing purposes.
51 You have a limited criminal history and this is a major escalation in seriousness for you.
52 In 1996 when you were 17, you were placed on a six month community based order for theft. You were dealt with in the following year for non-compliance with that CBO and the year after that placed on another six month CBO for trafficking and use of heroin. The low sentence for that I accept is an indicator that this was low end of the scale trafficking and related to funding your own use.
53 Thirteen years went by before you were next before a court. Again it was for non-violent dishonesty offences and again you were placed on a CBO. For the first time conditions for psychiatric and psychological and drug and alcohol addiction assessment and treatment were imposed. You were still subject to that CBO when you committed this offence and I understand that breach proceedings are pending following final disposition of this matter. That is the only outstanding matter you have. You have not been charged with any further offences or dealt with for any further offences since being charged with this.
54 As your criminal history suggests, you too have led an adult life that has been blighted by substance abuse. Your earlier history is set out in detail in a report provided by the psychologist, Mr Jeffrey Cummins. Save to say that I accept it reveals you suffered a significant disadvantage and were denied the physical, emotional and financial security and stability we as a society should provide for all children, I will not recite it here as Ms Bradley has indicated that you do not want it detailed in open court. Those disadvantages have meant that you were less resourced than others to aspire to, and to work to, achieve a life centred around stable relationships, meaningful employment and to resist the lure of drugs.
55 You worked for a short time as a farmhand after leaving school at 16 and that is your only engagement in the workforce. As a report from Mr Cummins put it, you have subsequently lived a drug using lifestyle and have had no further paid employment. You are not unintelligent. You are articulate, noted to have a very good command of English and a consistent capacity to engage in abstract thinking.
56 Although drug abuse has been a significant factor in your life and apparently, in the time leading up to this offence, was escalating; and you were using Xanax and ice predominantly; you had commenced a Certificate IV in youth work in 2011 and you have now completed 10 of the required 16 units. You have also completed the six months of required voluntary work placement. You have done this with the Salvation Army Youth Street Teams. You clearly have the potential, if you choose to use it, and can over come the psychological and physiological attraction to drug use to make much more of your life than you have already.
57 You have three children who are aged between 10 and 6. Your relationship with their father, a man who has no history of offending or substance abuse, appears to have come to an end in early 2011, in part as a result of your drug use. Although he had accompanied you to consultations with your lawyers and had come to court with you up until the time your plea was first listed in May of this year, it is not clear to me what level of support you still have from him or what the nature of the relationship is that you still have with him.
58
It appears that he is now responsible for the care of the children and he has been bringing them to visit you each week since you were remanded in late May. Whatever the state of the relationship between you and him, you speak well of his commitment to and care for the children. You report to
Mr Cummins, and I accept, that you are missing your children. I accept that this will add to the burden of the inevitable term of imprisonment which flows to this charge.
59 Mr Cummins rules out any psychiatric or psychological illness or conditions as affecting your behaviour. He concludes that you display an adolescent level of maturity and rebelliousness which could be reflective of your dysfunctional upbringing and drug abuse. He recommends treatment, counselling essentially, to assist you to understand more about your immaturity and rebellious attitude. He also recommends, despite your stated belief that you have now learnt your lesson in respect of drug abuse, that further, and perhaps intensive residential drug rehabilitation would be of benefit to you. As he notes your prospects for rehabilitation are closely linked to whether or not you refrain from drug abuse.
60 I take into account in your favour, in assessing the weight to be given to your prospects for rehabilitation: the absence of subsequent offending; the fact that this is a significant escalation in level of offending for you; your relatively minor criminal history; and your acceptance and responsibility; indeed, your acceptance of a greater share of responsibility as between you and Mr Aitken.
61
I also take into account your early plea of guilty. Given the manner in which you have expressed responsibility not only for your role but for involving
Mr Aitken, I consider that is something also that indicates evidence of remorse.
62 Although there is no basis for distinguishing between your roles in the armed robbery, your markedly different criminal histories, the fact that for you this is the first time you are serving a sentence and your very different personal circumstances, justify the imposition of a significantly lesser sentence on you. I agree that for you too, as Ms Bradley submitted, a long gap between the head sentence and the non-parole period is appropriate.
63 Ms Chircop, could you please stand.
64 On the one charge of armed robbery to which you have pleaded guilty; you are convicted. You are sentenced to be imprisoned for a period of 4 years and I fix a non-parole period of 2 years.
65 I declare that you have spent 72 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
66 I declare pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty I would have sentenced you to a period of imprisonment of 6 years and I would have fixed a period of 4 years as the non-parole period.
67 I have been asked to make an order in respect of you for restitution and also for retention of the forensic sample provided by you. There has been no opposition to the making of those orders and I will make them.
68 Do the orders that I pronounce what I said I intended to?
69 MS FLYNN: Yes, Your Honour.
70 MS BRADLEY: Yes, Your Honour.
71 HER HONOUR: No further orders?
72 MS FLYNN: No, Your Honour.
73 MS BRADLEY: No, Your Honour.
74 HER HONOUR: Thank you. Could you remove Ms Chircop please.
75 (PRISONER CHIRCOP REMOVED).
76 HER HONOUR: Just bear with me while I sign the ancillary orders. Can I thank you all for your polite patience and tolerance of all the disruptions we have had as well as for your considerable assistance.
- - -
0
0
0