R v Christopher Dulanas

[2011] NSWDC 102

District Court

New South Wales

Medium Neutral Citation:	R v Christopher DULANAS [2011] NSWDC 102
Decision date:	11 July 2011
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	For each of the offences of demanding property with menaces - a non-parole period of 2 years 6 months, balance of the term of 15 months. For the offence of assault with intent to rob in company - non-parole period of 2 years 2 months, balance of the term of 1 year 10 months.
Catchwords:	CRIMINAL LAW - sentence - demand property with menaces - assault with intent to rob in company - committed hours apart in popular entertainment area - 2 victims - prior criminal history - undertaking courses while in custody - offence committed while on bail - guideline judgment - guilty plea at earliest opportunity - guarded prospects of rehabilitation - offences all slightly below the midpoint of the range of objective seriousness - partial accumulation of sentences.
Legislation Cited:	Crimes Act 1900 s 97(1), s 99
Cases Cited:	R v Henry (1999) 46 NSWLR 346 Veen v The Queen (No 2) (1988) 164 CLR 465
Category:	Sentence
Parties:	Regina Christopher Dulanas
Representation:	Ms AJ Sharwood for the Director of Public Prosecutions Mr RJ Kozanecki for the offender
File Number(s):	2010/319500

SENTENCE

1. I am sentencing a man who has on previous occasions been sent to gaol for offences such as stealing from the person and robbery and who on two separate occasions committed similar offences whilst he was on bail.

2. The man's name is Christopher Dulanas. I am sentencing him for three crimes. The first two crimes were committed at the same time against two victims. They amount to the same offence, which is called demand property with menaces. It is an offence against s 99 of the Crimes Act 1900 and carries a maximum of ten years imprisonment.

3. The third crime was committed less than a week later and it was an assault with intent to rob committed whilst Mr Dulanas was in company. That is an offence against s 97(1) of the Crimes Act . It is more serious in that it carries a maximum of twenty years imprisonment.

4. It is important for a judge in sentencing a person to set out briefly what happened which resulted in the person being charged with the crimes.

5. The offences against the two victims occurred on a Sunday night, 9 August 2009. They occurred in a games arcade in a popular entertainment area in George Street, Sydney. Two nineteen year old men were playing a game in the arcade. Mr Dulanas came in, started to talk to them and asked one of them if he had any money. He was told that they did not. He played with one of their wallets, which happened to be resting on the machine. He asked one of the men for the PIN for his credit card. He was told by the man that he did not have any money. Mr Dulanas then said, " Do you know who I am? Do you want to get slapped? Do you want to get shot? I'll take you outside." When he was saying this he had his hand in his jacket pocket pointing at one of the victims. The victim kept his cool and kept playing the game. He tried to ignore Mr Dulanas who kept asking for the PIN. At last the man surrendered his PIN because he was afraid of Mr Dulanas. Mr Dulanas then removed the card from that victim's wallet. Mr Dulanas then turned his attention to the other man. He asked for his mobile. He said to the man, " Give me the phone, I have mates outside. If you don't give me the phone I'll shoot you ." Once again he put his hand into his pocket. That man also felt afraid, understandably so, and handed his mobile to Mr Dulanas. Mr Dulanas left the arcade with the stolen property. When Mr Dulanas was eventually detected and arrested, he acknowledged his guilt. He was in fact depicted on CCTV footage committing the crime.

6. The third crime was committed the following Thursday, 13 August 2009. Again the victim was playing in a games arcade in George Street. It was the early evening. The victim had some friends with him. They left the arcade to go to look for a meal. Mr Dulanas approached them. Mr Dulanas was in the company of two other young men. Mr Dulanas approached the victim saying, " You got any money? Give me your money ." This victim also kept his cool, " No I don't have any money for you, please excuse me." Mr Dulanas persisted, " Let me see your wallet." The victim replied, " Why should I let you see my wallet? " The victim attempted to go past Mr Dulanas but Mr Dulanas blocked his way and pushed him in the chest with both hands. The victim said, " Why are you doing this? What did I do to you? " Mr Dulanas had determined to rob this man obviously and replied, " Do you fucking know who I am ?" The victim asked, " Why are you doing this to me?" Mr Dulanas said, " Don't you worry what you did, just give me your fucking wallet." The victim again tried to walk past Mr Dulanas. Mr Dulanas punched at the man but missed. Seconds later one of Mr Dulanas's companions lifted the wallet from the victim's pants and ran away towards George Street.

7. The victim chased him, caught up with him and tripped him up. The falling man threw the wallet towards Mr Dulanas, he missed catching it and the wallet was picked up by one of the victim's friends. Mr Dulanas was still determined to get the wallet. He approached the victim and forced him into a glass window of a shop. The force caused the victim to hit his head on the glass and fall over. Not satisfied, as he was lying on the ground Mr Dulanas kicked the man in the face with his foot. That cut his lip and it began to bleed. Mr Dulanas ran away into George Street. The assault lasted about two minutes and was once again captured on CCTV. The victim went to the police, the police took a description and Mr Dulanas was later arrested.

8. I said earlier on Mr Dulanas has done this sort of thing before. He is aged twenty-nine and has a criminal record from when he turned eighteen in 2000. His record includes serious offences such as maliciously inflicting grievous bodily harm, for which he received a gaol term in 2001. He has convictions for demanding property by force in company and stealing from the person. He has been an accessory after the fact to robbery in company. He has served gaol terms before. He has been given the benefit of non-gaol sentences but has been called up when he has breached bonds or conditions of bail.

9. There is a presentence report about Mr Dulanas, which has been prepared by the Probation and Parole Service. It summarises Mr Dulanas's situation as in the following two paragraphs:

" Mr Dulanas is a twenty-eight year old man with a significant criminal history. He admitted that he began to use illicit drugs when he became involved with a peer group when a teenager and a major part of his offending behaviour has been the result of his drug use and negative associations.

A comprehensive psychological report indicates that Mr Dulanas has a personality disturbance and would need clinical assistance to address this issue, in combination with therapeutic programs to address his alcohol and other drugs and gambling issues ."

I have not seen the psychological report, for good reason by the sounds of the reference to it in the presentence report.

10. Mr Dulanas apparently finished school in year eight and has done some labouring work. He started using alcohol only relatively recently but had started with drugs when he was in his early teenage years and the drugs included cannabis and ice. In the past he has had a considerable gambling problem. He has not used drugs since he has been in custody and he is regarded by custodial staff as a cooperative inmate.

11. I have material from Mr Kozanecki, who appeared for Mr Dulanas, which relates to when I should commence the sentence. I also have a letter from Mr Dulanas indicating that whilst in custody he has been doing work and courses and trying his best to better himself. He has undertaken further education and qualifications such as those needed for serving alcohol and working in gambling establishments. He said he has had time to think about his life and the choices that he has made and wants to lead a better life and not to put his parents and family through what he has put them through in the past. He wants to change his life around.

12. When Mr Dulanas committed these offences against these victims, he was in fact on bail for an offence of stealing from the person and some other offences. That is an aggravating feature of his offending behaviour. A previous court had permitted him to be at liberty within the community on the undertaking that he would behave himself. He abused that liberty and used it to commit further crimes of a similar nature.

13. Mr Kozanecki called his client to give evidence. At the time of the offences he had been living on the street, in the sense that he was homeless and either on the street or living at friend's places. He was using ice and had a heavy habit, which was costing him some $1,500 a day. Asked by Mr Kozanecki, he indicated that he wanted to say he was sorry to the victims and confirm the courses that he had been doing in prison, which include rehabilitation and employment courses. He wants to pursue his rehabilitation on his release. Asked by Ms Sharwood, for the Director of Public Prosecutions, about the effect which ice had on him, he said it made him feel down and stressed out and he could not eat nor concentrate. When asked why he was sorry for the offences, he said that if such a thing happened to his family he would be upset and angry. He has a partner called Maria who does not use drugs.

14. Both Ms Sharwood and Mr Kozanecki provided very helpful written submissions. Ms Sharwood reminded me of the importance of the purposes of punishment, with particular reference to protecting the community and deterring Mr Dulanas from committing offences such as these. Ms Sharwood and Mr Kozanecki focused on the guideline judgment provided by the Court of Criminal Appeal for armed robbery in R v Henry (1999) 46 NSWLR 346. Ms Sharwood submitted that I should be guided by the starting point of four to five years fulltime imprisonment as Henry provides. She argued that only a limited number of Henry factors were present. She acknowledged that Mr Dulanas had pleaded guilty at the earliest available opportunity and that a further discount should be allowed because of the more limited discount allowed in Henry . She went on to argue that " the resulting sentence will also need to reflect the offender's significant criminal history, the fact the offender is no longer 'young' and the fact that the offender engaged in physical violence against the victim ." She argued that the sentences for the crimes against the two victims should be partially consecutive on each other and the sentence for the third offence should be wholly consecutive. She acknowledged fairly that there is an argument for the sentences commencing on 12 October 2010, which was the subject of the correspondence that had been tendered by Mr Kozanecki.

15. In relation to Mr Dulanas's record, Ms Sharwood reminded me of what the High Court had said in Veen v The Queen (No 2) (1988) 164 465 at 476. She argued that Mr Dulanas's criminal history in this case " is an aggravating factor in determining the sentence ". She reminded me that a further aggravating feature was the fact that the offences had been committed whilst on bail. I accept both those arguments. Mr Dulanas's criminal record is such that I regard it as an aggravating feature and obviously committing the offence on bail was also an aggravating feature. I do not accept as an aggravating feature that Mr Dulanas knew that whilst he was intoxicated or subject to drugs that he might commit these crimes. It is a feature to take into account as context.

16. Ms Sharwood argued that the objective seriousness of the assault with intent to rob committed on 13 August 2009 " falls slightly below the midpoint on the scale ". She argued that the two earlier offences of demanding property with menaces also fell slightly below the midpoint of the scale. She acknowledged the early plea, and also argued that I " cannot be satisfied the offender is unlikely to reoffend or be successful in rehabilitation efforts ".

17. Mr Kozanecki pointed out that there was, so far as Henry was concerned, no weapon involved in the robbery offence. He argued that the feature of limited planning referred to in Henry was inapplicable. There is a sense in which that submission is correct, but I regard the difference between limited planning referred to in Henry and the degree of planning involved in this spontaneous offence, as relatively minor. He reminded me that the wallet was returned and that the victim was not a vulnerable person and that I should make allowance for the extra discount for the plea of guilty. He argued that there is a point available to his client that there could be an additional forty days allowed because of his period in custody. However, Ms Sharwood had argued that that earlier period in custody from 13 August to 22 September 2008 was also attributable to other offences. I propose to allow just twelve days in respect of that period.

18. Mr Kozanecki argued that the two offences of demand property with menaces could be the subject of concurrent sentences. He said the same could be argued for the offence which occurred only some days later. I do not accept those submissions. So far as the demand money with menaces is concerned, there were two victims, and I propose to fix the sentences to commence one month apart, so that reflects the fact that they occurred on the same occasion but that there were two victims. So far as the robbery which occurred some days later is concerned, it was a different occasion and a different victim and I propose to commence that sentence one year later.

19. Mr Kozanecki argued that his client's prospects of rehabilitation could be described as reasonable to good. He has managed to complete a number of educational courses despite eleven moves or transfers within the prison system. There is some substance to that argument but, in light of his client's criminal record, I would not accept it. I would be quite guarded about his client's prospects of rehabilitation.

20. Mr Kozanecki argued that the overall non-parole period should be within the range of two to two and a half years, whereas Ms Sharwood argued that that such a range would be on the low side. I accept Ms Sharwood's submissions that the offences all fell slightly below the midpoint of seriousness. I regard this case as, in some sense, more serious than the Henry guideline, in particular because of Mr Dulanas's criminal history and the violence which he inflicted on the victim so far as the robbery was concerned.

21. I have taken into account the letter he wrote and his evidence. I regard his remorse as limited and, as I said, his prospects of rehabilitation must be, at the best, guarded. I do not regard it as unlikely that he will re-offend.

22. I come now to impose the sentences which I think are appropriate for these crimes. For each of the crimes of demanding money with menaces, I would regard an appropriate sentence as five years imprisonment. However, Mr Dulanas pleaded guilty at the earliest available opportunity. I would therefore discount those sentences by twenty-five per cent, so that for each of those crimes the appropriate sentence will be forty-five months or three years and nine months.

23. For the offence of robbery in company, I would regard an appropriate sentence as five years and six months. However, I propose to discount that as well because Henry did not allow for the level of discount which is now regarded as appropriate. The discount will err on the generous side to Mr Dulanas and I will reduce that sentence to forty-eight months, or four years.

24. For the reasons that I have already given, I propose to accumulate the sentences by one month between the demand money with menaces and by one year from the latter sentence so far as the robbery is concerned. Given that Mr Dulanas's overall sentence will be some five years and one month and his non-parole period will be some three years and three months, there is, in my opinion, a generous allowance for his rehabilitation. I do not regard there being special circumstances, given his record, for adjusting the overall ratio.

HIS HONOUR: Would you stand up, Mr Dulanas, please.

25. For the first offence of demanding money with menaces, I fix a nonparole period of two years and six months to commence on 1 October 2010 and to expire on 31 March 2013. The balance of the term will be fifteen months to commence on 1 April 2013 and to expire on 30 June 2014 June.

26. For the second offence of demanding money with menaces, I fix a nonparole period of two and a half years, or thirty months, to commence one month later, on 1 November 2010, and to therefore expire on 30 April 2013. The balance of the term will also be fifteen months but commencing on 1 May 2013, and expiring on 31 July 2014.

27. For the offence of assault with intent to rob in company, I fix a non-parole period of two years and two months, to commence one year later on 1 November 2011 and to expire on 31 December 2013. The balance of the term will be one year and ten months, commencing 1 January 2014 and expiring on 31 October 2015. I have adjusted the relation between the nonparole period and the parole period for that offence because of the special circumstance of accumulation.

28. The overall sentence is five years and one month and the overall nonparole period is three years and three months. The first date on which it appears to me that you will be eligible for release is 31 December 2013.

HIS HONOUR: Would you have a seat, please, Mr Dulanas?

Ms Pendleberg and Mr Kozanecki, if you would just, in your time, check the figures, please, and I don't think I fix any conditions because I don't think I order parole.

KOZANECKI: I have nothing to say, your Honour.

HIS HONOUR: Thank you, Mr Kozanecki. Ms Pendleberg?

PENDLEBERG: I can't find any problems with those sentences, your Honour, thank you.

KOZANECKI: I have just one comment. During your judgment you have been referring to Mr Dulanas as Mr Galanos.

HIS HONOUR: I'm sorry, you are quite right. I'm not sure where that came from.

HIS HONOUR: Mr Dulanas, I apologise for that.

29. Mr Dulanas, your overall sentence, as I said, is five years and one month. I have backdated it to 1 October 2010. I have allowed twelve days for some time you have spent previously in custody. It commenced then. The overall non-parole period is three years and three months. That expires, as I said, on 31 December 2013. You will be then eligible for parole. When you get parole, as you know, is not up to me, it is up to the Parole Authority. There will then be a balance of the term and your overall sentence expires 31 October 2015. Do you understand that? Yes, all right.

HIS HONOUR: Did you want to see your client before he is taken down?

KOZANECKI: Yes, if I could speak to him quickly.

HIS HONOUR: Yes, go ahead.

KOZANECKI: Thank you, your Honour.

HIS HONOUR: Thank you, Mr Dulanas can be taken down.

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Decision last updated: 19 August 2011