R v Main
[2013] VCC 1780
•14 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-01392
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JULIAN CHARLES MAIN |
---
JUDGE: | HIS HONOUR JUDGE GRANT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 November 2013 | |
DATE OF SENTENCE: | 14 November 2013 | |
CASE MAY BE CITED AS: | R v Main | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1780 | |
REASONS FOR SENTENCE
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Hogan | OPP |
| For the Accused | Mr M. Phillips | Victoria Legal Aid |
HIS HONOUR:
1 Julian Main you have pleaded guilty to one charge of armed robbery. The maximum penalty is 25 years imprisonment.
2 I have heard a summary of the offending. The summary will be attached to these remarks as Exhibit A.
3 Briefly, at about 9 pm on 27 April 2013 you entered the Kentucky Fried Chicken store in Doncaster with the intention of committing an armed robbery. You were wearing a wig and a pair of gloves. You also had a towel across your face. You approached the counter and produced an imitation firearm. You pointed the firearm at a young woman working in the store and demanded money. During the course of the offending you became more agitated and after being provided with notes and coins you grabbed the charity box from the counter and went to leave the store.
4 A male customer bravely tackled you and, with the assistance of two other customers disarmed you. At this time you were carrying a knife as well as the imitation firearm. You were restrained until the police arrived.
5 Mr Main, you have a significant criminal history. It reflects the fact that you have been a persistent user of heroin for many years.
6 You started abusing drugs in your early teens and were addicted to heroin by the time you were 18 years old. In a letter provided to the court, your parents said this.
“On examination of his criminal history, it will be painfully obvious to you that Julian has completely wasted his life. He is approaching 40 years of age and notwithstanding the fact that he is a loving, personable and family–oriented young man when not affected by drugs, he has nothing: no education, no trade and no skills. He has never had a job. He has very little in the way of material possessions. His clothes are hand-me-downs or purchased from a second hand shop. His 25-year-old car cost just a few hundred dollars. Everything has been sacrificed to heroin.“
7 You are fortunate indeed that your parents are prepared to continue to support you notwithstanding the years of heartache that they have suffered as a result of your drug addiction and criminal behaviour.
8 Your criminal history commences with appearances in the Children’s Court. You have a large number of prior appearances in the Magistrates’ Court. Over the last 20 years you have spent significant periods in prison. You have been convicted for offences involving violence, drugs and dishonesty. You also have a number of convictions for serious driving offences. You have two relevant prior convictions in this court. In October 2000 you were sentenced to a total of 3 and 1/2 years imprisonment for a large number of offences including 2 counts of armed robbery and 1 count of attempted armed robbery. In July 2006 you were sentenced to a total of 4 years and 1 month imprisonment for a number of offences, including one count of intentionally cause serious injury and one count of robbery.
9 In relation to this armed robbery, the Crown is correct in submitting the importance of deterrence (both specific and general), punishment and protection of the community as sentencing considerations. In assessing the seriousness of this armed robbery I take account of a number of relevant matters.
10 First, you chose a soft target. It was undoubtedly a terrifying experience for all those who were present at the time of your offending. It certainly had a profound impact on the young woman you confronted. I have been provided with a victim impact statement that details the harm she has suffered as a result of your criminal behaviour. The victim says this.
“Becoming the victim of this crime has exacerbated my already diagnosed medical depression and anxiety. I was unable and am unable to attend university or remain alone for extended periods of time. It has caused me great emotional stress that, even with psychological treatment, I feel will not go away.”
The victim then describes how she has failed this year at university because she has been unable to leave home on most days. The victim is concerned that she will be unable to complete her degree and therefore unable to pursue her proposed career as a veterinarian.
11 Secondly, you tried to disguise yourself and there is evidence of some pre-planning.
12 Finally, the offence was committed during the operational period of a suspended sentence.
13 In her report Dr Janev unsurprisingly concluded that you are a high risk of re-offending. This is a realistic assessment.
14 Mr Main, given this serious offending, your prior criminal history and your long-term drug history, I am of the view that you are a poor prospect for rehabilitation. I appreciate your parents’ hold some hope that this incident may be the turning point for you. Recent conversations with you have led them to hope you may be genuine in your desire to rehabilitate. However, considering your past behaviour and your response to previous opportunities provided by the Courts, I am not persuaded.
15 In her reasons for decision delivered in 2006, the Judge referred to the bundle of certificates, qualifications and some pathology results provided to her that indicated you were using your time in custody productively and wisely. Her Honour said this about the materials tendered into evidence:
“They confirm your parents’ sentiments as expressed in their letter that you are committed to turning over a new leaf.”
Clearly, your commitment was not as strong as you maintained.
16 In June 2012, notwithstanding your prior history, a magistrate made an order that allowed you to remain within the community on a suspended sentence. No doubt this decision was influenced by a number of reports presented on your behalf, including a report from Julie Wouters, a drug and alcohol counsellor, who said this in her report.
"Mr Main has expressed what appears to be genuine remorse for his offending.”
She then said that you reported to her that you were over your old lifestyle. Within ten months of receiving the suspended sentence you were committing further offences.
17 Mr Main, the sentence I impose must of course acknowledge those matters presented in mitigation.
18 You are entitled to appropriate credit for your early plea of guilty. The plea came at the earliest opportunity and indicates that you accept responsibility for your criminal behaviour. I am satisfied that you are remorseful. I also accept the plea is significant because it saves the victim and witnesses from the trauma of giving evidence. It also avoids the time and costs involved in a criminal trial.
19 I accept that in your case imprisonment will be more onerous than usual because of your psychological conditions. The report of Dr Julie Janev indicates that you are currently suffering from extreme levels of anxiety, depression and stress. Dr Janev notes that you meet the criteria for substance use disorder, persistent mood disorder, anxiety disorder and personality disorder. It is conceded by the prosecution that there should be some moderation of the sentence to reflect the fact that imprisonment will be more onerous for you than usual.
20 For completeness, I need to refer to the order made on 30 October this year at the Ringwood Magistrates’ Court. On that day, you were dealt with for a burglary and theft committed on 19 February 2012; an unlawful assault committed on 18 March 2013 and a burglary and theft committed on 4 April 2013. The magistrate imposed an aggregate sentence of 12 months imprisonment. This included an order for the activation of the sentence that had been suspended on 28 June 2012. You were ordered to serve a minimum term of six months before being eligible for release on parole. You have been serving that sentence since 30 October.
21 Mr Main, on the charge of armed robbery, you will be convicted and sentenced to a term of 5 years imprisonment. As you are already undergoing a sentence with a minimum term, I am required pursuant to s.14 of the Sentencing Act 1991 to fix a new single non–parole period in respect of all sentences. I fix that period at 3 years and 9 months. That new single non-parole period is to commence from 30 October 2013. I make a declaration that you have served 186 days by way of pre sentence detention.
22 Had you been found guilty of this matter after trial, I would have imposed a sentence of 7 years' imprisonment with a new single non-parole period of 5 and ½ years.
23 I make the disposal order sought by the prosecution.
24 MS HOGAN: If Your Honour pleases.
25 HIS HONOUR: Yes, Mr Phillips.
26 MR PHILLIPS: One brief matter, Your Honour. With the 186 days of pre-sentence detention that does not take into account, as I would understand it, the period from 30/10 through to now.
27 HIS HONOUR: That is why I have dated the non-parole period to commence from 30 October. So he has already started the sentence from that day.
28 MR PHILLIPS: Yes. I will resume my seat, Your Honour, I misunderstood that.
29 HIS HONOUR: Yes, thank you. The prisoner can be removed, thank you.
- - -
Exhibit 1:
Indictment No. D11204599
Court References: CR-13-01392
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL JURISDICTION
THE DIRECTOR OF PUBLIC PROSECUTIONS
–v–
JULIAN CHARLES MAIN
Date of document: | 1 November 2013 |
| Filed on behalf of: | The Director of Public Prosecutions |
| Prepared by: Office of Public Prosecutions 565 Lonsdale Street Melbourne Vic 3000 | D. Hogan 30 Reference: |
SUMMARY OF PROSECUTION OPENING
The offender is 37 years of age and was born on the 9th of December 1975.
On Saturday the 27th of April 2013 at approximately 9.00pm the offender entered the Kentucky Fried Chicken store on Doncaster Road in Doncaster. He was wearing a wig, a towel across his face and a pair of gloves. He also had a duffel bag with him. He approached the counter and produced an imitation firearm. He said to Lyana PALMER, who was working at the store at the time, “Give me all the money, give me all the fucking money. Open the tills”. The victim said to him, “I need to get the keys, I can’t open the tills without the keys”. She could see that he was pointing the firearm towards her, but at the same time attempting to conceal it. There were other customers in the store at this time.
The victim went to the back of the store to find the keys and then returned. She told the offender that she needed to enter a code to open the till. The offender became agitated and grabbed one of the registers and started shaking it and then pushed it onto the floor. The offender said to her, “Just give me the money”. The victim entered her code and opened the till. She then handed him notes from the till. The offender told her to hurry up. She then pulled out a tray of coins and handed it to him. The offender told her to open other registers. The victim told him there was no money in the other registers. The offender then grabbed the charity box from the counter and went to run out of the door.
Andrew PETALAS, a customer in the store, got up from his chair, threw his chair at the offender and hit him to the head with his right fist. PETALAS pushed the offender to the ground and two other customers then assisted in restraining him. The offender had a knife in his left hand which he dropped as he went to the floor. Another customer kicked the knife out of the way. While the offender was restrained PETALAS searched for the firearm that he had seen the offender produce earlier. He found the gun and grabbed it and as he grabbed it the gun broke and he realised it was plastic. PETALAS sustained some cuts and bruises during the scuffle.
Other employees of the store telephoned Police who arrived soon after. The offender continued to struggle with the three males who had restrained him until Police attended. Police handcuffed the offender. They searched him and located notes and coins in his jacket pockets. Police asked him for his name and address and he responded, “I’m not fucking telling you”. The offender was then arrested and conveyed to the Boroondara Police Station.
Approximately one hundred meters from the store Police located a white coloured Toyota Corolla hatch back. The engine was warm, the driver side door was unlocked and the keys were in the ignition. This vehicle was registered to the sister of the accused. Police also located an orange container with different coloured tablets inside.
The offender was interviewed by Police on the same day and provided ‘no comment’ answers to the allegations. He stated that the tablets found by Police were Valium, Serepax and Xanax.
Maximum Penalty
Armed robbery – Level 2 imprisonment (25 years maximum) per s.75A Crimes Act 1958.
Timing of Plea
The offender indicated an intention to plead guilty to the charge at a committal mention in the Magistrates’ Court on the 22nd of July 2013.
Pre-sentence Detention
10. The offender was arrested on the 27th of April 2013 and has remained in custody since that time. He has spent 194 days by way of pre-sentence detention as at the 7th of November 2013.
Applications
11. Disposal: Application is made for the disposal of various items seized by Police.
0
0
0