R v Roberts

[2014] VCC 1092

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-14-00535

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN ROBERTS

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JUDGE:	HIS HONOUR JUDGE PUNSHON
WHERE HELD:	Melbourne
DATE OF HEARING:	2 July 2014
DATE OF SENTENCE:	4 July 2014
CASE MAY BE CITED AS:	R v Roberts
MEDIUM NEUTRAL CITATION:	[2014] VCC 1092

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:     
Cases Cited:            
Sentence:                 

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms R. Champion	OPP
For the Accused	Mr R. Revill	Revill and Papa

HIS HONOUR:

1       Nathan James Roberts, you have pleaded guilty to two charges of armed robbery.

2       The prosecutor, Ms Champion, opened the circumstances of the offending by reading from a written ‘Prosecution Opening’ which was tendered.

3       In short, on 30 December 2013 at about 12.10 a.m., after producing a knife, you robbed a console operator at a BP Service Station in Brooklyn of about $600. At about 3 a.m. you robbed an employee of a United Service Station of between $200-$300 at Altona North. Once again you produced a knife. You only took notes on each occasion, indeed on the second occasion you left some of your own coins on the counter.

4       You wore no disguise. You used your father’s car. You were identified by police from CCTV footage on 3 January 2014 and soon after police executed a search warrant at your home and you were arrested.

5       You made full and frank admissions. You said you were drug affected at the time.  

6       You had various debts at the time and needed money to buy drugs.  

7       Neither victim has made a victim impact statement, however this is not needed to appreciate the impact that your conduct would have had on the victims. The first victim told police he froze and feared that he would be attacked. The second victim saw you decamp in your father’s car, but got the registration number slightly wrong substituting a 6 for an 8.

8       You are still relatively young, having turned 24 in late November 2013.

9       You have consented to me making an order for the taking of a forensic sample. I will make the order. The police may use reasonable force to obtain the sample.

10     I will also make the disposal order sought.

11     After your arrest you were remanded for 14 days before being released on CISP bail.

12     Your counsel, Mr Revill, detailed your background circumstances and family history. Much of this material is contained in a psychological report prepared by Ian Mackinnon, forensic and consultant psychologist.

13     You left school at 15 to do a four year apprenticeship as a cabinet maker. You had been offered this position whilst doing work experience. Unfortunately, you were bullied during the course of this apprenticeship and you lost your passion for your trade and ceased work as a cabinet maker after about six months as a qualified cabinet maker. You then worked in security for about four years at the Melbourne Museum.

14     At some stage you began using methamphetamine or ‘ice’. Mr Mackinnon said this was in the context of you developing a depressive mood disorder due to the bullying at your place of employment. Mr Mackinnon thought your illicit drug use was a direct consequence of serious workplace bullying. However, you did manage to cease this after obtaining employment in the security industry, but later relapsed into drug use, squandering the opportunity you had in the new employment, as Mr Mackinnon put it.

15     You lost your job at the Museum in 2012 due to your drug use.

16     You returned to your trade in December 2013 but relapsed into drug use over the Christmas break. As a result you committed the current offending.

17     Accordingly, although the picture is not entirely clear, you seem to have developed an addiction to ice during your apprenticeship and, as is often the case, your use has waxed and waned.

18     You told your counsel you were shocked by your time on remand, coming into contact with others who had committed themselves to crime.

19     

Your supervision on the CISP program was relatively short, being brought to an end by the magistrate in late March when you were committed to this court for plea. Nevertheless, you seem to have taken advantage of the opportunity on CISP bail. You were referred for a comprehensive drug and alcohol assessment at Voyage, alcohol and other drug service. You attended for counselling and maintained abstinence from ice. You were also referred to

Mr Mackinnon, via your local practitioner, as part of the CISP program.

20     On your own initiative you continued to see your drug counsellor at Voyage regularly, as well as Mr Mackinnon until recently. You attended ten drug counselling sessions and to date have seen Mr Mackinnon eight times.

21     You have also attended Narcotics Anonymous, attending each Tuesday and Sunday.

22     A report from Voyage said you presented as highly motivated to maintain abstinence from drug use. You ceased contact with others who might expose you to drugs, and avoided high risk situations to avoid relapse. You were given counselling to manage anger. Your counsellor noted your initiative, motivation and willingness to make positive changes and voluntarily engage in counselling.

23     Mr Mackinnon considered your intelligence to be normal. He identified no major diagnosable psychological disorder but he said you were anxious about the current proceedings. He thought you did not have an antisocial or criminal character.

24     He thought you were normally self-motivated, hardworking and determined, enjoying the support of a close family circle and friends.

25     You provided urine screens, which were negative for illicit substances.

26     Mr Mackinnon thought that at the time of the offending you would have been adversely affected by a mixed anxiety and depressive disorder and a substance abuse disorder, and that under the influence “of these psychological disorders” your “ability to reason and make sound judgement was probably significantly degraded.”. Ice, he thought, would have made you “especially prone to impulsive and erratic behaviour”.

27     He considered that in the last six months you had re-energised your positive traits and abilities that serve you well, and that your prospects for rehabilitation were exceptionally high. In making this assessment he was initially unaware of a prior appearance for assault and other offending in October 2013, when you were fined $1000 without conviction. On learning of this prior matter his conclusions seem to be unaltered.

28     I was told this prior offence occurred in March 2013 and that, in the context of family conflict over a firearm, for which you had a licence, you grabbed your mother’s arm and pushed her into your father. Police recommended that an intervention order be taken out, but your parents rejected this option. It seems you were using ice around this time. Some psychological assistance was obtained but it came to little because you were unable to connect with the psychologist.

29     At that time, as well as now, you are very fortunate to have the family support you do. You continue to live with your parents who attended court along with your grandmother. I can see they are here again today and I think your brother is here as well.

30     Letters of support from your parents, grandmother, brother and two family friends were tendered. They confirm how out of character your offending is, as well as your determination to make amends. Your generosity to others was also noted.

31     You must benefit from your pleas of guilty made at the first reasonable opportunity. They save time, expense and the need for witnesses to give evidence. In particular, the victims have been spared the need to give evidence. You were open and frank with police with the exception of perhaps discounting the impact of your drug habit. Mr Mackinnon noted that the offending was very much out of character and that you are currently still wracked with genuine guilt and remorse. You expressed considerable victim empathy.

32     Since early May you have been working for an asbestos removal company working in telecom pits. At first glance this does not seem to be a particularly desirable choice for a person of your skills. I accept that you took this job as the first offered because of your desire to work hard. Unfortunately you are on WorkCover at the moment, having suffered an injury to your shoulder at work in late June, when you fell in a pit.

33     You have some other health problems, having suffered epileptic seizures aged 19 as well as suffering asthma.

34     Of course your offending is very serious. The use of a knife rather than a less dangerous weapon is significant, as Ms Champion noted. The crimes occurred in the early hours of the morning, and the victims were particularly vulnerable. There are two separate offences albeit separated by a relatively short period. General deterrence, denunciation and punishment were all submitted to be important sentencing considerations. This is obviously correct.

35     Ms Champion nevertheless noted the importance of rehabilitation and your relative youth.

36     On your behalf, Mr Revill submitted that the planning was hasty; you used your father’s car and wore no disguise.

37     Drug use seems to be at the core of your offending, as is so often the case. In this setting, understandably, no reliance was placed on the principles in Verdins case. No doubt, your conduct and capacity for rational thought, was heavily influenced by drugs but this does not mitigate your offending. However, having identified the principal reason for you acting so contrary to what a powerful body of material suggests is your normal law abiding, decent, generous and hardworking character, the opportunity for rehabilitation is very real.

38     I agree with Mr Mackinnon that your rehabilitative efforts over the last six months have been exceptional for a young man of your circumstances and background.

39     Your counsel’s primary submission was to release you on a Community Correction Order.

40     The prosecution submitted that immediate imprisonment must be imposed because of the serious nature of the offending involving two armed robberies against vulnerable victims using a knife. The prosecution also noted that your rehabilitation is in its “early days”.

41     

Ms Champion referred me to two sets of sentencing remarks in this court (Scott Benning 21 February 2012 – Judge Cotterell and Luke Green

29 January 2014 – Judge Lacava).

42     Ms Champion also submitted that if I considered a Community Correction Order was appropriate there should be a significant community work component to reflect both punishment and general deterrence; furthermore, the period of any order should be relatively lengthy, between two and three years, and subject to judicial monitoring to ensure that your rehabilitative prospects were genuine and could be realised.

43     I think it likely that your determined rehabilitative progress to date was influenced by your time in custody despite the fact that it was relatively brief. Your counsel said it was apparent to you that you did not belong there. If imprisoned, you will of course lose your job, and the risks of relapse and contamination would be real. In my view, it is sometimes not fully understood how difficult it is for a person, particularly a young offender, to recover from imprisonment which, in addition to the immediate experience, carries a stain, often for life, and is an obstacle to a crime free life. If the avoidance of immediate imprisonment for a young man like you can be justified, then it is highly desirable to take that step.

44     During discussion I canvassed several options including deferral. The option of a suspended sentence is no longer available. Indeed it was not available at the time of the abolition of suspended sentences in this court on 1 September last year without the finding of exceptional circumstances. Indeed, this has been the position since 1 November 2006. Pending consideration by the Court of Appeal concerning the circumstances in which a CCO might be imposed and provisions of the Sentencing Amendment (Emergency Workers) Bill 2014, particularly clause 17 (the proposed s36(2)) were also discussed.

45     I have been troubled by your case because of the serious nature of the offending. Ordinarily immediate imprisonment would be the only option, however, in the circumstances of your case I have concluded, perhaps just concluded, the option of a CCO is available and should be tried.  

46     I had you assessed and unsurprisingly you were found suitable for release on a CCO.

47     You should understand that you are merely being given an opportunity to prove the confidence that people have in your fine qualities is justified. To remain drug free, and accordingly crime free will not be easy for you, but if you fail this opportunity the consequences will be imprisonment.

48     You will be convicted of both charges of armed robbery and released on a Community Correction Order for 30 months. This is a substantial period of time but your resolve to avoid drugs will need to be sustained. The order should come to an end exactly three years after the day on which you were arrested, which should serve as a reminder of the chance you are being given.

49     I will follow the recommendations concerning conditions in the Assessment Outcome Report. You are to undertake 250 hours of unpaid community work during the currency of the order. You are to be assessed and undergo treatment as recommended for drugs. You are to be assessed and undergo treatment as recommended for you mental health. You are to be subject to judicial monitoring. As part of that latter condition, you are to re-appear before this court, me if possible, for review under s.48L on Monday 24 November this year at 10 a.m. concerning your compliance with the order. I expect that I will be provided with a report concerning your progress prior to that hearing.

50     Section 6AAA is not activated.  I make the obvious point that had you not pleaded guilty, of course you would have been immediately imprisoned. I need to prepare that documentation. I think I will leave the Bench while that is done.

##A:S#          (Short adjournment.)

51     HIS HONOUR:  Thank you, be seated. I think I have the 464ZF and the Disposal Order.  You have got some have you?

52      MS CHAMPION:  I have some Your Honour, yes.

53      HIS HONOUR:  Good.  I will sign them now.

54     MS CHAMPION:  Your Honour also has to declare the pre-sentence detention.

55      HIS HONOUR:  No, I do not think so.  If Mr Roberts breaches - - -

56      MS CHAMPION:  Oh, yes of course, yes.

57      HIS HONOUR:  - - - he will be imprisoned.

58      MS CHAMPION:  Yes.

59      HIS HONOUR:  And he will then be entitled to PSD, so I will do it then.

60      MS CHAMPION:  Yes Your Honour, that is fine, my mistake.

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