R v Thakur
[2015] VCC 1905
•17 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-02206
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ARVIND THAKUR |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 December 2015 | |
DATE OF SENTENCE: | 17 December 2015 | |
CASE MAY BE CITED AS: | R v Thakur | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1905 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Stylianou | OPP Victoria |
| For the Accused | Mr R. Thyssen | Chester Metcalfe & Co. |
HIS HONOUR:
1 Arvind Thakur you have pleaded guilty to one charge of robbery.
2 You were originally charged with armed robbery. On 1 December 2015 a jury was empanelled after you pleaded not guilty, but immediately before the complainant was about to be called to give evidence the prosecutor was handed a set of police notes which I was told were pertinent to the credibility of the complainant. These proceedings were adjourned for the afternoon and then overnight to enable the additional material to be considered.
3 Further time was required on the morning of 2 December but during the course of the morning, I was advised that the matter had resolved. The jury was discharged without verdict. A new indictment containing a single charge of robbery was filed over, and you pleaded guilty to this charge.
4 An offer to plead guilty to theft had been made pre-trial but was rejected by the prosecution.
5 You have no prior criminal history.
6 The prosecutor opened the circumstances of the offending by reading from a written "Summary of Prosecution Opening Upon Plea", which was tendered.
7 In short, on 27 April 2014, the complainant, an Irish tourist, hailed your taxi in Chapel Street, Prahran and asked to be taken to Barkly Street, St Kilda where he lived. You drove to Barkly Street and stopped about 150 metres from the complainant’s residence. You were asked to drive closer so the complainant could run inside and get money to pay the fare. You responded aggressively and demanded the complainant’s phone. He refused to hand it over. You then drove to a dark sidestreet nearby, exited the taxi and approached the complainant, and again demanded his phone. You got something from the console and continued to demand the phone, which was surrendered.
8 The complainant then left and called police on his arrival home. You drove off.
9 On 1 May you were identified, and were arrested on 9 May. Police went to your home where the phone was produced by you. You made some admissions when interviewed, but disputed the central allegations.
10 You are 27 years old, were born in India and came to Australia to study three-and-a-half years ago. You studied at Swinburne University in 2011 and 2012, but completed a Diploma in Engineering at Barkly International College in 2014. You have applied to continue this study to complete a degree in Automotive Engineering at Swinburne University. You are also studying English.
11 You have done restaurant work in Australia, as well as taxi driving and are now employed as a delivery driver for a linen company. Understandably, you can no longer work as a taxi driver. You have an Indian girlfriend, who is studying at Monash.
12 Your parents are in India. Your mother knows about this case but your father does not. Much expense has been invested in your education.
13 Even though your plea was late, you must nevertheless benefit from being prepared to resolve the case and plead guilty.
14 Your counsel submitted that I should consider releasing you on an adjourned undertaking or fine or on a community correction order. The prosecution conceded that a CCO was within range.
15 I had you assessed and you were found suitable.
16 I propose to release you on a CCO for 12 months, with the conditions that you be under supervision and perform 150 hours of unpaid community work.
17 In my view, neither an adjourned undertaking or a fine are appropriate.
18 Your counsel submitted that I should not impose a conviction.
19 Matters relevant to the question of whether a conviction should be imposed include the nature of the offence, your character and past history, and the impact of recording a conviction on your economic and social wellbeing or your employment prospects.
20 You desire to stay in Australia and seek citizenship. It is not clear what impact a conviction might have on your ability to do these things but I accept it would be of some relevance.
21 However, in my view, a conviction is required, primarily because of the nature of the offence, which I regard as serious. Accordingly, you will be convicted and released on a community correction order with the conditions already referred to.
22 I will made the order sought for the taking of a forensic sample. My reasons will appear in the order. A police officer may use reasonable force to obtain the sample.
23 Mr Thakur, that will be by way of buccal swab, which means that the police officer will use a swab to take a sample from the inside of your mouth. Do you follow that?
24 OFFENDER: Yep.
25 HIS HONOUR: Thank you. Anything - yes?
26 MS STYLIANOU: Your Honour, I'm just checking whether s.6AAA applies.
27 HIS HONOUR: No.
28 MS STYLIANOU: It doesn't. Thank you, Your Honour.
29 HIS HONOUR: Not in my view.
30 MS STYLIANOU: I just wanted to check, Your Honour.
31 HIS HONOUR: Section 6AAA is very artificial here because, had there been no plea of guilty, the charge would have been armed robbery.
32 MS STYLIANOU: Proceeded by way of a trial, really, wouldn't it?
33 HIS HONOUR: There would have been a trial.
34 MS STYLIANOU: Yes, that's right.
35 HIS HONOUR: And armed robbery would have been the charge, not robbery. But whether it was robbery or armed robbery, with a finding of guilt after trial, the risks of imprisonment would have been very grave.
36 MS STYLIANOU: Yes.
37 HIS HONOUR: So I think Mr Thakur should well understand that by pleading guilty, he has certainly avoided that risk.
38 MS STYLIANOU: As Your Honour pleases.
39 HIS HONOUR: Mr Thyssen, I addressed your client personally because I wanted to be confident he was understanding what I was saying, there being no interpreter here today, but he seems to understand well what I am saying. But will you ensure that he understands what the significance of the order that I have imposed is, and that is principally if he breaches, he be brought back before me for sentence.
40 MR THYSSEN: Yes, I'll do that.
41 HIS HONOUR: Thank you. You can come out of the dock, Mr Thakur. Just come and sit behind your counsel, and we will get you to sign this document, as you have indicated a willingness to undergo the order. Your barrister will help you with that, Mr Thakur.
(Community-based order signed and acknowledged.)
42 HIS HONOUR: Nothing else?
43 MS STYLIANOU: No, Your Honour.
44 HIS HONOUR: All right. Thank you both for your help.
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