R v Vassiliou

[2021] NSWDC 403

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Vassiliou [2021] NSWDC 403

Hearing dates:

30 April 2021, 24 May 2021

Date of orders:

24 May 2021

Decision date:

24 May 2021

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

Full time custodial sentence imposed. Orders at [42]

Catchwords:

CRIME – sentencing –robbery in company (s97(1)) – possessing an unauthorised prohibited firearm – Form 1 offences – assistance to authorities unfruitful – small discount allowed

Legislation Cited:

Crimes Act 1900 (NSW) s 97(1), 192E(1)(b)

Crimes (Sentencing Procedure) Act1999 (NSW) ss 3A, 5, 23

Firearms Act 1996 (NSW) s 7(1)

Cases Cited:

Markarian v The Queen [2005] HCA 25

R v Henry (1999) 46 NSWLR 346

Texts Cited:

None

Category:

Sentence

Parties:

Regina (ODPP)
Jacob Vassiliou (Offender)

Representation:

Counsel:
Mr Adams (Offender)

Solicitors:
ODPP Solicitor (ODPP)

File Number(s):

2020/134455

Publication restriction:

None

Ex Tempore Judgment

1. The offender appears today to be sentenced in relation to 2 charges. The first is a charge of robbery in company, in breach of s 97(1) of the Crimes Act 1900 (NSW). The maximum penalty is 20 years’ imprisonment. The second charge is possessing an unauthorised prohibited firearm, being a black imitation pistol, in breach of s 7(1) of the Firearms Act 1996 (NSW). That carries a maximum sentence of 14 years’ imprisonment and a standard non-parole period of 4 years.

2. Attaching to the robbery in company charge, being sequence 6, are 2 further sequences, namely sequences 4 and 5. The first is possess ammunition without holding licence/permit/authority in breach of s 65(3) of the Firearms Act. In the Local Court the maximum penalty is a fine of $5500. The second sequence attaching is sequence 5, being dishonestly obtain financial advantage or cause disadvantage by deception ($40) in breach of s 192E(1)(b) of the Crimes Act. The maximum penalty in this court is 10 years’ imprisonment. In the Local Court it is 2 years’ imprisonment and/or a fine.

3. The maximum sentences and the standard non-parole periods are guideposts for sentencing judges as to the community’s view, through parliament, of the seriousness of the offending. There is no doubt that robbery in company is a very serious offence, as is reflected by the maximum sentence of 20 years’ imprisonment. Similarly, possessing an unauthorised firearm is also a serious offence.

4. The offending occurred on 27 April 2020 and 5 May 2020. The offender was arrested on 5 May 2020 and spent 102 days in custody before being released on bail. The bail conditions were onerous, permitting him only to leave home when supervised. In my opinion, the onerous nature of the bail conditions are such that some allowance ought to be made for the time spent on bail, which I calculate to be 283 days, in determining the appropriate sentence, but, more particularly, determining the commencement date. I intend to allow 25% of that period in determining the commencement date.

5. The offending took place when the offender was the subject of a Conditional Release Order without conviction, imposed at Burwood Local Court on 14 October 2020 relating to the possession of a prohibited drug. That was due to expire on 13 October 2021.

6. The charges on the Form 1 are to be taken into account at the request of the offender by me in sentencing him in respect of the charge to which they attach. They operate to increase the penalty which may otherwise be imposed in relation to that offence. By signing the certificate to that document, I confirm that I have taken those charges into account for the offence to which they attach. The court does so by giving greater weight to 2 elements, which are always material in the sentencing process. The first is the need for personal deterrence, and the second is the community’s entitlement to extract retribution.

7. I have also noted that a standard non-parole period attaches to the firearms offence. That standard non-parole is 4 years. The standard non parole period is a matter to be taken into account as part of the determination of sentence. It applies to an offence found within the middle of the range of objective seriousness for such an offence, taking into account only objective factors, without bringing into account matters that are unique to the offender, or to the class of offenders. Ultimately, though, the standard non-parole period is but a factor to be taken into account in the sentencing exercise together with the objective and subjective matters, which are considered in synthesis in accordance with what McHugh J discussed in Markarian v The Queen [2005] HCA 25.

8. As I intend to find the objective seriousness of the firearms charge to be below the mid-range, I do not intend to impose the standard non-parole period. Further, the standard non-parole period has no application unless the offender is sentenced to a period of imprisonment in respect of that offence. I accept the Crown submission, which has been adopted on behalf of the offender, that the s 5 threshold has not been met in respect of that offence. That is, there is a sentence outcome more appropriate than a term of imprisonment in relation to that matter.

9. I should also observe that the offender’s sister may be described as a ‘co-offender’. For reasons which shall become apparent by reference to the facts, and as she was a young person at the time of the offending, she was sentenced in the Parramatta Children’s Court on 12 October 2020 to a 12-month probation order without conviction, pursuant to s 33(1)(e) of the Children (Criminal Proceedings) Act 1987 (NSW). As the co-offender was sentenced pursuant to the law relating to children and not at law, the sentences, or rather the need for parity between sentences, does not arise. The facts provide as follows.

10. The offender Jacob Vassiliou was born in 1999. The young person, being his sister, was born in 2003. The offender and young person are brother and sister and reside together in Yagoona. The complainant is William Quinn, aged 18 years. The complainant and the young person had been messaging via Instagram for about 2 months. During the afternoon of Monday, 27 April 2020, the young person and the complainant were chatting online, and the young person asked the complainant to buy her cigarettes in exchange for him being able to go back to her house afterwards to participate in an activity of a sexual nature.

11. At about 5.30pm on the same day, the complainant left his house and went to meet the young person. The complainant caught a train from Liverpool to Yagoona, sending messages about his location to the young person.

12. The following facts relate to sequence 6, being robbery in company. At about 6.30pm, CCTV at Yagoona Train Station captured the complainant arriving and disembarking the train. The young person met the complainant and greeted him with a hug before travelling along the concourse and through the station towards the highway.

13. The complainant and the young person walked towards a convenience store until they reached a small park. The complainant heard his name being called out and he turned around. The complainant saw 2 males running towards him. The first male was wearing a folded black and white bandana or balaclava on his face, wearing a black jumper and was skinny. The second male, the offender, did not have a mask and had a full beard, wearing a black jumper and jeans. The complainant could no longer see the young person.

14. The offender swung his arm in a “big hook punch” towards the complainant’s face. The complainant ducked, and the offender lost his balance and fell to the ground. The first male with the balaclava punched the complainant to the face and on the body repeatedly. The complainant’s wrists were held by the first male. The complainant struggled. The offender attempted to place the complainant in a headlock, but the complainant scrambled away. The offender said “give me your wallet, phone, and everything else you have”. The first male with the balaclava put one of his arms around the complainant’s neck and started to squeeze.

15. The complainant reached into his pockets and handed the following items to the offender:

1. an Apple iPhone XS;

2. an Oppo-branded mobile phone;

3. a brown leather wallet containing a New South Wales driver’s licence;

4. a New South Wales white card, $50 in Australian currency; and

5. a Commonwealth Bank card.

16. The male and the offender ran towards the Hume Highway. The complainant walked to a nearby business, where he disclosed what happened to him and a phone call to police was facilitated. Police attended the location a short time later.

17. The following facts relate to sequence 5 on the Form 1. At about 11.47pm on 27 April 2020 at the 7-Eleven service station on the highway, the offender used the complainant’s Commonwealth Bank card to make a purchase. The location is a short distance from the scene of the robbery and the same suburb of residence of the offender. The offender used the tap-and-go feature to purchase cigarettes to the value of $40. At about 1pm on Tuesday, 5 May 2020, police executed a search warrant at the Offender’s address in Yagoona. At the time of the execution, the offender was present with his family members. The offender was arrested and cautioned in relation to the robbery and fraud.

18. During the search, the police located and seized 99 rounds of gold .22 long rifle calibre cartridges located inside a black, unlocked box inside the bedroom of the offender. The cartridges are ‘ammunition’, as defined under s 4(1) of the Firearms Act. That discovery gave rise to sequence 4 on the form 1, being possessing ammunition, and a black imitation pistol located inside the garage. The item is an imitation of a self-loading pistol and, thus, an imitation firearm pursuant to s 4D(3) of the Firearms Act. The discovery of that item gave rise to sequence 7.

19. The offender participated in a recorded interview in which he made the following admissions:

1. it, that is, the offence, was because the complainant was trying to be sexual with his sister;

2. he knows he should not have done it, but ran up in a sheer rage;

3. he hit the complainant and fell over; and

4. he went elbow and knee first to the ground.

20. Those are the Agreed Facts signed by the parties.

21. The offender has a police record, which is generally unremarkable, comprising 1 offence of 7 July 2018 of goods in custody, and another offence on 20 September 2019 of possessing a prohibited drug.

22. In respect of the first offence, the offender received a fine. In respect of the second, a Conditional Release Order was imposed, and to which reference has already been made. In my opinion, the criminal record of the offender does not aggravate the offending, but disentitles him to any leniency which may otherwise flow from a finding of good character.

23. Exhibit B on the sentence was the Sentencing Assessment Report dated 27 April 2021. When explaining his motivation for the offending, he said that he was trying to protect his sister and “do something” about his situation. The offender admitted being drug affected and in a rage at the time of the robbery.

24. The offender described a history of violence and aggression, in which he has been both the victim and the perpetrator. The offender accepted responsibility for his actions and demonstrated some insight into his own violent upbringing. A recent mental health care plan, which is not available, indicated that the offender was diagnosed with Anxiety and PTSD, and there was a recommendation for psychotherapy. The offender expressed a willingness to undertake community service work. He was assessed as having a medium to low risk of reoffending, as according to the revised LSI-R. He was assessed as being suitable for community service work.

25. A detailed report was obtained on behalf of the offender from a psychologist, Luke Brabant, which was marked Exhibit 1 in the sentence hearing. I do not intend to recite the detail of the report, save to observe that the offender had a difficult upbringing, including conflict with his father, which the psychologist attributed to the offender’s own violent behaviour. There is also detail of other antisocial behaviour, including fighting, drug use, and delinquent behaviour engaged in by the offender. He commenced work at the age of 14, but ceased work following an altercation with a customer at a fast food restaurant.

26. He commenced smoking cannabis at about 13 years of age, started using MDMA at around 15 years of age, tried LSD at 16 years of age, and used it up to 5 times to the age of 19. He has inhaled cocaine on one occasion at the age of 17, and has smoked crystal methamphetamine. He did so once or twice a week for a period of about 6 months. The offender has, regrettably, engaged in antisocial conduct through ill-advised peer associations. He is the father of a 12 month old child with a woman with whom he maintains a relationship. I note that the Department of Communities and Justice intervened after the birth of the child due to a concern, perhaps unfounded, that his partner was abusing ice. The child was returned after the mother returned negative drug test results.

27. The offender expressed regret for his offending when consulting with the psychologist. In terms of any mental illness, the offender reported a diagnosis of anxiety at about 15 years of age by his family general practitioner. He was prescribed medication, which alleviated his symptoms. He was also diagnosed with PTSD by his general practitioner after being released from custody in relation to these matters. He reported memories of childhood physical abuse, which are ongoing.

28. He denied that he was experiencing enduring depressed mood during this recent period. There was one reported incident of self-harm at the age of 15, but he denied suicidal ideation. There is reference to paranoid thinking and hallucinations. He reported a longstanding history of aggression and difficulty controlling his anger. The offender, according to the psychologist’s history, was exposed to a number of vulnerability factors throughout his early life, including parental substance abuse, instability in caregivers, physical abuse, and family violence. He was exposed to antisocial behaviour.

29. The offender was under the influence of cannabis at the time of the offending. Mr Brabant makes number of recommendations for treatment, including counselling.

30. The Crown submissions were marked for identification MFI 1. The Crown submitted, and the offender accepted, that in relation to the robbery in company charge, the s 5 threshold was crossed. I accept that joint submission and find that no sentence other than one of imprisonment is appropriate. The Crown submitted, and the offender accepted, that, in relation to the prohibited firearm offence, the s 5 threshold was not crossed. I accept that joint submission, and also make that finding.

31. In terms of aggravating factors, the Crown pointed to the fact that the offender was on conditional liberty at the time. I accept that submission. The Crown also submitted that the offending was part of a criminal activity. Whilst it is plain that arrangements were made to have the victim at Yagoona at the time of the offending, I do not accept that there was any planning involved in the robbery. The robbery appears to have been an almost afterthought, and almost incidental to what otherwise would have been an assault. I decline to find planning as an aggravating factor.

32. I accept that the plea of guilty is a mitigating factor. I also accept and make a finding of remorse. The offender impressed me as a responsible person, who acknowledges his wrongdoing and accepts responsibility for it. Given the nature of the charge, the guideline judgment in R v Henry (1999) 46 NSWLR 346 attracts some consideration. The features which exist here, as they existed in Henry, include the following:

1. the offender is young, with little or no criminal history;

2. there was a small amount of money taken, being the 2 phones, $50 in cash, and a card was used to purchase $40 worth of cigarettes; and

3. a plea of guilty was entered in the face of a strong Crown case.

33. The Henry factors which do not exist here relate to the use of the weapon. There was no weapon used here. The Henry factor of a limited degree of planning is also apposite, given the findings I have previously made in that regard. The Henry factor of there being little, if any, actual violence does not exist here. There was, in fact, actual violence perpetrated by the offenders upon the victim. I do not accept and do not find that the victim was in a vulnerable position. Those are the matters arising from the Henry guideline which bear upon this particular matter.

34. In determining the objective seriousness of the robbery in company charge, I have taken into account the fact that the robbery was perpetrated in circumstances where the offender ran at the victim in a state of rage. I also have taken into account the fact that the property stolen from the victim was of very little value. However, the use of violence is a matter which also bears upon the objective gravity. In my opinion, the objective seriousness of the robbery in company charge falls at the mid-range. In respect of the possessing an unauthorised firearm charge, having regard to its location and the fact that it was a weapon which was an imitation firearm, I find that it falls at the low range of objective seriousness.

35. In determining the sentence outcome in relation to the matter for which the s 5 threshold is met, I have had regard to the purposes for sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act1999 (NSW). Whilst I acknowledge that the age of the offender warrants greater emphasis being given to rehabilitation, I also find that the need for general deterrence is important in matters such as this. I have had regard to all of the purposes for sentencing set out in s 3A.

36. One matter which arose in the course of the sentence hearing was the willingness of the offender to assist with inquiries as to the identity of the male co-offender, who was wearing a balaclava. Police spoke to that person on 4 May of this year, at which time he denied being involved. He did however acknowledge that he was aware of what had occurred on the day in question. Whilst the assistance provided by the offender to the Court has not led to any success in terms of charging the co-offender, I am satisfied that the assistance provided by the offender attracts the favourable application of s 23 of the Crimes (Sentencing Procedure) Act. That is to reduce penalties for assistance provided to law enforcement authorities.

37. I have had regard to the matters set out in s 23(2) of the CSP Act. I am also satisfied that the sentence to be imposed as a consequence of any discount will not result in a sentence which is unreasonably disproportionate to the nature and the circumstances of the offence. In accordance with subsection (4), I indicate to the offender and make a record of the fact that a lesser penalty is being imposed for assistance provided to the police in ascertaining the identity of the co offender. For his assistance, I have applied an additional discount of 5%.

38. I turn now to the sentence commencement date. As I have indicated, the offender spent 102 days in custody prior to being granted onerous bail. On my calculations, he spent 283 days on bail, for which I allow a credit of 25%. That increases the period of backdating the commencement to 172 days. The commencement date, therefore, is 3 December 2020.

39. In determining the head sentence, I have applied discounts of 25% for the guilty plea and 5% for the assistance provided to authorities, resulting in a head sentence of 2 years, 9 months, and 17 days. I find special circumstances, given this will be the offender’s first time in custody, other than the time served when bail was refused. I also make this finding by reason of his youth and, finally, by reason of the need for rehabilitation and counselling.

33. I impose a non-parole period of 20 months.

34. Yes, please stand, sir.

35. In respect of the robbery charge, you are convicted of robbery in company in breach of s 97(1) of the Crimes Act. In respect of that conviction, I impose a non-parole period of 20 months, which will expire on 2 August 2022. I impose a head sentence of 2 years, 9 months, and 17 days, which will expire on 19 September 2023. On 2 August 2022, you will be eligible for parole. During your period on parole, you must be of good behaviour.

36. Do you understand?

37. OFFENDER: Yes, your Honour.

38. HIS HONOUR: Just take a seat, please.

39. In relation to sequence 7, namely, possessing an unauthorised prohibited weapon, having found that the offending does not attract imprisonment as the sentence outcome, I intend to impose a Community Corrections Order for a period of 3 years. It will commence today, 24 May 2021, and expire on 23 May 2024. The Community Corrections Order requires the imposition of a number of mandatory conditions. The standard conditions are that during the period of 3 years you must not commit any offence. The second condition that applies for the duration of the order is that you must appear before the Court if called upon to do so.

40. In addition to those conditions, I impose additional conditions, including:

1. you must abstain from the consumption of illicit drugs during that period; and

2. you must engage in whatever rehabilitation or counselling which is recommended to you by Community Corrections, who will supervise you after you are released from prison for the duration of the Community Corrections order.

48. I order destruction of the firearm which is the subject of sequence 7, and of the ammunition the subject of sequence 4.

49. Just to recap, sir, because the sentence that is being imposed exceeds 2 years, an Intensive Corrections Order in the community is not available. You will be released from custody on 2 August next year and you will then have the Community Corrections Order still running for a period until 23 May 2024. Yes, I direct that the offender be taken into custody.

50. OFFENDER: Can I please hug my family?

51. HIS HONOUR: Yes, sorry, before that occurs. You have a child here, do you not? Do you want to see the child? Correctives, I do not have a problem with that. Do any of you?

52. SPEAKER: We usually don’t. If it’s just a very brief--

53. HIS HONOUR: Yes, I think it is appropriate. I regret that you are going to prison, but the seriousness of the offence is such that you must.

**********

NOTE:

A. These remarks on sentence were revised without access to the Court File.

I certify that the previous 53 paragraphs are the reasons for the Remarks on Sentence of his Honour Judge D Wilson SC.

J Bailey

Associate

Amendments

19 May 2022 - Identifying details redacted.

Decision last updated: 19 May 2022