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County Court of Victoria |
Last Updated: 13 August 2012
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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Catchwords:
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APPEARANCES:
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Counsel
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Solicitors
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For the Crown
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Ms R. Sleeth
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Office of Public Prosecutions
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For the Accused
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Mr M. Kozlowski and
Mr J. Mortley |
Revill & Papa
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1 Eryl Dana, you have pleaded guilty on Indictment C10675173 to three charges of
armed robbery, the maximum penalty applicable to
each is 25 year's imprisonment,
one charge of theft, the maximum penalty is 10 years' imprisonment, and one
charge of recklessly
causing serious injury, the maximum penalty being 15 years'
imprisonment. You also agreed to an offence of dealing with property
suspected
of being proceeds of crime being dealt with by this court pursuant to s.145 of
the Criminal Procedure Act 2009 and have pleaded guilty to that offence, which
carries a maximum penalty of 2 years' imprisonment.
2 Your crimes arise out
of events which occurred between 5-7 March 2012. It is not necessary for me to
recount in great detail the
facts of this matter as they are on transcript, the
matter having been opened in some detail by the learned prosecutor. I proceed
to sentence you on the basis of the facts as summarised by the prosecutor and
discussed during the course of your plea hearing.
It is sufficient for present
purposes to simply say I regard the facts in this case as most serious and
disturbing. I turn to a
summary of your offending.
3 On 5 March 2012, at
approximately 2.00 pm, you went to a Safeway store in St Albans. You selected a
number of items and proceeded
to the check-out register, waiting in a queue for
a short time, then walked with the bag past the register and through the
checkout.
A male staff member at Safeway asked to look inside your bag. You
pulled a knife out of your pocket and held it in your right hand
towards the
staff member. The staff member backed away from you and then you walked from
the store. The value of the goods stolen
was approximately $200.
4 On that
same day at about 4.30 pm, you went to the JB Hi Fi store at Sunshine Plaza and
took Sony Playstation controllers without
making any attempt to pay for them,
with the value of those items being $188.
5 Turning to Charges 3 and 4, on 6
March 2012 at about 8.45 am, you went to the Minimart Milk Bar in St Albans.
You walked behind
the counter to where the owner of the shop was standing and
requested money. The owner said there was no money. You told the owner
to open
the cash register, he complied and you collected the money. The owner leaned
down to pick up a broken leg off a chair and
as he did this he felt a knife
behind his right ear in the scuffle that then ensued between yourself and your
victim as you tried
to leave the shop. You then ran off with $100.
6 People nearby assisted the owner of the milk bar to call the police and an
ambulance. He was taken to the Royal Melbourne Hospital.
He sustained three
major wounds, two to the chest and one to his left arm requiring stitches in
all. He also had a small cut on
his left hand and behind his right ear. He
spent the night in hospital. In addition, a victim impact statement was before
me from
Mr Fan Wang, the store owner, which further outlined the effect upon him
of the injury he sustained from your assault. I shall return
to that later.
7 On 7 March 2012 at approximately 11.45 am, you again went to JB Hi Fi at
Sunshine Plaza and on that occasion placed Sony Playstation
controllers into the
front of your pants. Two staff members tried to stop you leaving the store and
asked what you were hiding.
You said "Nothing", then pulled out a small pocket
knife and held it in your right hand. The blade of that knife was about four
inches long. You said to the employees "Back off guys", then ran out of the
store. As one of the staff members attempted to go
after you, you thrust the
knife towards him. You went straight to Cash Converters where you were arrested
by police. The value
of the items stolen on that occasion was $282.
8 You
were interviewed at Keilor Downs Police Station where you made some admissions.
You, however, denied the stabbing or any knowledge
as to how the owner of the
milk bar received his injuries. You told police the reason for your offending
was to support your drug
habit.
9 Turning to the summary charge, that
involved you having property suspected of being stolen, being a gold necklace
and earrings,
to which I have previously referred and to which you have also
pleaded guilty.
10 As I have stated previously, the victim of your offending,
Fan Wang, has suffered considerably as a result of your offending.
In his
victim impact statement, he referred to being scared since your offending. The
night after your offending he could not sleep
at all and was thinking about what
had happened to him. Two months after the incident, he was still having
nightmares as a result
of your offending, often waking in cold sweats. After
the incident, he was scared to stay in his shop alone and was very edgy when
people came into the store. Both he and his wife felt deeply hurt and
frustrated and felt like quitting the business. He was now
very anxious and
nervous in the shop.
11 Describing the physical injuries, he referred to
three major wounds and that for approximately one month after your offending,
due to his injuries, he could not hold heavy boxes, such being required as part
of his daily activity within his business. He could
not jog for several weeks
and the sequelae of his injuries had caused him difficulties also with his daily
life.
12 In addition, there had been a significant financial impact upon
him as a result of your offending. There were decreased sales,
and thus
decreased profit, due to him only wanting to open the shop for shorter hours.
He had also purchased additional shop security.
His clothing was also damaged
as a result of your assault upon him.
13 The effects upon a victim are a
relevant sentencing consideration, see s.5 Sentencing Act 1991. However, I am
conscious I must not allow the effects upon a victim to swamp the sentencing
process.
14 An aggravating feature of your offending is that your offending
occurred whilst you were on bail for an offence of theft.
15 You have
admitted a number of prior court appearances commencing with your first
appearance on 9 February 2002. Thereafter, you
appeared on a number of
occasions, often in relation to breach of court orders. Your previous offending
involved drug offences and
dishonesty offences, none for armed robbery or
recklessly causing serious injury. I note this is your first time in custody.
16 Most recently you appeared at the Sunshine Magistrates' Court on 5
September 2011. You were before the court on a charge of trafficking
heroin,
for which you were sentenced to 14 days' imprisonment, that being wholly
suspended for six months. On my calculation, it
would appear you had only just
completed that period of suspension when you committed the first offence on 5
March 2012.
17 You have pleaded guilty to the charges before me and are
entitled to have that fact taken into account in your favour, and I do
so. The
community has, by your plea of guilty, been spared the time and cost of a trial
and witnesses have been spared the ordeal
of having to give evidence on your
trial. Further, I take it into account in your favour you intimated early your
intention to plead
guilty to these charges, indicating that preparedness prior
to the committal mention in the Magistrates' Court.
18 In the
circumstances, I am prepared to accept your plea of guilty indicates remorse for
your actions and I further find that you
have expressed remorse for your
offending, not only through your plea of guilty, but also to your step-father,
who gave evidence
before me, and have also expressed that in correspondence you
have written to Mr Wang.
19 Mr Kozlowski relied upon a report of Mr Warren
Simmons, Psychologist, dated 29 June 2012, for providing details of your
background
and personal history. You were born and raised in the Philippines
until the age of 7 when your family came to Australia and settled
in North
Balwyn. You have two younger sisters, Edsel and Olga. When you were in Manila,
your mother formed a relationship with
Mr Peter De Bondy, a farmer. That
relationship ended in 1997 and there are two children of that relationship,
Gerard, who is 22
years of age, and Camille, 20 years of age.
20 You
described the relationship between your mother and Mr De Bondy as being very
positive at the start and were not sure who ended
the relationship, although it
appeared it was not particularly vindictive, at least in your eyes.
21 You
described to Mr Simmons that you were a "trophy son", and that the family
thought you would be someone who would achieve a
great deal in your life. You
were involved in sport and were also good academically until you encountered
problems when in high
school. You described that your step-father worked hard
and you would sometimes help him around the home. You described being close
to
your sister, Olga, when you were growing up. You related well to Camille but
found your brother Gerard was always busy.
22 You described your
relationship with Mr De Bondy as very good and that he treated you like his own
son and was supportive of you.
Your mother, it would appear, was fairly strict
with the children.
23 Turning to your education and employment history, you
attended Belleview Primary School where you were the top of the class. You
also
did very well at sport and were a popular student. You then attended Balwyn
High School, leaving during Year 8 as there was
trouble between various ethnic
groups. This was confirmed by your step-father in his evidence before me. You
then attended Koonung
Secondary College in Year 9, although you were truanting
towards the end of that year. You left school at the end of Year 9 when
your
then girlfriend became pregnant.
24 After leaving school, you found it
difficult finding employment and were unemployed for about a year, before
finding a position
in a fast food store in Dandenong where you worked for about
six months. You then worked in a factory that did plastic injection
moulding
for two years. You took another job driving a forklift before you returned to
TAFE, at which time you did one year of an
electrical apprenticeship.
25 At
the time you were doing the apprenticeship, you described having difficulties
getting along with your then partner's family,
and you returned to live with
your mother. Your mother sought custody of the daughter that you had with your
partner. However,
ultimately, the child's custody went to the parents of your
partner. You ceased contact with the daughter of that relationship
approximately
seven or eight years ago and since then you have had numerous
jobs, including in retail, factory construction and supermarkets as
well as
excavation.
26 You described you had been employed about 90 per cent of the
time. The longest period of employment was with a large supermarket
chain from
2000 until 2004, where you rose to a management position. Your last employment
was in 2010 when you worked for about
18 months as a forklift driver. Your drug
use, at times, has had a significant impact on your employment.
27 Turning
to your drug and alcohol history. At the age of 14 you began consuming alcohol
and by the age of 18 were drinking once
a week to once every several weeks. I am
told you now hardly drink. At 17, you first experimented with cannabis and
began smoking
daily. Over time, that increased from one gram a day to three
grams a day until you were 25 years of age.
28 Your heroin use began when
you were 20 years of age. You became dependent upon it by the time you were 24,
and by the age of 25
described your heroin use as growing out of control. At
that time, you were juggling things in your life, such as losing your job,
being
homeless, living in your car and being aware that the mother of your daughter
wanted to change her name.
29 At 26, you began injecting heroin and that
became particularly problematic for you in 2011. In the past, you had been
abstinent
for up to six months at a time, usually on methadone or
buphrenorphine. Most recently, your use of methylamphetamine had grown.
You
have also experimented with other drugs but you described that as being
intermittent.
30 Turning to your relationship history, at the age of 14 you
met Cheryl Corrinel who was 17. You went out for three and a half years
and she
became pregnant to you when you were 15, and your daughter, Claudine, from that
relationship is now 15, as I understand it.
Ms Corrinel ended that
relationship. You were in another relationship when you were 22 years of age,
although that had also ceased.
31 Turning to your medical and psychiatric
history, you described previous suicidal thoughts, nightmares, in particular,
since you
started using heroin. In the opinion of Mr Simmons, there was clear
evidence your offending was related to your substance use.
Some of your
stability in the last few years have been due to your being treated with
methadone and suboxone. Since commencing methamphetamines,
this current
offending occurred.
32 At the time of interview with Mr Simmons, there was
evidence that you were experiencing depressive symptoms and struggling to adjust
to life in prison. You had reflected on your current offending and acknowledged
your offending was stupid. You expressed concerns
you had threatened the
victims and expressed remorse to Mr Wang for your actions.
33 Ultimately,
Mr Simmons concluded you would be assisted by drug and alcohol counselling and
perhaps some psychological intervention
to assist you with your depressive
symptoms.
34 Mr Kozlowski was not relying upon the principles in R v. Verdins
& Ors [2007] 16 VR 269, based on the contents of the report
of Mr Simmons
and such, in my opinion, was an appropriate concession.
35 Your
step-father, Mr De Bondy, gave evidence before me. He described being involved
in 1989 with your mother when you were 8 years
of age. He sponsored your mother
and her three children to come to Australia, you being then 8, your sister,
Edsel, 6 and Olga,
4. From that stage on, Mr De Bondy became primary carer of
you.
36 He described that as a child you were good boy until the end of
primary school. At primary school, you excelled in sports and
your studies and
that you represented Victoria in Little Athletics for jumping and running. You
were top student at Belle View Primary
School. However, after that you went to
Balwyn High School and at that time he noticed a change in you. Sometimes you
would be
late home or not coming home at all and he would be out looking for
you. You were found to then be chroming.
37 In addition there were ethnic
problems at the school and a lot of school yard fights when you were 13 years of
age at Balwyn High
School. Not surprisingly, your difficulties placed great
stress on Mr De Bondy and his wife. You were defying him and creating
discipline problems. Mr De Bondy and his wife separated. It would appear there
was a substantial period of time when he did not
have contact with any of his
children, including yourself. When you were approximately 17 or 18, you
contacted him when your daughter
was 2 years of age. From that time he said he
had seen you "off and on".
38 In addition, Mr De Bondy had provided you with
employment at his farm in the past and also confirmed you had worked at Coles
Myer
at a distribution store and a supermarket in Hawthorn over the years. From
his discussions with you, you had expressed remorse for
your offending and that
you repeated your regrets regarding your offending each time he had visited you
in custody. He will provide
you with future employment on the farm if you wish,
upon your release from custody.
39 In addition, there are a number of
certificates placed before me, showing that you have used your time on remand in
custody productively.
A certificate for legal and court processors from start
to finish, a drink driving education program, Certificate II in Hospitality
(Kitchen Operations), Certificate II in Asset Maintenance (Cleaning Operations),
a certificate in construction, Certificate III in
Community Services Work (First
Aid) and a white card application together with receipt for same. I was also
provided with Urine
Screen Result dated 2 June 2012 (Exhibit 3).
40 Also
before me were three references, one from your sister, Olga. She said she
noticed a change in your behaviour when you started
high school. That you also
became a father at a young age, which made your situation complicated and
created difficulties between
yourself and your mother. Your use of drugs turned
you into a person she did not recognise. You were difficult to communicate
with.
41 A reference from Tri Nguyen, Interim Pastor, Tottenham Baptist
Church dated 26 June 2012. He met you in 2001 when you participated
in a youth
community he was facilitating in St Albans. You were willing to talk about your
problems at home and the break up with
you partner and not knowing your
daughter. You were aware of the destructiveness of your addiction when you
spoke to him and when
not influenced by drug use, he said, you were resourceful,
empathetic and motivated.
42 A reference from Michael Pham dated 27 June
2012, who had known you for over ten years. He referred to you becoming a
father at
a young age and the tension that created in your family. Not seeing
your daughter had been stressful for you. Your disappointment
at your
relationship breakdown led to your drug use and he had met with you to provide
emotional support to assist you to find work
and manage your finances.
43 As I have previously stated, there was also a letter tendered written by
you to Mr Wang in which you expressed remorse for your
offending (Exhibit 5).
You also acknowledged the adverse impact upon Mr Wang of your
offending.
44 Mr Kozlowski submitted that your prospects for rehabilitation
were good. However, as I discussed with him, in my opinion I have
guarded
optimism regarding your rehabilitation prospects. It would appear that you are,
as yet, to make real attempts to address
your drug and alcohol use. Your prior
criminal history revolved around your drug use, as does the offending that is
currently before
me. You have been abstinent from drug use at times, although
have relapsed. It is difficult to be particularly optimistic at this
stage,
however, in fixing an appropriate sentence, I must seek to maximise your chances
of rehabilitation as they may be.
45 Mr Kozlowski conceded general and
specific deterrence would loom large when sentencing you for these offences. He
did, however,
urge that, at 30 years of age, being at date of sentence, you were
still young and this was your first time in prison.
46 He also submitted I
should take into account when sentencing principles of proportionality and
totality, which of course I do.
He urged that when imposing a term of
imprisonment, I direct that a substantial period be served on parole, to enable
you to address
your drug and alcohol issues in the community with supervision.
47 Ms Sleeth, on behalf of the prosecution, submitted that as these offences
occurred on bail, such was an aggravating feature of
your offending. Although
she was not urging total cumulation in relation to these charges, but submitted
there should be some cumulation.
Also, that on two occasions you returned to
the same store, being JB Hi Fi. The latter is concerning, of course, but not
strictly
an aggravating feature for sentencing purposes.
48 Ms Sleeth
acknowledged a plea of guilty was entered at the earliest stage and that you
demonstrated remorse for your offending.
Ms Sleeth referred to the ongoing
physical and emotional impact of your offending upon Mr Wang. Mr Sleeth
submitted general deterrence
and specific deterrence were important sentencing
considerations and that I should have concerns about your rehabilitation
prospects.
That your drug addiction was longstanding and there was no material
to support any real attempt by you to address this, such by
way of residential
program.
49 As well as matters personal to you to which I have referred,
including your prospects of rehabilitation as I find them to be, I
must also
take into account such matters as deterrence, especially general deterrence,
which is of considerable importance in a case
such as this. I must also
consider specific deterrence when sentencing you. You do have a significant and
relevant prior criminal
history, albeit I note, not for the same type of
offending that is before me.
50 I must also consider the question of
protection of members of the community from you and bear in mind the likelihood
of your re-offending.
This does concern me, in particular in light of the fact
that you are yet to fully address your drug and alcohol use when in the
community and that the offending before me has also involved other members of
our community.
51 I am called upon by the Sentencing Act to manifest the
community's denunciation of your conduct and generally to impose a just
punishment.
On Charge 1, armed robbery, you are convicted and sentenced to 2 years and 6 months' imprisonment.
On Charge 2, you are convicted and sentenced to 6 months' imprisonment.
On Charge 3, you are convicted and sentenced to 3 years' imprisonment.
On Charge 4, you are convicted and sentenced to 14 months' imprisonment. On Charge 5, you are convicted and sentenced to 3 years' imprisonment.
52 As I have said, I have taken into account when sentencing, principles of
totality and proportionality.
53 Charge 4 is the base sentence and I direct
that 12 months of Charge 1 be served cumulatively upon Charge 4.
54 The
sentence I have imposed on Charge 2 is concurrent with the sentence imposed
Charge 4.
55 I direct that 14 months of Charge 3 be served cumulatively
upon Charge 4.
56 I direct that 20 months of Charge 5 be served
cumulatively upon Charge 4.
57 Turning to the summary charge, you are
convicted and sentenced to 4 months' imprisonment and I direct 1 month be served
cumulatively
upon Charge 4.
58 By way of clarification, each of the terms of
cumulation are cumulative upon each other and upon the base sentence.
59 That results in a total effective sentence of 5 years and 1 month's
imprisonment and I direct you serve a period of 3 years' imprisonment
before you
are eligible for parole.
60 Pursuant to s.6AAA of the Sentence Act 1991,
had you been found guilty of these offences following jury verdict, I would have
sentenced
you to 7 years' imprisonment and set a non-parole period of 5 years,
that is, if you had pleaded not guilty.
61 Pursuant to s.18(4) of the
Sentencing Act 1991, I declare you have spent 142 days up to and including
yesterday, which was 26 July 2012, by way of pre-sentence detention and I
direct
that that be entered into the records of the court.
62 The prosecution made
application for a disposal order. This was consented to by counsel on your
behalf. I make the order in the
terms sought.
63 The prosecution also made
application for compensation in the sum of $100 to Mr Wang, that was consented
to by counsel on your
behalf. I make the order in the terms sought.
64 The
prosecution also made application, pursuant to s.464ZFB of the Crimes Act 1958,
for the retention of a forensic sample. This was also consented to by counsel
on your behalf and I make the order in the terms
sought on the basis of the
seriousness of your offending and your criminal history.
65 Regarding the
pre-sentence detention, is that correct, that is 142 days up to and including
yesterday?
66 MS SLEETH: They are my calculations, Your Honour.
67 HER
HONOUR: Does everyone agree?
68 MR MORTLEY: Yes, Your Honour.
69 HER
HONOUR: We have to be sure. You have 140 days, have you?
70 MR MORTLEY: I
have 140 days, Your Honour.
71 HER HONOUR: For some reason I have 142, I
think we should sort this out. On 17 July, probably the plea date, we were told
how
many days?
72 MS SLEETH: 133 including 17.
73 HER HONOUR: Including
17 July. We were told 133 days including 17 July, so that becomes 142 as of
yesterday, not today. These
things should have been checked before you came in,
I must say. Do you have a list by any chance, Mr Prison Officer, of when he
was
remanded or when he first went in?
74 PRISON OFFICER: Your Honour, I have
got him remanded on 16 March 2012.
75 HER HONOUR: Yes. And then, he has
been in since then, is that the idea?
76 PRISON OFFICER: That's it, he has
been in since then, 16 March.
77 MS SLEETH: Your Honour, my understanding is
that he was remanded on 7 March when he was arrested at the Cash Converters
store.
78 HER HONOUR: Very well.
79 PRISON OFFICER: He might have had
the night with the police that night.
80 HER HONOUR: Very well, I follow
that, thank you. From the 7th we say, do we?
81 MS SLEETH: Yes, Your
Honour.
82 HER HONOUR: And that is the date of Cash Converters, is
it?
83 MS SLEETH: Yes.
84 HER HONOUR: Was that the day you went in, the
day at Cash Converters?
85 PRISONER: Yes, Your Honour.
86 HER HONOUR:
Good, we are making sure you get every day credited because it comes off your
sentence. I get 142 - in on 7 March
up until yesterday, 142. You get
140.
87 MR MORTLEY: Your Honour, I have a program that calculates it but
having done it manually, it does come to 142, so I am going to
be deleting that
program.
88 HER HONOUR: Very well, we will declare 142 days as pre-sentence
detention up to and including yesterday. If you go away and find
out that is
wrong, you have up until three o'clock before it is entered into the records of
the court today and I can administratively
change it. If it ends up being 140,
I will not be changing it, it can stay at 142, so he gets the extra benefit of a
couple of days.
But if he has actually done more than 142, I want to know about
it.
89 MS SLEETH: Yes, Your Honour.
90 HER HONOUR: That is the key.
If you want, while you're waiting, Mr Dana, you might want to check it yourself.
In on 7 March up
to and including yesterday.
91 PRISONER: Yes, Your
Honour.
92 HER HONOUR: If it is wrong, let the authorities know. Thank you,
is there anything else?
93 MS SLEETH: No, Your Honour.
94 MR MORTLEY:
No, Your Honour.
95 HER HONOUR: Thank you. Remove Mr Dana,
please.
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