DPP v Nelson [2015] VCC 1639 (20 October 2015)

Last Updated: 17 December 2015

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION

Revised Not Restricted Suitable for Publication

CR-15-01160

DIRECTOR OF PUBLIC PROSECUTIONS
v
JASON NELSON

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JUDGE:	JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	19 October 2015
DATE OF SENTENCE:	20 October 2015
CASE MAY BE CITED AS:	DPP v Nelson
MEDIUM NEUTRAL CITATION:	[2015] VCC 1639

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Sentence – plea of guilty – armed robbery – possession of a drug of dependence – breach of suspended sentence

Legislation Cited: Crimes Act 1958; Sentencing Act 1991

Cases Cited: Boulton v R [2014] VSCA 342

Sentence: Convicted and sentenced to four years’ imprisonment, with a minimum of two-and-a-half years before becoming eligible for parole. Fined $500. Suspended sentence of eight months restored – to be served cumulatively. S6AAA declaration: six years’ imprisonment, with a minimum of four years before eligible for parole and fined on the same terms.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Rooney	Solicitor for the Office of Public Prosecutions
For the Accused	Mr M Turner	Emma Turnbull Lawyers

HIS HONOUR:

1. Jason Nelson, you have been charged with one count of armed robbery, and one count of possession of a drug of dependence. You have pleaded guilty to both charges, and you have admitted a prior criminal record.
2. The gravity of the offence of armed robbery is demonstrated by the fact that it carries the maximum term of imprisonment of 25 years. The offence of possession of a drug of dependence carries a penalty of 30 penalty units and or one year’s imprisonment.
3. I proposed to formally sentence you at 9.30am on 12 October 2015. However, I was informed by the prosecutor that a breach summons filed

   24 September 2014 alleged – or maybe that was 2015 – that you had breached a suspended sentence imposed by this Court. I was invited to determine the question whether you had in fact breached the suspended sentence, and to sentence you accordingly for the breach. Your counsel, after conferring with you, admitted the breach, and informed me that you were content for me to deal with the breach summons.

4. After hearing further submissions from the prosecutor and your counsel, I decided to adjourn your sentencing until today, so that I could give consideration to the breach summons, and to a further submission made by your counsel, which I will refer to later.
5. On 9 March 2015, and at approximately 12.20pm, you drove to a milk bar at 21 Magnolia Boulevard, Meadow Heights. You entered the milk bar on three occasions. On the first occasion, you purchased two packets of confectionary and then left. On the second occasion, you purchased a soft drink and then left. It was on the third occasion that you committed the armed robbery.
6. Mr Chahine was serving customers at the milk bar. He served you on each occasion. On the third occasion you entered the milk bar, you asked him for a packet of cigarettes. As he turned away from you to obtain the cigarettes, you drew a handgun from under your black hooded jumper and brandished it. You pointed the handgun at Mr Chahine. You leant across the counter and grabbed him and said, “Give me the fucking money. I’m not fucking around, cunt.”
7. He attempted to push the firearm away. You motioned to strike him. You then attempted to grab some small change from the till, and then you said, “Give us the cash, mate, quick. Fat fuck. Quick, hurry up. I’m not fucking around. Give me the fucking cash, man. What are you doing?” You reached across and grabbed a bundle of notes from the till. You turned hurriedly to leave the milk bar. As you did so, you turned back towards Mr Chahine and briefly pointed the handgun at him. You left the milk bar and drove away in your vehicle.
8. CCTV footage of the events I just described was recorded through surveillance equipment set up in the milk bar. The footage was played during the prosecution summary of your offending. You were identified by Mr Chahine.
9. You were intercepted by police on 10 April 2015, and you were taken to the Heidelberg police station under arrest. You were placed in an interview room. You had an ice pipe on and a small zip-lock bag containing six grams of methylamphetamine. You attempted to secrete the ice pipe in a section of a wall of the interview room. You cut your hand in your attempt to do so. When police officers returned and observed that your hand was bleeding, you admitted that you were attempting to hide the ice pipe, and you then produced the zip-lock bag from your underwear.
10. You were interviewed. You exercised your rights and made a largely ‘no comment’ response to then questions put to you during the interview. You were placed in custody on 11 April 2015, and you have remained in custody. You pleaded guilty at the first committal mention at Melbourne Magistrates’ Court on 6 July 2015.
11. Your counsel outlined your background in some detail. You were born on 1 November 1976. You are now 38 years of age. You lived in the Wattle Glen area. You and your two sisters were raised by your mother. You did not know your father in any significant way.
12. You attended a primary school and then a high school. You left part of the way through Year 9. Your counsel described that as being an unhappy part of your early life. You struggled with your mother’s relationship with a number of men. You were unable to develop any degree of positive relationship with any of them. You left your mother’s home at what must have been a very young age. You went and lived in Aireys Inlet for about a year, where you undertook general manual work.
13. When you were about 16 years of age, you were introduced to the martial art known as jujitsu. It became your passion and your obsession. You trained every day. You entered national competitions. You engaged in demonstrations of jujitsu. You taught it across Victoria. You obtained some income from teaching it, and you otherwise earned income from your work in the security industry. You pursued that passion until you were about 23 years of age. You apparently wanted a different life at that age. You had not engaged in any abuse of alcohol or illicit substances.
14. You then obtained employment over the next six years in the construction industry, principally in concreting. You did well, to the extent that you were given the responsibility of undertaking some level of supervisory work. You then commenced working in your own right as a concreter over the next four years. You apparently did well.
15. As a result of your work in construction, you were offered a job by Relux Slabs, with whom you worked for the next four years. You were apparently involved in supervisory work, and liaising with large construction companies. You earned about $100,000 per annum, and were provided with a company car.
16. You met your former wife, Rachel, in about 2004. She was aware that you had a number of prior convictions. She apparently demanded that you develop resolve to avoid conduct of that kind. According to your criminal record, you managed to stay free of any criminality between about 2005 and 2013, when you went on a downward spiral.
17. You married Rachel. You continued your work in the construction industry and she continued her work as a hairdresser. Two children were born of your marriage. You have two daughters who are now about nine and four years of age. In 2012, you separated and eventually divorced. You were able to maintain a reasonable relationship with Rachel and saw your children by arrangement with her, and apparently on a harmonious basis.
18. Mr Chahine was 64 years of age when you committed the armed robbery. He lived with his son at the rear of the milk bar. He was serving in the milk bar that day to assist his son. Mr Chahine had never experienced an armed robbery or any event of a similar kind. He was, and is, understandably emotionally disturbed by being confronted by you, armed with a handgun.
19. He describes having suffered a change in his personality. He is now paranoid when serving customers in the milk bar. He suffers a mixture of sadness, anger, frustration, depression, and an adverse effect upon his appetite and ability to sleep. His prior physical and mental health have been aggravated by being confronted by you. Additionally, the money you stole resulted in a loss the meagre profits which the milk bar would have gained that day through ordinary business. In summary, his statement demonstrates a dramatic and serious impact upon his mental and physical health, and his relationship with members of the public and his family.
20. The downward spiral I referred to earlier occurred in 2013. You were dealt with at the Heidelberg Magistrates’ Court for a large number of offences, namely theft of a motor vehicle; theft; theft from a motor vehicle; fraudulently using identification; two counts of possession of a Category A longarm firearm; possession of cartridge ammunition without a license or permit; two counts of dealing with property suspected of being the proceeds of crime; possessing a dangerous article in a public place, and a number of drug and other offences of lesser importance.
21. You were sentenced to eight months’ imprisonment for a number of offences, which was wholly suspended, and you were fined an aggregate amount of $1,000 for a number of other offences.
22. On 8 October 2014, at Melbourne Magistrates’ Court, you were dealt with for a contravention of the suspended sentence. Six months of the total suspended sentence was restored. You had spent 43 days in custody awaiting that court appearance. That period was reckoned a part of the sentence for the breach.
23. You appealed to this Court. You were remanded in custody until your appeal was heard on 29 January 2015, a period of about five months. The orders of the Magistrates’ Court were set aside. The sentence that was imposed was further suspended to 29 July 2015. It would appear that the 43 days you were held in custody was not expressly recognised by the judge who heard your appeal as part of the sentence imposed by the judge.
24. After your successful appeal, it was only about two months later that you committed these offences. While I am on the subject of your prior convictions, I note that you also have a number of other troubling prior convictions. On

    15 December 2004, you were dealt with at the Heidelberg Magistrates’ Court for recklessly cause injury and assault police. You were convicted and fined an aggregate of $1,800. I will return later to the significance of your prior convictions, and the part which they play in the sentence which I consider I must impose on you.

25. Your counsel submitted that you must be sentenced to an immediate term of imprisonment, but that I should then release you on a Community Correction Order. I do not consider that an immediate sentence of imprisonment and the addition of a Community Correction Order is a sentence which is just in all the circumstances. I consider that you must be sentenced to a significant term of imprisonment, with an appropriate minimum term before you become eligible for parole.
26. Your counsel submitted that the armed robbery was unsophisticated because it had the following characteristics: there was little or no premeditation; it occurred during daylight hours; you had no accomplice; there were no other victims, other than Mr Chahine; it occurred over a very short period of time, as demonstrated in the CCTV footage, and it occurred in the background of your use of methylamphetamine. I would add one extra characteristic, and that is you did not wear an effective disguise. You were easily identified by

    Mr Chahine.

27. I am not persuaded that what you did can be described as unsophisticated as you say it was. You armed yourself with a handgun, which you had every intention of using to threaten and terrify a shop attendant. You selected a milk bar as the target for your armed robbery and you drove there. It was in all respects a soft target, where there was likely to be a defenceless shop attendant, probably working in the milk bar alone.
28. You entered the milk bar on two occasions before you entered it on the third occasion when you undertook the armed robbery. It is not clear to me why you entered the milk bar on the earlier two occasions. It may be that you could not go through with the armed robbery, or you were casing the milk bar to determine how to go about the armed robbery. But it could not have missed your attention that there was only one person serving in the milk bar, and he was a man of some age who was unlikely to be capable of resisting you, and someone who you could easily overpower.
29. You carried a handgun concealed under your hooded jumper. When you needed to overpower Mr Chahine, you produced the handgun and pointed it at him. After attaining what money you were able to grab, you turned and rapidly walked away from the counter area, but you turned and briefly pointed the handgun again at Mr Chahine.
30. Whilst it is true that you had no accomplice, and that the armed robbery occurred over a very short period of time, I do not accept the fact that it was undertaken during daylight hours as a mitigating factor. Nor do I accept that Mr Chahine was the only victim of the armed robbery; an indirect victim was his son, who suffered the loss of the day’s takings, taken by you.
31. Pointing the handgun at Mr Chahine must have terrified him. I think that is evident from his Victim Impact Statement. It was a violent act. The fact that you pointed the handgun at him a second time, I think, was a demonstration that there was some potential you might use the handgun if Mr Chahine attempted to pursue you. It is difficult to understand why you did that if it was not your intention to have that effect on him. It matters little that you robbed him of a relatively modest amount of money.
32. You need to be specifically deterred from engaging in this conduct. Your prior criminal history demonstrates that you are no stranger to offences of dishonesty, and the unlawful possession of long-armed firearms. It also demonstrates that you are no stranger to violence, although the offences or reckless cause injury and assault police occurred in 2004, but they do have some relevance.
33. Your counsel submitted that I should pay due regard to your background and, in particular, your attitude and application to your sporting pursuits and your work. Additionally, he submitted that the reason why you committed the offences in 2013 can partly be explained by a number of things. Firstly, you were troubled by the breakup of your marriage. Secondly, the breakup of your marriage meant that you were not able to give the care and attention to your daughters, which was of concern to you, because you did not have that care and attention when you were a child. Thirdly, you were under pressure due to the work you were performing with Relux.
34. However, there are many statements and decisions of the Court of Appeal to the effect that I should not too readily allow your personal circumstances to mask the features of the gravity of the armed robbery you committed. Although I accept the submissions made by your counsel are relevant and were fairly put, punishment in the form of the specific deterrence, general deterrence, protection of the community, and the community’s denunciation of you, must assume greater importance.
35. For much the same reasons, the prospects of rehabilitation, whilst always an important consideration, is likewise subordinate to the other sentencing considerations I have just referred to.
36. There is another reason why I consider that rehabilitation is to be subordinate to those other sentencing considerations. You were successful in your sentence appeal to this Court on 29 January 2015, but it took just a shade over two months before you armed yourself with a handgun and undertook an armed robbery. You could not possibly have been ignorant to the fact that you needed to be of good behaviour in order to see out the suspended sentence.
37. I have little doubt that the judge gave you the chance to avoid immediate imprisonment, because you persuaded the judge that it was in your best interests and that of the community that you avoid an immediate term of imprisonment. The fact that you then engaged in this level of offending demonstrates to me that your prospects of rehabilitation are relatively poor. The sentence imposed on you on that occasion obviously had no deterrent effect upon you.
38. Your counsel submitted that you should be given the benefit of a reduction in the sentence I must impose on you because of your early guilty plea. Additionally, that your early plea of guilty is a demonstration of some remorse. Your early guilty plea undoubtedly saved the State the cost of a trial, and the trauma to witnesses of having to endure a trial. There is an element of remorse evident in the fact that you pleaded guilty at an early stage. I accept that each of these factors go to a reduction in the sentence I must impose on you.
39. Your counsel further submitted on 12 October 2015 that you should be given the benefit of a further reduction in the sentence I must impose on you. He informed me, as a result of the prison rioting which occurred in about July of 2015, you were locked down in a cell for about a month as a security measure. Your only respite from lockdown was to be intermittently released for no more than about 30 minutes at a time.
40. There can be no doubt at all that imprisonment of that kind, even for a month, represents an utterly unreasonable level of imprisonment. I propose to take it into account, but in a global sense. It calls for a rather marginal reduction in the sentence I must impose on you.
41. Your counsel also submitted that since R v Boulton [2014] VSCA 342, the sentencing landscape has changed, which would see me rethink the traditional approach in sentencing in your case. He emphasised that an immediate term of imprisonment, together with a Community Correction Order with appropriate conditions, would enable you to be punished, but at the same time see to your rehabilitation. He also emphasised that s5(4)(c) of the Sentencing Act 1991 requires me to consider whether the purposes for which a sentence is imposed, cannot be achieved by a Community Correction Order.
42. I am not satisfied that the sentencing purposes of just punishment, specific deterrence, general deterrence, denunciation, and the protection of the community are served by sentencing you to an immediate term of imprisonment of two years or less, and then releasing you on a Community Correction Order. I do not accept that the sentencing landscape has changed to the extent that an offence of this gravity attracts consideration of a Community Correction Order in your case. I consider that I have no alternative but to impose a significant, immediate custodial sentence upon you.
43. I have paid due regard to the plea made on your behalf by your counsel, and to the factors which I consider are appropriate to moderate the sentence which I must impose on you. The sentence I now impose on you is proportionate to the gravity of the offence of armed robbery in the light of the objective circumstances of its occurrence.
44. Before turning to the sentence I must impose on you, I should deal with the breach summons. Your counsel very sensibly conceded that there are no exceptional circumstances in your case, so I am obliged to restore the sentence imposed on you for the breach of the suspended sentence. I would now ask you to stand.
45. On the charge of armed robbery, you are convicted and sentenced to four years’ imprisonment, with a minimum of two-and-a-half years before you will become eligible for parole. I declare that the time you have spent in pre-sentence custody of 191 days is to be reckoned as time already served under the sentence. I direct that such be noted in the records of the Court.
46. In addition, I order that the suspended sentence of eight months be restored. I order that the time you were remanded in custody of 156 days be reckoned as time served. I direct that such be noted in the records of the Court. I order that the restored sentence be served cumulatively with the other sentence.
47. On the charge of possess a drug of dependence, you are convicted and fined $500. You may now be seated.
48. If it had not been for your guilty plea, I would have sentenced you to six years’ imprisonment, with a minimum of four years for the armed robbery, before you would become eligible for parole, and I would have convicted you and fined you for the same amount for the drug offence.
49. I will now make the Disposal Order and Forensic Sample Order sought by the prosecution. Mr Prosecutor, do you have those Orders with you?
50. MR ROONEY: We do, Your Honour.
51. HIS HONOUR: Yes.
52. MR ROONEY: Yes, Your Honour, I’ve got the Disposal Order and the Forensic Sample Order in triplicate.
53. HIS HONOUR: Yes, thank you. I am sorry, I do not have an appearance sheet, and you are standing in for your predecessor, and I do not have your name.
54. MR TURNER: I’m Michael Turner, Your Honour.
55. HIS HONOUR: Well, what do you say about the Forensic Sample Order? Have you had a chance to speak to Mr Nelson about that?
56. MR TURNER: I haven’t, Your Honour, but if you grant me permission, I’ll go and speak to him.
57. HIS HONOUR: I will give you that permission.
58. MR TURNER: Your Honour, he doesn’t consent to the forensic sample.
59. HIS HONOUR: Sorry?
60. MR TURNER: He does not consent to the forensic sample being taken.
61. HIS HONOUR: All right.
62. MR ROONEY: Your Honour, the Crown would certainly submit that an armed robbery would call for an order of that nature.
63. HIS HONOUR: I am going to make the Order, but I am just having my associate print out the conventional warning that I must give Mr Nelson, so if you will just be patient, I will have that secured, and I will read that to him.
64. I am going to read to you a warning, Mr Nelson. You can remain seated while I read this. I understand, through your counsel, that you object to a forensic sample being taken. I am obligated to give you this warning and I do so now.
65. Application has been made by the prosecution for the provision of a forensic sample by taking a scraping from your mouth, or a blood sample. Having regard to the seriousness of the circumstances of the offending, I find that the granting of the Order is in the public interest, and I note your objection to the making of this Order. I will make the Order and I will sign it shortly.
66. I am required to warn you that if at the time you are requested to supply a sample of your DNA by a scraping from the inside of your mouth under supervision by an authorised member of the police officer, then the sample will be taken in that way, but if when requested by the officer to provide the sample in that way, you either fail or refuse to provide the sample, the officer is authorised to obtain a blood sample, and to use reasonable force to obtain that blood sample.
67. I have now signed that Order and the Disposal Order, and Mr Turner, I will now have those handed back to you. And unless there is anything else, I will have Mr Nelson removed and I will now adjourn the Court.
68. MR ROONEY: Your Honour, if I could just confirm, the pre-sentence detention total figure that’s referable to today’s sentence is 348 days. So I think Your Honour
69. HIS HONOUR: Three hundred and forty-eight days?
70. MR ROONEY: That’s the total figure. So as I understand, submissions were made on the last occasion about Your Honour making a single declaration.
71. HIS HONOUR: No. What I was asked to do was to identify the number of days held in presentence detention relevant to the charges before the Court today, which was 191 days, and submissions were made about how I should go about the restoration of the suspended sentence, and identifying the number of days that he was held in custody, and I have done that in accordance with the way in which the submissions were made by your predecessor. Now what do you say is the preferred method?
72. MR ROONEY: The preferred method would be a single declaration of 348 days. That’s just the sum total of the – there were actually three different periods too that referred to the suspended sentence, and then the more recent period that related to the armed robberies.
73. HIS HONOUR: Well I do not have any trouble doing that. However, I do emphasise that that is not the way it was put to me on the previous occasion. If the two of you have a preference that it be done that way with a single period, then I think that is probably logical, sensible, and easier for those who need to administer all of this to do just that.
74. MR ROONEY: I think that would be correct, Your Honour.
75. HIS HONOUR: Just give me the number of days again.
76. MR ROONEY: Three hundred and forty-eight.
77. HIS HONOUR: Well then, what I will do, I will revise the sentence because I have written it out in full, and I will revise it from the point where I have referred to the time spent in pre-sentence custody for these charges by accumulating the days held in presentence custody and identifying 348 days as that period to be directed to be noted in the Court records, and I will have a copy of the revision sent to each of you, Mr Turner and Mr Rooney, in the course of today.
78. MR ROONEY: Thank you, Your Honour. And so the total sentence was four years, with a minimum of two-and-a-half years.
79. HIS HONOUR: Correct.
80. MR ROONEY: And then the declaration is 348 days.
81. HIS HONOUR: Yes.
82. MR ROONEY: That’s correct.
83. HIS HONOUR: Anything else?
84. MR ROONEY: No, Your Honour.
85. HIS HONOUR: Yes, all right.

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