IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
CR 20-00815

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
KEVIN EDWARDS		

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JUDGE:	HIS HONOUR JUDGE WRAIGHT 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	25 September 2020	
DATE OF SENTENCE:	1 October 2020	
CASE MAY BE CITED AS:	DPP v Edwards	
MEDIUM NEUTRAL CITATION:	[2020] VCC 1571		

REASONS FOR SENTENCE
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Subject:		CRIMINAL LAW – SENTENCE.	
Catchwords: 		Armed robbery – Guilty plea – Offender armed with knife blade entered   chemist and stole items – Relatively serious example of the offence –  Offender on bail at time of offending – Extensive prior criminal history – Intellectual disability – Youthful offender – Bugmy and Verdins principles applied – Circumstances surrounding COVID-19 taken into account. 
Legislation Cited:	Crimes Act 1958 s 75A; Bail Act 1977 s 30B; Disability Act 2006; Sentencing Act 1991 ss 18, 6AAA. 
Cases Cited:		Bugmy v The Queen (2013) 249 CLR 571.
Sentence:		Imprisonment for a period of 2 years, with a non-parole period of 12 months. 

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr J McCarthy 
(Plea)

Ms J McDonnell (Sentence)
	Office of Public Prosecutions	
			
For the Accused	Ms C Blakeney	Greg Thomas Barrister & Solicitor	

HIS HONOUR:

Introduction

1	Kevin Edwards, you have pleaded guilty to one charge of armed robbery contrary to s 75A of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment. 
2	You have also pleaded guilty to the related summary offence of commit indictable offence whilst on bail, contrary to s 30B of the Bail Act 1977, which carries a maximum penalty of 3 months imprisonment or 30 penalty units. 
3	You have admitted your prior criminal history.
Circumstances of the offending
4	A prosecution opening was tendered on the plea and may be summarised as follows: 
5	On 7 April 2020, at approximately 11.20 am, you entered the Chemist Warehouse at the Broadmeadows Shopping Centre, Pascoe Vale Road, Broadmeadows.  
6	You collected numerous items from the store shelves to a total value of $441.35. 
7	Security staff David Mansour and Ramandeep Singh approached you and asked you to place the items concealed in your pockets and bag into a shopping basket.  You became aggressive saying, 'why are you both fuckers doing this to me?' and moved aggressively towards the security staff, producing the blade of a kitchen knife without its handle.  You chased the security staff up the shopping aisles towards the back of the store.  It is these facts that relate to Charge 1, armed robbery.
8	As Mr Singh was retreating backwards, he pushed over a stack of plastic boxes to block your path and grabbed hold of a plastic lid which he then used to fend you off as you swung the knife blade at him.  You then ran towards the exit of the store.  
9	Shop assistant Nurten Altiparmak pushed over a pile of shopping baskets to attempt to block the exit to the store.  You tripped on the pile of empty shopping baskets, fell to the ground and lost grip of the shopping basket containing the majority of goods you had attempted to steal.  You got up and ran from the store.
10	At some point during the offending you were heard saying 'I'll fucking stab you.'  The entire incident was captured on CCTV.  
11	Mr Singh called 000 and followed you as you ran through the car park onto Pascoe Vale Road, Broadmeadows.  Police arrested you after a short struggle.  The knife blade was located down the front of your pants and one bottle of OGZ branded conditioner, valued at $10, was located in your bag together with a pack of 'Little Hotties' branded toe warmers.
12	You were not interviewed because you were behaving erratically in the custody area of the Broadmeadows Police Station.  You were remanded in custody on 7 April 2020.  
13	You were on bail at the time of the offending which gives rise to Summary Charge 2, commit indictable offence whilst on bail.
Nature and gravity of the offending
14	Armed robbery is a serious offence which is reflected in the maximum penalty of 25 years imprisonment.  In this instance you entered a shop and began collecting a number of items before the staff became suspicious, approached you and asked you to place the items you concealed in your pockets and bag into a shopping basket.  It was at this point you became angry and ultimately moved aggressively towards the security staff producing the blade of the kitchen knife.  At that point, rather than running out of the store, you continued to behave in an aggressive manner by chasing security staff towards the back of the store whilst holding the knife.  One of the staff members being chased pushed over plastic boxes to try and impede your chase at which point you swung the knife blade towards him.  
15	It was put on your behalf that in all the circumstances your offending falls towards the lower end of offences of armed robbery.  While comparing your offending to all forms of armed robbery those types of categorisations may be able to be made.  For example, comparing this armed robbery to an armed robbery involving firearms, disguises and in company.  However, when comparing this offence to an armed robbery of a similar nature, where vulnerable shopkeepers are confronted by an offender carrying a weapon and acting aggressively, in my view your offending represents a relatively serious example.  In making that assessment, I also take into account that the offence was committed whilst you were on bail.  
16	While no victim impact statements were tendered at the plea, having viewed the CCTV footage, it is beyond doubt that your conduct would have been a terrifying experience for the shopkeepers and security staff when you aggressively confronted them armed with a weapon, while they were simply going about their business.
Personal circumstances
17	I turn to your personal circumstances.  You are 22 years of age.
18	In your early years, your parents' relationship was volatile, and your mother was subjected to domestic violence.  Your mother states that she ended the relationship with your father when you were aged two and he was incarcerated.  As such you were raised by your mother from that point on.  You have three older stepsiblings from your mother's previous relationship, and you maintain contact with two of those stepsiblings.  Throughout your younger years Child Protective Services were involved on multiple occasions and you were subject to a Children's Court supervision order until you were 18. 
19	After separating from your father, your mother formed a new relationship and you report that you had a positive relationship with your stepfather. 
20	In 2005, your father was released from custody and you resided with him for approximately nine months when you were aged seven.  In 2006, your father and your stepfather were engaged in a verbal dispute that escalated into a physical fight.  Your father assaulted your stepfather, seriously beating him causing significant head injuries that resulted in his death.  You witnessed the assault.  Your father was charged with murder; however, he pleaded guilty to defensive homicide and was sentenced to 10 years imprisonment.  He died in 2016 while in custody due to cirrhosis of the liver.
21	During the same year you report that you were sexually assaulted by an older child in primary school which was reported to the police.  Following these events, at about eight years of age, you were diagnosed with post traumatic stress disorder (PTSD) and were given counselling.
22	You attended mainstream primary schools followed by a high school that offered alternative education until you left at the beginning of Year 10.  You state that you completed Year 10 later at a different special education facility.  Your only employment history is limited to a six month period as a baker's assistant when you were 16. 
23	As to your drug history, you report that you started to use cannabis and alcohol at age 13.  You commenced using ice at age 16 which has continued between your periods of incarceration.  I was told during the plea that in the period leading up to the offending you were using ice and GHB.  
24	While only 22, you have an extensive criminal history and have spent a significant portion of your life either in custody or in youth detention.  Your first appearance in the Children's Court was in early 2013.  By May 2013, you had received you first period of detention in a Youth Justice Centre when you were 15 years of age.  You have since that time committed numerous offences and received terms of detention and imprisonment.  You have through the years also been given a number of community based dispositions in the Children's Court and community based orders as an adult, including a justice plan on one occasion.
25	A number of reports were tendered that together provide a comprehensive personal and psychological history as follows:
•	a report from Gina Cidoni, consultant psychologist, undated (reviewed on 5 September 2020);
•	a report from Dr Rachel O'Meara, clinical neuropsychologist, dated 18 September 2017; and 
•	a report from John Graham, addiction counsellor at Anglicare, dated 1 September 2017.
26	In the report of Dr O'Meara, she details the outcome of a number of tests you underwent as part of a neuropsychological examination.  In summary, Dr O'Meara confirms you suffer from a mild intellectual disability, satisfying the legislative requirements.  A Statement of Intellectual Disability was tendered confirming your status under the Disability Act 2006.  
27	Without summarising all of the findings of Dr O'Meara, in general terms your verbal, intellectual and language based skills fall well below most aged matched peers.  Ms Cidoni, having reviewed the report of Dr O'Meara and having conducted her own psychological tests, is of the view that your low IQ of 62 presents challenges for you in daily living and adaptive skills, learning, problem solving and consequential thinking.  
28	Ms Cidoni also confirmed your PTSD and as a result of her own testing formed the view that you also suffer from an adjustment disorder and a substance use disorder. 
29	Dr O'Meara is of the opinion that the prison environment would be more difficult for you than those of normal functioning.  She also states that the prison environment is likely to exacerbate your PTSD symptoms given the exposure to triggers associated with the condition, being violent offenders or sex offenders.  Dr O'Meara is also of the view that you would be at risk of transgressions in the prison environment as a result of your cognitive deficit and psychological conditions. 
30	Mr Graham states that at the time of writing his report in September 2017, he had been working with you since December 2012.  He details the efforts you had made in attempting to deal with your drug addiction noting that you had completed three in-patient detoxification programs in the past; one in 2015 and two in 2016.  While noting that you have made efforts over recent years, Mr Graham acknowledges that because of your very traumatic and difficult background, it can take many years to bring about change and he believes that you have shown signs that you can comply with structured directions from the courts and agencies willing to assist you.
31	While in custody you have maintained contact with your mother via telephone as visits have been restricted as a result of the pandemic.
Relevant sentencing considerations
32	I turn to relevant sentencing considerations.  You pleaded guilty on 30 June 2020 at the committal mention stage.  Your plea is therefore an early plea which has avoided the time and expense of a trial.  Significantly, your plea has avoided the need for the victims to have to give evidence and relive a traumatic event.  You are entitled to have your early plea taken into account in your favour.  
33	Mr McCarthy who appeared on behalf of the Director of Public Prosecutions submitted that general deterrence, specific deterrence, denunciation of your conduct and protection of the community are relevant sentencing considerations in this instance.  I agree.  Shop assistants are considered to be soft targets, vulnerable to these types of robberies.  They are entitled to feel safe while at their workplace.  A message must therefore be conveyed that conduct such as yours will not be tolerated by the community and will result in terms of imprisonment.  
34	Ms Blakeney who appeared on your behalf submitted that all limbs of Verdins have application in your case.  The prosecution concede that this was so.  You have experienced trauma that has led to PTSD and you suffer from an intellectual disability together with a number of other psychological conditions.  I accept that general and specific deterrence can be moderated in the circumstances.  However, as part of this assessment, I take into account that your mental state at the time of the offending was also affected by your drug use.  Further, I take into account that your psychological conditions will make prison more difficult for you and may exacerbate your PTSD.
35	You have experienced significant depravation in your younger years and I accept that in your case the effects of some of the traumas you have experienced continue to impact your daily life including your poor decision making.  Thus, the Bugmy principles are enlivened and I give them appropriate weight.
36	I also take into account your relative youth.  You are 22 years of age and it is apparent from the psychological reports that as result of your intellectual disability you are relatively immature which creates further difficulties when also battling with other psychological conditions and substance abuse.  That said, while I accept that the principles applicable to youthful offenders still have application, they too must be moderated in light of the seriousness of the offending and your extensive criminal history.
37	As to your prospects of rehabilitation, in my view they can only be approached with caution, although I note the comments of Mr Graham that you have in the past shown some commitment to change.  Further, you continue to have the support of your mother with whom you have maintained contact while on remand.  
38	I take into account the current circumstances surrounding the COVID-19 pandemic.  Personal visits to prisons have been suspended and there has been a reduction of services and programs, although they are where possible, being conducted via video conferencing.  Prisoners are also experiencing increased lockdown periods.  Those circumstances cause additional stress for prisoners and their families and also affect the programs and supports in prison designed to assist in rehabilitation and transition into the community.
39	It was submitted on your behalf that a combination sentence is the appropriate disposition.  However, you have been given numerous opportunities in the form of community correction orders, including on one occasion a justice plan, all of which have been unable to assist you in breaking the cycle of drug use and crime.  As noted above, you have a lengthy criminal history and while I accept the enormous difficulties you face, I must also take into account protection of the community while you are in the process of grappling with overcoming your difficulties.  As such, in my view the only appropriate disposition in the circumstances is a head sentence with a non-parole period.  However, taking into account the applicable sentencing considerations and your personal circumstances, in my view a longer than usual parole period is appropriate which I hope will better assist you with your integration into the community upon your release.
Sentence
40	Kevin Edwards, on Charge 1, armed robbery, you will be convicted and sentenced to 2 years imprisonment.
41	In relation to summary Charge 2, commit an indictable offence whilst on bail, you will be convicted and sentenced to 1 month imprisonment.
42	I direct that you serve 12 months imprisonment before becoming eligible for parole.
43	Pursuant to s 18 of the Sentencing Act 1991, I declare that 177 days be reckoned as the period of imprisonment already served under the sentence I have imposed.  That does not include today.
44	Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 3 years imprisonment, with a non-parole period of 20 months.  
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