DPP v Coyle [2022] VCC 984

1. You have also pleaded guilty to two summary offences being:

(a) committing an indictable offence while on bail,[4] the maximum penalty for which is 3 months imprisonment; and

(b) possess a controlled weapon without lawful excuse,[5] the maximum penalty for which is 1 year imprisonment.

1. The prosecution opening dated 13 July 2021 was tendered on the plea and its contents were not disputed . Your offending can be briefly summarised as follows:
2. On 1 February 2020 you attended a convenience store in Flemington armed with a screwdriver. You walked into the store and went straight behind the counter. The victim, Ms Luo, was also behind the counter. You began grabbing cash from the cash register. Ms Luo shouted at you and hit you with the handle of a duster. Despite this, you continued to take the cash. You stole $460 before Ms Luo eventually chased you out of the store (Charge 1, armed robbery).
3. On 19 September 2020 Ms Plumanns-Pouton dropped her bank card in the Brunswick area. You found the bank card and took possession of it (Charge 2, theft).
4. Later that evening you attended a bottle shop on Sydney Road in Brunswick. You used Ms Plumanns-Pouton's bank card to buy a $75 bottle of wine. You went to another bottle shop on Albert Road and, again using Ms Plumanns-Pouton's card, bought two bottles of Johnny Walker liquor totalling $106. You went to a third bottle shop on Sydney Road and bought numerous bottles of Johnny Walker liquor totalling $123.10 by, again using Ms Plumanns-Pouton's bank card (Charge 3, obtain property by deception, rolled-up charge).
5. On 26 September 2020, you once again attended the same convenience store the subject of Charge 1. The same victim of charge 1, Ms Luo was working alone in the store at the time and recognised you. You approached the cash-register and produced a knife from your right pocket. You grabbed the entire cash register and pulled it from its position on the counter. Ms Luo shouted at you and hit you. Despite this you managed to take the entire cash register. Ms Luo chased you out of the store. The cash register contained $390 (Charge 4, armed robbery).
6. On 7 October 2020, police attended your address in South Melbourne and arrested you. . A flick knife was found in your pocket (Summary Charge 13, possess a controlled weapon without lawful excuse).
7. At the time of committing the offending subject of Charges 2, 3, and 4, you were subject to an undertaking of bail entered into on 13 September 2020 (Summary Charge 12, commit indictable offence whilst on bail) and a 12-month community corrections order imposed by the Melbourne Magistrates' Court on 22 June 2020.

1. Ms Luo declined to provide a Victim Impact Statement. She did, however, tell police in her statement after the second armed robbery that she was 'scared the man may come back again'. To be robbed twice by an armed offender would have been a frightening experience.

1. Both the armed robberies were committed on a convenience store where the female victim was working alone. The location of these offences is correctly categorised as a 'soft target'.
2. The acknowledged prevalence of armed robberies perpetrated against vulnerable employees, warrants a greater emphasis on general deterrence and the protection of the community in imposing sentence.
3. You were armed on one occasion with a screwdriver, and the second time with a knife. Whilst both were potentially dangerous implements, on neither occasion did you commit a physical assault against the victim.
4. The amounts taken on both occasions were relatively modest, but was no doubt significant for a small business.
5. Both charge one and charge four are mid-range examples of an inherently serious offence.
6. Charge 4, being the second offence against the same target from some months earlier, does in my view carry greater culpability and this will be reflected by some disparity in the sentences imposed for otherwise very similar conduct.
7. The offences were committed several months apart, and some cumulation between the sentences imposed for each charge is appropriate to reflect the totality of your criminality.
8. The theft the subject of charge three was opportunistic in nature, and is a low range example of the offence.
9. Charge four, comprising the three occasions on which you deceptively used that card to obtain a modest amount of property is similarly minor in relative terms.
10. I consider as a matter in aggravation the fact that Charges 2, 3 and 4 were committed in breach of bail and whilst subject to a Community Corrections Order. The criminality covered by the summary offence of commit indictable offence on bail has then been already taken into account as an aggravating factor in the sentences imposed on charges two, three and four and am conscious of this in setting an appropriate punishment for that offence.
11. Your possession of the flick knife, the subject of the summary charge of possess controlled weapon without lawful excuse, is troubling given the use of weapons in the course of the armed robberies but there is no evidence that the weapon the subject of that charge had been used in the course of an offence, nor that it was possessed for that purpose.

1. You are now 35 years old. You were 33 and 34 years old at the time of the offending. You were born and raised in Melbourne. You are the eldest of three children.
2. Whilst you report that your childhood was generally good, you did witness your father perpetrate domestic violence against your mother. You told psychologist Dr Judy Tang[6] that your father was an alcoholic involved in criminal activity.
3. You attended school to around year 8 level.
4. When you were 15 years old your younger sister died from leukemia. You report that this led to your mother and brother becoming heavy users of illicit substances.
5. You report that you now have no contact with your family.
6. You did not live at the family home on a regular basis from around the age of 15 years. You have experienced homelessness for much of your adult life.
7. At the age of 17 years, you were introduced to heroin by an older female partner. You progressed to daily use of heroin by your 20s. You have also used amphetamines, methylamphetamines, and marijuana.
8. By way of employment you have done mowing, gardening and car washing, mainly on a casual basis.

Prior convictions & Prospects of Rehabilitation

1. You have a relevant prior criminal history. That history commenced in 2010 when you were 24 years old, which is consistent with the commencement of your substance abuse.
2. That criminal history has generally involved matters of dishonesty, though there have been some matters of violence. Significantly with regard to the current charges, you have been convicted of possessing controlled weapons on multiple occasions.
3. Your offending has, however, generally been at a consistently lower level than is reflected on the current indictment.
4. You served periods of imprisonment in 2012, twice in 2013, 2016, 2017, and most recently a term of 183 days imprisonment served in 2019. You have previously been on community corrections orders in 2010, 2015 and 2017.
5. Your 2017 order was the subject of a breach and variation in 2019. You received a further 60 day term of imprisonment, in combination with another community corrections order, in 2020 subsequent to the incident the subject of charge one but prior to the incident the subject of charge 4. The Community Corrections Order was still in effect at the time of the commission of charges two, three and four.
6. You were arrested for the charges on the current indictment on the 7th of October 2020. You were remanded in custody until the 22nd of October 2020. You have been on bail since that date, subject to a variety of conditions through CISP.
7. Whilst on bail you have been provided with some assistance to assist with your ongoing issue of homelessness. Benjamin Doecke[7], a community mental health practitioner from "MIND Connect", says that he recognises you as "an extremely resilient and capable man who is able to maintain a household, advocate for himself and learn new skills independently." Mr Doecke says that "it has become evident that stable housing has been the biggest protective factor for Daniel to be able to regain his confidence, live a normal life and stay out of custody".
8. Similarly, Chloe Thoo, an H2H case worker at launch housing, notes[8] that you have been supported through that organisation to progress towards more permanent housing.

1. In the course of your plea a very comprehensive neuropsychological report from Dr Judy Tang[9] was tendered on your behalf. The conclusions of that report were not disputed.
2. In summary, you have a mild intellectual disability. Dr Tang conducted various tests and concluded that your current full-scale intelligence quotient was within the exceptionally low range. She assessed your IQ to be 68.
3. She also concluded that you have a history of anxiety and depression that has likely been a significant factor in your long-standing history of substance abuse. She considers that your psychological condition is not fully treated and that your cognitive difficulties have contributed to your engagement with psychological services previously.
4. Tended on the plea was a Statement of Intellectual Disability dated 25th of November 2010[10] from the Department of Human Services. In that statement, it is acknowledged that you have the concurrent existence of significant sub average general intellectual functioning and significant deficits in adaptive behaviour, each of which became manifest before you had turned 18.
5. As a result of your intellectual disability you have now engaged with the NDIS. In summary, your disability does not render you incapable of functioning independently within the community, but is at a level that is of substantial significance on sentence.
6. Having regard to the report of Dr Tang as well as the other material, it was contended by Mr Kelly on your behalf that all 6 limbs outlined in Verdins[11] have application in your case. This proposition was sensibly and very properly conceded by Ms Fargher on behalf of the prosecution.
7. I accept that as a result of your intellectual impairment that your moral culpability for the offences is reduced, though only to a limited degree. When interviewed by police you made several false denials, even when confronted with CCTV images from the incident. You were clearly capable of understanding, to some significant degree if not completely, both the wrongfulness of your actions and the consequences that may flow from them.
8. But for your intellectual disability, the gravity of the offending would have required the imposition of a sentence of imprisonment with a head sentence and a non parole period. Your personal circumstances, however, mean that an alternative type of sentence is appropriate in this case.
9. General deterrence must be appropriately moderated, though not eliminated, as a sentencing consideration. Similarly, specific deterrence must be moderated, though your impairment is not such that you are incapable of understanding the consequences of your actions.
10. I take into account that your diagnosis of anxiety and depression will make any period of imprisonment weigh more heavily on you then it would for a person without those conditions. I also accept that there exists some risk that imprisonment will have a significantly adverse impact on these conditions.
11. However, Dr Tang notes that your intellectual disability means you have limited insight into the causes and effects of your offending. Given your prior history and the nature of this offending, protection of the community must be considered.
12. You have previously been issued a Justice Plan as part of the Community Corrections Order you were sentenced to in 2017 and breached in 2019. I intend to again impose a Justice Plan condition that recommends drug and alcohol assessment and treatment. I am optimistic your prospects of rehabilitation will improve significantly should you be able to retain stable housing and access treatment under the Justice Plan. However, it must be said your current prospects of rehabilitation are guarded at best..

1. You pleaded guilty to this offending at the committal mention stage. I consider that plea to be one entered at the earliest reasonable opportunity. By your plea of guilty you have spared the time and resources that would otherwise have been expended on contested proceedings. The utilitarian value of your plea is very significant.v This is especially so in the context of the extreme pressures placed on court listings by pandemic restrictions. This entitles you to a substantial discount on sentence, even though it was not submitted on your behalf that the plea of guilty was indicative of any remorse.

1. The presentence detention already served, and the further period of imprisonment to be imposed today, will be subject to a prison environment that is still more burdensome than would otherwise be the case as a result of pandemic restrictions. Whilst the most onerous of the restrictions upon visits and programs have been relaxed somewhat from the height of the lockdown, the additional deprivations caused by the pandemic likely to remain in place for the duration of your sentence. I take this into account as a matter in mitigation.

1. Mr Kelly on your behalf submitted that, having regard for the substantial matters in mitigation, a Community Corrections Order could adequately reflect all the necessary sentencing considerations.
2. Ms Farger, on behalf of the DPP, submitted that a combination sentence involving a period of imprisonment followed by a Community Corrections Order was appropriately within the range.
3. You were assessed for a Community Corrections Order and were found to be suitable. The order I intend to impose will reflect the conditions recommended by that report, including a Justice Plan.

1. Mr Coyle, I sentence you as follows:
2. On Charge 1, armed robbery, you are convicted and sentenced to six months imprisonment;
3. On Charge 2, theft, you are convicted and sentenced to one months imprisonment;
4. On Charge 3, obtain property by deception, you are convicted and sentenced to three months imprisonment;
5. On Charge 4, armed robbery, you are convicted and sentenced to nine months imprisonment;
6. On Summary Charge 12, commit indictable offence whilst on bail, you are convicted and discharged.
7. On summary charge 13, possess controlled weapon without lawful excuse, you are convicted and sentenced to one months imprisonment.
8. I order that three months of the sentence imposed on charge one be served cumulatively with the sentence imposed on charge 4.
9. This makes for a total effective sentence of 12 months imprisonment, to be followed by a community corrections order of 18 months imprisonment.
10. Pursuant to s 18(4) of the Sentencing Act 1991, I declare you have served 23 days of pre-sentence detention and this time is declared to have been already served.
11. What I am proposing to do at this stage, on Charges 1 and 4 is record a conviction and place you on a Community Corrections Order for a period of 18 months from your date of release from custody.
12. Before I ask if you to consent to such an order being made, I have to tell you about the order.
13. The following Core conditions apply to all Community Correction Orders:

(a) You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.

(b) You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the Order.

(c) You must report to the Community Correction Centre at Melbourne within 2 clear days following your release from custody.

(d) You must notify the Secretary, or his or her nominee, of any change of address or employment within 2 clear working days after that change.

1. You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.
2. You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the Order.
3. There are a number of other conditions attached to this Order:

(a) You must be under the supervision of a Community Corrections Officer for a period of 18 months.

(b) You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee (s.48E).

(c) You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager (s48D(3)(a)).You must attend for review of your progress and compliance or otherwise with conditions of the Order and you have to come back before me 2

(d) months after the commencement of this community correction order. You must comply with the Justice Plan dated 6 April 2022.

1. Now, Mr Coyle, I can only impose a community corrections order if you agree to such an order being imposed. So I will tell you a little bit more about the order. If you contravene or breach that order by committing further offences, you can be charged for an offence, and a sentence of imprisonment is one of the options that can be imposed for a breach of a community corrections order.
2. You can also be re-sentenced for the two armed robberies that are before me. One of the options available is a term of imprisonment. If you commit any further offences that might incur a term of imprisonment during the order, you could be brought back before the court and re-sentenced on the two armed robbery charges. If you fail to comply with any direction of the Secretary of the Department of Justice, that is a community corrections officer, a substantial fine can be imposed.
3. All right. So, Mr Coyle, basically you have got 12 months imprisonment and minus the 23 days that you have already served, and then after that, an 18-month community corrections order on the terms I just outlined then. Now do you consent to the community corrections order on the terms I have just outlined?
4. OFFENDER: Sorry, Your Honour? I couldn't catch the last bit.
5. HIS HONOUR: I was going to say, do you consent to the community corrections order being imposed?
6. OFFENDER: I - I - yes, Your Honour. I have been doing my CISP programs and everything with the house, so - if I get out, I keep doing - do what I gotta do.
7. HIS HONOUR: Yes.
8. OFFENDER: I just wanted to (indistinct) - I just wanted to say this one last thing Your Honour, the reason I didn't show up for court this time is because I was ‑ ‑ ‑
9. HIS HONOUR: That is okay. Do not worry about that, Mr Coyle. We are not worried about that.
10. OFFENDER: Yes.
11. HIS HONOUR: We are just putting it down to a bit of confusion and we are moving on. So do not worry about it. No need to explain. But the bottom line, Mr Coyle, is that you have got 12 months gaol. You have already served 23 days of it, and then after that 12 months, you have got an 18-month community corrections order, and as part of that corrections order you have got to comply with the justice plan. Okay.
12. OFFENDER: Thank you.
13. HIS HONOUR: So are you prepared to consent to the community corrections order?
14. OFFENDER: Yes, Your Honour. Yes.
15. HIS HONOUR: All right. So pursuant to ‑ ‑ ‑
16. OFFENDER: (Indistinct.)
17. HIS HONOUR: Yes?
18. OFFENDER: Exactly how long do I have to spend in gaol before I get out on the corrections order?
19. HIS HONOUR: Twelve months minus 23 days. So about 11 months and one week.
20. OFFENDER: How - how long, sorry?
21. HIS HONOUR: You have got about 11 months and one week to go.
22. OFFENDER: So almost 12 months?
23. HIS HONOUR: Yes.
24. OFFENDER: Okay. Fair enough. Yeah. Cool. Okay. Cool.
25. HIS HONOUR: That is all right. Thanks. Okay.
26. Now pursuant to s6AAA of the Sentencing Act 1991, but for your pleas of guilty, I would have sentenced you to a total effective sentence of three years and three months imprisonment with a non-parole period of two years and three months.
27. The prosecution have made application for the forfeiture of the flick-knife, and that application was unopposed, so I make that order in the terms sought.
28. Is there any further orders I need Mr Kelly?
29. MR KELLY: No, sir.
30. HIS HONOUR: No. Anything, Ms Fargher?
31. MS FARGHER: No, Your Honour.
32. HIS HONOUR: Okay. Thank you both for your assistance.

[1] Contrary to s 75A of the Crimes Act 1958.

[2] Contrary to s 74 of the Crimes Act 1958.

[3] Contrary to s 81 of the Crimes Act 1958.

[4] Contrary to s 30B of the Bail Act 1977.

[5] Contrary to s 6(1) of the Control of Weapons Act 1990.

[11] R v Verdins & Ors [2007] VSCA 102; (2007) 16 VR 269