DPP v Haass [2022] VCC 1800

Bail Act 1977 which carries a maximum penalty of three months' imprisonment or 30 penalty units, which is summary charge 5.

1. The full circumstances of your offending are set out in an agreed summary of prosecution opening tendered on the plea. The offending occurred on 5 January 2022. On this date the victim, Mr Raj Jain Koyakkude, was working at the 7-Eleven service station located at 42 McMahons Road, Frankston and was the only employee present. At 6.15 am you entered the store and approached the service counter. You were wearing a grey and black Nike brand jumper with a hood, face mask, black pants and white shoes.

1. You walked directly to the countertop and produced a red short knife from the front pocket of your hooded jumper. Upon producing the knife you stated, 'Give me all the smokes'. Mr Raj Jain Koyakkude responded, 'You know I can't do that'. You repeated, 'Give me the smokes', and then started banging the counter with your fists. The victim asked you which smokes you wanted and you repeated your demand for all the smokes.

1. You retreated towards the door before coming back to the counter top and saying, 'I'm asking you for the last time, are you going to give me the smokes not?'.

Mr Raj Jain Koyakkude continued to refuse your demands and you eventually gave up and left the store. The victim called the police. The incident was captured on CCTV.

1. Police attended and conducted a forensic examination of the 7-Eleven store. The CCTV depicted you placing your left hand on the glass countertop. As a result, investigators obtained three separate latent fingerprints from the counter consistent with where you had placed your hands during the attempted armed robbery. Subsequent forensic analysis of those fingerprints identified that they matched your prints.

1. As you left the service station and ran from the premises, a witness observed you enter a vehicle that was parked halfway up the nearby laneway. Examination of CCTV from neighbouring businesses revealed that upon exiting the service station you ran back to a black Ford Ranger dual cab utility, entered the driver's seat and drove away. At the time you had been disqualified from driving.

1. Later on 5 January 2022 at 8:00 pm police attended at your home in Frankston South. They observed a black 2015 Ford Ranger utility parked in the rear of the property. This vehicle matched that depicted in the CCTV footage.

1. On 7 January 2022 police officers returned to your home and executed a search warrant. You were arrested in a detached bungalow at the rear of the property. Police also seized items consistent with those observed on the CCTV at the service station including clothing and a red Milwaukee brand folding knife located on a bedside table. You were conveyed to Frankston Police Station where you participated in a record of interview. You were cooperative and made admissions.

1. You told police that you did not remember a whole lot of the incident as you were high on ice, alcohol and Seroquel of which you had taken five or six earlier on the night of the offending. You admitted to driving your father's vehicle to get to the service station. You said you do not know why you went there and you cannot remember pulling a knife and demanding cigarettes. You told police the Milwaukee knife was for work. You said you had been using drugs heavily for the past two years.

1. At the time of the offending you were on bail for charges of possession of a drug of dependence (methylamphetamine) and commit an indictable offence whilst on bail. You had been bailed from the Frankston Police Station on 6 August 2021 to appear at the Frankston Magistrates' Court on 24 January 2022.

1. You have admitted a prior criminal history. Specifically you have a previous appearance at the Frankston Magistrates' Court on 16 April 2021 for offences involving driving, including drive whilst disqualified, theft and property damage. On that occasion you were convicted and placed on a community correction order for a period of 18 months with conditions including treatment and rehabilitation with respect to your drug use. It would appear that this offending breaches that community correction order.

1. You were charged on 7 January 2022 and remanded in custody. On 28 February this year you were released on bail. The matter resolved at a committal mention on

1 April 2022. It is therefore a plea of guilty at the earliest opportunity.

1. Your personal circumstances were set out both in written submissions filed and during the plea. You are now 29 years old. You are the youngest of two children born to Carmen and Peter Haass. You have a good relationship with both of your parents and your older sister who lives in Italy. You grew up in a supportive, loving home raised by two hardworking parents.

1. You graduated from Frankston High School having completed your VCAL. As a student you preferred practical hands-on work to theory and structured study. As part of a training scheme you obtained a TAFE qualification in building and construction. You then undertook a plumbing apprenticeship for two years but you were asked to leave the company due to issues related to your escalating drug use.

1. You then pursued concreting and you currently work as a concreter for a company

Bay 2 Bay. Your employer regards you as a committed and talented worker.

1. Regrettably you were introduced to drug use by your peers in your late teenage years and began casually using cannabis, which quickly developed into a weekly consumption of MDMA. You became addicted to methylamphetamine at the age of 19. Over the next three years your occasional use escalated to daily reliance on ice. You managed to cease using drugs when you met your ex-partner Emily when you were aged 22. There was a period of approximately five years in which you managed to remain abstinent and during this period, you focused on your employment with a view to buying your own property, which you did in 2019. However, later the same year the relationship with Emily unexpectedly came to an end. This had a significant impact on you, which you recognise lead to deterioration in your mental health and you reverted to using drugs daily in order to manage your emotions. As a result of your drug use, you lost your employment.

1. In August 2020 with the support of your parents you attended the Malvern Clinic's residential rehabilitation program in an effort to address your drug dependence. However, you found this experience confronting and unfortunately left after two weeks. You returned home and to your credit you did manage to remain abstinent for a period of five months.

1. In 2021 you were forced to sell your house after being unable to meet your mortgage repayments and so returned to reside with your parents. During this time you were diagnosed with major depressive disorder and prescribed Lexapro, but after a period of infrequent adherence to medication you ceased using it all together.

1. In the months prior to the offending you relapsed and recommenced drug use. Over the holiday period in early January 2022, your mental health worsened. The casual concreting jobs had ceased over December and January and you found yourself at home alone. You had resumed contact with negative peers and at the time of this offending you were using drugs, drinking and taking Seroquel daily. Since your arrest you have abstained from drugs.

1. You spent 53 days on remand before being bailed in February this year. This was your first period in custody. You found this experience both traumatic and confronting. You found it especially difficult during the extended periods of isolation and lockdown. As a consequence of the COVID-19 pandemic you did not have the opportunity to receive in-person visits from your family; you had limited access to courses and educational opportunities; there was restricted movement within the prison and you had been subjected to 14 day isolation upon entry into the prison and as a consequence of an outbreak of the virus whilst you were in custody at

Port Phillip Prison. Nevertheless, you managed to use the time productively by engaging with a custody nurse to resume medication and obtained employment within the prison in the kitchen and as a horticulture billet six days a week.

1. You are very fortunate to have the support of your family. In the eight months since you were granted bail you have not committed any further offending and you proactively organised to attend the Malvern Hospital's residential rehabilitation program, where you resided for five weeks and committed yourself to full-time rehabilitation. It was not a court mandated placement and so to that end, your counsel,

Mr De Witt, does not submit that principles in Akoka v R[1] have application here. However, it does seem as if there were onerous conditions and I take the fact of this rehabilitation into account as part of my instinctive synthesis.

1. After completing this program you returned to your family home and continued working hard on reforming yourself. You continued to participate in the Malvern Clinic's outpatient program in the months that followed. Tendered on the plea was a letter from the Malvern Private Hospital confirming that you were both an inpatient and that you then attended the outpatient day program.

1. You have attended on a clinical hypnotherapist, Perri Curtis, for treatment every three weeks. In a letter to the court, Ms Curtis describes you as a respectful and motivated patient who seems determined to achieve positive life changes.

1. Additionally, since being granted bail you have remained compliant with your medication, you have ceased all contact with negative peers and importantly you have maintained abstinence. You have a new partner, Stacey who, along with your parents, has encouraged you in your efforts at rehabilitation.

1. Meanwhile you have continued to complete the community correction order, which recently expired on 16 October 2022. Your counsel submitted that your worker,

Ms Erica Ray from Frankston Community Correction Service has indicated that you completed the alcohol and drug treatment component of the order. An email from

Ms Ray was tendered this morning. You have completed seven urine screens since being released and they have not produced any positive results for illicit substances. She has noticed a significant improvement in your attitude since you completed the

Malvern Clinic program. You have been making decisions focused on longevity, to the extent that you have balanced your employment with your obligations to complete the CCO in such a way as to be able to manage your stress, rather than just focusing on your income.

1. Although breach proceedings will be initiated due to this offending, Ms Ray intends to note your meaningful progress in her contravention report. Unfortunately you have not completed the unpaid community work. Your counsel submits that this is in part due to you choosing not to participate in the easier option that was available to you to complete the hours quickly, but may have exposed you to negative influences.

1. A report from clinical psychologist, Carla Lechner dated 19 September 2022 was tendered on the plea. Ms Lechner saw you in both June and September this year. In her opinion you present with symptoms consistent with stimulant and alcohol use disorder, in early remission and most likely an adjustment disorder with depression reactive to a long term relationship breakup. However, she considers that you present with a very favourable prognosis for ongoing recovery from drugs, alcohol and mental health problems. She recommends that you maintain your current compliance with medication and continue with counselling. It is submitted that this counselling support is unlikely to be available in a custodial setting. In Ms Lechner's opinion, a return to custody would not only undermine your rehabilitative gains but could also trigger a relapse to depression.

1. You have purportedly expressed deep remorse and shame for this offending. Ms Lechner notes that you have demonstrated a meaningful level of reflection on the impact the offending would have had on the victim. She notes that you did not attempt to minimise your actions and you expressed a level of empathy for the victim.

1. A number of character references were prepared by your parents, partner and friends, and were tendered on the plea. Your father, who clearly has only your best interests at heart, along with your mother describe the loving and supportive environment that they continue to provide for you. Your father notes that you continue to work hard and now take pride in your health and well-being. He has described the efforts that you have made to rehabilitate yourself since your release from custody. Your mother, Carmen, gave evidence in court and stated that your experience in jail was a huge wake-up call for you. She states that have taken your rehabilitation very seriously. She describes you as a good family person who is moral, reliable, honest and extremely hardworking. You have expressed to her how sorry you are for what you have done.

1. Your girlfriend, Stacey Jennings, with whom you have been in a relationship since

May this year, describes that from the outset you were honest and completely transparent about your past including this offending. She states that you have made so many changes to help yourself recover whilst simultaneously working full-time. You are said to be committed to changing your life and to putting your past mistakes behind you. According to Chaise Tedge, who has been friends with you from the age of 15, there has been a complete change in your behaviour and a determination to remain abstinent from drugs and alcohol.

1. Your employer, Ashley Kuegler from Bay 2 Bay Concreting, who is well aware of your past history, also provided a character reference for you. He describes you as an honest and conscientious worker with a strong work ethic who is hardworking and takes pride in managing your jobs in a timely manner and to a high standard. You are said to be a key figure within the business and you hold a crew leader position where you manage a team of four concreters. Mr Kuegler describes your work environment as a supportive one.

1. You are indeed fortunate to have so many people who are supportive of you.

1. The offence of attempted armed robbery is, by its very nature, serious. This is reflected in the maximum penalty applicable. The only difference between the offence of attempt here and the substantive offence is the fact that you were unsuccessful in obtaining the cigarettes that you demanded. Although the offending was relatively unsophisticated and there is little evidence of premeditation, you nonetheless attended at the service station armed with a folding knife which you carried in your pocket. The knife was easily accessible and you physically wielded it at the victim. You targeted a service station in the early hours of the morning when Mr Raj Jain Koyakkude was working alone and was therefore vulnerable.

1. The CCTV footage of the incident has been tendered and it appears from the footage that you were behaving erratically, which is perhaps a clear reflection of the fact that you were substance affected. However, this also meant that your behaviour was unpredictable. Although there is no victim impact statement, it is not difficult to imagine that Mr Raj Jain Koyakkude would have felt fearful. A person going about their day and working should not have to be subjected to that sort of fear while simply trying to earn a living. I accept that the offending was of short duration and you left fairly soon after you realised that your demands were not going to be met. What motivated you to commit this crime is unclear. It seems that you were seeking to feed your addiction though as you have no real recollection of your behaviour, there is no likely answer. As I said during the plea, it seems a very silly and senseless way to ruin your life and the lives of others who care for you.

1. You entered a plea of guilty at committal mention. I accept that it is a plea of guilty at the earliest opportunity. Your plea demonstrates an acceptance of responsibility for your offending, a willingness to facilitate the course of justice and your remorse. It has saved the court and the community the time and expense of a trial and spared witnesses from giving evidence. You also indicated your guilty plea during a time when the work of the courts was placed under increasing strain leading to lengthy delays. In this regard, your plea carries a greater utilitarian benefit and leads to an actual and palpable amelioration of sentence.[2]

1. Carla Lechner considers that you have positive rehabilitation prospects for the reasons she has outlined. Namely your positive family support, employment, engagement with treatment and services, insight into your offending and given your experiences in custody, coupled with your lack of violent prior convictions. Corrections have assessed you as being a low risk of reoffending.

1. The fact that you managed to remain abstinent for many years from the age of 22, for

five months in late 2020 and in early 2021, and again these past eight months, suggests that you are capable of remaining drug free. In light of your extensive efforts at rehabilitation, coupled with your insight into your offending and your remorse for your conduct, I do consider that you have very reasonable prospects of rehabilitation. Of course all of this will be contingent on you remaining abstinent and getting the support you need.

1. The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In determining an appropriate sentence I must have regard to these sentencing principles and I am required, pursuant to the Sentencing Act 1991, to take into account various factors when formulating an appropriate sentence including the gravity of the offending, your culpability, the effect on the victim and your personal circumstances.

1. I am to have regard to principles of parsimony and I do so. I must also have regard to totality. I note that you were on bail at the time of this offending and also on a community correction order. The fact you were on a community correction order is an aggravating feature. Because you were on bail when you committed these offences, there is a presumption that any sentences imposed will be cumulative unless otherwise stated. Here, I do not propose to order any cumulation for this offending.

1. I must have regard to current sentencing practices. The prosecution provided me with some comparable cases where attempted armed robberies were carried out in similar circumstances. In each of these cases the offenders received a term of imprisonment. As your counsel pointed out, these sentences were delivered prior to the COVID-19 pandemic and accordingly they are absent some of the sentencing considerations that now apply. They also contain some different features such an accused with a much lengthier prior criminal history.

1. General deterrence is an important sentencing consideration. Other members of the community must understand that the courts will not tolerate violent attempts to rob soft targets such as convenience stores and service stations.

1. In the matter of R v Lee[3], Vincent JA emphasised the seriousness with which offences in relation to 'soft targets' will be viewed.

Such persons as taxi drivers and those who work in service stations, convenience stores or small family businesses are extremely vulnerable and are clearly entitled to the full protection of the law. That protection of the law means that the principle of general deterrence assumes considerable significance.

1. There is a need to protect the community from those who carry out the sort of offences for which you have pleaded guilty. Just punishment and denunciation must also be given primary consideration.

1. In this case, there is a need for specific deterrence given that you have a prior criminal history, albeit there are no previous appearances for violence or armed robberies. Your prior conviction for theft concerned you stealing items from a service station, and to that end, this offending seems to be an escalation of your offending. I am also concerned that you have previously breached a community correction order, however it does seem that since April this year you have been far more motivated and engaged. The sentence imposed must deter you from further crimes.

1. Mr Haass, I hope that you, now that have been drug free for eight or nine months, that you appreciate how this offending impacts others. First and foremost it affected the victim. Secondly, it has also affected your family. You are 29 years old. Your partner and your parents should not have to be writing character references for you anxiously wondering whether their son is going to be going to gaol. You have seen your mother get into the witness box and give evidence about how she feels like she has now got her son back. She is optimistic that she has and I hope she is right but it is really all up to you from now on.

1. To your credit you have really done a lot to justify your family's faith in you. It is impressive that you were able to recognise, after a stint in gaol, what a terrible and destructive path drugs can take you. The fact that upon accepting you had a problem, that you took steps to rehabilitate yourself, by arranging residential rehabilitation and then continued with that program as an outpatient, does indeed suggest that you now have some insight into your offending. You appear to be genuinely committed to remain free from drugs. No one suggests that this is an easy thing for you to do and no doubt you will have some challenging moments. It is important, however, that you remember where the other pathway might lead you.

1. The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated.

1. To that end, your counsel has submitted that a community correction order with suitably tailored conditions is capable of meeting all competing sentencing purposes. That such an order would enable you to continue to work on your rehabilitation which better assists the community in the long run. It is submitted that a further period of imprisonment may have adverse consequences on your prospects of rehabilitation. The prosecution here submits that a combination sentence is within range. I have had you assessed for a community correction order and you have been deemed suitable with a number of conditions recommended. Supervision is not recommended as a condition. A Mental Health Advice and Response Service (MHARS) report has been prepared by registered nurse, Gregory Lane and it is recommended that you undergo mental health treatment.

1. The question is whether, having regard to the seriousness of the offending, you should receive a further term of imprisonment in conjunction with a community correction order. Having carefully considered the matter, I am of the view that sentencing you to a further term of imprisonment may have a deleterious effect on your road to recovery. I am of the view that given your progress to date, the community is best served by you remaining outside of the custodial environment and continuing with your rehabilitation. I therefore propose to sentence you to what, in effect, will be the time that you have already served in custody followed by a community correction order.

1. As the Court of Appeal noted in Boulton v The Queen[4], a community correction order 'may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment'.

1. On the charge of attempted armed robbery, you are convicted and sentenced to

53 days' imprisonment to be followed by a community correction order for a period of

1. There are a number of core conditions attached to the community correction order which I will go through in a moment.

1. Pursuant to section 18 of the Sentencing Act 1991 I declare 53 days pre-sentence detention as time already served to be deducted from the sentence that I have imposed.

1. What that in effect means is that you have already served the 53 days. You will not be going into custody today and so your community correction order will commence immediately.

1. Now there are a number of core conditions attached to a community correction order.
   • You must not commit any other offence punishable by imprisonment during the two year period.

• You must comply with any and all obligations or requirements.
• You must report to and receive visits from Corrections.
  • You must report to your local Community Corrections Centre, which I believe is in Frankston, within two clear working days from today. I strongly suggest you make contact with them today.
  • You must let a Community Corrections officer know within two working days of a change of address or job.
• You must not leave Victoria without first getting permission.
• Finally, you must obey all lawful instructions from Corrections.

1. They are the mandatory core conditions that attach to any

1. In addition to that, I am attaching a number of other conditions as follows.
   • You must perform 200 hours of unpaid community work over two years.
   • You must undergo treatment and rehabilitation for drug and alcohol use.
   • You must undergo treatment and rehabilitation with respect to your mental health.

1. I am going to allow that 150 hours of treatment and rehabilitation can be counted as hours for the purposes of the unpaid community work condition. Your counsel will explain to you what I mean by that but essentially of that 200 hours you can use

150 hours of treatment and rehabilitation towards the unpaid community work component.

1. If you were to breach any conditions of this order, if you were to decide not to do the work or the rehabilitation component for example, if you committed any further offences, then it is likely you would be brought back before me on a breach and I would need to re-sentence you for this offending.

1. In relation to the summary charge of driving whilst disqualified, I am going to fine you the sum of $500 with conviction. Pursuant to section 89 of the Sentencing Act I have the option of making an order suspending your driver's licence. I understand that you have already been prohibited from driving until March next year.

1. Your counsel submits that you have not been driving and you rely on a colleague at work to take you to and from your employment. I have decided not to make any order with respect to your licence. I consider that it will be important for you to be able to attend appointments and be independent at work and to that end you will need your licence.

1. Regarding the summary charge of committing indictable offence whilst on bail, I am also imposing a fine in the sum of $250 with conviction. So the total fines will be $750.

s6AAA

1. Pursuant to section 6AAA of the Sentencing Act I indicate that but for your plea of guilty, had you gone to trial and been convicted, I would have sentenced you to a term of imprisonment for 21 months, with a non-parole period of 12 months.

1. Finally I make the order for disposal, which is unopposed, in relation to the knife and the items seized.

1. Mr Haass, you have really made very good progress. Ordinarily, as I have said, people in your position would find themselves having to serve a longer period in custody. You are not going to gaol. I urge you to do the best that you can to comply with the community correction order and I have no doubt that there might be some difficulties but you have clearly made good progress. So I wish you the best and you very fortunate to have a lot of supportive people around. Not everybody is as fortunate as you are.

[1] [2017] VSCA 214.

[2] Worboyes v The Queen [2021] VSCA 169.

[3] [2006] VSCA 80.

[4] [2014] VSCA 342; (2014) 46 VR 308.