R v Venios [2012] NSWDC 270

District Court New South Wales

Medium Neutral Citation: R v Venios [2012] NSWDC 270 Hearing dates: 19 October 2012 Decision date: 19 October 2012 Before: Berman SC DCJ Decision: Adjourned under s11 Crimes (Sentencing Procedure) Act Catchwords: CRIMINAL LAW - Sentence - Robbery - Vulnerable victim - Joint criminal enterprise - Co-offenders should ordinarily be dealt with at the same time Legislation Cited: Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown Steve Venios Representation: Ms S Goodwin - Offender Director of Public Prosecutions Sharah Associates - Offender File Number(s): 2011/361566

sentence 1HIS HONOUR: When I sentenced Mervyn Joseph Hickey in May this year I was concerned about the circumstance that I was not sentencing him at the time as his co-offender Mr Venios. The evidence adduced in Mr Hickey's case was that he was the junior partner and that Mr Venios was the person who had led him astray. 2I said this, "Should Mr Venios ever be sentenced for his part I have little doubt that he will claim that he was led into his involvement by Mr Hickey." What I predicted has proved to be accurate. Mr Venios, in evidence today, blamed Mr Hickey for leading him astray. I begin these remarks on sentence that way not to suggest that I will sentence Mr Venios on the basis that he was more heavily involved than Mr Hickey, but to demonstrate yet again the importance of co-offenders being dealt with at the same time 3It was my decision earlier this year to deal with Mr Hickey when I did because at that stage Mr Venios' matter was still in the Local Court and he had not even entered a plea. The result is that I will be sentencing two people on the basis that each of them was less involved than the other. I apologise to Ms McCaffery for this. It is a circumstance that occurs too often in the criminal courts of this State. It is difficult to explain to Ms McCaffery and others why things are done that way. It is nevertheless the ways things have turned out in this case. 4I sentenced Mr Hickey to gaol for six years with a three year non-parole period. That is enough to indicate the objective seriousness of the offence that he committed with Mr Venios. What they did was this. Ms McCaffery was gambling on the poker machines at her local hotel. She had the fortune, or as it turned out probably the misfortune, to win a jackpot. She celebrated with other pub patrons, and was generous in buying them all drinks. She collected her winnings in cash. As the money was handed over, she was watched by Mr Venios. He had come to the pub to drop off his partner and stayed. 5He was associating at that time with Mr Hickey. Mr Hickey decided that he would rob Ms McCaffery. Mr Venios went along with it. Mr Venios claims that his thinking was somewhat disturbed because of his drug addiction and from the drugs that he had taken that day but it was not so disturbed that he was not able to plan the robbery of Ms McCaffery and put that plan into effect. 6Nicer patrons of the hotel, concerned for Ms McCaffery's welfare, escorted her home. Mr Venios and Mr Hickey watched as that occurred, planning to rob Ms McCaffery as soon as she was alone. Ms McCaffery suffers from difficulties with her eyesight. She wears thick prescription glasses. She was wearing those when the money was handed over to her when Mr Venios was nearby. 7Mr Venios claims that he did not know of Ms McCaffery's problems with her eyesight. It probably does not matter that much because he was certainly aware that she was vulnerable. He believed that she was intoxicated as she walked home and as I have said he and Mr Hickey waited until she was alone. She was thus, as Mr Venios well knew, very vulnerable, even if he may not have known that part of that vulnerability extended to her being unable to see things very well. 8Once Ms McCaffery arrived home, the two men forced their way inside. Mr Hickey straddled her and removed money from her pockets, whilst Mr Venios stood by waiting. Mr Venios does not get much credit for the fact that it was not he who actually assaulted Ms McCaffery. Both of them had their roles to play in this robbery; one to do the actual work of removing the money from Ms McCaffery's pockets and the other to stand guard. This was a joint criminal enterprise where they each had their role and performed it. 9The harm that Ms McCaffery suffered was significant. Not surprisingly, she has been deeply affected by the experience. Part of the harm she has suffered results from the fact that she had earlier been the victim of an even more serious offence, so this attack by the two offenders, Venios and Hickey, compounded the experience of having been the victim of that earlier, more serious offence. 10Mr Venios then went away and spent his money on drugs. He was arrested by the police and falsely denied that he was involved in the offence, and when he was shown CCTV footage of him committing the offence, denied that it was him. He gave evidence today that he was remorseful but that those feelings of remorse obviously did not come upon him until after he had been in custody for a while and had come down off the drugs that he was using. 11After two weeks in custody he was granted bail on condition that he attend a residential rehabilitation program. One of the things that Ms Goodwin will ultimately rely on is what she called 'quasi custody' through the offender being required to stay at the residential rehabilitation program. 12Submissions to that effect are often made and usually accepted. In this case however I learned a bit about the conditions of the residential requirement. Mr Venios was able to leave on weekend leave, and spent another day during the week absent from the program. The impact of that form of quasi custody on the sentence that I will ultimately impose on Mr Venios is significantly reduced. Indeed, it was on one of his permitted absences from the program that he got drunk, in breach of the rules of course, fell over, and broke his arm. It was that injury that alerted staff at the program to his intoxication. 13It was for that reason, as well as for another reason that I will shortly describe, that he was discharged from the program relatively recently, on 25 September. The other reason for discharge is that, in breach of rules that he was fully aware of at the time that he entered the program, he formed a relationship with another person at the program. That relationship continues to this day. 14In circumstances where Mr Venios must have known that he was facing a full-time gaol sentence and that one of the things that might be used to argue that he should not be returned to gaol, was successful completion of a residential rehabilitation program, his decision to breach the rules in those two ways is difficult to understand. The idea that he cannot comply with rules of a residential rehabilitation program speaks in a significant way as to the prospects of him rehabilitating himself. 15I note, however, that the offender has no other criminal history. He is now twenty-one years of age and has in the past been able to work. It was his use of drugs, starting with ecstasy and then moving to ice and cocaine, which led to him working less, and ultimately led to this offence. 16Were I to sentence Mr Venios today I have little doubt that he would be going back to gaol. He has not, to my mind, demonstrated rehabilitation. What I am concerned about is not so much whether he drinks or not, and even whether he uses drugs or not. That is not of any great moment to me. What I am concerned about is the prospect that he will commit further offences, perhaps while drunk, perhaps as a means of getting his drugs. To put matters bluntly, I do not care really how much he harms himself. What I do care about is whether he will harm others in the community as he has harmed Ms McCaffery. 17Ultimately the main purpose in sentencing is to protect the community and to protect its members from criminal offending. Sometimes that is achieved by the imposition of harsh sentences. On other occasions that is achieved by promoting the rehabilitation of an offender. If, through a Court order, an offender can move from being a person who harms the community by committing offences, to become a person who is productive and worthwhile and most importantly does not harm people by committing offences, then that is a good result. 18Sometimes, as I have said, protection of the community is best achieved by harsh sentences of imprisonment. But that is not always the case. There are some prospects for Mr Venios' rehabilitation. If he is able to demonstrate rehabilitation then that will be an important matter in me deciding, firstly whether to send him back to gaol and secondly, if I do, how long the sentence should be and thirdly, if I do not, what other form of punishment should be imposed upon him. I therefore will be adjourning this matter under s 11 of the Crimes (Sentencing Procedure) Act to 31 May 2013. 19This will enable Mr Venios to demonstrate to me things he has not yet demonstrated. The gravity of this crime, as is obvious, is enormous, and many in the community - and I am sure Ms McCaffery is one of them - would be thinking that it could only be dealt with by way of a full-time custodial sentence. 20That may well eventuate but I would like to have further information as to Mr Venios' prospects of rehabilitation, as to whether Mr Venios has demonstrated rehabilitation, before I decide on the appropriate sentence. 21The conditions of Mr Venios' remand are these; he is to use no drugs. He is, at his own expense, to arrange urinalysis at least twice a month in order to prove that he is not using drugs. He is to be of good behaviour. He is to make substantial efforts to obtain employment. If he succeeds in getting a job he is not to leave that job voluntarily unless in the most extreme circumstances. 22He is not to approach Ms McCaffery and should there occur a circumstance where Mr Venios finds himself in the same location as Ms McCaffery he is to immediately leave. 23He is to appear before me on 31 May next year when I will sentence him. I will order a pre-sentence report for that occasion. 24I request a report from the Salvation Army as to Mr Venios' recent stay and any future rehabilitation he may undertake with them. 25Mr Venios, you more than most, have a lot of work to do. It is in your interests to come back before me on the next occasion, if I can put it this way, with an A grade pass in everything you have done. Some other people who have committed less serious offences might get away with a little bit of rehabilitation. You unfortunately do not have that luxury because your offence was so serious what you have to do now is, as I have said, an A grade pass in everything you do. Do you understand that? 26OFFENDER: Yes your Honour. 27HIS HONOUR: And that includes getting a job, keeping a job, it includes studying if you need to, it certainly includes not using any drugs. If there is the slightest problem in any way with any of those conditions of bail there will be only one result, an immediate and inevitable result and that is that you will be going to gaol for a long time. Do you understand that? 28OFFENDER: Yes. 29ADJOURNED TO FRIDAY 31 MAY 2013 AT 2PM