R v Venios [2013] NSWDC 116

District Court New South Wales

Medium Neutral Citation: R v Venios [2013] NSWDC 116 Hearing dates: 19 October 2012; 31 May 2013 Decision date: 31 May 2013 Before: Berman SC DCJ Decision: Referred for assessment as to his suitability to serve his sentence by way of an Intensive Corrections Order Catchwords: CRIMINAL LAW - Sentence - Robbery - Vulnerable victim - Demonstrating rehabilitation whilst on s11 bond - Protection of the community through promoting rehabilitation Legislation Cited: Crimes Sentencing Procedure Act Cases Cited: R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R. Category: Sentence Parties: The Crown Steve Venios Representation: Ms S Goodwin - Offender Director of Public Prosecutions File Number(s): 2011/362566

Judgment 1I last dealt with the offender Mr Venios in October last year. In the remarks that I delivered that day I described the terrible crime that he had committed with a co-offender Mervyn Hickey. What he did was cruel, nasty and unbelievably selfish. He was short of money, he wanted to get some money and so he and his co-offender took advantage of the extreme vulnerability of a woman who had had the misfortune to win some money on a poker machine. Mr Venios gave evidence today that he was not proud of what he had done and so does not like talking about it. I can quite understand that because this is one of the nastiest offences with which I have ever dealt, taking advantage of the extreme vulnerability of Ms McCaffrey. 2As I mentioned on the last occasion ordinarily that would mean that he would go to gaol and go to gaol for a significant period of time. Indeed his cooffender, whose circumstances differ significantly from that of Mr Venios received a sentence of six years with a non-parole period of three years. But when Mr Venios did appear before me there were suggestions that he was capable of rehabilitating himself. Over the Crown's objection I adjourned the matter under s 11 of the Crimes (Sentencing Procedure) Act in order that Mr Venios could demonstrate rehabilitation to me rather than just promise it. 3I told him that if he wanted to avoid going back to gaol he would need an A grade pass. Over the ensuing period Mr Venios has achieved a great deal. He was not working at the time he first came before me but he soon got a job as a apprentice carpenter and when he lost that job because of a downturn in work, he got a job as an appliance installer with a Retro Vision franchisee. He has that job at present working Tuesday to Saturday, nine to five. A reference from his employer was tendered to me today which speaks highly of his work. He told his employer that he needed this reference for court but did not tell her the nature of the offence for which the reference was required. 4As well as getting a job, Mr Venios did something else I required of him. He has not used drugs and regular urinalysis obtained at his expense has demonstrated that. He also has not committed any further offence. Those three circumstances suggests that Mr Venios has achieved a great deal over the last few months. Madam Crown criticises him for not attending NA meetings every week and for failing to attend a psychological counsellor as often as she would prefer but I accept that a lot of the difficulties with seeing a counsellor arise because of Mr Venios' work and given that he has not used drugs one might be forgiven for thinking that it is less important to go to Narcotics Anonymous than would otherwise be the case. 5Perhaps it is not an A plus pass but he has done more than most people who have been given the opportunity, to demonstrate rehabilitation. 6I do not think I mentioned on the last occasion but Mr Venios pleaded guilty at the earliest opportunity and so is entitled to a discount of twentyfive per cent to reflect that circumstance. He has expressed his remorse and accepted responsibility for what he has done. He gave evidence of that himself and evidence called from his partner and a friend also was to that effect. 7He spent fourteen days in gaol and then ten months in a form of quasi custody. Not all forms of quasi custody are the same. A judge of this Court was recently criticised by the Court of Criminal Appeal for saying that before quasi custody could be taken into account the conditions had to be similar to that of a prison. That is certainly not the case, but some forms of residential rehabilitation involve less restriction on an individual's liberty than others. As I noted on the last occasion Mr Venios was able to leave his residential rehabilitation on the weekend and one day each week. Indeed it was during such a permitted absence that he breached one of the important rules of the facility by getting drunk, a circumstance which became known to the facility when he fell over and broke his arm. That was one of the factors that led to him being asked to leave. Another was that he formed a relationship with a young woman also at that facility. 8In circumstances where the offender was asked to leave residential rehabilitation because of breaches of its rules and in circumstances where the restrictions on his liberty were not as severe as other forms of quasi custody, although I will take into account that matter, it is of less significance than in other cases. 9The offender was twenty when he committed this offence and is now twentyone. A counsellor from the rehabilitation facility was contacted by the Crown and she described Mr Venios as immature and said that dealing with him was like dealing with a twelve year old. Ms Goodwin for Mr Venios got quite upset when that description was given without realising that, at least at that stage, the immaturity of an offender can be an important part in assessing a sentence to impose upon him or her. 10There is no bright line when a person moves from being an immature child to a mature adult. The fact that Mr Venios is an immature person, or at least was a little while ago, suggests that as he matures there is much less likelihood that he will ever commit another offence. He has no other criminal offences on his history, nothing before this offence and as I mentioned nothing after it. The evidence suggests quite strongly that this will be a very isolated and singular breach of the criminal law by Mr Venios. 11Some mention has been made of the guideline judgment in R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R. That judgment came about because of a perception, and indeed the reality, that sentences for armed robbery needed to be generally increased and that there was an unacceptable variation between judicial officers as to sentencing for that offence. What the guideline judgment was never intended to do was to impose a straightjacket on judicial officers. It remains the case that if justice is not individual it is nothing. 12As I have said on more than one occasion the ultimate purpose of sentencing is to protect the community. It is my job to fashion orders which, as far as I can, reduce the risk that other victims such as Ms McCaffrey will suffer from such horrible crimes in the future. It is my job to do what I can to ensure that other people are not harmed as Ms McCaffrey clearly was. Ordinarily that purpose is achieved by imposing lengthy and sometimes harsh sentences. No doubt that is what Ms McCaffrey is hoping will happen to Mr Venios, I probably would in her position too. She, more than anyone else here today, knows how significantly she has been affected by this nasty crime but sometimes, and this is one occasion, attention should be focused more on rehabilitation of an individual offender than deterring other offenders. 13If what I can achieve is a continuation of Mr Venios' rehabilitation, such that he does not commit further offences in the future, then to that extent society benefits. I accept of course that a sentence which focuses on an offender's rehabilitation often does so at the expense of deterring others from committing crimes and so there is of course a balancing exercise as to which approach is most beneficial. In this case I have decided to focus on Mr Venios' rehabilitation because I have drawn the conclusion that that is what will be best for society. It will be noted that I am not saying that is what will be best for Mr Venios. Whether it is or not is somewhat beside the point. It is other people like Ms McCaffrey that I am thinking about when I say that the best approach in this case is to focus on Mr Venios' rehabilitation. 14Taking into account his time in custody and quasi custody has meant that I have reached a conclusion that a sentence of imprisonment of two years or less is likely to be imposed. 15Before I get to that I did mean to mention issues regarding Mr Venios' mental health. This offence was committed at somewhat of a low point in Mr Venios' life. He was going downhill and using drugs to excess which directly led to this offence. He suffers from a number of mental illnesses which together had the effect that his moral culpability for this offence is lower than it would otherwise have been. The relationship between his mental illnesses and his offending means that if his mental illnesses can be dealt with then his prospects for rehabilitation are enhanced. 16I return to the appropriate order in this case. Having determined that a sentence of two years or less is likely, I have also determined that it would be appropriate to assess Mr Venios as to his suitability to serve that sentence by way of an intensive corrections order. 17 The matter is adjourned to 2 o'clock on 9 August 2013. Mr Venios' bail is to continue. He is to cooperate with the Corrective Services authorities in the preparation of the intensive corrections order and he is to continue on the same bail conditions, and that includes of course the regular urinalysis. 18ADJOURNED TO FRIDAY 9 AUGUST 2013 AT 2PM