[2019] VCC 1247 (05 August 2014) (Her Honour Judge Hampel)
[2014] VCC 1247
•6 August 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00992
| DPP |
| V |
| RICKY WILSON |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 August 2014 | |
DATE OF SENTENCE: | 6 August 2014 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2019] VCC 1247 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D. Hogan Ms S. Izaacs (for sentence) | OPP |
| For the Accused | Mr J. Kantor | Theo Magazis & Associates |
HER HONOUR:
1 Cannabis, amphetamines, alcohol and idleness are a bad combination, and this is yet another case where such a combination brings a young person into the criminal justice system facing serious charges and the real prospect of a term of imprisonment.
2 Ricky Wilson, you have pleaded guilty to one charge each of trafficking in a drug of dependence, criminal damage, and armed robbery, and to an uplifted summary charge of possess a prohibited weapon. The offending the subject of the three charges on the indictment occurred on a Friday and Saturday in February of this year. Police located the weapons the subject of the uplifted summary charge during the execution of a search warrant at your home a few days later.
3 On 21 February this year you were contacted by the victim, Ms Rizza, about the possibility of obtaining drugs from an associate of yours, Tristan. You and Tristan met Ms Rizza at a service station that afternoon and she purchased 1.7g of methylamphetamine, at a cost of $650. She paid you $450, and it was agreed between you that she would pay you the remaining $200 later that day. The three of you met at a supermarket later that evening where Ms Rizza paid the outstanding $200. She purchased another 1.7g of methylamphetamine, and she paid $250 for this second purchase, agreeing to provide you with the balance of $400 later that evening. It is these two transactions of selling the two lots of 1.7g of methylamphetamine that is the subject of Charge 1, trafficking in a drug of dependence.
4 The following day, Saturday 21 February, you began texting and calling Ms Rizza as she had not paid you the $400. She only responded once, telling you she did not have the money to pay you and that she would come and see you once she had made a few sales. You contacted a friend of yours, a Mr Pritchard, and told him that Ms Rizza owed you money. He then contacted another person, a Mr Cerda, who also knew Ms Rizza, and asked Mr Cerda to get in touch with her. At about 10 pm that night, he sent her a message saying he wanted to buy methylamphetamine from her. That was conveyed back to Mr Pritchard who then told you that Mr Cerda was meeting Ms Rizza at a milk bar to purchase some ice. You then made contact with Mr Cerda, and the two of you, that is you and Mr Cerda, agreed that Mr Cerda would text you when Ms Rizza arrived at the milk bar as arranged to buy the methylamphetamine.
5 In accordance with the agreement Mr Cerda did send you a text when Ms Rizza arrived in her car at the milk bar.. You were lying in wait there. You had a small wooden bat with you. When you got the text you walked up to the car that Ms Rizza was sitting in and smashed the driver’s side window with the bat. You opened the driver’s door and pulled her from her car. You screamed at her, asking her for your money, and you struck her with the bat. She was understandably petrified, and was screaming at you words to that effect. You then got into her car and drove off. A number of her personal items were in the car at the time, including two laptops, two mobile phones, an iPod, her handbag and her wallet.
6 The smashing of the car window is the offending the subject of charge 2, criminal damage, while charge 3, the armed robbery charge, relates to the pulling of Ms Rizza from the car, striking her with the bat, having already induced fear by the striking of the window with the bat, and then driving off in her car with her possessions.
7 It was three days later on 25 February that Ms Rizza's car was found. Your fingerprint was found on the driver’s side mirror. A search warrant was executed at your house later that day and you were arrested. In the course of executing the warrant, police seized some of Ms Rizza’s belongings that were in the car. Police also found a number of weapons, including the bat, nun chucks, a night stick, and a meat cleaver. Possession of these weapons is the subject of the uplifted summary charge of possessing prohibited weapons.
8 You were interviewed following your arrest on 25 February and made a "no comment" interview. You were charged and remanded in custody. You spent 20 days in custody before being released on bail on 17 March this year. Although you made a "no comment" interview, by the time of the committal case conference on 4 June 2014 you had indicated your preparedness to plead guilty to the charges now before me, and the matter was therefore fast tracked and finds its way before this court now. I accept this as a plea of guilty at the earliest possible stage and that you are entitled to the full benefit of that.
9 This was a terrifying experience for your victim, Ms Rizza, and her victim impact statement makes that clear. She describes you as a friend, whether it was a friend independently of your shared drug association or not does not really matter. You were someone she knew, someone she had had dealings with, someone that she had come to think she could trust, and she was and continues to be distressed by the fact that somebody who she thought of as a friend had turned into what she described as "such a monster." She continues to suffer flashbacks and nightmares about what happened and feels frightened as she goes about her daily life activities. She is frightened in her home, and she is frightened when she goes to the milk bar just down the road from her home. It may be an irrational fear because, from your perspective, you have repented what you have done and you have not approached her, but it is nonetheless a very understandable response to somebody she knew and she had had dealings with turning on her in the way you did.
10 One of the things she says in her victim impact statement is this: "I don't think there is any excuse to make somebody assault another person, especially when I was helpless and didn't retaliate, and then take everything they had." That is something that I want you to reflect about. It is not just the drug-driven or alcohol-driven attack on somebody who owed you what was in fact a relatively small amount of money, it is the turning on somebody for something so minimal, attacking somebody defenceless and helpless, and who was putting up no resistance.
11 Ms Rizza has been referred to a psychologist, Peter Tate, who has had considerable experience in dealing with people who have suffered from traumatic events. He has administered some well-recognised tests to evaluate her level of response, and given his experience in dealing with people exposed to traumatic episodes, his opinion can be given considerable weight. The responses that Ms Rizza gave indicate to Mr Tate, the psychologist, that she clearly meets the diagnostic criteria for chronic post-traumatic stress, and that the effect of the armed robbery and the assault on her have had a significant impact on her. He considers that she will need 12 months worth of counselling over about 20 counselling sessions during that time to assist her to deal with and to recover from the traumatic stress that she is suffering.
12 That is something, too, I want you to reflect about, that she continues to suffer from what was a totally unjustified loss of temper and attack upon her on that night. The effects of these so-called spontaneous actions are long lasting on victims, and that is clearly something that not only you should reflect about but something I take into account as a matter relevant to the assessment of the seriousness of the offending.
13 It is clear that subject to consideration of matters personal to you, denunciation, deterrence and just punishment are important sentencing considerations.
14 As was rightly put by Ms Hogan, the prosecutor, on the plea, this was a terrifying experience for Ms Rizza and there was a degree of planning in the offending. Those who think of acting in a like manner must understand that they will be punished if they do engage in such conduct. The fact that this was over collection of a drug debt adds to the seriousness of the offence rather than mitigates it.
15 You report a considerable history of abuse of cannabis, alcohol and amphetamines. Your childhood was disrupted. Your parents had a volatile relationship and you left school young, not having completed Year 8. You are, however literate, have your forklift licence, and you have worked for periods since leaving school, mainly as a warehouseman. Your employment, consistently with your early school leaving and lack of formal qualifications, has generally been casual and short term and I suspect at times it has been interrupted by your substance use or a general sense of aimlessness. You have a limited criminal history: in 2009 you were dealt with for driving offences and in 2010 you were dealt with in the Magistrates Court for criminal damage, assault with weapon and possess a dangerous article in public.
16 There is clearly a linkage between the 2010 offences, similar type of offending, although perhaps for a different motivation compared to these I need to deal with. The 2010 offences were, I was told, committed when under the influence of alcohol, and involved retaliatory anger. You were placed on a Community Based Order on that occasion, and I was told that you breached that both by committing further offences and by non-compliance. It appears that that Community Cased Order was allowed to lapse, and that you were not charged with breaching it. You, however, failed to appear at court to answer the subsequent charges, the ones that constituted charge breaches of the community based order, they being three charges of drive whilst disqualified, and one of drive an unregistered vehicle.
17 Following your arrest on these charges, you spent 20 days in custody before being released on CISP bail on strict conditions. By May of this year, you had been dealt with for those outstanding driving offences, that is outstanding since 2011, and with a charge of fail to answer bail in respect of those. Since your release on CISP bail, your compliance with it, your demonstrated commitment over the time between your release on CISP bail and your being dealt with by the Magistrates Court in May of this year for those old offences, your demonstrated commitment over that period to addressing your substance abuse and behavioural issues, your guilty plea and your family support persuaded the magistrate to place you on a nine-month Community Correction Order, with conditions of drug and alcohol counselling and treatment, and psychological assessment and treatment. In effect, the Community Correction Order conditions were similar to the treatment conditions of your CISP bail, and your compliance with the Community Correction Order conditions has also been very good. The referral, initially on CISP bail, to a doctor which led to your being referred to a psychologist and your being prescribed seroquel, a mood-stabilising drug, has obviously had a significant effect on you in controlling your mood and in making you prepared to engage with continued counselling both on a psychological level in respect of drug and alcohol abuse, and has modified your behaviour, in particular your anger responses.
18 The charges to which you have pleaded guilty before me represent the most serious offending that you have committed. It is the first time you have been in this court and it is the first time that you have been in custody. I accept that all of this has been a salutary and a sobering experience for you, and the appreciation that you are facing more serious charges, that you are moving up in the court hierarchy and that you have had your first experience of custody has all helped to motivate you to mend your ways. You acknowledge a history of addiction to alcohol and other illicit substances, and at the time of the offending you were struggling with drug use, particularly abuse of methamphetamine and cannabis.
19 It would appear from the psychological report of Mr Hobbs, the psychologist to whom you were referred initially under your CISP bail but under whose care you have continued, as well as the two CISP reports tendered on the plea, the entry and the exit reports, that you have taken time to reflect since your remand to acknowledge the effect of your drug and alcohol habits on your behaviour and on your life, and you have taken steps to confront that. I am satisfied on the material before me that you have engaged well with rehabilitative services made available to you. The CISP reports show that you are prepared to try to address the behaviour the drug abuse that led to your offending. Both your counsel, Mr Kantor, and the prosecutor, Ms Hogan, told me that they had been given positive reports by Ms Miletic, the person supervising your current Community Correction Order at Sunshine Community Corrections Office, and she spoke well about your efforts and behaviour since being placed on that CCO in May.
20 As was rightly acknowledged by Mr Kantor on your behalf at the plea, your drug abuse is no mitigating factor in respect of this offending, and does not excuse your behaviour.
21 You are fortunate to have good family support. That is a factor which is also encouraging when considering your prospects for rehabilitation. You are currently living with your partner and your family, with your father, and were supported by your partner in court at the plea hearing. Your partner is currently 15 weeks pregnant with twins, the two of you have a nine month old, and her two other children under 10 also form part of your household and your family.
22 You have, therefore, I consider, despite the disadvantages and the substance abuse history, nonetheless, what should be regarded as reasonable prospects for rehabilitation. The history of engaging in work, the family support and the positive steps that you have taken and maintained in respect of your rehabilitation since being charged all bear significantly on that.
23 Importantly, in my view, your conduct since your release has shown that you can turn a desire to change your ways into sustained evidence of being able to maintain that desire and fulfil that intention. In that sense you stand in stark contrast to many alcohol and drug using offenders whose no doubt genuine desire to change their ways has not been able to be translated into action, or sustained.
24 Although this is serious offending, in my view, having regard to these matters, no legitimate sentencing purpose would be served by interrupting your positive and sustained engagement with rehabilitative services. To imprison you now would set back that rehabilitation, and risk setting you on a path of continued and escalating offending.
25 Although, as I said, general deterrence and denunciation must carry significant weight, their needs in my view can be served by imposing upon you a lengthy Community Correction Order with, amongst other things, a substantial component of unpaid community work.
26 As the Attorney-General said when introducing the community correction order legislation into parliament, unpaid community work is a punishment and is the punitive component, or a punitive component of a community correction order. For people who are not working or who are idle, and for people who abuse substances, unpaid community work is not only a punishment, it is in my view a significant deterrent, a real deterrent. You have got to get up in the morning, go to work, on time, and do as you are told no matter how you feel, and you have got to do work to assist other people. You cannot be substance impaired.
27 The weight to be given to encouraging your prospects for rehabilitation, and so, serving to protect the community and deter you from further offending, can in my view best be served by capitalising on the advances you have already made in drug and alcohol counselling and psychological counselling. They should continue, and be mandated for a lengthy period. They are conditions of the Community Correction Order I propose to impose. I also propose to impose conditions of supervision and of judicial monitoring.
28 You have signed an undertaking at the end of your community correction assessment indicating your preparedness to be subject to a Community Correction Order and to be subject to its terms and conditions, and have indicated that you have understood those terms and conditions.
29 I have been asked to make ancillary orders also; an order for the provision of a forensic sample, and a disposal order in respect of the weapons. They are the only ancillary orders, are they not, Ms Isaacs?
30 MS ISAACS: Yes, Your Honour.
31 HER HONOUR: Yes, thank you. I propose to make those orders, and note that they were consented to.
32 MR KANTOR: Yes, Your Honour.
33 HER HONOUR: Before I formally pass sentence, is there something that counsel want to bring to my attention?
34 MR KANTOR: I'm just looking over the 464ZF application, and besides the insertion of the dates, everything seems to be in order. Is it still the practice though to include the "or a blood sample."
35 HER HONOUR: I don't know about the practice. It's not my practice, and that's been struck out.
36 MR KANTOR: Yes, Your Honour.
37 HER HONOUR: Thank you. The only thing I want to check before I do formally impose the Community Correction Order, I am proposing an order for a period of three years. I know I can do that in respect of the three indictable offences.
38 MR KANTOR: Yes, Your Honour.
39 HER HONOUR: Given that the maximum penalty for the uplifted summary offences is a term of imprisonment of two years, can I include that in this community correction order?
40 MR KANTOR: I don't think so, Your Honour.
41 HER HONOUR: Because? I can't go beyond two years?
42 MR KANTOR: It can't go beyond the two year mark, Your Honour.
43 HER HONOUR: Is that right, Ms Isaacs?
44 MS ISAACS: I think I'm in agreement with my friend, yes.
45 HER HONOUR: But I should only impose one CCO, shouldn't I?
46 MR KANTOR: That's so.
47 MS ISAACS: Yes.
48 HER HONOUR: So if I want to put him on a CCO in respect of the weapons charge as well as in respect to the others, how can I do that? Am I bound by the maximum for the highest offence? Or is it that I can't impose a CCO in respect of all offending for a period that extends the maximum sentence or the lowest offence in the hierarchy.
49 MR KANTOR: It seems to me that the jurisdictional limit of the County Court would preclude it, so the only way that Your Honour, in my submission, would be able to include - - -
50 HER HONOUR: Sorry, what do you mean the jurisdictional limit of the County Court would preclude it?
51 MR KANTOR: Sorry, the Magistrates Court. The jurisdictional limit of the Magistrates Court, Your Honour, I apologise. It may be that a concurrent order or two orders are made.
52 HER HONOUR: No, I want to put him on a CCO in respect of it. If I've got to do a separate CCO, I'll do that, but I didn't think I could. I'm not going to fine him, I think it's appropriate to be dealt with by a CCO, it's just a question of whether I have to do two separate ones, the weapons one for a lesser period.
53 MR KANTOR: Mr Parker has some experience, and it is also my belief that the legislation would preclude Your Honour from making - or including that summary offence in the - - -
54 HER HONOUR: So can I do a separate one?
55 MR KANTOR: Yes, Your Honour. Unless Ms Isaacs - - -
56 MS ISAACS: Your Honour, I'm just looking at ss.40 and 41 of the Sentencing Act. Section 40, a community correction order may cover multiple offences, as Your Honour is well aware. S 41 seems to say:
(1) If an offender is convicted or found guilty by a court of two or more offences which are founded on the same facts or are part of a series of offences of the same or a similar character, the court may make one community correction order in respect of those offences in place of separate orders in respect of all or any two or more of them.
(2) A community correction order that is being made in respect of more than one offence must not exceed the maximum period for which a community correction order may be made under s.38.
Which, as Your Honour has said, we've got here. Section 38:
Period and commencement of community correction order. (1)(b) in the case of an order made by the County Court, whichever is greater of the maximum term of imprisonment for the offence or two years."
57 HER HONOUR: I can't do a CCO of more than two years in respect of the weapon charge, so that means I would have to make a separate order under s.41?
58 MR KANTOR: That's so, Your Honour.
59 MS ISAACS: Yes, Your Honour.
60 HER HONOUR: Which runs concurrently.
61 MR KANTOR: Yes, Your Honour.
62 HER HONOUR: Thank you. Mr Wilson, can you please stand.
63 On the three indictable charges to which you have pleaded guilty, you are convicted. You are sentenced to be placed on a Community Correction Order for a period of three years commencing today and ending on 5 August 2017.
64 There are core conditions of that order, which are these. You must attend at the Sunshine Community Correctional Services, 10 Foundry Road, Sunshine, within two clear working days after the commencement of this order..
65 You must not commit another offence for which you could be imprisoned during the time that that order is in force. You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations. That means you cannot attend for any participation under that order impaired by drugs or alcohol and you must submit to drug or alcohol testing if required. You must report to and receive visits from the secretary or delegate. You must let a community corrections officer know within two clear working days of your changing your address or job. You must not leave Victoria without first getting permission to do so from the secretary or delegate, and you must obey all lawful instructions from and directions from the secretary or delegate.
66 In addition to the mandatory conditions, the following conditions apply to this CCO. You must perform 300 hours of unpaid community work over a period of three years as directed by the regional manager. I direct that 100 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition. That means up to 100 hours of attendance on drug and alcohol counselling or on your psychologist can be counted as unpaid community work.
67 If you fail to comply with this unpaid community work condition of the order, the Secretary to the Department of Justice or their delegate may give you a direction to perform additional hours of unpaid community work in accordance with s.83AU of the Sentencing Act.
68 You must be under the supervision of a community corrections officer for a period of three years. You must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager, and you must undergo assessment and treatment, including testing for alcohol abuse or dependency as directed by the regional manager.
69 You must undergo mental health assessment and treatment including but not limited to mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the regional manager.
70 And I impose a condition of judicial monitoring. You must attend for review on 6 February 2015 at 9 am at the County Court at Melbourne and on such occasions thereafter as are ordered.
71 Do you understand the effect and conditions of this order?
72 OFFENDER: Yes, Your Honour.
73 HER HONOUR: And do you consent to it being made?
74 OFFENDER: Yes, Your Honour.
75 HER HONOUR: No, so far as the charge of possession of a prohibited weapon without a permit is concerned, you are convicted and sentenced to be placed on a community correction order for a period of nine months. That commences today and finishes on 5 May 2015. Again, it has the same core conditions of attendance at the Sunshine Community Corrections Service, not committing another offence punishable by imprisonment, not being drug or alcohol impaired when you attend and submitting to testing if required, reporting to and receiving visits from the secretary or delegate, letting a community corrections officer known within two clear working days of changing your address or job, not leaving the state without first getting permission to do so from the secretary or delegate, and obeying all lawful instructions from and directions of the secretary or delegate.
76 The additional conditions for the CCO in respect of the possession of the prohibited weapon are limited to supervision for the nine months of the order, a drug and alcohol assessment and treatment, including testing and mental health assessment and treating. Do you understand that?
77 OFFENDER: Yes, Your Honour.
78 HER HONOUR: And do you consent to that order being made?
79 OFFENDER: Yes, Your Honour.
80 HER HONOUR: Thank you. Just take a seat while the order is being prepared.
81 MR KANTOR: Your Honour, may I approach Mr Wilson?
82 HER HONOUR: Yes. Just bear with me a moment, wait until you get the draft of the orders, you can do it all at once. Let me just check it because I had to amend it. Mr Kantor, you may now approach with those documents and have your client sign them, please.
83 MR KANTOR: Thank you, Your Honour.
84 HER HONOUR: Could you stand again, please, Mr Wilson. I've signed each of those Community Correction Orders now as well as noting your signature on them. I am also making an order for the provision of a forensic sample by you. That is to take place by way of the provision of a scraping from the mouth, known as a buccal sample, until a sufficient sample is obtained. That is done by rubbing a swab, like a cotton bud, on the inside of your mouth until a sufficient sample has been provided in the opinion of the police officer who administers the test. I must advise you that if you do not consent to the taking of that mouth scraping and then cooperate in the provision of it, then the police are authorised to use reasonable force to take that sample, and it is likely that they will use the more invasive method of obtaining the sample, namely a blood sample. Do you understand that?
85 OFFENDER: Yes, Your Honour.
86 HER HONOUR: There is a complicated timeframe for the provision of that sample. You have to wait for 28 days for the appeal time in respect of this order to expire. If you do not appeal, or if the prosecution does not appeal, provided neither party appeals, you must then attend at the Sunshine Police Station within 28 days to provide that sample. I am sorry it is such a complicated framework, that is the way the legislation provides for it. I am sure Mr Kantor will explain it to you again. The last thing you want is to be found to be in breach of a court order because you got the timing wrong in respect of the provision of that sample and find yourself back before me or before somebody else.
87 When copies of the two CCOs have been made and provided to you, you will be free to go. Once I have left the bench you can leave the dock, but you must wait until copies of the orders have been provided to you before you are able to leave. You will be back here before me on 6 February next year. I hope that you will be able to provide positive report to me, Mr Wilson, that you have stayed out of trouble, that you have continued to address your drug and alcohol issues, continued to go to counselling in respect to that if directed to do so, and that you have continued to attend for counselling in respect of the psychological issues. It is going to be a stressful time for you when the twins are born and you have got a household full of young and older children, and it is important that you make sure you look to these types of assistance rather than turn to drugs to deal with the pressures that you are likely to feel as a father of such a numerous young family. Thank you.
88 MR KANTOR: As Your Honour pleases.
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