Director of Public Prosecutions v Hall

[2017] VCC 597

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR -17-00450

DIRECTOR OF PUBLIC PROSECUTIONS

v

DWAYNE WILLIAM HALL

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	15 May 2017
CASE MAY BE CITED AS:	DPP v Hall
MEDIUM NEUTRAL CITATION:	[2017] VCC 597

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Bourke	Office of Public Prosecutions
For the Accused	Mr. Van Arkadie

HIS HONOUR:

1Dwayne William Hall, you have pleaded guilty to one charge of attempted armed robbery and one charge of armed robbery.  Those crimes carry maximum penalties of 20 years and 25 years respectively.  You pleaded guilty at a relatively early stage after having been charged and you get an additional benefit for that because it seems to me that certainly on Charge 1 you had a realistic chance of acquittal had you fought it out. 

2You do get the benefit of remorse in this particular situation.  You must also, of course, get the utilitarian benefit of those pleas of guilty.  It was submitted on your behalf that you assisted the investigation process, well I have got grave doubts about that because you denied it for an extended period of time.  But at the end of the day you have saved the cost of a trial, you have pleaded in circumstances where you could have, as they say, chanced your arm, and you have got to get the benefit of all that.

3You are now 39 years of age heading for 40 which again is an age when sometimes people can turn their lives around.  You do have a very significant criminal history.  You've been gaoled, on my calculation some three or four times.  You have received sentences which had minimum terms attached to them.  You have got convictions for serious offending such as reckless, serious and the like and that do not augur well.  You have clearly had a drug problem for a very long period of time. 

4It has been raised by your counsel in this situation that your motivation for committing the crimes I am about to describe was to get money to pay for lawyers to try and see your children.  I indicated then I do not accept that but
I am not going to sentence on the basis of anything that is aggravating.  It is just simply an explanation that I am not prepared to accept.  That is the reason, it does not matter really.  It is a situation where the crimes I have described stand by themselves, whatever the motivation might have been.

5In any event the circumstances surrounding the offending were that on 19 November 2016t at approximately 10.30 pm on your confession you attended the Wonthaggi Golf Club bistro in Wonthaggi.  A gaming attendant was in the process of closing the venue and had locked all the doors.  He saw you standing out on the golf course.  He observed you carrying something in your right hand.  He locked the doors and called the police station.  While waiting for police he looked out through the window area and saw that you had your entire face covered and that the item you were carrying appeared to be wooden.

6At approximately 11.20 pm police arrived but could not find anybody.  Police subsequently obtained CCTV footage from the venue which shows you entering the venue and trying to open the cashier's door, which was locked.  It depicts you wearing a prison issue green tracksuit, sneakers, balaclava, carrying a black bag in your left hand and a sawn off shotgun in your right.

7Mr van Akmal, upon seeing the CCTV footage then recalled that he had heard the door rattle at the cashier's office but thought nothing of it at the time. 
That is an attempt at armed robbery that got very close.  If the door had not been locked I am sure there would have been one.

8Some half an hour or so later at the workman's club in Wonthaggi a Mr McKay and Mr Simmonds were standing behind a cashier's counter.  Mr McKay felt a touch on his shoulder, turned around and heard you say "This is a robbery, put the money in the fucking bag quickly or I'll fucking shoot you".  You were holding a gun described as a single barrel shotgun and you were pointing it down directly at Mr McKay.  You apparently pointed it at him on a couple of occasions.  You said "Quickly, you have ten seconds".  You started to count down from ten.  He opened the money draw, you pushed him out of the way and took the money yourself.  You then said "Have a good night" before leaving.  You obtained slightly in excess of $3000.

9This was all witnessed, 000 were called and you were with one of your brothers, apprehended some four hours later on the Bass Highway at Grantville. 
You were supposedly recognised by the police officers despite the fact that the offender had a full balaclava on but in any event.  During the search of each of you police located money both on you and some on your brother. 
You were both interviewed.  You denied that you committed the offending.

10On 22 November 2016 you were again arrested and apparently before interview in regard to other matters, which I know nothing about, you - sorry, on 22 November you were interviewed again and denied it.  In January 2017 you were interviewed in regard to other matters.  At that point, as I understand the situation, you admitted it.  You apparently even then denied attending the Wonthaggi Golf Club.

11On 23 November 2016 police searched an address where your brother lived and recovered a black bag containing, amongst other things, a sawn off shotgun and a cartridge, a pair of sneakers, a green tracksuit, blue gloves and a green balaclava.  It also contained an Optus recharge voucher in your name.

12What the reality of all this is I have, in one sense, got no idea, Mr Hall, but the fact of the matter is you have pleaded guilty to being the offender in each of these situations and accordingly you must be sentenced as such.

13There are no victim impact statements before me but having read many victim impact statements of people who have been confronted with a sawn-off shotgun being pointed at them the psychological consequences can last for a very significant period of time and it is a very terrifying experience.  Crimes such as this are obviously serious.  They call for the application of general and specific deterrence as well as denunciation and there must, of course be an appropriate punishment.

14As I have indicated you do have a significant criminal history.  Tendered on your behalf was a report from a psychiatrist, Dr Turnbull, and I take that all into account.  Submissions were also, very helpful submissions I might say, were tendered on your behalf by your counsel.  I am conscious, of course, that the first charge relates to an attempt and not a completed offence. 

15In matters personal to you, you are 39 years of age, you have four children, two of whom live in Queensland of whom you have no contact for quite some time and two of whom live in Rutherglen or thereabouts who you had hoped to contact.  You had undergone a prison sentence and released in 2016 and endeavoured to regain contact with those children.  You instruct that you are Koori and are the son of Mary Elvie and William Hall, who are known to me.

16Your basic memories of your childhood are that it was a struggle financially.  You were one of six children and essentially each of the children became involved in a criminal type lifestyle and had to defend for yourselves.  I accept, from what I have been told, is that involved trying to get food and the like.
You clearly had, as I described during the course of the plea, a far from privileged childhood and I take that into account in the sense described in Bugney.

17I also take into account that between the ages of eight and 11 you say that you were sexually abused by family members and I have no reason to doubt that.  You instruct that you now only are beginning to deal with that trauma with mental health professionals that attend in prison and I take that into account in terms of the chaotic lifestyle that you have led certainly since around about that age.  The drug use that's followed is not an uncommon consequence.

18You were able to get to Year 10 in school.  You have had a number of jobs and went to Queensland where you had employment.  Your work history is not great but I have certainly seen worse in the circumstance in which you find yourself.

19Insofar as your health is concerned, you have a prolapsed disc in your back, you suffer from asthma, hearing loss and liver damage.  You suffer depression and you hear voices.  The psychiatrist has said that that is not an indication of schizophrenia and I do not sentence on the basis that it is.  Your mother lives in Donald and is not very well, suffering from diabetes.  Your father still lives in Wonthaggi, suffers from severe emphysema, bowel cancer and has heart problems.  After your release from prison in 2016 you stayed briefly with both parents and it had been your intention to live with your father as he required more assistance. 

20Through this offending there is a real chance that their conditions will deteriorate during the course of this sentence and I sentence on the basis that you will undergo it knowing that they will be going through those circumstance without your assistance.  However there is nothing that can be said to be exceptional about it and accordingly it is not sentenced on that basis.  It is simply the effect on you.

21To your credit since you have been in gaol this time you have been doing a number of courses.  You have, at one stage prior to being incarcerated some years ago, successfully undergone a drug - well not really but got through a drug rehabilitation program.  You have been completing courses in gaol in maths, English and art.  You have been writing poetry, attending gym and doing tai-chi.  You have the ambition of writing a book which you say you are in the process of doing which you hope one day to be published.  You have the motivation of having a positive relationship with your youngest children and you are trying to do courses in relation to that.

22Apparently there is a ten year intervention order in place which arises from the matters that you were incarcerated for previously.  I do not know the detail of that and I do not propose to buy into it.  I simply sentence on the basis that that does remain a motivation for you.

23I take all those matters into account.  The prospects of your rehabilitation are really up to you, Mr Hall, and the risk of you re-offending if you get out and use again is going to be high.  Your offending has gravitated to a level that is just - basically the community cannot tolerate it if you get out and commit - when you are ultimately released if you offend again in this way I think you will find yourself heading for double figures to be brutally frank about.

24In any event taking all those matters into account as best I can and being aware of current sentencing practices for armed robbery, on Charge 1 of attempt, two years and three months.  On Charge 2 of armed robbery, three years.  I direct that six months of the sentence on Charge 1 be served cumulatively on the sentence on Charge 2 which gives you a sentence of three and a half years, total effective.

25I direct that you serve two years and three months before becoming eligible for parole.  I direct that 174 days be reckoned as having being served under this sentence and pursuant to s.6AAA I say that but for your plea of guilty you would have been sentenced to five with a three and a half.

26Are there any other orders I have got to make, gentlemen?  I think I have made them all, have I not?

27MR BOURKE:  You have, Your Honour.

28HIS HONOUR:  Yes.  All right, you can take Mr Hall now, thank you.  He has got a very luck brother, that is all I am going to say.

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