Director Of Public Prosecutions v Jake Anthony Wharton
[2014] VCC 1844
•12 November 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
BENDIGO
CRIMINAL DIVISION
SITTING AT MELBOURNE
Case No. CR-13-02280
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| JAKE ANTHONY WHARTON |
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JUDGE: | Her Honour Judge Wilmoth | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 April 2014, 12 August 2014 | |
DATE OF SENTENCE: | 12 November 2014 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2014] VCC 1844 | |
REASONS FOR SENTENCE
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Subject: Criminal Law - Sentence
Catchwords: Plea of guilty to one charge of attempted armed robbery – “soft target”, shop assistant in milk bar/pizza shop; 16 months spent in residential rehabilitation prior to sentence.
Sentence: Community Corrections Order – 12 months with 80 hours of unpaid community work.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms N. Burnett | |
| of Public Prosecutions | ||
| For the Accused | Mr A.J. Lavery |
HER HONOUR:
1 Jake Anthony Wharton, you have pleaded guilty to one charge of attempted armed robbery, which you committed on 1 July last year at a shop near your home in Kangaroo Flat. At 5.15 pm that day, you went to a local milk bar and pizza shop, dressed in dark clothes and a beanie with a hole ripped in it to enable you to see. You were armed with a knife with a blade of about 13 centimetres, the handle of which was covered in tissue paper.
2 You approached the counter, pointing the knife at the young male shop assistant and, using foul language, ordered him to open the till and give you the money. You repeated this, and the assistant went to the back room, calling out to the proprietor, John Kabalan. You followed him, and then told Mr Kabalan to “get the money, get the till”, whereupon Mr Kabalan threw a can of Red Bull at you. He shouted to the assistant to “get the gun”, and you fled from the shop.
3 Three days later, you were arrested at your parents’ house, and spent a week or so in custody before being released on bail, on condition that you were admitted to a residential drug rehabilitation program. You have remained there ever since.
4 You were 24 at the time, and are now 25, I believe. You were then, and had been for some time, in the grip of a serious drug dependency, in particular in relation to the drug known as ice, which you were using daily. You were committing crimes to finance its purchase.
5 Your criminal history is not extensive, and did not begin until you were 20, even though you had been using alcohol and illicit drugs from a very early age. No doubt that late involvement in crime is largely due to the fact that you had completed Year 10 at school, and then commenced an apprenticeship as a plasterer, moving on after one year to pursue landscaping. You completed that apprenticeship and worked in that area for a time, before taking up bricklaying. During your teenage years, you demonstrated your commitment to your trade, and an ability to focus on a productive life, in rather stark contrast to what happened later.
6 Your working life was interrupted by the need to look after your two young children, when they were removed from their mother’s care and placed with you and your parents in their home. You found full-time work too difficult to combine with parenting, and around this time you succumbed to increased drug use, leading to breaking the law.
7 Your earliest offending was a number of serious driving offences, the most serious of which was reckless driving endangering life, and you were sentenced to six months in a youth training centre. Two and a half years later, you were convicted of further, although less serious, driving charges, as well as burglary and attempted theft, for which you were given a community corrections order. It would appear from the conditions that your drug problem was recognised, and treatment was ordered.
8 In May 2013 the fine that had also been imposed by the court was converted to unpaid community work, but by October 2013 you had not completed the work, and so were sentenced to prison for eight days. You breached that order, and in October of that year, you were given a suspended prison sentence of two months.
9 I have set that out in detail because it reflects a five-year period when your life was dominated by drug use and offending, in contrast, as I said before, to your teenage years when you completed your apprenticeships and worked for a living. Unfortunately, I understand that you are now facing charges of burglary you were alleged to have committed in April and May 2012 and June 2013. You were interviewed in relation to those charges, and made full admissions.
10 Since July 2013 you have been an inpatient in a residential drug rehabilitation program called Transformations, a church-run program operating in several states. Evidence was given in April by Mr Robert Lane, the program coordinator of the service. He said you had then almost completed the third of a four-stage program, and you were likely to finish the fourth stage in August, which indeed you did do. He explained that for the first part of the program, you were not at liberty to leave the premises at all, and had remained under close supervision.
11 Mr Lane explained that in the final stage you would be assisted to prepare for re-integration into the community. To this end, you had been working with a landscaper who, at that time, was going to offer you a full-time job when you left.
12 The further hearing of your plea was deferred, as you know, to enable you to complete the program, with a view to assessing your progress at that stage. The prosecution did not oppose the possibility of a non-custodial disposition, in view of your good progress.
13 A further mitigating factor to be taken into account is the fact that you pleaded guilty at the committal stage. That is an early plea, and you are entitled to a discount on your sentence for having avoided the need for a trial, and for therefore having expedited and facilitated the progress of the case and the criminal justice system. It has, importantly, avoided the need for the victim to have to give evidence.
14 You have now graduated from the program, and Mr Lane and others responsible for it have provided reports confirming your excellent progress, to the point where you have become a leader and mentor for others entering the program. According to the reports, you still reside at the premises and spend four days a week working as a bricklayer, and one day a week doing voluntary work as a gardener, and assisting with supervision and mentoring of the other residents. You have undergone counselling and drug testing over the course of the program, and have engaged in courses dealing with the emotional difficulties that you have previously struggled with.
15 It is important to note that one of the letters tendered was from Joel and Sonya Fergus, who are members of the church you attend. Mr Fergus works as a volunteer at the residential program. Coincidentally, it was their home that you entered as a trespasser before fleeing and being arrested. This had been unknown to you and to them.
16 Recently they were advised of your participation in the Transformations program, and eventually a mediation session was arranged between you and them. You were remorseful and apologetic, and they stated in their letter to the court that they were pleased that you had received the help that you needed, and were able to state from their own knowledge that you had become a dramatically different person from the man you were before.
17 During your time in the program, you have continued contact with your children on Sundays, when you have leave from the program, and that has become a stable feature of your life. You have been assessed now as suitable for a Community Corrections Order, which is an appropriate disposition, considering your progress towards successful rehabilitation.
18 Attempted armed robbery is a very serious charge, and it would normally call for a prison sentence to be served immediately. The maximum penalty is 20 years’ imprisonment.
19 The penalty that I impose should not only take account of the need for punishment, but also to deter others from committing the offence. In this case, you offended against a shopkeeper, sometimes described as a soft target, someone who is alone in the premises, and vulnerable to crimes like this.
20 You have spent a week in custody, and you have now spent about 16 months in residential rehabilitation, successfully so. Your time has not been your own, and in a significant way you gave up your liberty to complete the course and ensure that you did not offend again. This is quite unusual, and obviates the need for me to place great weight on the need for general deterrence, as I otherwise would.
21 Stand now, please, Mr Wharton, and I will explain the order. I am going to impose a Community Corrections Order, which begins today and lasts for 12 months. It carries a conviction. You will be under supervision, and you must submit for any necessary drug assessment and treatment, as well as undertaking any programs designed to reduce the risk of offending in future.
22 You must perform 80 hours of unpaid community work over six months, and to that end you must attend the Bendigo Community Corrections Office by 4 pm on 14 November. So that is in two days’ time.
23 If you had pleaded not guilty to this charge, I would have sentenced you to three months’ imprisonment, to be followed by a Community Corrections Order.
24 The prosecution has asked me for two orders. One is an order for disposal of items and the other is for the obtaining of a forensic sample of saliva under s.464ZF of the Crimes Act. Mr Lavery, I do not have any instructions from you about that.
25 MR LAVERY: That is consented to, Your Honour.
26 HER HONOUR: All right. So I make both those orders by consent. Mr Wharton, I just need to tell you that the police have the power to use reasonable force to obtain the sample of saliva if necessary, but I trust will not be the case.
27 OFFENDER: No, that is fine.
28 HER HONOUR: All right. Are there any other matters, Ms Burnett?
29 MS BURNETT: No, thank you, Your Honour.
30 HER HONOUR: All right. Mr Lavery?
31 MR LAVERY: No, Your Honour.
32 HER HONOUR: The CCO is available for being signed. Mr Lavery, would you like to have a look first?
33 MR LAVERY: Yes, Your Honour. Could I just approach, Your Honour?
34 (Community Corrections Order signed and acknowledged.)
35 HER HONOUR: Certainly.
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