Director of Public Prosecutions v King&Walker
[2013] VCC 1323
•11 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00395
CR-13-00997
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| DANIEL KING COLIN WALKER | t |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 September 2013 | |
DATE OF SENTENCE | 11 September 2013 | |
CASE MAY BE CITED AS: | DPP v King&Walker | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1323 | |
REASONS FOR SENTENCE
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Catchwords: Sentence – Guilty pleas – Armed robbery – In company – Elderly victim seen to withdraw substantial cash from bank – 2 accused watched and followed victim for 2hours – Accosted her at door of home – Knife or scissors used to cut bag from victim’s shoulder – Both accused’s childhoods deprived and abusive – Poor education – Long drug history – Guarded prospects for rehabilitation
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A. Bhai | Ms G. Walton OPP |
| For the Accused | KING: Ms C. Woodward WALKER: Mr M. Kozkowski | Mr T. Meehan VLA Mr A. Papa Revill & Papa |
HER HONOUR:
1 At some time on 28 November 2012 you, Mr Walker, and you, Mr King, met each other for the first time. Almost immediately, you discussed the topic of purchasing drugs and the need to get money quick. An hour or two after meeting each other, you parted briefly. At around 12.50 in the afternoon, you, Mr Walker, entered the Commonwealth Bank in Footscray where you stood behind an elderly woman, Ms Zhang, and her husband, Mr Wu. You were then served by a teller while the victim was served at a teller beside you.
2 After being served you left the bank and went to the Nicholson Street Mall where you met up again with Mr King. The two of you began walking back towards the bank. You saw the victim and her husband walk into a nearby restaurant. You both began to follow them, peering through the windows of the restaurant and loitering around it. You followed the victim and her husband then as they made their way back home. In total, you followed them or kept them under surveillance for about an hour and 45 minutes. This included following them as they walked several blocks to a bus stop, whilst on the bus for about 15 minutes, leaving the bus, and on the walk from the bus stop to their home.
3 When they got home as Mr Wu began to unlock the front screen door with his wife standing beside him, the CCTV footage shows both of you approaching the front area of their home. You, Mr King approached the victim and her husband, while you Mr Walker stood about three or four metres away keeping a lookout. Mr King then approached the couple and stood close to Ms Zhang. You held a 20 centimetre bladed object close to her throat. At the same time, you grabbed the straps of her handbag which she was holding close to her chest. Mr Walker, you then joined Mr King and stood directly in front of Ms Zhang. The strap of her bag was cut by one of you as the other assisted, and you both fled with it. Whilst it is unclear which of you physically cut the strap, it is accepted that both of you played a role in ultimately freeing the bag from her hold.
4 The CCTV footage shows the victim and her husband attempting to chase after you. Contained in the bag was $5800 cash; 14,000 RMB, or Chinese currency; jewellery, and personal papers. The total value of the money taken was $7,917 Australian dollars. Most of this was cash obtained from the earlier bank withdrawal, and it is these circumstances that give rise to the charge of armed robbery to which you have both pleaded guilty.
5 Later that same day, you Mr King used $500 of the stolen money to purchase a second hand car. Some days later on 3 December 2012, you filled the car with $62 worth of petrol. Your card was declined when you went to pay for the petrol. You provided a copy of your licence and details to the attendant, but ignored his request to stay and left without paying. The use of some of the stolen money to purchase the car gives rise to the uplifted summary charge of dealing in the proceeds of crime, and the driving off without paying for the petrol gives rise to the charge of theft, to which you have also pleaded guilty.
6 Two days later on 5 December 2012, you were arrested, still driving that car. You were wearing the jacket that was identified in the CCTV footage from the day of the armed robbery. You were not interviewed because, according to the summary, your manner when arrested and at that police station was threatening. Later the same day, 5 December, a search warrant was executed at your home, Mr Walker. You too were wearing the same clothing identified in the CCTV footage from the day of the offending. You told the police that Mr King had given you $1800 cash and some jewellery, and that you had spent the cash. You showed the jewellery to the police. When interviewed, you said that you and Mr King had only met on the day of the offending, and that whilst you saw the victim and her husband at the bank, and later when they got off the bus, you did not know that Mr King was looking for them.
7 Armed robbery is a serious offence. Its seriousness is marked in part by the maximum penalty, 25 years imprisonment. The maximum term of imprisonment for theft is 10 years, and in dealing in proceeds of crime, two years. In my view, each of you are equally responsible for the offending. Submissions were made on behalf of Mr Walker that his role was a lesser one and should be reflected in a lesser sentence. I disagree. You, Mr Walker saw Ms Zhang withdrawing the money from the bank. You met up with Mr King and the two of you together followed Ms Zhang and Mr Wu, keeping them under surveillance as they had lunch, had a walk and caught the bus home.
8 You both got off the bus and you both followed them in the gate. Although Mr King was the first to confront Ms Zhang, you kept lookout and then went to his aid, and it was your joint efforts which led to the slitting of the strap of her bag and its removal from her. Even if you did not have the bladed weapon that was used, you were clearly aware of its presence and its use to slit the strap of the bag. You ran away together and shared the proceeds. The account advanced by you, Mr Walker, is clearly at odds in important respects with the objective evidence, including the CCTV footage. I have only your account to support your assertion you received a lesser share of the proceeds.
9 Given the palpable untruths in the account that you gave to the police about your involvement in an attempt to minimise your role, I see no reason to accept your account about the manner in which the proceeds were split. In any event, it would not matter if you did receive a lesser amount. In my view, each of you must bear responsibility for your own acts and for the acts of the other. There is no basis for imposing a different sentence by reason of your roles.
10 It was, as counsel for Mr King acknowledged in her plea, an audacious and predatory attack. Although it was opportunistic, appearing to arise out of the circumstances of seeing Ms Zhang withdraw a substantial amount of cash from the bank, there was a degree of persistence, waiting, and surveillance involved. Your conduct in following them as I have described can probably also be characterised as stalking them for nearly two hours before the robbery was committed. Ms Zhang and her husband were elderly, and the attack took place at the doorstep of their home as they were unlocking the door to go inside. There is something insidious in watching people transact their business in a bank, an everyday activity for people, and to use the knowledge gleaned from seeing a substantial withdrawal at an adjacent teller’s spot, to then decide to target that person and steal their money.
11 It is, as the prosecution submitted, a serious example of a serious offence. And the victim impact statements of Ms Zhang and Mr Wu make it clear that they are still frightened, still unsettled, and still have lost their sense of safety and security, and the safety and security of their home as a result. It is clear therefore that considerations of denunciation, just punishment, and general deterrence must, subject to consideration of matters personal to each of you, weigh heavily in the balance. Each of you indicated at an early stage that you intended to plead guilty, and clearly that must be taken into account in your favour.
12 Mr King, you are 32 years old. Your criminal record reveals over 25 court appearances over a 12 year period between 1998 and 2010. All of your appearances I think were for multiple offences, not a single offence. Your convictions span a range of dishonesty, many property and dishonesty offences – that is dishonesty with property as well as destruction of or damage to property offences; your dishonesty offences being predominantly theft or obtaining by deception, or theft from motor vehicles. You also have quite a number of drug and driving offences, the drug offences being essentially possess and use.
13 Most of your appearances were in the Magistrates’ Court, but you have been sentenced by this court for aggravated burglary. And you have returned to this court on a number of occasions for breach proceedings flowing from the original sentence that was imposed upon you. Your range of offending has seen you sentenced to a range of penalties, from discharge without conviction through to fines, community-based orders, youth detention, suspended sentences, and sentences of imprisonment requiring immediate detention. In addition, you have breached many of the community-based orders and suspended sentences that were imposed upon you, and you faced further court proceedings and often further sentences as a result.
14 You have led a life of significant deprivation and disadvantage, both at the hands of your parents and at the hands of the state. You were first placed into care at the age of two, then placed with your stepfather. He physically abused you, and it is clear that your home life lacked love and stability. You often ran away, and you moved between your stepfather, foster care, and living on the streets. You had little contact with your biological parents from the age of two until you were in your late teens. You re-established a relationship with your father when you were 17, only to have that taken from you when he was killed in a trucking accident.
15 You have had what you describe as 15-year on/off relationship with your partner, and report that she is still supportive of you. You have no children with her, but you fathered a child to another woman 13 years ago, but you have no contact with him or his mother. I am told that you are now also in contact with your biological mother. You therefore have some family support now, although you did not have significant family support in your childhood and upbringing.
16 Not surprisingly, given the disadvantages of your upbringing, your schooling was significantly disrupted. You report that you did not complete primary school, and had no secondary schooling. You were unsettled in school, unwilling to accept discipline, and were often violent to teachers and other students. You left school being unable to read and write. You can now read and write, skills you have apparently learnt during previous periods of imprisonment. You have no vocational skills, and no employment history, save for three brief casual positions. Not surprisingly, given this history, you began to abuse drugs very young. You started using heroin at 12, and up until your remand, you had used it continuously or almost continuously. You are now on a methadone program. This combination of inadequate parenting, inadequate State care, inadequate schooling, behavioural disturbance at school due to a combination of a failure to obey rules and displaying violence to others, no employment, and a history of significant substance abuse can be seen to have led inevitably to the amassing of the criminal convictions – the criminal history that I have recounted.
17 This, however, is clearly a significant step up the scale for you. Your conviction for aggravated burglary related to a burglary on a home with a person present, not one involving the use of a weapon. You report that you want to stop using heroin and other drugs, and to break the cycle of drug abuse offending and imprisonment. You recognise that you need help, and, in addition to signing up for the methadone program, you have signed up already for a course on dealing with substance abuse offered to people in custody and are awaiting acceptance into that. You have undertaken courses whilst on remand in an effort to gain some vocational skills and indicate a preparedness to continue to do so once sentenced.
18 Your previous sentences of imprisonment, most of them having been imposed in the Magistrates’ Court, have all been relatively short. A few of them have had parole periods, but none of them, parole periods of any significant length. This, as I said, is a significant step up the scale and it may be the first time that there is a longer period where being in custody may give you an opportunity to break that cycle of drug abuse and offending to maintain some stability in living, in learning skills, and then some stability when released upon parole, which should assist you to be able to reintegrate more successfully into the community and to try and live a life free of drugs and free of this cycle of offending; of drugs, offending and imprisonment that has blighted your life over the last years.
19 You were assessed by the forensic psychiatrist, Dr Ong, and in his helpful report he says this:
“Mr King gives a development history which was impoverished and chaotic, marked by a physically abusive relationship with his step-father, early placement in foster care alternating with living on the streets, engaging in criminal conduct and substance use from an early age. He would satisfy the diagnosis for conduct disorder in adolescence. Mr King appears to have heroin and cannabis dependence. His heroin dependence, in particular, is strongly linked with his history of multiple offences, usually in relation to obtaining funds to buy illicit substances.
Mr King also appears to have chronic dysthymia, characterised by persistent lowered mood, and he also suffers from what appears to be post-traumatic stress disorder secondary to his traumatic upbringing. The latter is characterised in Mr King by anxiety, hypervigilance, flashbacks and insomnia, and it is likely that his substance abuse is partly attributed to trying to mask these symptoms. I am not convinced from the current assessment that Mr King has a schizophrenic illness. He did not possess what I would consider first rank symptoms of psychosis suggestive of a schizophrenic illness. Rather, he is a man who, due to his upbringing, has a somewhat paranoid world view and this is exacerbated at times by his substance use, in particular, cannabis. He is likely to have had episodes of drug induced psychosis in the past. He did not appear to be actively psychotic at the time of review”.
20 Dr Ong noted the connection between your substance abuse on the day of the offending and the offending and then said this:
“In light of the above, to reduce Mr King’s risk of reoffending, his problematic substance abuse needs to be addressed. Given his entrenched substance use for almost 20 years, this will be difficult. However, opiate substitution therapy with methadone, combined with appropriate drug and alcohol counselling perhaps in a rehabilitation setting, should be explored. Mr King would also benefit from referral to a psychologist for ongoing treatment of his post-traumatic stress disorder”.
Dr Ong noted that you were currently being prescribed both Seroquel and Doxepin and he said that they are not considered to be first line treatments for your current issues and suggests that you could benefit from a medication review by prison psychiatric services.
21 He said due to your multiple mental health issues, you would find any sentence more onerous on you compared to a prisoner without those conditions and recommends that you have an ongoing psychiatric review, in particular in regard to your medication, but also with a view to encouraging you to engage in prison groups targeted at your substance use. I accept the opinions of Dr Ong and his recommendations and endorse them. I accept that, based on that and the materials put before me on the plea, that it is correct, as Ms Woodward put it, to say that you are not without hope, despite what is a significant criminal history. It is very much to your credit that you have made good use of your time in custody; that you have put yourself on the methadone program; that you have undertaken the vocational courses you have and that you have signed up for a drug and alcohol course.
22 I agree, therefore, with her assessment that you do have prospects for rehabilitation, although, given the disadvantage you suffered in the past and your history, that that is best described as guarded. I accept that you have shown that, in the past, that you can, for a time and especially with support, stay drug free and out of trouble. That should provide you, as well as the community, with some encouragement to see that, with further support, that is something that should be able to be sustained for a longer period. It is clear on the history that I have referred to that the sentence must also reflect the need for specific deterrence. I agree with Ms Woodward’s submission that there should be a significant gap between the head sentence and the non-parole period.
23 I recommend, in addition to the recommendations made by Dr Ong, that in preparing you for parole, if the Parole Board sees fit to release you, and in preparing you for your transition back into the community, that you be provided not only with support in respect of your substance abuse, but also with support in respect of accommodation, vocational training and employment, and specialist intervention and counselling for those childhood issues which have clearly continued to blight you in your adulthood. Could you now please stand, Mr King.
24 On the three charges to which you have pleaded guilty, you are convicted. On the charge of armed robbery, you are sentenced to be imprisoned for a period of four years. On the charge of theft of petrol, you are sentenced to be imprisoned for three months and I direct that that be served cumulatively upon the armed robbery sentence. On the proceeds of crime charge, I also sentence you to be imprisoned for a period of three months and, again, I direct that that be served cumulatively upon the other sentences. That makes a total effective sentence of four years and six months, and I fix a period of two years and six months as the time that you must serve before being eligible for parole.
25 I declare, pursuant to s.6AAA of the Sentencing Act, that but for your pleas of guilty, I would have sentenced you to a total effective sentence of six years and nine months and I would have fixed a non-parole period of four years and nine months. You have spent 279 days in pre-sentence detention and I direct that that be counted and reckoned as part of the sentence already served. I have been asked to make compensation and disposal orders and I propose to make them. I have also been asked to make an order under s.464ZF of the Crimes Act for the taking of a forensic sample, and having regard to the seriousness of this offence and your previous convictions, I consider it appropriate to make that order.
26 I am directing that that forensic sample be provided by way of buccal swab. That is a mouth swab which requires you to put something like a cotton bud on the inside of your mouth and rub it on the inside of your cheek until a sufficient sample is obtained. I must warn you that if you do not cooperate in the provision of that sample, then the police are authorised to use reasonable force, and it is likely that they will use the more invasive means of obtaining a sample, namely a blood sample. Do you understand that?
27 PRISONER KING: Yes.
28 HER HONOUR: Yes. Thank you. I have signed all of those orders. Are they all the orders that need to be made in respect of Mr King?
29 MS WOODWARD: Yes, Your Honour.
30 HER HONOUR: Is the arithmetic correct?
31 MS WOODWARD: Yes, Your Honour.
32 HER HONOUR: Thank you. Could you remove Mr King, please. You, Mr Walker, are 34. You have previously come before the court on only two occasions, both of them relatively recent. In 2011, you were sentenced to a community based order in the Sunshine Magistrates’ Court for a number of drunk driving and dishonesty offences. You breached that community based order and, on breach proceedings, it was confirmed. In 2012, you were again before the Sunshine Magistrates’ Court for a similar range of offences, although there was an elevation in seriousness on that occasion, as this time the offences included trafficking, theft of a motor vehicle and burglary in addition to the others.
33 On the second occasion, you were sentenced to 41 days in prison and placed on a community corrections order for a period of 12 months. I assume from the terms of the order that that 41 days in prison had already been served by you by the time you were sentenced and that is, in part, because this offence was committed only a week after that order was made. You are New Zealand born and you came to Australia with your father at the age of 13. By then, he had separated from your mother and you had had no contact with her for the previous five years. She apparently left and took your sister with her and the family came asunder in that way.
34 You describe your childhood as hard and your father as a violent alcoholic. You also suffered sexual abuse at the hands of a family member – an uncle – but your complaints at the time went unheeded and you have not sought or been offered assistance for dealing with its consequences since. You were a promising rugby player. You were part of the junior Kiwis league for two years. You left school early due to poor behaviour, although it would appear you are intelligent enough and were coping academically. From what I have been told and gleaned from the report of the psychologist, Mr Simmonds, you were diagnosed at the age of seven with attention deficit hyperactivity disorder and prescribed medication, but your father did not permit you to take it. That may well account for your poor behaviour in school and your early school leaving.
35 Despite the difficulties you had at school, you went straight to work after leaving school and you have had a very good work history from the time you left school. From your late teens, most of your time has been spent as a tyre fitter. You met your partner when you were 18 and the two of you were together for 12 years. In that time, you had three children. You separated from her in 2006, but have since relatively recently reconciled. You saw yourself in that 12 years of stable family life as a hard worker, keen to and able to provide well for your family.
36 Although you have maintained good and continuous employment, and for 12 years you maintained your relationship, and although it came asunder, it was obviously strong enough that it has now re-established itself, you have had a significant history of abuse of drugs and alcohol. You have apparently acknowledged the role that alcohol played in the breakdown of your relationship with your partner. Given the description of your father and your upbringing, it is not surprising to learn that you became estranged from your father in your late teens and through much of your 20s, but in your later 20s, you reconciled with him and became close.
37 His death then, after you had resumed a relationship with him, and at a time when you had separated from your partner, led to a significant decline in your life and behaviour and a significant increase in your abuse of substances, particularly methamphetamine, and it is in that context that your criminal history that I have referred to occurred. In his report, Mr Simmonds said that, when he assessed you, you presented with symptoms of a depressive order, although he thought that was likely to be secondary to evidence of borderline personality traits. You described some auditory hallucinations to Mr Simmonds which he thought were more consistent with decompensation under stressful situations and more consistent with borderline personality traits rather than being a result of a drug induced psychosis or schizophrenia.
38 He said this:
“Certainly some of Mr Walker’s difficulty with memory and concentration may be more attributable to him having ceased drugs and being aware of these difficulties being more substantial, whereas, previously, he may very well have seen them as being related to his alcohol consumption and intoxication. There is no doubt Mr Walker meets the DSMIV diagnostic criteria for substance dependence; in Mr Walker’s case, both alcohol and methamphetamines, as well as marked borderline personality traits”.
He said:
“Whilst disposition is a matter for the court, it is respectfully suggested that Mr Walker would benefit from some counselling focusing on his grief at the loss of his father.
This has certainly been a difficult time for him and it seems that his feelings with regard to this are unresolved. Furthermore, counselling focusing on relapse prevention strategies with regard to his substance use would also be effective. In the absence of a long term pattern of offending behaviour and with there being a link between his substance use and his offending pattern, then addressing these two issues is likely to decrease the risk of further reoffending”.
39 You too have applied yourself in custody to vocational courses, to education and to looking at courses to address your substance abuse. I agree that for you too, your prospects for rehabilitation – you clearly have prospects for rehabilitation, but they are, at present, best described as guarded and that for you too, specific deterrence must be given weight. I agree that for you too, there should be a considerable gap between the head sentence and the non-parole period in order to give you the incentive to do that and to assist you in your rehabilitation. Your priors are significantly fewer than those of your co-offender, Mr King, but they are more recent, and this offence was committed only one week after you were released on a rehabilitative structured community corrections order and having spent 41 days in custody for the offences that led to your being sentenced to that CCO.
40 I see, therefore, no reason to distinguish between you and Mr King in the actual sentence to be imposed for the armed robbery. Could you please stand, Mr Walker. On the charge of armed robbery to which you have pleaded guilty, you are convicted. You are sentenced to be imprisoned for a period of four years and I fix the period of two years as the time you must serve before being eligible for parole. Pursuant to s.6AAA of the Sentencing Act, I declare that, but for your plea of guilty, I would have sentenced you to a period of imprisonment of six years and fixed a four year period as the non-parole period. I declare that you have spent 279 days in presentence detention and direct that that be counted and reckoned as part of the sentence already served.
41 Application has been made for the making of a compensation order for you and I propose to make that order. Application has also been made pursuant to s.464ZF of the Crimes Act for the retention of the forensic sample taken from you at the time of arrest and questioning and I consider, having regard to your previous convictions and the seriousness of this offence, that the making of such an order is warranted and I propose to make it. I have signed those orders. Are there any further orders that are required to be made for Mr Walker?
42 MS WOODWARD: No, Your Honour.
HER HONOUR: Thank you. Could you remove Mr Walker, please. There are the ancillary orders. Adjourn.
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