Director of Public Prosecutions v Wade Marchant
[2017] VCC 1577
•6 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-01842
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WADE MARCHANT |
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JUDGE: | HER HONOUR JUDGE LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 September 2017 | |
DATE OF SENTENCE: | 6 November 2017 | |
CASE MAY BE CITED AS: | DPP v Wade Marchant | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1577 | |
REASONS FOR SENTENCE
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Subject: Armed Robbery
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Bruhn | John Cain Solicitor for Public Prosecutions |
| For the Accused | Mr A. Malik | Victoria Legal Aid |
HER HONOUR:
1 You, Wade Marchant, have pleaded guilty before me to one charge of armed robbery. The maximum penalty for this offence is 25 years' imprisonment.
2 You and Sheldon Harrison (Harrison) entered the 7-Eleven service station at 61 to 63 Mickleham Road, Tullamarine at 4.05 am on Sunday 22 November 2015. You ran to the door, which opened as you approached. You then placed a rock in the door tracks to prevent it from closing fully and to avoid the possibility of you and Harrison being locked in the store.
3 You were wearing a T-shirt covering your nose and mouth and a grey hooded sweater, with the hood over your head. You were carrying a samurai sword.
4 Harrison ran straight in through the open doors and made his way behind the service counter by jumping the locked staff door. He commenced placing cigarettes into a car seat cover. Harrison was wearing a black jacket with the hood over his head.
5 The service station attendant, Gurpreet Singh (Singh), was packing shelves towards the rear of the store. You made demands for Singh to open the locked door to the service counter and the till. Whilst making the demands, you struck items in the store with the sword you were carrying. Singh raised his hands and walked towards the service counter. He unlocked the door and entered the service area. You followed. Singh opened the till and you reached in and removed approximately $300 cash.
6 You and Harrison then ran from the store. Singh activated the “hold-up" alarm. Police arrived at approximately 4.20 am, by which time you and Harrison were no longer in the area. The incident was captured on CCTV.
7 At approximately 7.15 am, police from Hume Crime Scene Services attended the store and processed the scene. A number of fingerprints were located and lifted from the rear of the glass staff door. The fingerprints were subsequently matched to you.
8 On 22 July 2016, you were arrested at your home address of 5/1051 Pascoe Vale Road, Jacana. Upon being advised that you were under arrest for armed robbery, you became aggressive. You ran back into the house and punched several holes in the plaster wall as you ran down the hallway to the kitchen. You were apprehended and transported to the Fawkner Police Station.
9 You were interviewed at the Fawkner Police Station on 22 July 2016. During the interview, you stated that Harrison was the second offender. On Saturday 21 November 2015, into the morning of Sunday 22 November 2015 , the two of you were driving around looking for something to do, when Harrison told you that he had previously committed a number of armed robberies and asked you whether you were up for doing one.
10 Harrison told you that he would run in and jump the counter to get cigarettes, whilst you had to hold up the knife, wave it around and keep the attendant in the corner scared. You were driving and Harrison directed you to the service station. You said that you were influenced by Harrison and that it was all Harrison’s idea. You pulled up on the hill opposite the 7-Eleven service station. You sat in the vehicle for approximately 20 minutes watching customers enter the store, to determine whether the door was opening automatically or being manually operated by the attendant. After determining that the doors were opening automatically, the two of you left the vehicle with the motor running to enable you to flee the scene quickly.
11
You were armed with a sword. You had taken it from your house to use as
a weapon, but only intended to use it to scare people. You removed the car seat cover for the purpose of carrying stolen cigarettes.
12 The two of you took about 150 packets of cigarettes and $340. You received half the money and about 40 packets of cigarettes.
13 The facts in this case are very serious. The aggravating aspects include the use of a dangerous weapon on a soft, vulnerable target in the early hours of the morning; that the offending was committed in company; that you disguised yourself. You had your hood up over your head and you wore a T-shirt to cover your nose and mouth, and that your attempt to disguise yourself was successful. You could not be identified from the CCTV and were only identified some ten or 11 months later through fingerprint analysis obtained as a result of subsequent offending.
14
The offending also involved a level of premeditation or pre-planning. You took the sword from your home; there had been discussions in relation to committing the armed robbery between you and Harrison; you drove around for two to three hours, looking for a suitable target and then you watched this 7-Eleven store for 20 or so minutes before committing the armed robbery to determine whether the doors opened automatically. Finally, you left the car running to ensure
a quick getaway after the commission of the offence. Your counsel conceded that this is a serious offence.
15
No victim impact statement has been tendered in this matter. The victim has returned to India. It is clear from the depositions and the evidence I do have before me, that there was considerable suffering on the part of the victim as
a result of your actions. Your counsel conceded that the victim was a "soft target" who would have been absolutely terrified by what was happening to him in the store.
16 As has been pointed out by your counsel, there are, however, some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. Further, I take it into account in your favour that you intimated your intention to plead guilty to these charges at the earliest opportunity.
17 You were interviewed by the police and readily admitted your part in the crime. You were willing to assist authorities. You provided the police with the name of your co-offender, in circumstances where there was no evidence identifying him. An offer was made to the prosecution to provide a formal statement.
18 I accept the evidence of Kim Dowse, psychologist, that you have often thought about how frightened the service station attendant was and that you deeply regretted that the man, through no fault of his own, became the victim of your crime.[1]
[1] Exhibit 3.
19 In the circumstances, I accept that in your case, your plea indicates remorse for your actions.
20 I have been told something of your personal history and your circumstances. You were born on 18 August 1997 and are 20 years old. At the time of the offence, you were 18 years old.
21 You are the middle child of five siblings. You have two older brothers and two younger sisters. While you were growing up, your father worked as a butcher and your mother remained in the home to raise the family. You describe your upbringing as “pretty good”, but report issues with drug and alcohol use in the family home.
Education
22 You are hearing impaired and wore a hearing aid as a child. You have a history of learning difficulties, as well as behavioural difficulties.
23
You attended Glenroy North Primary School up to Year 3 and then completed primary school at Meadow Heights Primary School. You attended Glenroy College for Year 7 and half of Year 8, before being expelled. You attended Sunbury College for the remainder of Year 8, but also got expelled from there. You then went to The Island school in Coburg for Years 9 and 10. This was
a school that primarily involved doing VET courses. While at The Island, you completed your pre-apprenticeship in motor mechanics.
Employment
24 You have been unable to find an apprenticeship as a motor mechanic. After leaving school, you were employed in a number of short-term jobs, including roofing and tiling. The longest job you had was doing some tiling, which lasted about three months. You have been unemployed for the past two years.
25 Your counsel referred to a report prepared by Mr Jackson, neuropsychologist, on 8 September 2017 (Jackson’s report).[2] Mr Jackson noted that you do not have an intellectual disability or “moderate retardation”, as assessed and diagnosed by David Ball in a report dated 5 May 2017. In his opinion:
"It is quite clear on the basis of the current assessment, that he does not have an intellectual disability of any degree and his cognitive profile is typical of ADHD, as is his behavioural and educational history.[3]"
[2] Exhibit 2.
[3] Exhibit 2, p 12.
26
Your counsel submitted that I should take the effect of your ADHD into account when considering your ability to maintain employment. He referred to
Mr Jackson’s opinion that:
"It is not surprising that Mr Marchant has not been able to obtain or hold down paid employment, given the severity of his cognitive and behavioural impairments.[4]"
[4] Exhibit 2, p 17.
Use of drugs and alcohol
27 You were very close to your older brother and started using drugs, cannabis and methamphetamine, as well as drinking alcohol after your brother was sentenced to prison when you were about 17. In his report, Mr Jackson stated:
"It appears that the main factor in Mr Marchant "going off the rails" and getting into trouble, was his brother being convicted of serious driving charges and being sent to prison. Mr Marchant reports that he spent a lot of time with his brother and they worked on cars together, went driving together, et cetera. It would appear that his brother acted as the “gatekeeper” for Mr Marchant’s behaviour, due to his ADHD and with the structure and supervision of his brother, his behavioural difficulties were present, but manageable. It certainly appears that the loss of the structure that his brother provided resulted in significant additional behaviour issues, including substance abuse and subsequently robbery. It is clear that his offending behaviour was the end result of the loss of structure and support from his brother and substance abuse.[5]"
[5] Exhibit 2 pp 13-14.
28 You have no prior convictions. I sentence you as a person of previous good character.
29 Evidence has been led on your behalf. I have heard from Margaret Lorraine Cole, social worker. A letter dated 1 May 2017 by Ms Cole was also tendered on your behalf. [6] Ms Cole works as an Integrated Family Services case worker at Uniting Kildonan. The service received a reference from Child Protection. In January 2017, Ms Cole was allocated to work with the family unit, Rachel Young and her daughters, Abby Ballinger and Katie Ballinger and you. Ms Cole aims to see the family at least once a week. She said that she sees you every two to three weeks. She attempts to ensure that you attend any appointments you may have. She said that she has been working to ensure that you do not go back to using methamphetamine. She referred to the urine drug screens, dated 10, 14 and 23 March 2017, which indicate that amphetamine-type substances were not detected.[7] Her intention is to ensure you start attending drug and alcohol counselling through ReGen, a drug and alcohol service in Coburg.
[6] Exhibit 4.
[7] Exhibit 5.
30 Ms Cole said that you rely heavily on supports to ensure that you attend appointments as directed. She said that you have excellent supports, which include Rachel, a couple of friends and your parents. Ms Cole said that you will also need some support from her. Ms Cole said that she was satisfied that you had sufficient support to ensure that you attend appointments.
31 When cross-examined, Ms Cole said that she was aware that a mental health plan had been put in place for you earlier this year. A referral was made for you to see Kim Dowse, psychologist. Ms Cole said that you never sought her assistance in attending appointments with the psychologist. When cross-examined, Ms Cole said that she was immediately made aware of your use of drugs when she became involved with the family. Ms Cole was aware that you still take cannabis, which causes her some concern. She said that you did not desire to seek counselling or assistance in relation to your use of drugs.
32 A report dated 5 May 2017 by David Ball[8], psychologist, was also tendered on your behalf.
[8] Exhibit 1.
33
I have been informed of certain subsequent convictions. You pleaded guilty to driving and possession of drug charges that occurred in the period between
11 May 2016 and 31 August 2016. On 21 June 2017, you appeared in the Melbourne Magistrates' Court and the charges were adjourned for 18 months to 20 November 2018.
34 Your father and mother, your partner Rachel and Ms Cole were in court to support you.
Rehabilitation
35
Your counsel submitted that your prospects for rehabilitation are good. He submitted that you had stopped using ice, which is likely to have been the major cause of this offending. Your counsel submitted that Mr Jackson referred to
a number of matters that could be put in place to assist with rehabilitation, including psychological counselling, drug and alcohol treatment and referral to an appropriate ADHD specialist.
36 Your counsel submitted that you have not re-offended since August of 2016. You have had good support from your family and partner and from Integrated Family Services.
37
However, as you know, I have sought and received a pre-sentence report in this matter. That report indicates that you have been assessed as being of
a high risk of re-offending.
38
The prosecutor referred to Mr Jackson’s opinion that, “From
a neuropsychological perspective, there is a high likelihood of Mr Marchant
re-offending, if appropriate treatment and supports are not put in place.”[9]
[9] Exhibit 2 p 17.
39 The prosecutor submitted that when assessing your prospects of rehabilitation, the court should also have regard to what has occurred since the offending in November 2015. There has been further offending, albeit not for some 12 months now. But more concerning are your own reports that you continue to use cannabis on a daily basis, that you admitted to Mr Jackson that you had consumed four cones before attending for the assessment on 8 September 2017 and that you continue to binge drink on a weekly basis.[10] You attended one appointment with Ms Dowse where you were said to have presented as enthusiastic and wanting to continue with counselling. However you have not attended a further session with her. Ms Cole said that she provided support to assist you to attend appointments. However, you never asked for assistance to attend appointments with Ms Dowse.
[10] Exhibit 2 p 3.
40 I am told that you desire to stop using drugs. Your prospects for rehabilitation will, in part, depend upon your ability to do so and to engage with support services.
41 You were 18 at the time of the offending. You are now 20 years old. Your counsel submitted that I can take into account your cognitive difficulties when assessing your maturity. Your counsel submitted that the principles in R v Mills (Mills)[11] regarding the primacy of rehabilitation for youthful offenders has full force in this case.
[11] [1998] 4 VR 235.
42 The prosecutor conceded that the principles in Mills in relation to youthful offenders and rehabilitation have application. She submitted that whilst rehabilitation can be the primary or paramount sentencing purpose, the other considerations in the Sentencing Act 1991 (Sentencing Act) still apply. She submitted that in this case, there is a need for punishment, deterrence, particularly general deterrence, given the nature of the offending, being an armed robbery on a convenience store and denunciation and protection of the community.
43
On the other hand, I do not apply those considerations with as much force as
I might if you were older, for you are a young offender and must and will be sentenced as such. Your rehabilitation is a primary concern in fixing an appropriate sentence. In fixing an appropriate sentence, I must seek to maximize your chances of your rehabilitation, as there may be.
44 Your co-offender has not been dealt with by a court for this offence. Harrison is currently serving a term of imprisonment for multiple armed robberies. He was interviewed by the police in custody and gave “no comment” answers to questions asked of him in relation to this incident. He has not been charged. There is no fingerprint or forensic evidence linking Harrison to the armed robbery and there is no intention on behalf of police to charge him.
45 The CCTV footage of the incident[12] was played to the court. This shows that you came into the area behind the counter. You walked to the glass doors which opened and placed a rock down between the doors to prevent them from closing and trapping you inside. You were seen at the front of the counter. You then walked towards where the victim stood and made demands for him to open the service counter and till. You hit items in the store with the sword to scare and intimidate the attendant. Harrison was largely involved in removing the cash and cigarettes from the till.
[12] Exhibit B.
46 Your counsel conceded that when one looks at the footage and considers what each of you did, you each played an equal role. However, your counsel submitted that I should take into account that you were under the influence of the co-offender. The commission of the crime was Harrison’s idea and Harrison told you what to do.
47 In my view, your culpability appears to be equal to that of Harrison. Your role in the actual offending was equal to the role of the co-accused. You took the sword from home; you were the one who was armed throughout the commission of the armed robbery; you are the one who had your face disguised; you approached the victim and moved him around behind the service counter in order to open the till; and you drove the vehicle, both before and after the armed robbery.
48
As well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your
re-offending. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
The application of the principles in R v Verdins (Verdins)[13]
[13] (2007) 16 VR 269.
49 Mr Jackson diagnosed that you were suffering from ADHD. Your counsel did not submit that this condition could reduce the moral culpability of the offending conduct, because you were so affected by drugs at the time.[14] Your counsel conceded that it would be impossible for the court to make a causal connection between your underlying mental health problem and the commission of the offence.
[14] Transcript p 28.
50 Your counsel did, however, submit that the existence of your condition would mean that a given sentence would weigh more heavily on you than it would on a person in normal health.[15]
[15]Verdins, principle 5.
51 I accept your counsel’s submission. In his report, Mr Jackson stated that a term of imprisonment is likely to be highly distressing for you. I take this matter into account in your favour in mitigation of sentence.
"A term of imprisonment is likely to be highly distressing for him and there is a high probability of developing a mood disorder because of this."[16]
[16] Exhibit 2, p 17.
52 Mr Malik also relied on the 6th principle stated in Verdins. Mr Malik referred to Mr Jackson’s report that:
"It is also highly likely that a term of imprisonment would have an adverse impact on Mr Marchant’s mental health."[17]
[17] Exhibit 2, p 16.
53 The prosecution did not concede that the fifth and sixth limbs of Verdins applied in this case. The prosecution conceded that, due to your age, ADHD and impaired hearing, a term of imprisonment in an adult facility would weigh more heavily upon you and that you would be vulnerable in such a setting. The prosecution submitted that Mr Jackson was not asked and does not address the possible impact of a sentence served in youth detention, as opposed to adult custody.
54 In relation to the statement by Mr Jackson that there is a high probability that you would develop a mood disorder due to imprisonment being highly distressing for you, Mr Jackson’s opinion is speculative and is not specific.
55 I have received a Suitability Assessment Report, dated 13 October 2017, prepared by Gene Bell and Robert Ross from the Youth Justice Central Courts Unit. In that report the authors state:
"In regards to Wade’s prospects for rehabilitation, one would have to be somewhat guarded in suggesting he has reasonable prospects for rehabilitation, certainly in regards to his capacity to engage in community-based programs at this point in time, however I do believe that Wade would respond positively to the opportunities afforded to him within the youth justice setting.
56 I have taken your condition into account in determining the kind of sentence to be imposed and the conditions in which it is to be served.
Disposition
57 Your counsel submitted that the appropriate sentence is a community corrections order. Your counsel submitted that you remain substance-free and out of trouble when you have family support. He submitted that you have the support of your partner, both your parents, who live about five minutes from where you currently reside with your partner and you have the support of Family Integrated Services. With that support, the risk of re-offending is subsequently reduced.
58 Your counsel referred to DPP v Boulton,[18] the detrimental effect of imprisonmentand the rehabilitative aspects of a community corrections order. He submitted that the court can impose a lengthy community corrections order to satisfy the principles of general deterrence and denunciation.
[18] (2014) 46 VR 308.
59 The prosecutor submitted that the offending calls for a custodial sentence, given the objective seriousness of the offence and the prevalence of this offending on service stations in early hours of the morning or late at night. However, the prosecution submitted that due to your age, a youth justice centre order would be appropriate.
60 The prosecutor also referred to Mr Jackson’s report, that you would have a lot of difficulty to independently comply with any court-imposed sentence in the community.[19] The prosecutor referred to Ms Cole’s evidence that you did not seek her assistance to engage with or obtain treatment for drug and alcohol abuse. The prosecutor did not accept your counsel’s submission that you remain substance-free when you have family support. She submitted that you now have family support. Your parents and partner are in court. However, you are not substance-free. You continue to use cannabis on a daily basis and consume alcohol in a binge pattern. You have not engaged in drug and alcohol counselling since the offending. You also continued to offend soon after being placed on bail in relation to this matter. The prosecutor submitted that these matters should be considered when assessing your prospects of rehabilitation.
[19] Exhibit 2, p17.
61 The prosecutor referred to R v Vassallo & Tasioulas.[20]This was a case concerning an almost 18 and almost 19 year old accused who planned and committed a burglary at a warehouse, where approximately $36,000 worth of goods and a motorcar was stolen. Both accused had no prior convictions, no subsequent matters and had the support of family. Brooking AJ stated:
"Youth and good character and a plea of guilty and good prospects of rehabilitation do not confer immunity from a sentence of youth training centre detention, which, unlike a prison sentence is, after all, specifically designed to further rehabilitation. It will, from time to time, be quite appropriate to sentence a young first offender to a period of YTC detention."[21]
[20] Unreported, Supreme Court of Victoria, Court of Appeal (7 May 1998), BC9801829
[21] Unreported, 7 May 1998 BC9801829, at p 5.
62 The prosecutor submitted that this is one of those times where the objective seriousness of the offending does require a custodial term and that due to your age and vulnerability, that could be served in youth detention.
63
I have also received a pre-sentence report in relation to your suitability for
a community corrections order. In that report, you were assessed as being of
a high risk of general offending. The authors of that report stated that, “This service has strong reservations regarding Mr Marchant’s ability to comply with a community corrections order at this time.”
64 The prosecutor compiled a comparison of four cases which deal with offenders of a similar age. The sentences imposed range from terms of imprisonment, combined with a community corrections order, orders for detention in a youth justice centre, to the imposition of community corrections orders. The prosecutor submitted that the facts in the case of DPP v Roccamte-Chardon[22] are the closest to the facts in this case, although there are still a number of distinguishing features. That was an unplanned robbery on a milk bar for the purposes of getting cigarettes. It was committed in daylight hours by an offender with a prior dishonesty conviction and pending matters. The accused was 19 at the time and received a youth justice centre order of 18 months. The prosecutor submitted that that case was a less serious example of an armed robbery than this case. It was unplanned, there was no disguise, the accused acted alone and the crime was committed in daylight hours.
[22] [2016]VCC 1008.
65 In Director of Public Prosecutions v Dalgliesh (a pseudonym)[23] the High Court stated that current sentencing practices are only one factor, among several, that courts must take into account when sentencing offenders.
[23] [2017] HCA 41.
66 This is without doubt a serious offence.
67 Would you please stand, Mr Marchant.
68
I have had regard to s.5(4C) of the Sentencing Act. Having given the matter
a great deal of thought and considered the submissions made by counsel, in my view, the purposes for which the sentence is imposed cannot be achieved by a community corrections order.
69 As you are aware, I have sought and obtained a pre-sentence report in your case. I have done so with a view to making a youth justice centre order under s.32 of the Sentencing Act. I am satisfied that imprisonment in an adult prison is inappropriate in your case and that there are reasonable prospects for your rehabilitation. Having regard to the nature of the offence and your age, character and past history, I consider that a youth justice centre order is appropriate in your case. I therefore record a conviction and order that you be detained in a youth justice centre for a period of 12 months.
70 I also make an order, pursuant to s.464ZF, that you provide a sample of your saliva.
71 Do you have that order there?
72 MS BRUHN: Yes, I do, Your Honour.
73 HER HONOUR: Thank you.
74 I am required, by law, to say to you that those charged with taking that sample are authorised to use such force as may be necessary to effect the taking of the sample.
75 But for the plea of guilty, I would have sentenced you to be detained in a youth justice centre for a period of 24 months.
76 Lastly, I order that the property referred to in the schedule to the - Do you have the disposal order?
77 MS BRUNH: Yes, I do, Your Honour.
78 HER HONOUR: Thank you.
79 Lastly, I order that the property referred in the schedule to the disposal order which I have signed this day, be forfeited to the State and direct that it be placed in the custody of the Chief Commissioner of Police and held by him until 28 days from this date and then destroyed.
80 You may take a seat while I am signing these orders.
81 Are there any further matters?
82 MR MALIK: No, thank you, Your Honour.
83 MS BRUHN: No, Your Honour.
84 HER HONOUR: Very well, would you please take Mr Marchant into custody. Thank you.
85 I will leave the Bench.
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