Director of Public Prosecutions v Wakelin
[2014] VCC 1096
•9 July 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR -13-02447
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAKE WAKELIN |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 July 2014 |
| DATE OF SENTENCE: | 9 July 2014 |
| CASE MAY BE CITED AS: | DPP v Wakelin |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 1096 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Theft – burglary - make a threat to kill - attempt to commit an indictable offence, namely armed robbery.
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: 24 months' imprisonment, non-parole period 12 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing For the DPP at sentence | Ms R Harper Ms M R Dunbar | Office of Public Prosecution |
| For the Accused | Ms Z E Broughton | Victoria Legal Aid |
HIS HONOUR:
1Jake Wakelin, you have pleaded guilty to two charges of theft, one charge of burglary, one charge of make a threat to kill and one charge of attempt to commit an indictable offence, namely armed robbery.
2The offences of theft, burglary and threat to kill each carries a maximum penalty of 10 years’ imprisonment and attempted armed robbery carries a maximum penalty of 20 years’ imprisonment.
3You are presently 21 years of age, having been born on 18 June 1993, and you were 19 when this offending occurred in November 2012.
4You have a considerable criminal history already, about which I will go into more detail later.
5I note that there are two co-offenders in this matter:
a. Tai Sharp, born on 6 October 1992 and aged 20 years at the time of the offending; and
b. Jake Williams, born on 22 June 1993 and aged 19 years at the time of the offending.
6Both co-offenders have been dealt with and were sentenced by me as follows:
a. Tai Sharp was sentenced on 23 August 2013 to 2 years’ imprisonment with a non-parole period of 1 year;
b. Jake Williams was sentenced on 15 August 2013 to a Community Corrections Order for 24 months with a condition of 200 hours of community work.
7I note further that Jake Williams gave an undertaking to the court to give evidence in relation to these proceedings.
8The circumstances of the offending are as follows.
9Between late at night on 10 November 2012 and the early morning of 11 November 2012, you were in a white Holden Commodore sedan in company with Sharp, Williams and two other people driving around the Ballarat area. Williams was the driver of the vehicle.
10At approximately 10.30 pm Williams was directed to stop the vehicle in Vickers Street, Sebastopol. You told Williams that you would be back in a minute and were going to get some number-plates for Williams' car. You left the vehicle, went to a 1995 Holden Commodore sedan parked nearby and removed the registration plates, then returned to Williams' vehicle. Williams then drove around the corner and stopped, so both he and you could attach the stolen plates to the vehicle. Williams then drove the car to Sharp's house.
11Later in the evening Williams was driving the car in the area of Lake Wendouree when you said, "That house looks all right, I might go and burg that, pull around the corner."
12Williams pulled up the car and Sharp and you, who were in possession of an imitation firearm, got out of the car and went to a residential house on Wendouree Parade, broke a front window and entered the premises. You stole a Sony television, an Apple laptop computer, jewellery and personal banking cards from these premises. You returned to Williams in the waiting vehicle and then drove off. The stolen items were later located at the residential premises of Sharp.
13You, Sharp, Williams and the other people in the car continued driving and saw a group of four young people - three men and a woman - walking on the west side of Creswick Road. You, Mr Wakelin, said, "Let's give these people a bit of a scare", and Williams pulled up. ‘
14You and Sharp got out of the car, you wearing the bandana over your face and armed with the imitation firearm. You approached the group with the weapon raised and said to one of the men, "Did you fucking say something about us? … Better not or I'll put a fucking bullet in your head." You then directed two of the group to walk away down a side street or lane and the other two to remain where they were.
15You were then joined by Sharp, who made verbal threats to the group and postured in a fighting stance. Sharp then told you to get back in the car and you both said, "No cops", as you returned to the car and drove away.
16Shortly after, whilst driving, your group saw a man walking on the footpath alone. One of you said, "There's another guy, let's scare him", and Williams pulled over around the corner from where the man was. You and Sharp then left the vehicle, you wearing the bandana over your face and armed with the imitation firearm. You and Sharp hid behind bushes in the front yard of a house at the corner of Eyre and Dawson Street and waited as the man approached. When he was close to where you and Sharp were hiding, Sharp approached him and engaged him in conversation.
17You then appeared with the imitation firearm and pointed it at the man, while Sharp demanded that he, "Give me what you've got there", and grabbed his mobile phone. The victim engaged you and Sharp in conversation and eventually you and Sharp returned to your vehicle empty-handed.
18Police had been provided with a description of the vehicle and the registration plate number. Police observed and followed as the car stopped outside Sharp's residence.
19You were arrested and a search of the vehicle located the imitation long-arm in the rear foot-well area, along with the bandana alleged to have been worn by you in these incidents. Your fingerprints were located on the imitation firearm.
20You participated in a taped record of interview later on 11 November 2012. You told police that the co-offender Williams had picked you up from a party; you denied being involved in any of the offending, but admitted ownership of the imitation firearm, which you said you left in the back of the car days ago.
21I now turn to your personal circumstances.
22As I noted earlier, you are aged 21 now, you were 19 at the time of the offending.
23Your criminal record commenced in the Ballarat Children's Court when, at the age of 13, you were put on a good behaviour bond for committing a theft. Some 11 more appearances in the Ballarat Children's Court followed for various burglary, theft, criminal damage and other violence and dishonesty offences. You were variously put on probation, given detention in a Youth Justice Centre and put on Youth Attendance and Youth Supervision Orders.
24At the age of 18 you graduated to the County Court where, in Geelong in September 2011, you were given 12 months’ detention in a Youth Justice Centre. Your last appearance at a Children's Court was in December 2011 at the age of 18, when you were put on a Youth Supervision Order for six months for contravening a Family Violence Intervention Order and shop-stealing. On the same day in the Ballarat Magistrates' Court, you were convicted and given a 12-month adjournment and were ordered to comply with all lawful directions of Juvenile Justice.
25You have experienced a disrupted childhood, beginning with your father separating from your mother when you were aged six. Because of conflict with your mother you left home at 15. You had periods of homelessness, ‘couch surfing’ and were suspended from secondary schools. You left permanently after Year 9. You have never been employed and have spent time in youth justice detention as a result of previous offending.
26You have had an on-and-off relationship with a partner since you were 14 and she 17. You are currently separated. There is a child, a boy, to that relationship, now aged three. There have been occasions when the child has been subject to a DHS Supervision Order. You continue to take an interest in your son, try to maintain contact with him and intend to develop your bond with him following your release.
27You have a history of poly-substance drug and alcohol abuse, commencing with cannabis at about age 13 and amphetamines at 15. There have been periods of psychotic episodes and in 2011 you were admitted as an involuntary patient to Ballarat Psychiatric Services, with substance-induced psychosis. Your drug dependency appears to be entrenched, despite drug and alcohol programs and attempts by you to desist.
28The offending is very serious. The maximum penalties reflect how seriously Parliament views these crimes. Armed robbery is one of the most serious crimes that can be committed. The maximum penalty of 20 years imprisonment for even an attempt reflects how seriously Parliament views such conduct.
29Your continuing course of criminal conduct, which involved theft, burglary and confrontation and intimidation to the terror of members of the community over a short period of time, is to be seriously deplored. The violation of people's homes causes great and often enduring distress, and all citizens should be able to feel safe walking the streets at night. Threatening a victim with a weapon, even an imitation, is an extremely frightening and traumatising act. Your conduct has the further effect of causing anxiety and fear to others in the community who read about such activity. The public should not be expected to tolerate such behaviour and the courts must respond by appropriate denunciation, deterrence and punishment.
30In mitigation I have taken into account the matters submitted by your counsel. In particular I accept:
· your plea of guilty and the remorse which that plea represents;
· the time already spent by you in remand custody;
· that some moderation should be applied for the time that you have spent serving another sentence whilst on remand for these matters;
· your age of 19 at the time of offending being a young offender, and 21 now, which can still be regarded as youthful;
· the time that has passed since the commission of this offending;
· your personal circumstances of a fractured and disrupted childhood;
· your drug and alcohol history, commencing when you were around 13;
· your history of mental illness associated with your drug use;
· that the sentence passed must allow appropriate weight still to be given to enhance your prospects of rehabilitation, notwithstanding that I find your prospects of rehabilitation bleak. I accept that whilst in a supervised environment you have shown a desire and ability to address your issues. However when you are on your own you tend to revert to substance abuse, which gets you into more trouble.
31I accept that there is a real chance of you becoming institutionalised if the severity of sentencing is not moderated to some degree.
32Whilst I accept the principle that a plea of guilty is of real weight particularly if an accused is not facing an overwhelming prosecution case, I consider that the current circumstances do not give great support for the application of that principle here. Your co-accused Williams was prepared to give direct evidence of your participation: he gave his undertaking on oath, had no prior convictions and I formed the impression that he was a credible witness who would have been seen that way by any jury. Whilst I accept that there were perhaps valid forensic points of identification in your favour, I do not accept that you faced a weak prosecution case.
33Parity with your co-offenders is also an important consideration in balancing the sentencing structure. Your role in the offending, your dysfunctional childhood and criminal history and drug use appear to have closely mirrored your co-offender Tai Sharp. You, however, carried the imitation firearm and appear to have been the initiator of the activity. Other differences are that he was older than you at the time and faced further charges of threat to kill and a charge of armed robbery. Conversely Mr Sharp pleaded guilty at an early stage, suffered from an intellectual disability, was motivated to engage with treatment and had demonstrated application to a program consistent with his claim to have reduced his drug taking.
34You have now spent nine months in adult custody for other matters whilst on remand for this matter. Some moderation is required giving recognition of that.
35In the final analysis, the various differences appear to me to balance out. You fall to be sentenced similarly to your co-offender Sharp. Mr Williams' circumstances are entirely different. Any differences in the sentences imposed by me on individual counts arise from the application of the principle of totality in Mr Sharp's sentence and your sentence.
36I consider that the thefts represented in Charge 3 are very much bound up with the elements of Charge 2 and therefore do not call for cumulation.
37Despite the matters in mitigation and the importance of principles of rehabilitation applicable to a youthful offender and young offender, principles of specific and general deterrence, punishment and denunciation remain of significant emphasis in balancing the sentencing discretion.
38Mr Wakelin, I have read in the materials that you often think about those who have hurt you in the past and how life may have been different for you. Whilst this might sound simplistic, you really have to try now to put that aside, stop blaming others, take charge of your own life and make it worthwhile.
39When you eventually get parole, use all the services you are offered to move yourself away from dependence on drug and alcohol. You are currently prescribed Seroquel, and this and other legal medications can assist you in avoiding the dangerous effects of illegal drugs, which are only going to destroy your life.
40Mr Wakelin, could you now please stand.
On Charge 1 of theft, you are convicted and sentenced to 2 months’ imprisonment.
On Charge 2 of burglary, you are convicted and sentenced to 12 months’ imprisonment.
On Charge 3 of theft, you are convicted and sentenced to 6 months’ imprisonment.
On Charge 4 of make threat to kill, you are convicted and sentenced to 6 months’ imprisonment.
On Charge 5 of attempt to commit an indictable offence, namely armed robbery, you are convicted and sentenced to 12 months’ imprisonment.
41Charge 5 is the base sentence.
42I direct that six months of the sentence imposed on Charge 2, five months of the sentence imposed on Charge 4 and one month of the sentence imposed on Charge 1 be served cumulatively on the sentence imposed on Charge 5, and upon each other.
43The total effective sentence is two years’ imprisonment.
44I direct that you serve a minimum period of 12 months’ imprisonment before being eligible for parole.
45Pursuant to s.18(4) of the Sentencing Act 1991 Victoria, I declare that the period of 280 days, not including today, be reckoned as time already served under this sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.
46Pursuant to s.6AAA of the Sentencing Act, but for you plea of guilty, the total effective sentence that would have been imposed is three years’ imprisonment, with a minimum period of two years to be served before eligibility for parole.
47At the plea hearing the Crown sought an order for the retention of a forensic sample which was not opposed, and I have made that order today for the reasons noted on the order, namely, the seriousness of the circumstances of the offending warrants the making of the order, your prior convictions are such as to warrant the making of the order, the order was not opposed and the granting of the order is in the public interest.
48The Crown also sought an order for the disposal of the imitation firearm and the bandana to which you consented, and I have also made that order today.
49You may be seated, Mr Wakelin.
50Are there any other matters, counsel?
51COUNSEL: No, Your Honour.
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