Director of Public Prosecutions v Walsh

[2014] VCC 1172

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

AT BENIDGO
CRIMINAL JURISDICTION

CR 14-00744

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSH WALSH

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	23 July 2014
CASE MAY BE CITED AS:	DPP v Walsh
MEDIUM NEUTRAL CITATION:	[2014] VCC 1172

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. Jones
For the Offender	Mr A. McLennan

HER HONOUR: 

1Josh Walsh, you have pleaded guilty to one charge of armed robbery.  The maximum penalty for that offence is 25 years' imprisonment.

2The prosecution made application for a forfeiture order for $11.55, being robbery proceeds found on you at the time of your arrest and made an application for compensation for $268.45, being the balance of the money stolen from the pizza shop.  The making of those orders was consented to.

3The circumstances of your offending are set out in the Summary of Prosecution Opening which was tendered as Exhibit A. 

4At the time of this offence you were 28 years old.  On Sunday 26 January 2014 you went to a pizza shop in Echuca at about 9.30 pm at night.  An employee of the shop saw that when you reached the counter you were carrying a knife in your right hand.  The female employee walked backwards towards the entrance.  You then jumped up on the front counter and said "Give me the fucking money."  The employee heard a sound like you were tapping the knife on something. 

5The male owner of the business then entered and heard you yelling and directing the female employee to the back of the shop.  You then asked the owner to give you money and started to count down from five.  At that time you were holding the knife the wrong way around with the blade in the palm of your hand.  The owner gave you $280.  You jumped down from the counter and said that you wanted the other till.  The owner pulled out the till and said you could have it but that he was not going to open it.  You grabbed the cash and walked out of the shop leaving the till.

6The informant identified you from CCTV footage later that night.  At about 12.15 am in the morning, you went to the police station.  You identified yourself and said that they were going to catch you anyway.  While you were at the police station the owner of the shop saw you and immediately recognised you as the person who had robbed the shop.

7A record of interview was conducted in the early hours of 27 January 2014.  You made full admissions but did not provide a reason for your offending.  You said you had limited recollection of your conduct and had been drinking beer before committing the armed robbery. 

8You entered your plea of guilty at a committal mention hearing, on 30 April 2014.

9The victims in this matter have been offered the opportunity to make victim impact statements but have declined.

10You have been in custody since you were interviewed and, not including today, you have spent 177 days in pre-sentence detention.

11I have taken into account your personal circumstances in sentencing you.  As part of the plea material, I was provided with a report from Ms Pamela Matthews, psychologist, dated 21 July 2014.  Ms Matthews sets out matters to do with your personal background.  Your counsel also described your personal background. 

12You are an aboriginal man.  You were raised in country Victoria by your mother from the age of about five, after your parents separated.  You have had very limited contact with your father.  You have an older sister and two other older half siblings who are the children of your father.  Your mother has been a childcare worker who worked hard to provide for you and your sister.

13You went to school until Year 10 when you began to struggle academically.  You then left school at 16.  You have found various forms of employment.  You commenced but did not complete a chef's apprenticeship but you have worked regularly as a chef since that time. 

14You have had positive relationships and at the time of this offence were in a positive relationship with a young woman that I understand still continues.

15A reference provided amongst the defence material speaks very positively of your abilities as a chef.  That reference also speaks very positively about your ability to get on well with the people with whom you work.

16It appears that over your life you have struggled with alcohol abuse, having commenced drinking regularly when you were 18.  It appears that your offending in this case and in the case of past offending has occurred in the context of alcohol abuse.

17Ms Matthews suggests, and I accept, that you have been suffering from mental state conditions, namely persistent depressive disorder and alcohol use disorder, which have been associated with unaddressed historical issues within the local aboriginal community.  It appears that those issues arise from matters to do with your father which occurred many years ago.  It appears from a letter written by your father, that your father wishes you well and hopes that you will be able to resolve those issues at some point in the future.

18I accept what your counsel says that you are a man who has a capacity to live a stable and productive life but who has continued to relapse into a cycle of alcohol abuse as a result of various ongoing issues in your life.  There was also a very difficult matter which occurred in the context of your relationship with a young woman in Queensland.

19You have admitted a prior criminal history which includes a significant number of offences of burglary and theft.  In 2009, you were sentenced in the County Court to a sentence of 15 months with a non-parole period of six months in respect of one charge of armed robbery.

20It appears from what you counsel said that there was no particular reason that you can give for this offending.  You were not in financial difficulties at the time.  It appears that you had had an argument with your partner in the context of your drinking and that you decided, as a relatively spur of the moment decision, to engage in this armed robbery.

21In sentencing submissions, your counsel particularly relied on your remorse as expressed in evidence by your early plea of guilty, your attendance on the police station and your admissions made to the police.  Your counsel relied on the utilitarian benefit that flowed from that plea and your assistance to the police.  Your counsel also relied on matters pertaining to your background, as outlined in Ms Matthews' psychological report, and submitted that your sentence ought to be moderated in application of Verdins principles.

22The prosecutor, in sentencing submissions, drew attention to the seriousness of armed robbery offending.  The prosecutor said that matters described in Ms Matthews' report would have to be taken into account in sentencing you. 

23Mr Walsh, as you know armed robbery is a serious offence.  The maximum penalty of 25 years reflects the seriousness with which Parliament on behalf of the community takes this type of offending.  As I am sure you would acknowledge, an armed robbery is a frightening experience for the person who is the subject of the armed robbery.  I do not have victim impact statements, but I have no doubt that each of the female employee and the male owner of the premises were to a degree frightened by what you were doing.

24Your behaviour on this occasion was threatening, albeit that you held the knife the wrong way around at one point.  This was what might be described as a "soft target" which is a shop that is open late at night that is easy for anybody to walk into and which anybody would know would have some money on the premises.  This armed robbery is less serious to the extent that you did not go disguised or in any way attempt to avoid detection by that method.  You did not hold the knife up to anybody's throat or any matter such as that.

25It is very important in sentencing a person for armed robbery that appropriate punishment be given but also that a sentence be imposed which deters others from engaging in the same behaviour.  It is also to be hoped that any sentence of imprisonment would deter you from doing this again.  Unfortunately, it appears that your previous sentence of imprisonment did not have that desired effect over a period of time.  It seems that it did discourage you for a period but that ultimately you relaxed into alcohol abuse and further offending.

26You are entitled to a significant discount because of your plea of guilty and going to the police station and making admissions to the police.  Those are significant matters.  It appears that the police would have probably caught up with you anyway but you clearly went in shortly afterwards and handed yourself in.  You made full admissions.  You put your plea of guilty in early.  All of those matters means that you have saved considerable expense and trauma.  You have also, in my view, expressed clear remorse in your actions.

27I accept what Ms Matthews says in her report as to your mental state.  I accept your counsel's submissions that the matters pertaining to your mental state, in the light of your background, do reduce your moral culpability but only to a small degree.  You knew what you were doing was wrong.  You knew that you tended to engage in criminal behaviour when you abused alcohol and you went ahead and abused alcohol.

28I have taken that matter in account in moderation of sentence but to a degree only.  I have also taken into account the application of other Verdins principles in moderation of sentence, including in moderation of the application of general deterrence and specific deterrence. 

29I accept that imprisonment is more difficult for you because of your mental health state.  I also accept that your imprisonment is to a degree more difficult because of the underlying difficulties within your community about matters from the past.

30Community protection ought to have some role to play in your sentence.  It is my view that the community would be best protected by your rehabilitation.  It seems that that is difficult to achieve.  The courts have tried to give you opportunities before to engage in rehabilitation and you have been unable to engage in those.  It is clear that you are quite capable of rehabilitation.  You have various strengths. You have the ability to work and to form good relationships.  I would assess your prospects of rehabilitation, despite your past history, to be better than moderate.  You are getting older.  Hopefully you are gaining maturity and insight.  Hopefully you are also gaining an increased desire to remain out of gaol.  It appears to me vital to your rehabilitation that you are able to engage in some form of counselling and treatment which is appropriate for you.  If you are able to deal in some way with the past issues, in a way that is appropriate for you, then with support I consider that you would be able to be a very productive member of the community.

31I have taken into account the matters in moderation in setting the head sentence, but also in setting the non-parole period.  It is a matter for the Parole Board of course as to whether you will be assessed as suitable for parole but I am setting a parole period that is longer than I would have otherwise to reflect the co-operation you have given, your remorse and your prospects for rehabilitation.

32

In respect of Charge 1 of armed robbery, you are convicted and sentenced to a term of imprisonment of

24 months.  I fix 12 months as the period that you are required to serve before being eligible for parole.

33I declare that but for your plea of guilty, I would have sentenced you to a term of imprisonment of three years with a non-parole period of two years. 

34I declare that you have served 177 days of this sentence by way of pre-sentence detention, which will be deducted administratively.

35I have made the orders for forfeiture and compensation that have been sought.

36(Forfeiture order signed and acknowledged.)

37(Compensation order signed and acknowledged.)

38Thank you, Mr Walsh.  I do hope that you are able to receive some assistance while you are in custody, that is for your sake and also for the sake of the community.  Thank you.

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