Director of Public Prosecutions v Walters
[2016] VCC 92
•17 February 2016
| Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 15-02282
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ISAIAH WALTERS |
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| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 February 2016 |
| DATE OF SENTENCE: | 17 February 2016 |
| CASE MAY BE CITED AS: | DPP v Walters |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 92 |
REASONS FOR SENTENCE
---Subject: Criminal law - sentencing - young offender - delay in matters being heard due to serving a sentence in QLD -- exceptional circumstances - positive steps towards rehabilitation - disparity with other offender justified - adjourned undertaking imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G. Overend | John Cain, Solicitor for Office of Public Prosecutions |
| For the Offender | Mr P. O'Halloran | VLA |
HER HONOUR:
1Isaiah Walters, you have pleaded guilty before me to two charges of armed robbery.The armed robberies occurred on consecutive days, on 20 and 21 October 2012.
2The crime of armed robbery is serious and that is reflected in the maximum penalty that is prescribed by law and here in Victoria, it is 25 years' imprisonment.
3I shall proceed to sentence you on the basis of the summary of the prosecution opening that was read at the plea hearing by the prosecutor, Ms Overend.
4The matter was heard in the Koori Court Division of the County Court and you elected to proceed with your matter in that way and consented to the procedure being adopted.
5You participated in a sentencing conversation with Auntie Pam Pederson, a Respected Elder and Graham Austin, a Respected Person both of whom sat in the sentencing conversation with me presiding as judge.
6The fact that you participated in the Koori Court Division and the sentencing conversation in this matter is a powerful mitigating factor.[1]
[1] R v Morgan [2010] VSCA 15.
7In brief summary, the offending occurred when you were 16. You were in Melbourne, staying at a backpackers and had met your co-offender Chris Cvetkovski who was aged about 29. You had only known him fleetingly before. Mr Cvetkovski participated in both the armed robberies with you. He has significant prior criminal history that relates to charges of dishonesty, robbery, assault, assault with intent to rob, demand menaces and threatening serious injuries. I noted he had not been dealt with for armed robbery previously.
8Mr Cvetkovski was sentenced by her Honour Judge Davis here in the County Court Melbourne on 30 April 2015 and he was sentenced to prison for 14 months to follow a two year community corrections order with various special conditions. He had to perform 150 hours unpaid community work, undergo drug assessment and treatment, participate in offence related programs and also have ongoing supervision. It was noted in Her Honour's sentencing remarks that because of his age, he was not entitled to be treated as a youthful offender and he was also involved in the subsequent offending that you were involved with in Queensland. In Queensland he underwent a sentence for which he received parole and on 11 December 2014 he was extradited to Victoria for the sentence hearing and his sentence was then imposed.
9For reasons that I will now articulate, there will be a marked disparity in the sentence which I am about to impose on you and that can be justified by your youth and, the sentencing considerations that particularly apply to you and your participation in the Koori Court Division and sentencing conversation.
10Briefly, the circumstances of your offending concerns two armed robberies. The first one was at Liberty Service Station, Clayton in the afternoon of 20 October 2012 at about 4.20 pm. You were with Mr Cvetkovski. He went up to the counter and spoke to the store attendant about buying some DVDs. The attendant looked for a DVD in the cupboard behind the counter and then you approached him from behind, pressed a knife against his side and demanded money. Mr Cvetkovski then walked behind the counter, told you to stay away and not hurt the attendant and that was just a ruse. You then ordered the attendant to open the till and put money in the bag which he did and you also placed a number of cigarettes into the bag before both of you ran out of the store. Mr Cvetkovski then came back into the store and told the attendant he had called the police and then he left the store pretending to chase you.
11The incident was captured on CCTV and your faces were visible and ultimately you were identified. Mr Cvetkovski was a regular customer and known to both the attendant and the store manager at the time so he was quickly identified. A total of $682 cash, $580 worth of cigarettes was stolen.
12The second armed robbery occurred the following day about 5.15 pm. Mr Cvetkovski entered the Gumnut Milk Bar in Hawthorn, engaged the store attendant in conversation about some food and whilst that was occurring, you came into the store. Whilst the attendant was seeking to obtain some cigarettes, you then came up behind him, placed a knife against his throat and forced him to go with you into the back room. He was scared and replied, "You can take everything. Just don't hurt me", at which time a tenant who lived in the building occupied by the store opened the door, saw what was going on, asked what was happening and the store attendant just said, "This guy just wants to buy some drinks". The tenant went back into the back room and immediately made arrangements for the police to be contacted.
13Mr Cvetkovski then went behind the counter, took money from the till, cigarettes from the cupboard and placed everything in the bag and then you both departed. On that occasion money and cigarettes taken were to the value of $1000 and again that incident was captured on CCTV and you were both easily identifiable.
14Four days later on 25 October 2012, you and Mr Cvetkovski flew to Brisbane, following which you undertook a further series of armed robberies and participated in other offending in Queensland for which you later received a sentence at the Children's Court, Beenleigh on 20 April 2014 of three years' detention without conviction and it was ordered that you serve 50 per cent of each sentence to reflect the steps that you had taken towards rehabilitation.
15That sentence was the subject of appeal to the Supreme Court of Queensland and the outcome of that appeal is recorded in a decision unreported R v WAZ[2] and a copy of that decision and its reasons are attached to these sentencing remarks.
[2] [2015] QCA 16.
16The Supreme Court confirmed the case presented an unusual combination of very serious offending and significant features of mitigation. It was noted the maximum sentence under the Youth Justice Act 1992, which is the Queensland Act that applied for armed robbery, was ten years' detention and the court had regard to your role in the offending, the fact that the final armed robbery was committed on bail, the need to protect the community, and the fact that you would be required to serve a period of actual detention. They re-imposed the same sentence that was imposed at the Children's Court, Beenleigh and my understanding is that because of the period of the term that you had to undergo your sentence in an adult facility.
17The court noted you were the main perpetrator, particularly in respect to the inflictions of threats and violence with respect to a series of armed robberies that were conducted on 25 October 2012 and 10, 11, 12 and 13 November 2012 and 8 March 2015.
18Going back to the chronology, on 14 November 2012, at the suggestion of your grandmother, you handed yourself in to the Logan Central Police. You were then remanded in custody. On 11 December 2012, you were bailed for all charges.
19Subsequently, you were re-arrested after the armed robbery of 8 March 2013 and your bail was revoked.
20On 30 April 2013, you were re-bailed on all your Queensland matters and thereafter you undertook counselling and made significant progress. There were strict conditions: curfew, structured programs and anger management programs, drug counselling and also you undertook employment.
21Whilst undergoing your Queensland sentence you were interviewed by Victorian Police on 10 December 2014. On 5 August 2015 you were released on Queensland parole. On 28 August 2015 police issued charges for the Victorian armed robberies. On 18 November 2015, your Queensland Parole Order was suspended and a permit to travel was given to assist you with your extradition. On 25 November 2015, you were entered into police custody and extradited to Victoria following which your matter proceeded firstly, by way of committal mention. Then a plea of guilty to the charges on the indictment was entered on 21 December 2015 at further committal mention. It is accepted that the plea of guilty that you have entered was entered at the earliest opportunity and then the plea hearing proceeded on 15 February 2016.
22You have spent 84 days in custody awaiting this matter being concluded. That time was spent in adult custody here in Victoria in very difficult circumstances. I note that you were kept at MAP and MRC which is the subject of strict lockdown conditions following the riots that occurred in 2015.
23In respect to your Queensland parole, the permit to leave and remain out of Queensland remains binding. The permit notes that you are obliged to report to Queensland Probation and Parole within 48 hours of your return to Queensland. You have indicated to me that you understand the terms of your permission to travel and you are prepared to adhere to the conditions and also to acknowledge the directions that you must comply with upon your release from custody in Victoria.
24In sentencing you, Mr Walters, I have had regard to the very powerful mitigating factors that were present in your case. Firstly, I have had regard to your youth, noting you were 16 at the time and you are now 19. Had you been dealt with in Victoria when you were 16, you would have been dealt with in the Children's Court and a different range of sentencing options would have been available to the court of a more lenient nature and I have taken that into account. Also your rehabilitation is of paramount importance because of your current youth.
25Secondly, I have had regard to your participation in the Koori Court process. I have noted that you elected to proceed in this manner. I am satisfied that you were genuine when you participated in the conversations between yourself, the court and the Elders and Respect Persons who are present and they certainly were very impressed with the way in which you spoke to them and also the substance of what you told them.
26Thirdly, you provided a written apology to the court whereby you acknowledged that you understood the implications of your actions and that you take full responsibility and you now have real insight into how your actions affected both the victims and you apologise to the victims for your behaviour and you are now seeking their forgiveness.
27Fourthly, you have made significant steps towards your rehabilitation whilst on remand and undergoing sentence in Queensland and thereafter when you have been released on parole. You have not committed any further criminal offences and there are no pending charges.
28I have had regard to your particular personal circumstances. I have noted that you are presently in a relationship and your girlfriend, Ashleigh attended the court hearing travelling from Queensland with her young infant. She was able to provide to the court the details of the housing arrangements that are now in place, that will enable you to live together in Queensland.
29I accept that you are now actively planning a future with your partner Ashleigh and her infant son and that you want to take up the responsibility of caring for that young child. You are also seeking to undertake steps to secure a painting apprenticeship.
30I have noted the history and background that was provided in the other material that I have.
31You do come from a troubled background and your parents separated in your very early life and it has been difficult for you. Your childhood is one that appears to have been very disrupted and it has had a flow-on effect on you in terms of your behaviour and also not being able to finish school. Both your parents repartnered and there were conflicts between them about your behaviour and development over the years and I understand your father was a very strict disciplinarian. As a consequence you became very isolated and lost and ultimately you lived on the streets and began being with people who had a very negative impact. You truanted from school. Your offending behaviour and antisocial behaviour, including the use of drugs and criminal offending escalated.
32I noted that you have inherited your Aboriginality through your mother and her family, all of whom live in Queensland and you have no real ties with Victoria.
33Fifthly, since your time in custody, you have demonstrated insight in respect to the effect of your behaviour on both victims and the fear they have experienced. You also understand the ripple effect of your behaviour on your family, and in particular your girlfriend. You acknowledged openly that people have a right to feel safe and secure in their place of employment and you do understand the trauma you caused the victims.
34Sixthly, I am satisfied that the plea of guilty entered at the earliest opportunity is public acknowledgement that what you did was wrong and also reflects genuine remorse. There is real utility in your plea. By the plea, you spared the State the unnecessary expense and inconvenience of having to have a trial and call those witnesses and expose them to further trauma. You have facilitated justice so your sentence is discounted accordingly.
35Seventhly, I have also had regard to what Ashley said in her evidence, that she supported what you say, that is that you are very sorry for what you have done in the past and you acknowledge that what you did was a big mistake. You are now a more mature sensible person. You acknowledge the benefits that you have received from the counselling programs and community supports. You are now more pro-social in your lifestyle. You have disconnected from the negative peers who you used to mix with in the past and you are actively planning your future with your partner Ashley and her young son.
36I noted that as part of your parole, you worked as a removalist and also you have expressed an interest in re-establishing your ties with your father who is a painter by trade so that you can perhaps secure a painting apprenticeship in the future. You have also expressed an interest in working as a youth worker which, given your troubled background and what has happened in your life and how you have been able to transform your life, may well be a path that you can pursue.
37Finally, I have noted that you have readily accepted all the help and assistance that you have been provided through the authorities in Queensland and your excellent progress is noted. Notwithstanding the very real disruption that has been caused by your extradition and the time that you have spent in adult custody in difficult circumstances in Victoria, you still maintain your expressed commitment to change, which is very important and that reflects the fact that you really have turned your life around.
38In formulating the appropriate sentence I have to have regard to the serious nature of the offending. I must impose just punishment and on behalf of the community say that what you did was very wrong, it must be condemned. General deterrence is important and to an extent special deterrence is too. Your rehabilitation ultimately is a very important part of this sentencing process and I have had regard to the principles articulated in a decision of R v Mills[3] which is a Victorian decision that relates to sentencing youthful offenders for serious offending.
[3] [1998] 4 VR 235.
39The seriousness of your offending cannot be understated. I think you realise that now, do you not? You heard Mr Romak Patel's Victim Impact Statement being read. He was obviously very scared and it has had a real impact on him, he has suffered real emotional stress and fear as a result and no doubt it would have been frightening for the other attendant as well, but he has not provided us with a Victim Impact Statement because he has left Australia and returned to live in China.
40Ultimately, I accept that you now realise the full ramifications of your actions and I was particularly impressed by the way in which you engaged in the Koori Court process. I have had regard to the delay in this matter being heard. Fortunately, this is a case where I am satisfied that you have made the most of the time between your incarceration in Queensland and today.
41Ms Overend for the Crown confirmed this was a very unusual case that is exceptional and stated that provided you remained the subject of the controls of the Parole Board in Queensland, that in all the circumstances an Adjourned Undertaking would be an appropriate disposition. Such a disposition would enable you to immediately return to Queensland with all the structures and supports you have in place up there so that you can continue your rehabilitation under the auspices of the Parole Board Queensland and
Mr O'Halloran on your behalf also adopted this submission and sought this disposition.42Mr Walters, I am satisfied on the facts of this case, that it is an unusual and exceptional case. You have made extraordinary efforts to address the behaviour that led to your offending. You have transformed your life and you have turned your life around from being a troubled street kid to being a more mature and responsible person and the evidence of your remorse and reformation is of a kind that is rarely observed unfortunately. You have shown that somebody from such a troubled background can turn their life around with appropriate supports and also I think the most important thing in your case, is your own insight into your past behaviour and your acceptance and acknowledgment that it just could not continue in that manner.
43I propose to make the orders sought. I commend you for the steps that you have undertaken to date and I urge you to continue on in the same manner so that you successfully complete your order up in Queensland and also the order that I am making today.
44In all the circumstances, I consider the most appropriate disposition is to find each of the matters proved and without recording a conviction, I order that you be released on the adjournment of the hearing on condition that you be of good behaviour for the period of 12 months effective from today's date. In the event that you breach the conditions, I have already explained to you the penalties for that and you have acknowledged that you understand the Adjourned Undertaking and that you are prepared and willing to enter into the undertaking.
45In terms of not recording a conviction, I have had regard to the guiding principles set out in s.8 of the Sentencing Act 1991 and in particular, I am concerned that, having regard to your age and the circumstances of the offending that to record convictions would impact on your economic and social wellbeing and/or your employment prospects for the future so that no convictions are recorded, I note that that also was the same outcome in the Queensland matters.
46There are good reasons for public policy in this particular circumstance not to record a conviction. I think that covers everything. There are no ancillary orders sought?
47MS OVEREND: No, Your Honour, there is not.
48HER HONOUR: Have we got the two forms ready? I will just sign the Adjourned Undertaking. It was a lot of words but it is important that they be said because it explains firstly, why I have done what I have done for your sentence but also, why it is different from Mr Cvetkovski and hopefully you have gained a lot from the process. Are you happy that you understand the orders that have been made?
49OFFENDER: Yes.
50HER HONOUR: I will get Mr O'Halloran to go with my associate and get you to sign those two documents and we will provide a copy of those to you. Mr O'Halloran, I understand that arrangements are in place for Mr Walters' return to Queensland on Thursday morning?
51MR O'HALLORAN: Yes, Your Honour, in anticipation of a positive result today those arrangements have been made and there are flights booked and paid for, for him to leave tomorrow morning at 10.35.
52HER HONOUR: Good. Is it the case that he will be released from custody here today? Yes. He is no longer able to be kept. All right, so you have got everything in place, you have got all your belongings and whatnot. All the best. And before I finish, I just thank you the Koori Court officer and also Ashleigh.
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