Director of Public Prosecutions v Wass

[2014] VCC 1734

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01329

DIRECTOR OF PUBLIC PROSECUTIONS

v

AIDEN BRIAN WASS

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 September 2014
CASE MAY BE CITED AS:	DPP v Wass
MEDIUM NEUTRAL CITATION:	[2014] VCC 1734

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	Ms C. Hollingworth	Office of Public Prosecutions
For the Offender	Ms C. Woodward

HER HONOUR: 

1Aiden Brian Wass, you have pleaded guilty to one charge of armed robbery.  The maximum penalty for armed robbery is 25 years' imprisonment. 

2The prosecution made application for orders for the taking of a forensic sample from you and for compensation in the amount of $150.  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.  At about 5.30 am on Sunday 13 April 2014 in St Kilda you and a 16 year old co-offender hailed a taxi.  Your co-offender got into the front passenger seat.  You got into the rear passenger seat.  You both produced knives and demanded money.

4Your co-offender got out of the taxi and pointed his knife at the driver.  He was yelling at the driver to give him all his money.  You were holding a 30 cm long knife against the driver's upper left arm.  The driver handed about $100 to $150 to your co-offender.  Your co-offender demanded more.  You still held the knife against the driver's arm.  The driver said he had no more money, and then the two of you ran away.

5Ultimately you were arrested on 24 April 2014 in Canberra while travelling back to Melbourne from Sydney by bus.  In an interview with Victorian police you admitted the armed robbery.  You said you had been with your co-offender at the co-offender's mother's place.  You said you were coming down from ‘ice’ at the time of the offence and were "Off your head".  You said you had just met the co-offender.  You viewed the CCTV footage and you said you probably got the knife from the co-accused's mother's place.  You identified yourself and you said you were "obviously" assisting the co-offender.

6The co-offender will appear in the Children's Court and has not yet been sentenced. 

7You have been in adult custody since your arrest. 

8You have admitted an extensive prior criminal history.  Most of your offending occurred in Western Australia.  You have no prior history of armed robberies.  You have one appearance for burglary in 2009.  Your offences, otherwise, appear to have been mainly offences involving damaging property consistent with graffiti linked behaviour.  You have numerous findings of guilt for assaulting public officers.  You have had one prior appearance for arson but I do not regard that as relevant to the offending for which I am sentencing you.

9The courts in Western Australia and Victoria have made numerous and repeated efforts to achieve your rehabilitation in the community.  At the time of this offence you were subject to a six month suspended sentence of imprisonment imposed in Western Australia on 20 December 2013, and a community correction order imposed in the Melbourne Magistrates' Court on 23 April 2013, for 12 months.  You have previously spent various periods of time in custody on remand.  You have been sentenced to youth detention for six months in 2009 and three months in 2011.  You have not previously been sentenced to a term of imprisonment in adult custody to be served immediately.

10The efforts of past sentencing courts are reflective of your youth and very difficult personal circumstances.  You are now 20 and were 19 at the time of this offence.  You identify as being a person of Aboriginal culture.  It is clear from the reports that I was provided with that you had a very significantly disadvantaged childhood.   You were born in Western Australia where you have lived most of your life.  Your parents had both been in the Australian Defence Force.  Both your parents had difficulties with alcohol.  Your mother's heavy alcohol consumption during pregnancy may have adversely interfered with your development.  Whether or not that is so, you have suffered from a number of problems from an early age.

11The Western Australian Department of Child Protection was involved with your care from the time you were four years old due to family violence.  You had learning difficulties in primary school and were bullied at school.  By the age of 11, you had started using illegal drugs.  About the same time, you were diagnosed with Attention Deficit Hyperactivity Disorder.  Your parents separated when you were 12.  You left school at 13 and about the same age, you were placed in the care of the Child Protection Services.  From that time on you have been intermittently homeless.  You have had episodes of self-harm.  You have been using illegal drugs, including amphetamines, although you have mainly been using cannabis.   You spent a considerable amount time associated with negative peers.  In 2008, you were sexually assaulted. 

12You spent many periods of time on remand.  You spent some periods of time in youth residential units.  You are of slight build and, in many instances, were bullied by others.   It is noteworthy that by the age of 14, you had been in remand centres ten times.  Your life is accurately described as been chaotic in your mid and late adolescence.  One positive relationship was with a young woman in 2013, but that relationship is not ongoing at present, although it appears that you have some affection for that young woman.   You have been moving between Western Australia and Melbourne for about two years. 

13A significant issue for you in your life has been your cognitive difficulties.  A report from Mr Stephen Roberts, senior clinical psychologist, dated 15 April 2010, refers to an earlier neuropsychological report.   I quote from Mr Roberts' report, "The report assessed Aiden's overall cognitive ability to be at borderline range of functioning, a level that is indicative of intellectual disability and a level that the Disability Services Commission (DSC) requires for service eligibility.  The report also indicated difficulty with higher order cognitive processes and executive functioning, necessary for effective and contextually appropriate behaviour, but did not complete testing of these functions because of time restraints and because of non-compliance to attend second scheduled session."

14

I was provided with a report by Dr Guy Coffey, clinical psychologist, dated

18 September 2014.  Dr Coffey spoke to you and administered an intelligence test assessment.  In his report, Dr Coffey says that your intellectual functioning appears to have been improved.  He says you are not formally intellectually disabled but have a number of significant cognitive deficits. 

Dr Coffey says that it is possible that some of the improvement in your cognitive abilities is due to maturation.  It is also possible that abstinence from substance abuse has improved your intellectual functioning.

15Dr Coffey says that your overall intelligence score was at the lower end of the low average range and the upper level of the borderline range.  He says it is about ten points above what is normally considered to constitute intellectual disability.  He says about eight per cent of the population score at this level or lower.

16

In respect of your current mental health, Dr Coffey said that you had suffered anxiety and depressive symptoms for many years.  He said that you had a generalised anxiety disorder and had suffered depressed mood.  He said that at the time he assessed you, you did not suffer from clinical depression. 

Dr Coffey says, "His restlessness, hyperactivity, distractibility and impulsivity, whilst less prominent than in childhood, remain a striking feature in his presentation and are likely to represent the ongoing features of Attention Deficit Hyperactivity Disorder diagnosed in early childhood, which is now in partial remission”.   Dr Coffey says that it is possible that your mother's alcohol consumption contributed to the development of that disorder.  Dr Coffey says that you do not possess psychopathic traits and whilst you have a history of offending from mid-adolescence, he does not believe your personality is organised around anti-social traits.

17Dr Coffey addresses the difficulties for you in imprisonment because of your youth, your overactive movements and your diminutive size.  He says that you feel unsettled at times and quite disturbed when you are unable to distract yourself from the matters from your surrounding circumstances.

18Dr Coffey also sets out what he suggests as a range of treatments and psychosocial interventions, which need to be put in place if you have any chance of achieving a law abiding life.  Dr Coffey says, "He requires thorough neuropsychological assessment to precisely describe his current cognitive deficits and strengths and to establish what remedial interventions are warranted."  He also says your pharmacotherapy requires psychiatric review and that you need psychological treatment.

19Dr Coffey also makes recommendations in respect of assessment of your capacity to undertake further education and vocational training.  Dr Coffey also says that you require a structured daily routine, which initially may need to be strongly supervised and that the set of treatments and interventions would need to be carefully overseen and case managed.

20In some sentencing submissions, you counsel relied on a number of factors in mitigation of sentence, including:  a) your plea of guilty; b) your remorse; c) your youth; d) the circumstances of your offending, including a lack of planning or disguises; e) the application of Verdins principles; and f) parity issues.

21Your counsel said that substance use had featured in your offending, but you could not recall why you had committed the offence.  Your counsel said, and I accept, that you did not get any money from this offending.  Your counsel submitted that a community correction order would be the appropriate sentence in view of your circumstances.

22The prosecutor submitted that a community correction order would not be within the appropriate sentencing range because of the seriousness of your offending.

23Mr Wass, you have clearly committed a serious offence.  You and your co-offender attacked a vulnerable target.  You attacked a person in the early hours of the morning, who was alone in their taxi.  You took weapons from the house.  You used those weapons to cause fear to that person, and to get the money that you wanted.   I am satisfied beyond reasonable doubt that you went out, armed with the knives with the intention of obtaining money for some purpose, although I am unable to conclude what purpose it was that you wanted the money for.

24I accept that it was opportunistic that you robbed the taxi driver, but I am satisfied beyond reasonable doubt that you and your co-offender went armed with the knives, planning to rob somebody, and to use the knives to assist you if necessary.  I do accept that there are a lack of aggravating features, such as the use of disguises or any degree of sophisticated planning.

25There are a number of matters which operate in powerful mitigation of sentence.  You pleaded guilty.  You made an early plea of guilty.  You made immediate admissions.  You are entitled to a significant discount for your plea of guilty for having saved the expense and inconvenience and trauma of a trial.  I accept that your plea of guilty is an indication of genuine remorse.  That genuine remorse is shown by the letter that you wrote to the court.  I accept that you genuinely are sorry for robbing this person and the harm that may have caused.  I accept that you have some ability to understand what the taxi driver might have felt.

26Your youth is, again, a powerful mitigating feature.  You are only 20 years old.  This is your first time in adult custody, in terms of serving a term of imprisonment.  You are a young person who has had a very difficult background, and who has very difficult personal circumstances.

27

I accept that the principles set out in Verdins have considerable application to your case.  Clearly, you would find imprisonment more difficult because of your cognitive difficulties and your Attention Deficit Hyperactivity Disorder, as well as your anxiety and depression.  I particularly rely on the report of

Dr Coffey in respect of these matters.  I consider that a sentence of imprisonment in adult prison is likely to worsen your conditions of anxiety and depression.  I do note that currently you are being treated for your depression and that treatment appears to have been successful.

28I also accept that your Attention Deficit Hyperactivity Disorder and your low level of cognitive functioning reduced, to a degree, your moral culpability in respect to this offending, as well as your suitability as a vehicle for general deterrence.  I consider that any sentence ought to be appropriately moderated to take into account the application of those Verdins principles.

29In respect of your prospects of rehabilitation, I consider that your prospects of rehabilitation are relatively poor but not without hope.  It appears that you have increasing maturity.  It is important that you have not committed offences of armed robbery before.  You do not have a history of offending of direct violence or intentional violence against people.   I think you do genuinely want to stay away from drugs and out of trouble.  The problem is that you are going to need a lot of support in order to be able to do this.  In the past, despite whatever supports have been offered to you, you have had fallen back into drug use and into keeping with company with people who are engaged in illegal activities.

30It is my view that even taking into account all the factors in mitigation and giving significant weight to the primacy of your rehabilitation and the application of Verdins principles, a community correction order would not be an appropriate sentencing disposition.  I do not consider that would give sufficient weight to denunciation, just punishment, general deterrence and specific deterrence, even moderated significantly.

31In my view, imprisonment is the only appropriate sentence in order to reflect those sentencing purposes.  I should also say that in making that decision, I have taken into account the parity issue that was raised by your counsel.  Your co-offender is being sentenced in the Children's Court under a different sentencing regime and that co-offender has not yet been sentenced.  It falls to me to sentence you in the adult courts.  In saying that, I have taken your youth and personal circumstances into account in significant reduction of the sentence that I would have otherwise imposed.

32In considering the question of imprisonment or detention in a youth training centre, I have obtained a report from the Senior Court Advice Officer for the Department of Human Services as to your suitability for detention in a youth justice centre.  You are considered suitable by the author of that report for detention in a youth justice centre.  I have given considerations to the possible benefits that might be available from ordering your detention to be in a youth justice centre, rather than in adult custody.

33I have also given consideration to the matters you have raised, yourself, and through your counsel as to your reasons for wishing to stay in adult custody.  It appears that at present, you have been on remand for about five months in the Marlborough Unit at Port Phillip Prison.  There have been some difficulties within that unit but generally you are relatively settled.  It appears that you have a positive attitude towards various programs that are being run there and may be offered in future.  It appears that the persons in charge of that unit will be making arrangements to have you assessed as to whether or not you are eligible for disability services from the Department of Human Services because of an intellectual disability.

34You say that you have some positive social interactions within the Marlborough Unit and that you are well settled there.  You also say that you feel that you are less likely to get into trouble with the other persons in Marlborough Unit, which houses people with an intellectual disability, rather than in the general population, which would be in youth justice centre.

35Having taken all of these considerations into account, I have decided that it is more appropriate that you be sentenced to a term of imprisonment in adult custody, with a view to you being able to serve out at least a considerable part of a non-parole period within the Marlborough Unit.  I make that decision understanding that there are no guarantees that you will be able to remain in the Marlborough Unit.

36I have taken into account in determining the length of the sentence all of the matters in mitigation.  I have also taken into account the circumstances under which you would be serving your sentence, taking into account your youth and the particular difficulties that you face.  I also take into account that this is your first sentence of ongoing adult imprisonment.  For all of those reasons, I am imposing a head sentence which is considerably less that I would otherwise and a lower non-parole period that I would otherwise.

37

In respect of one charge of armed robbery, I am sentencing you to a term of imprisonment of 22 months.  I have fixed 11 months as the period you are required to serve before you are eligible for release on parole.  But for your plea of guilty, I would have sentenced you to a term of imprisonment of

30 months, with a non-parole period of 20 months.  I make the order for the taking of a forensic sample from you.  I make that order because of the seriousness of the circumstances of your offending, your prior convictions and the order is not opposed.

38I am required to tell you something, Mr Wass.  The officials will come to take a saliva swab from you, so that is a swab from your mouth.  That will be used to record your DNA.  I am sure you will cooperate with the authorities.  If you do not cooperate, then they are allowed to use force and to take a blood sample.  So I am sure you will cooperate. 

39The other order that I have made is for compensation in the amount of $150.

40

I declare that you have served 153 days of this sentence by way of

pre-sentence detention, to be deducted administratively.  So that means you have already done, effectively, five months.  There will be another six months to go before you are eligible for release on parole.  Whether or not you get parole is entirely a matter for the parole board.  That has nothing to do with me.

41OFFENDER:  Yes, Your Honour.

42HER HONOUR:  All I would suggest is that you think very hard about what supports you need to get and what help you need to get.  First, so you can get parole.  And second, so if you get parole, where you are going to live and what you are going to do.  All right?  So to get parole, you have got to behave yourself and you have got to think about what you are going to do when you get out.  Do you understand that?

43OFFENDER:  Yes, Your Honour.

44HER HONOUR:  And you need help when you get out from people who can hopefully give you help with housing and other services.  Do you understand what I am saying?

45OFFENDER:  Yes, Your Honour.

46HER HONOUR:  All right.  I hope, Mr Wass, that you are able to receive some of the assistance.  You have had a very difficult time and it is not easy to just turn around and start doing the right thing.  So I hope you get the help to do that that you need.  Whether it is in Victoria or Western Australia ultimately.

47OFFENDER:  Thank you.

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