Director of Public Prosecutions v Waters, Christopher
[2012] VCC 1921
•22 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01618
CR-11-00156
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER WATERS |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 November 2012 | |
DATE OF SENTENCE: | 22 November 2012 | |
CASE MAY BE CITED AS: | DPP v Waters, Christopher | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1921 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – Sentencing – Theft of a motor vehicle – Robbery – Criminal damage – Theft of a fuel card – Possess a drug of dependence
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K. Linzner | Craig Hyland Solicitor for Public Prosecutions |
| For the Accused | Mr D. Sala | Emma Turnbull Lawyer |
HER HONOUR:
1 Christopher Waters, you have pleaded guilty before me on two indictments. On the first indictment, A11381331, you pleaded guilty one charge of theft of a motor vehicle, one charge of robbery and one charge of criminal damage, and those charges arise out of the events that occurred on 7 May 2010.
2 In respect to the second indictment, C10569890.1, you pleaded guilty to one charge of theft of a motor vehicle, one charge of theft of a fuel card, one charge of armed robbery and one charge of possession of a drug of dependence, namely cannabis L, and those charges arise out of events that occurred on 24 February 2012.
3 In addition, there are summary matters concerning the events the subject of 24 February 2012, and pursuant to s.145 of the Criminal Procedure Act 2009, those summary charges were transferred to this court, and you agreed to the matters proceeding here in this court, and you entered the plea of guilty for Charge 9, drive in a manner dangerous; Charge 10, fail to exchange names and addresses at the scene of an accident; Charge 11, unlicensed driving; Charge 12, fail to exchange names and addresses at the scene of an accident; Charge 13, driving whilst having a proscribed illicit drug present in your blood, namely methylamphetamines.
4 I will now go through the penalties for the charges. Armed robbery, the maximum penalty is 25 years' imprisonment; theft is ten years' imprisonment; similarly, criminal damage is ten years' imprisonment; robbery is 15 years' imprisonment; possession of a drug of dependence, 30 penalty units or one year's imprisonment or both; and in relation to the charge of theft of a motor vehicle, s.89(4)(b) of the Sentencing Act 1991 provides that the court must, in the case of conviction, if the offender does not hold a driver's licence, disqualify him from obtaining one for such time as it thinks fit.
5
For the summary charges, the penalties are: driving in a manner dangerous, 200 penalty units or two years' imprisonment or both, and licence disqualification up to six months; failure to exchange name and address at a scene of the accident, where it is property damage and it is a first offence,
5 penalty units or 14 days' imprisonment or both; unlicensed driving,
25 penalty units or imprisonment up to three months; driving whilst having a sample of blood taken that shows a proscribed illicit drug present, first offence, 12 penalty units.
6 Mr Waters, I will now proceed to sentence you and I am doing that on the basis of the openings that were read to the court by the Prosecutor, there being no objection taken to those openings at the plea hearing.
7
First, I will proceed with indictment A11381331 and the events of 7 May 2010. On that day, you stole a Hyundai, registration XKK583, from the rear of
111 Nepean Highway, Seaford, and proceeded to the Westpac Bank, Seaford. Your movements were captured on the closed circuit television system. You were wearing a beanie, dark sunglasses, gloves, dark jacket and carrying a red camera bag. You walked over to where the teller, Kirsty Pledger, was working and said to her, "You know what this is, you know what you have to do. Give me the fifties and hundreds and I have got a shotgun. Don't go for the buzzers." She then placed money in your red camera bag. When she ran out at her teller, she was ordered by you to move to the next one. She started to do that but at some stage, someone else had activated the security and the screens went up. In the meantime you somehow obtained your red bag, containing $9953.18. On leaving the bank, you struck the door, shattering the glass from your exit from the bank.
8 Eventually you were linked to that offending, and on 20 May 2010, police arrested you in Western Australia and you were extradited back to Victoria. During the formal record of interview, you denied any involvement with that robbery.
9 I will move now to indictment C10569890.1, and that concerns the events of 24 February 2012. On that occasion, you stole a Mazda sedan, registration RFL897, outside a residential address in Oak Park. You then stole a fuel card from a different car belonging to another person, parked outside a flat in Pascoe Vale. You then proceeded to drive that stolen Mazda vehicle to the Amcal Pharmacy in Glenroy. You put on a green hooded jacket that you found in the car and took a red sports bag and placed a jack handle under your jacket and went into the pharmacy. You walked behind the dispensary counter and turned to one of the employees, named Tran, and demanded drugs, saying, "I want Calma, Xanax and Oxycontin." When you moved behind the dispensary counter, staff including Tran ran out of the pharmacy. You then turned towards another employee named Yong, lifted up your shirt, exposing what he believed to be a gun holster, and made another demand for drugs. He then ran from the pharmacy and contacted 000 on his mobile phone.
10 On leaving the pharmacy, you grabbed Tran's handbag from beneath the counter and ran from the pharmacy. The handbag contained a number of personal items, including a wallet, bank card and approximately $80 cash. You then got into the Mazda, reversed it, collided with the parked Toyota wagon. Then you collided with a power pole as you were attempting to drive away. You were chased by several witnesses who attempted to stop your vehicle, and you were driving west in Belair Avenue, Glenroy, in an erratic manner. You struck gutters and traffic islands. You came to a stop at the intersection of Clovelly Avenue and Chapman Avenue, Glenroy, and at that time you had been pursued by another person, Mr Salmaz, in his vehicle. You then collided with the rear side of his vehicle. You failed to stop and continued driving.
11 Eventually you came to a stop and got out of the driver's side door, walked away from the car and you were pinned to the ground by two civilians. Police arrived and you were arrested. At your arrest, they located some cannabis on your person.
12 You were taken to the Royal Melbourne Hospital and a blood sample taken pursuant to s.56 of the Road Safety Act 1986 was analysed and that showed that you had methylamphetamines in your system. You are not the holder of a Victorian driver's licence when these offences occurred and therefore were not authorised to drive a vehicle on a Victorian road.
13 Those facts constitute the details of both indictments and the summary charges.
14 You admitted before me your criminal record, and that record spanned the period from 26 November 2002 through to 8 April 2009, and they show court appearances in the Children's Court, Magistrates' Court and the District Court of Western Australia. You have various court appearances for dishonesty and other drug-related offending. In the past, you have had several periods of imprisonment. Your criminal history reveals a pattern of behaviour that is linked to your long term polysubstance abuse, and I will refer to that a little bit later in my sentencing remarks.
15 Mr Waters, there are a number of aggravating features in your offending. Firstly, in respect to the first incident on 7 May 2010, it is a serious example of a robbery. There was a degree of planning and you did take steps to conceal your identity. Your behaviour on that occasion would have been very threatening to the teller, Kristy Pledger.
16 A victim impact statement was filed by her and it confirms, since that robbery, she has been diagnosed with post traumatic stress disorder, she has been unable to work a considerable time in the bank and has had to turn down a promotion. Ultimately, she left the bank and has had to have counselling and ongoing treatment. She has now lost trust in people that she is not familiar with and finds it hard to go to events where there are large groups of people because of her fear about socialising with strangers, and she has had depression and anxiety diagnosed. It has been a difficult time for her. She has suffered a lot as a result of that robbery.
17 In respect to the offending on 24 February 2012, you were on bail at that time for the earlier offences, and that is an aggravating feature. Unless I direct otherwise, any sentence imposed by me for those offences must be served cumulatively upon any sentence I impose for the offence that is the subject of the first indictment. I shall be directing otherwise in your case.
18 Your offending involved a degree of planning a premeditation evidenced by stealing the car from one person and then the fuel card from another, and then going to the pharmacy and behaving in a threatening manner. The driving on the occasion following the pharmacy robbery was appalling. You placed not only yourself but also other members of the public in danger.
19 Mr Yong, who was one of the pharmacy employees, provided a victim impact statement and again, his statement reflects the difficulties he has had since this incident. He says he is very suspicious of people entering or exiting the pharmacy and he is easily startled. Again, he is having trouble trusting customers coming into his pharmacy.
20 In sentencing you, there is a real need to emphasise both general and specific deterrence, and on behalf of the community I must formally denounce what you did in this offending.
21 Mr Waters, I have been told something about you and your background. You were born in Victoria but as a young boy aged 6, you moved to Perth. Your father had a long work association with the building industry and your mother has had a variety of work, you and describe your upbringing as normal. Your parents are both highly supportive of you. They were present at the plea hearing. You did experience some difficulties at school, mainly to do with discipline, but nonetheless you were very successful in sport and have obtained medals and achieved well in boxing as a young boy. You left school at age 15 and commenced work doing car detailing and working as a labourer on building sites.
22 Unfortunately, at around the age of 16, you began using drugs heavily. You became addicted to cannabis L in your teenage years, progressed to ice in your latter teenage years, and your use of that drug escalated and is reflected in the pattern of offending behaviour that I have already referred to. From what I see from your record, you have been in and out of gaols in Western Australia for most of your adult years.
23 In 2009, you decided to make a clean break and move to Melbourne to live. Before doing so, you were working in Western Australia but that was intermittent, becoming increasingly erratic due to your drug addictions. When you moved to Melbourne, you settled in well initially. You were living with a relative and had paid work and you were drug free, but that all came to a crashing end when you met up with an old friend from Perth and began to indulge heavily in methylamphetamines. Your work became more erratic and your contact with your family diminished. The offending that occurred in 2010 occurred in that context.
24 Whilst I accept that your heavy addiction to the drug ice has motivated your offending and explains your behaviour on these occasions, it in no way excuses your behaviour.
25 I note that, whilst in Melbourne, you have developed a relationship with Sarah, who is now your fiancée. She too was present at the plea hearing and remains supportive of you. At the time of the latter offending, you were living with her but continued your associations with drug addicts whom you had known from the past. You were able, to an extent, to hide your drug taking from her.
26 I note that you were charged with the offences relating to 7 May 2010 on your arrest on 20 May 2010. You were placed in remand but released on bail on 30 September 2010. You committed further offences on 24 February 2011. You applied to revoke your bail in March 2011. You were re-bailed on 7 July 2011 but you went back into custody. Then you pleaded guilty on the first day of the trial of these matters, on 26 September 2012. All up, there are 513 days' pre-sentence detention.
27 I have had regard to the mitigating matters put on your behalf by Mr Sala. He did provide to me a report of Dr Aaron Cunninham, forensic psychologist, who saw you on 11 September 2012. I have read his report from 27 October 2012. I do not propose to go into any great detail in relation to his report, other than to say I have read it, taking its contents into account. I note that, in your plea, Mr Sala disavowed any reliance upon any of the Verdin’s principles.
28 Dr Cunningham noted that you do have some health issues that will have to be attended to whilst you are in custody. They are your substance use dependency. You are dependent on opiates as well as benzodiazepine and methylamphetamines. You also suffer from Hepatitis C, and you reported to him panic attacks and some periods of depression and anxiety. He recommends that you have inpatient drug and alcohol rehabilitation and be assessed by the Salvation Army whilst you are in custody, to facilitate access to inpatient rehabilitation once you are released.
29 I have had regard to your plea of guilty and consider, in the circumstances of this case, it does represent genuine remorse. Your father, Simon Waters, gave evidence and he confirmed your history of your long term drug abuse. He noted that your relationship with your fiancée is your first real relationship and he observed that whilst with her, you have made the commitment to not use any drugs in her presence.
30 I do consider that you now have some insight in relation to what it is that makes you offend, and that you are genuinely motivated to change. Your relationship with your fiancée is a positive one and overall, she has a stabilising influence on you. I am guarded in respect to your prospects of rehabilitation. However, should you continue to maintain your abstinence from all drugs, you do have good prospects for the future.
31 The Crown submitted that a head sentence of five to six years with a non parole period of three to four years was appropriate. Mr Sala acknowledged the seriousness of the offending and accepted that an immediate term of imprisonment to be served was an appropriate punishment.
32 In sentencing you, I must impose just punishment. The prevalence of robbery and armed robbery of this nature is such that general deterrence is of particular importance. Having regard to your history of previous offending and also convictions for dishonesty-type offences, specific deterrence for you is also very important. I must have regard to the protection of the community in the future.
33 I shall now set out the formal court orders.
Indictment A11381331:
34 Charge 1, theft; convicted and sentenced to 12 months' imprisonment.
35 Charge 2, robbery; convicted and sentenced to 12 months' imprisonment.
36 Charge 3, criminal damage; convicted and sentenced to six months' imprisonment.
37 The robbery charge, Charge 2, is the base sentence. I make the following orders for cumulation. Six months of the sentence imposed with respect to Charge 1 and three months of the sentence imposed with respect to Charge 3 will be cumulative upon each other and upon the sentence imposed on Charge 2 for indictment A11381331.
38 That makes a total effective sentence of one year and nine months.
Indictment C10569890.1:
39 Charge 1, theft; convicted and sentenced to 12 months' imprisonment.
40 Charge 2, theft; convicted and sentenced to six months' imprisonment.
41 Charge 3, armed robbery; convicted and sentenced to three years' imprisonment.
42 Charge 4, possession of a drug of dependence; convicted and discharged.
43 I will deal with the associated summary matters now.
44 Charge 9, driving in a manner dangerous; convicted and sentenced to nine months' imprisonment.
45 Charge 10, failing to exchange names and addresses; convicted and sentenced to seven days' imprisonment.
46 Charge 11, driving unlicensed; convicted and sentenced to six months' imprisonment.
47 Charge 12, failure to exchange names and address; convicted and sentenced to seven days' imprisonment.
48 Charge 13, driving whilst having drugs in your system; convicted and fined $500.
49
Charge 3 is the head sentence, the armed robbery sentence of three years.
I make the following orders for cumulation. Six months of the charge imposed with respect to Charge 1 and three months with respect to Charge 2 is cumulative upon Charge 3. So that is three years and nine months. I further order that three months of the sentence imposed with respect to Charge 9, of the associated summary matters, and three months of Charge 11 be cumulative upon each other and upon the sentence imposed upon you for that indictment. That makes a total effective sentence for that indictment of four years and three months; is that correct? Yes. I order that two years and six months of the sentence I have imposed with respect to indictment C10569890.1 be cumulative upon the sentence imposed upon indictment A11381331. That makes a total effective sentence of two years and six months, plus one year and nine months. So four years and three months?
50 MS LINZNER: Yes, Your Honour.
51 HER HONOUR: Yes, four years and three months. I fix a non parole period of three years.
52 I make the declaration pursuant to the Sentencing Act in relation to pre-sentence detention of 513 days, and direct that that be recorded in the records of the court.
53 I make the order for the retention of the forensic sample pursuant to s.464ZFB of the Crimes Act 1958 as amended, having regard to the fact that that order is not opposed and it is in the interests of justice to do so.
54 Finally, I make the disposal order sought and I make an order pursuant to s.89(40)(b) of the Sentencing Act 1991, that you are disqualified from holding a licence for two years, effective from today's date.
55 The s.6AAA declaration: but for your plea of guilty, I would have imposed a sentence of five and a half years, to serve four years.
56 MR SALA: Your Honour?
57 HER HONOUR: Yes?
58 MR SALA: Can we just have the numbers again? If Your Honour is concerned, we could just run through it.
59 HER HONOUR: Yes, just run through what you have recorded.
60 MR SALA: In the first indictment, the theft 12 months, robbery 12 months, criminal damage six months. The base sentence is the robbery.
61 HER HONOUR: Yes.
62 MR SALA: The theft there was six months' cumulation and the criminal damage there was three months' cumulation. That is cumulative on each other and then ultimately on the base sentence.
63 HER HONOUR: Yes, so it is a total effective sentence of one year and nine months.
64
MR SALA: Yes, Your Honour. In respect to indictment two, the theft was
12 months.
65 HER HONOUR: Yes.
66 MR SALA: The second charge of theft was six months.
67 HER HONOUR: Yes.
68 MR SALA: The armed robbery was three years.
69 HER HONOUR: Yes.
70 MR SALA: I will ignore the drug of dependence.
71 HER HONOUR: Yes.
72 MR SALA: The manner dangerous was nine months.
73 HER HONOUR: Yes.
74 MR SALA: I believe there was a fail to exchange names.
75 HER HONOUR: Yes, 10.
76 MR SALA: Ten, yes. Your Honour, was that seven days?
77 HER HONOUR: Seven days, yes.
78 MR SALA: There is an unlicensed driving.
79 HER HONOUR: Six months.
80 MR SALA: Six months.
81 MS LINZNER: Your Honour, if I can just raise a matter in relation to that charge, when Your Honour indicated the maximum penalties, Your Honour correctly indicated three months in respect of that charge.
82 HER HONOUR: Very well. I cannot do that six months. Very well. I will have to amend that rectify that. We will just keep going through. Charge 12 was seven days.
83 MR SALA: Seven days.
84 HER HONOUR: Charge 13, convicted and fined 500. Very well. I made an order for cumulation of three months on Charge 11, but Charge 11, the driving unlicensed, that has a penalty only of 25 penalty units or imprisonment up to three months. Very well, I will have to change that from six months to two months, and just accumulate one month. So Charge 11 will be two months.
85 MR SALA: As Your Honour pleases.
86 HER HONOUR: I will cumulate one month.
87 MR SALA: As Your Honour pleases.
88 HER HONOUR: So that takes two months of the head sentence, does it not? So it is four years and one month.
89 MR SALA: Yes, Your Honour.
90 HER HONOUR: I fixed a non parole period of three years.
91 MR SALA: Three years. Yes, they were my only concerns, Your Honour, thank you.
92 MS LINZNER: Sorry, Your Honour, just in respect also of Charge 12, it is my understanding, on a reading of the Road Safety Act, that for a second or subsequent offence, the maximum penalty is one month, but there is also a mandatory minimum of 14 days.
93 HER HONOUR: So upon conviction for the second one - mandatory minimum of 14 days, is it?
94 MS LINZNER: That is my understanding, Your Honour.
95 HER HONOUR: Very well.
96 MS LINZNER: I can take you to the section if - - -
97 HER HONOUR: No, so Charge 12 I will change from seven days to 14 days, and it does not affect the sentence. Just for clarity, the total effective sentence, Mr Waters, is four years and one month with a non parole period of three years.
98 MS LINZNER: Has Your Honour then, in effect, altered the orders for cumulation between the two indictments, rather than the cumulation on the indictment C15?
99 HER HONOUR: I will have to. So the order for cumulation - Charge 9 was three months' cumulation, Charge 11 was one month. So that is four months. No, I am getting confused now.
100 Charge 3 is the head sentence, three years.
101 MR SALA: Yes, Your Honour.
102 HER HONOUR: I will make the order six months on Charge 1, three months on Charge 2, three months on Charge 9 of the summary and one month on Charge 11, yes? That makes four years and one month on my maths; is that right?
103 MR SALA: Yes, Your Honour.
104 HER HONOUR: For the second indictment. I did say I ordered two and a half years of the second indictment to be cumulative upon the first indictment. So 2.5 plus one year and nine months. It is still four years and three months, yes. What I did was took off two months from the total, which I should not have done.
105 Sorry about that. That is correct. Four years and three months, to serve three years, is the total effective sentence.
106 MS LINZNER: That clarifies it, Your Honour, thank you.
107 HER HONOUR: You understand that, Mr Sala?
108 MR SALA: Yes, Your Honour. Yes, that is perfect, Your Honour.
109 HER HONOUR: Yes.
110 MR SALA: Sorry, I do not mean to be pedantic about these things.
111 HER HONOUR: No, no. I would have made an error and I would have had to come back and fixed it all up anyway.
112 MR SALA: It is what I was trying to avoid.
113 HER HONOUR: All right, so the bottom line here, Mr Waters, is that the total effective sentence is four years and three months, and you are to serve three years before being eligible for parole. You have already served 513 days of the sentence that I have imposed today.
114 You licence situation is such that you are disqualified from holding a licence two years effective from today. All right? Sorry about all the mucking around. It is just a bit tricky.
115 PRISONER: I have a question to ask.
116 HER HONOUR: Yes?
117 PRISONER: To the pharmacist from the pharmacy, I wanted to write like a letter of apology, but wanted to know if my fiancée could give it.
118 HER HONOUR: You can write.
119 PRISONER: I have got their addresses but - - -
120 HER HONOUR: No, you do not write directly to them.
121 PRISONER: No.
122 HER HONOUR: They might get a bit of a shock getting something from a prison.
123 PRISONER: Yes.
124 HER HONOUR: What you could do is Mr Sala can give you - - -
125 MR SALA: My instructor could facilitate such a thing.
126 HER HONOUR: - - - his instructor's address. You can write the apology and that can then be provided to the Office of Public Prosecutions to pass on.
127 MR SALA: Yes, Your Honour.
128 HER HONOUR: But it is clear that you want to express that you are apologetic for your behaviour on that occasion.
129 PRISONER: Yes.
130 HER HONOUR: Very well. That is a very good thing for you to have done in open court and Ms Linzner is here from the Office of Public Prosecutions and she can tell the informant, and he can let the pharmacy people know, because it would have been pretty terrifying, what you did.
131 PRISONER: Yes, I know.
132 HER HONOUR: You were obviously not in control of your senses on that occasion, no. But you are doing much better now.
133 PRISONER: Yes.
134 HER HONOUR: I must say, you are looking very well for somebody that has had a history that you have.
135 PRISONER: Thank you.
136 HER HONOUR: That is all good for the future.
137 PRISONER: Yes, thank you.
138 HER HONOUR: Hopefully you can get through this sentence and build your life from here on in.
139 PRISONER: Thank you very much.
140 HER HONOUR: You are obviously a young man still and you have been very fortunate. You have got a good family and a nice fiancée, so you are doing better than most in your situation, are you not?
141 PRISONER: I think, yes.
142 HER HONOUR: Very well.
143 PRISONER: Thank you very much.
144 HER HONOUR: All right, thank you. We will adjourn the court now.
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