Director of Public Prosecutions v Wathen

[2015] VCC 849

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00299

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAM WATHEN

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	25 May 2015 (plea hearing)
DATE OF SENTENCE:	1 July 2015
CASE MAY BE CITED AS:	DPP v Wathen
MEDIUM NEUTRAL CITATION:	[2015] VCC 849

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – armed robbery – attempted armed robbery – appropriateness of Community Correction Order

Legislation Cited:     Crimes Act 1958, s 75A; Sentencing Act 1991, s 5A, s 5(4), s (4)(C), s40, s48c, s48D, s48D(3)(a), s48E, s48G,s48K,s48I

Cases Cited:R v Mills [1998] 4 VR 235; Boulton v R [2014] VSCA 342; Director of Public Prosecutions v Roberts [2014] VCC 1092.

Sentence:Convicted of each offence and sentenced to 196 days’ imprisonment and a Community Correction Order for a period of three years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E.R. Broadbent	Solicitor for the Office of Public Prosecutions
For the Offender	Mr S.A. Moglia	Doogue O’Brien George

HIS HONOUR: 

1Sam Peter Wathen, you have pleaded guilty to the following charges. 

2Charge 1 - that you, at Brunswick West in the State of Victoria, on 29 October 2013, attempted to rob Manzour El Mohammed of certain money and at that time you had an offensive weapon, namely a hammer. 

3Charge 2 - that you, at Bulleen in the State of Victoria, on 29 October 2013, robbed Hussein Tareik of certain money and at that time had with you an offensive weapon, namely a meat cleaver. 

4Charge 3- that you, at Reservoir in the State of Victoria, on 5 November 2013, robbed Michael Grabineskel of certain money and at that time you had with you an offensive weapon, namely a meat cleaver. 

5Charge 4- that you, at Albert Park in the State of Victoria, on 9 November 2013, robbed Salikoran Kolibakah of certain money and at that time you had with you an offensive weapon, namely a tomahawk.

6Charge 5 - that you, at Strathgordon in the State of Victoria, on 14 November 2013, robbed Mary Ann Vellor of certain money and at that time you had with you an offence weapon, namely a tomahawk.

7Charge 6- that you, at Kealba in the State of Victoria, on 6 December 2013, robbed Fahed Rafik of certain money and cigarettes and at that time you had with you an offensive weapon, namely a spear gun.

8Each of the offences is contrary to s.75A of the Crimes Act 1958. Charges 2, 3, 4, 5 and 6 involving armed robbery carry a maximum penalty of 25 years' imprisonment. Charge 1 involving attempted armed robbery carries a maximum penalty of 20 years' imprisonment. In this respect see s.32(1)(p) of the Crimes Act 1958.

9The prosecution has prepared a written summary of the circumstances surrounding your offending.  Such summary has been marked as an exhibit, Exhibit 1, and has been accepted by you and your counsel as an appropriate representation of the offending.  I will not set out all the details of such a document but highlight the following:

a)You were born in January 1992 and are 23 years of age.  At the time of the offending you were 21 years of age.

b)

The offences occurred over the period between 29 October 2013 and

6 December 2013.  In relation to Charges 5 and 6 you committed such offences with a co-offender, Michael Caleja, who pleaded guilty to those charges of armed robbery at the County Court, on 16 February 2015.

c)

Charge 1 - at approximately 3.40 am, on Tuesday 29 October 2013, you and another offender went to the 7-Eleven convenience store at

26 Melba Road, Brunswick.  On entering that store you pulled balaclavas down over your faces and walked up to the counter with you pulling a hammer out of the front of your pants.  You both shouted repeatedly at the lone store attendant who was standing behind the counter, yelling, "Fucking give me the money."  The attendant ran through a back door to a room behind the counter and closed the door, after which you both ran out of the store without taking anything.

d)Charge 2 - at approximately 5 am on the same morning as Charge 1, you went to a Caltex Service Station at 38 Bridge Street, Bulleen, and as you entered the service station store you pulled a balaclava over your face.  You went straight up to the counter, produced a meat cleaver and said the lone store attendant, "Give me all the money.  Where is the till?"  The attendant opened the till and put some coins on the counter, after which you responded, "Give me all the bloody money."  The store attendant then placed some notes on the counter and when you were collecting the money the attendant considered you looked scared and he noticed your hands were shaking.  You then left the store stating, "Call the cops, I'll be back."  At that time you stole $602.78 in cash.

e)Charge 3 - at approximately 4.50 am, on Tuesday 5 November 2013, you went to the Liberty petrol station at 137-141 Mahoney's Road, Reservoir.  You wore a hooded cap and stocking over your face and went straight up to the counter holding a meat cleaver and twice saying to the lone store attendant, "Open the till in three seconds."  After he opened the till you leaned over and withdrew approximately $400 in cash, after which you ran off.

f)Charge 4 - at approximately 2.45 am, on Saturday 9 November 2013, you and another offender went to the Caltex Service Station at the corner of Ferrars and Bridport Streets, Albert Park.  After waiting for the lone store attendant to open the doors, you entered the store and both pulled balaclavas over your faces.  You both walked up to the counter and produced tomahawks, leaning over the counter and brandishing these weapons and yelling at the store attendant to give you money.  You then walked over to the office door and banged on it, to which the attendant begged you not to do anything to him and said he would give you anything you want.  You continued to yell at the attendant to give you money, after which the attendant opened the till and took out the cash drawer, after which you picked up the cash drawer which contained about $200-$300 and left the store.

g)

Charge 5- at approximately 8.30 pm, on Thursday 14 November 2013, you and Calleja went to a hair salon called The Hair Tree Studio at

341 Napier Street, Strathmore and after entering such studio pulled stockings over your faces.  Calleja was holding a metal mallet and you were holding a tomahawk.  Inside the shop were three middle aged women, the owner, an employee and a customer.  When in the store both of you started yelling, "Where is the money, we want the money?"  Ultimately both of you ran out of the store after obtaining $300 cash.

h)Charge 6-  at approximately 4.20 am, on Friday 6 December 2013, you and Calleja went to a BP Service Station at 100 Sunrise Avenue, Kealba, and you entered such premises wearing a black mask over your face.  Calleja was carrying an axe and you were carrying a spear gun.  On entering the store both of you yelled at the lone store attendant to take out the till.  While Calleja went around and behind the counter and pulled the window blinds, you pointed the spear gun at the attendant and forced him into an adjoining staff room.  Calleja then ransacked the drawers and you both loaded the bag up with cigarettes worth $2,209.77 and $1,904.60 in cash.  When you left the store you said to the victim, "Don't call the police for at least half an hour or I'll come back."

i)On 2 April 2014, you were arrested by police at your parents' home in Essendon and taken to the Fawkner Police Station, where you were interviewed, at which time you made a "no comment" record of interview but voluntarily provided police with a saliva sample for the purposes of obtaining your DNA. 

On 22 May 2014, following DNA testing, you were again arrested by police at your parents’ home and taken to the Fawkner Police Station where again you were interviewed, during which time you made a "no comment" record of interview.  At that time you were charged and remanded in custody.  Later police took a statement from your ex-girlfriend in which she stated that you had told her in January 2014 that you had committed a number of armed robberies.

j)You indicated your willingness to plead guilty on 26 February 2015, which was at a second contested committal hearing.  The committal had been previously adjourned after Caleja elected to plead guilty and make a statement implicating you.  The prosecution accepts that your willingness to plead guilty can be characterised as an early plea. 

You remained in custody for a period of 196 days, having been released on 3 December 2014 when you were granted bail on certain conditions. 

The prosecutor showed a DVD in relation to five of the charges which I viewed, that being Exhibit 2. 

Your criminal record 

10Your Victoria Police criminal history report was tendered (Exhibit 3).  I note that on 11 July 2012, at the Broadmeadows Magistrates' Court, you were found guilty of shop theft, (that is less than $600), were fined $750 without conviction.  One month earlier you were found guilty of various driving offences and similarly placed on a six month good behaviour bond.

Victim impact statements 

11Victim impact statements from Maryann Vella, declared on 11 November 2014 (Exhibit 4); Kellie Leanne Riddell, declared on 11 November 2014 (Exhibit 5); and from Stefanie Forgione-Evans, declared on 12 November 2014 (Exhibit 6) were filed.  These victim impact statements relate to Charge 5- that is the armed robbery undertaken at The Hair Tree Studio on 14 November 2013. 

12In her statement, Ms Vella (the proprietor of the hairdressing salon) describes how she cries if anyone mentions the robbery, or at any time she is on her own, or for no reason at all.  She describes how she has been "strong all my life", particularly as a single mother, but she now finds it difficult to cope with many day-to-day challenges, becomes stressed for no reason and anxious about little things that never previously worried her.  In particular if someone enters her shop without her seeing them, she jumps with fright and the slightest noise at night makes her terrified.  She believes that she may well have to sell her business, in part because her takings have dropped because of her anxiety concern which prevents her working at the same speed as previously.  She no longer schedules clients after dark which severely limits her earnings. 

13She considers her relationships have suffered and she is no longer confident about going out at night, feeling far safer at home behind locked doors.  In essence she describes her life as being "changed."

14In her Victim Impact Statement, Kellie Leanne Riddell, (who worked at the salon), describes that thinking about the day of the robbery makes her feel anxious and sick.  She is aware of the robbery every day at work and is particularly concerned if people are hanging around out the front, or if someone taps on the window to say, "hello," which makes her jump.  She is conscious of locking the door after the last customer has left at night and walking to her car, checking that no-one is hanging around.  She is angry that she experiences these feelings.

15In her Victim Impact Statement, Stephanie Forgione-Evans, (a customer at the salon at the time of the robbery), states that she feels less safe in her local suburb of Strathmore which previous to the robbery she considered to be safe and a family friendly community.

16Your counsel tendered the following documents:

§Exhibit A – Outline of Submissions on plea.

§ Exhibit B – Certificate III Civil Construction.

§ Exhibit C – Report of the clinical psychologist, Dr Rachael McKenzie, dated 21 May 2015.

§ Exhibit D – Reports of St Vincent’s Hospital dated 1 May 2015 signed by Dr Edward Ogden, addiction medicine consultant, and 21 May 2015 signed by Mr Jonathan Day, an AOD counsellor/social worker.

§ Exhibit E – Report from Ms Angela Sorotos, Mir & Mir Psychology, dated 21 May 2015.

§ Exhibit F – References from Mrs Wendy Wathen (your mother) dated 4 May 2015; Amy Wathen (your older sister) dated 12 May 2015; Sophie Wathen (your younger sister) dated 12 May 2015, Anthony Cichello (a pharmacist who is a relative) dated 12 May 2015; Ms Rhonda Cichello (one of your aunts) dated 10 May 2015; Michael Lee (one of your school friends) dated 13 May 2015 and Mr David Burns (one of your friends since his early teenage years) dated 5 May 2015.

§ Exhibit G – Letter from Mr Keith Maxwell, President of “Ongoing Change Out of Violence Inc” dated 22 May 2015.

§ Exhibit H – Urine drug screens undertaken on 1 May 2015, 8 May 2015 and 15 May 2015.

Your background 

17On the basis of the various submissions made by your counsel and the material tendered, I set out details of your personal circumstances, educational and vocational background. 

18You are the middle of three siblings and you have described your parents and loving and supportive individuals who foster strong family values of supporting one another and going "above and beyond to see their children fulfil their dreams." 

19You were born prematurely with a cleft palate and over time to age ten you underwent numerous operations and procedures to rectify this birth defect.  You also had problems with ear infections that required the insertion of many grommet tubes and significant hearing problems. 

20On attending primary school you advised various examiners that you made friends easily although you were shy initially but overcame this.  You were never bullied, denied any learning difficulties and considered yourself as academically average.

21When attending secondary school, you report that your behavior "began to change" and you became somewhat the class clown, causing you to be in frequent trouble with your teachers for relatively silly things.  Again, you consider that you made friends easily and were never bullied at school.  During this time you did not particularly enjoy the academic aspect at school but excelled in sport, playing basketball, football, tennis and athletics. 

22After completing Year 10 you left school to commence an AFL sports development program and during this program you completed Year 11 VCE.  At age 17 you describe yourself becoming restless and left the AFL sports development program to undertake an apprenticeship in plastering.  Unfortunately this employment was unsatisfactory due to a bullying manager.  After about ten months you resigned, after which you performed some laboring work for a concreter and later commenced a plumbing apprenticeship.

23You describe losing focus when performing this job and your employment was terminated by the manager of the plumbing company.

24You commenced a year-long relationship with a girl at the age of 18 and for part of that time you lived in the house of your partner's mother.  That relationship petered out and it was a mutual decision to break up.

25At about the age of 20 years you had a further relationship of one year's duration and during that relationship you commenced using “ice”.  It was this partner who reported you to Crime Stoppers in relation to the subject offending. 

26You had commenced using illicit drugs when aged 19, at which time you tried ecstasy and cannabis.  After commencing to use ice you became distanced from your family, hostile and aggressive in your day to day interaction with family members and others.  Ultimately you were requested to leave the family home by your father in October 2013, after which you commenced to use “ice” on a daily basis.

27At that time you had nowhere to live and would go without food for up to five days at a time, causing you lose approximately
30 kilograms in over four months.  You have reported that during this period you were "irrational and impulsive" and that your memory for actions is poor.  It is over the period from late October to early December 2013 that the subject offending occurred.

28You informed Dr McKenzie that you perceived the robberies as your only option in order to get money to stay in a hotel, buy food and buy drugs.  During this period of time you slashed your arms as you were feeling “desperate”.  You went to a hospital where you were not admitted and were left to return to the streets.  Later, you stayed in a boarding house in Glenroy and a youth refuge centre in Reservoir where arrangements were made for you to contact Centrelink and apply for a youth allowance.  At this stage your parents were unwilling to assist you.

29After a failed attempt, you finally reunited with your father in March 2014.  At that time your father arranged for you to be treated at St Vincent's Hospital where you were admitted for several days.  Initially you were treated for the side effects of withdrawal with Naltrexone and the antidepressant Mirtazapine. 

30After such treatment you returned to live with your family and an arrangement was made for you to have treatment from St Vincent's Hospital.  Such treatment continued from early 2014 to date, save for your period of being on remand from 22 May 2014 to 3 December 2014.

31In a report dated 1 May 2015, Dr Ogden, the addiction expert states: 

"Sam impressed from the outset as wanting help.  He realised that he had drifted into a bad situation personally and legally.  He was started on a combination of antidepressants, mood stabilisers and anti-craving medication.  Within a few weeks he reported feeling 100 per cent better, was no longer using any illicit drugs and had commenced physical training.  Sam has continued to attend appointments punctually.  He has improved mentally and physically, he has become much more focused.  He tells me that next week he will complete Certificate 3 in civil construction and will be ready to start work again.  It has been a delight working with Sam and witnessing the progress from the scattered and dysfunctional person referred to me last year to the focused and fully functional young man who finds himself before the court.  From a clinical perspective Sam is rehabilitated and ready for the next phase of his life.  I am hopeful that the court can assist him to maintain the current momentum.  If the court is persuaded that an ongoing relationship with this clinic would be in Sam's interest I am willing to assist the court and provide further reports as requested."

32Since being released on bail, you have continued to live with your parents and undertaken a vocational training course and obtained a Certificate 3 in Civil Construction (plant operations) in May 2015. Your counsel informed at the time of the plea that you were seeking employment in that type of work.  I was subsequently informed that you have now obtained full time employment in the civil construction industry consistent with a Certificate 3 in civil construction that you recently completed

33I also refer to the urinary drug screen results from St Vincent's Hospital undertaken on 1 May 2015, 8 May 2015 and 15 May 2015.  All screen tests were reported as negative, save for one episode of cannabis use found on the screen undertaken on 15 May 2015.

34I also refer to the report of Mr K Maxwell, President of “Ongoing Change”, who reports that you attended a meeting of such organisation at your own initiative on 15 April 2014.  Mr Maxwell notes that you have regularly and positively engaged in group discussion and appear to have begun to address issues of your past violence.

35I also note that you commenced in treatment with the clinical psychologist,
Dr R. McKenzie, on 11 April 2015 on referral from a general practitioner. 
Dr McKenzie has made a diagnosis of "Stimulant Use Disorder” (methamphetamine), with the specifiers of 'severe' and 'in sustained remission' to be applicable." 

36Dr McKenzie notes that you have been a willing participant in treatment, attending the sessions punctually and engaging well and you completed all tasks in a diligent manner.  In particular she states: 

"In conclusion, it is considered that Mr Wathen has made significant progress through what has been an intensive program of treatment of which our sessions play a specific role in regards to exploring the precipitating factors of his offending and the impact it has had.  Steps that Mr Wathen has taken in his commitment to promoting change has indeed been impressive.  He has attended specialist drug treatment on a regular basis and has been successful in abstaining from drug use for over
12 months.  He has been working towards realistic goals for the future in regards to training and wanting a career.  He has been rebuilding his relationship with his family and established strong supports therapeutically and with pro social role models that he aspires to emulate. 

To reduce the possibility of relapse as Mr Wathen faces the challenge that will undoubtedly come in the future, it is considered that the gains that he has made are continued to be reinforced by the supports he currently has in place.  I have discussed with Mr Wathen the seriousness of his offences and the possibility of him receiving a custodial sentence and that punishment is a decision of the court.

.. It is important to note that I do have concerns regarding the detrimental effect that a term of imprisonment may have on his rehabilitation.  These concerns not only relate to the interruption to the positive trajectory of his recovery to date but also in distancing him from his supports while exposing him to antisocial periods in the custodial setting."

37I also refer to the report of Ms A. Zarotis, psychologist, dated 21 May 2015.  She expresses the opinion that you have a moderate level of risk of future offending, that your risk of violence has been assessed as low.  Ms Zarotis was of the opinion that you would probably benefit from ongoing treatment from Dr R. McKenzie and drug counselling from St Vincent's Hospital.  Furthermore, she considers that you may benefit from ongoing attendances at the Ongoing Change program.

The evidence of your father 

38Your father gave sworn evidence at your plea hearing and described in quite graphic detail your deterioration over the period leading up to 21 October 2013, when, for the benefit of the family, you were requested to leave the premises.  Your father was one unaware of your ice habit at that time and berates himself for failing to pick up what was the root cause of your problems.  He also describes seeing you on 30 January 2014 when you were very upset after which you left.  Further contact was restored on 21 March 2014 when your father describes you as being virtually "unrecognisable" and you had been admitted to St Vincent's Hospital following an attempt at
self-harm. 

39Your father describes a dramatic change in both your attitude to the family, drug rehabilitation, obtaining employment and a general desire to lead a healthy life.  In this respect he described in detail your ongoing commitment to obtaining employment and attending the various treating specialists to help recover from your drug habit.

The various references 

40I have read all the references which have been tendered on your behalf.  The overwhelming theme of such references is that you have made a dramatic turn in your life, seeking to overcome your use of illicit drugs and, in particular, ice, and to really establish an appropriate relationship with your family and others.  Furthermore, virtually all of the referees describe you as a compassionate and responsible person during your growing up years and prior to your commencement of illicit drug us and, in particular, ice.

Matters in mitigation 

41Your counsel submitted the following matters should be considered in mitigation of sentence:

a)Your early plea of guilty in relation to the various offences and the remorse that you have shown for committing such offences.  I do accept that you have shown genuine remorse for such offending.  This has been made plain to both various treating doctors and members of your family.

b)At the time of offending you were 21 years old and must be viewed as a youthful offender.  I refer to R v Mills [1998] 4 VR 235 and in particular p.241 and the proposition that rehabilitation of a youthful offender is usually far more important than general deterrence. I also refer to Azzopardi v R (2011) 35 VR 43 and in particular I refer to paragraphs 34-35 where at Redlich JA, (with whom Coghlan AJA and McCauley AJA agreed) stated:

"[34] There are a number of considerations which underlie the general primacy of an offender's youth as a sentencing consideration.  Firstly, young offenders being immature are therefore more prone to ill-considered or rash decisions.  They may lack the degree of insight, judgment and self-control that is possessed by an adult.  They may not fully appreciate the nature, seriousness and consequences of their criminal conduct. As Vincent JA explained in Director of Public Prosecutions v SJK & GAS:

"In the case of young people to some extent the law incorporates an acknowledgment of aspects of immaturity.  By reason of the stage of development an offender may have reached he or she may not fully appreciate the seriousness and real consequences of the offending actions.  However it does not follow that this is always the situation or that as teenagers offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity."

[35] Secondly, courts recognise the potential for young offenders to be redeemed and rehabilitated.  This potentially exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influence designed to positively change their behavior than adults who have established patterns of anti-social behavior.  No doubt because of this potential, it has been stated that the rehabilitation of young offenders is one of the great objectives of the criminal law.  The added emphasis for the purposes of sentencing on rehabilitation of a young offenders potential to be rehabilitated is further justified because of the community's interest in such rehabilitation, not only at a theoretical level but because the effective rehabilitation of a young offender protects the community from further offending."

c)The offence, although “serious” and affecting a number of people, occurred over a limited period of time and no person was actually physically injured.  It was submitted that the conduct of such offences was not in keeping with your previous behavior, and in particular you do not have a history of any violence whatsoever.

d)You attempts at rehabilitation have been, so it is submitted “extraordinarily good”, spanning the period from the time of your arrest up to your period of incarceration and since being released some six months ago. Counsel highlights the evidence of Dr McKenzie, Ms Sorotos, and, in particular, Dr Ogden, all of which demonstrates significant drug rehabilitation and ongoing efforts to re-establish normalcy in your community.

e)Although your Counsel fairly noted that intoxication with drugs is not a mitigation in itself, the courts have recognized that drug use arising out of immaturity- and other circumstances where an offender has not made a free decision to imbibe- can reduce moral culpability if it is connected to the offending. In particular, your counsel referred to R v Lacey [2007] VSCA 196 at [12] –[18]. As the Court of Appela stated in that case, there is clear and binding authority that drug addiction may constitute a significant mitigating factor. The Court goes on to state:

“[16] The offender’s addiction will only call for mitigation of punishment where it is established on the balance of probabilities that there was a link between that addiction and the commission of the offences. Sentencing error will only arise where it can be shown that, on the material presented on the plea, the sentencing judge was bound to find the requisite link between the offender’s addiction and the offences”.

42It is submitted on your behalf that your sole motivation to offend was to feed your drug habit, which had rendered you homeless and desperate.

43Ultimately your counsel submitted that such offending represents an unprecedented period during which you were addicted to methamphetamine from which you have giant strides to overcome such addiction.  He submitted that bearing in mind the time you have already served in relation for such offences an appropriate disposition would be time served together with a community corrections order based on the principles set out in Boulton v The Queen [2014] VSCA 342 and in particular paragraphs [186]-[190].

44Counsel for the prosecution accepted that drug use was central to the offending, although it was clear that you did not come from the typical disadvantaged background.  Counsel submitted that general deterrence, just punishment and denunciation were appropriate sentencing considerations and that a term of imprisonment beyond time served was an appropriate disposition.

45Reference was made by counsel for the prosecution to a decision of His Honour Judge Punshon, Director of Public Prosecutions v Roberts [2014] VCE 1092.  I note that that case involved a 24 year old who had relapsed into the use of methamphetamine in December 2013, during which time two armed robberies were committed, both of which involved the production of a knife.  The accused has been remanded for 14 days before being released on CISP and bailed.  Judge Punshon was impressed with the efforts he had made at rehabilitation and ultimately ordered that the accused be sent to a community corrections order for a period of 30 months with various additional conditions, one of which involved undertaking 250 hours of unpaid community work.

46The Court arranged for you to be assessed to determine your suitability for a community corrections order.  In a report dated 25 May 2015, an officer of the Community Corrections advised that you were considered a suitable candidate for such an order, subject to various other conditions being beyond those required by the legislation.  Such added conditions involved the performance of unpaid community work, treatment and rehabilitation to drug use, mental health treatment and rehabilitation, programs reducing re-offending and general supervision.

47Community Services have assessed your risk of re-offending as being "medium" according to the level of the service risk assessment tool.  It is noted that a history was obtained from you that you had abstained from drugs over the last 14 months and such was continuing.  (Such history must be seen in the context of your admission at the plea that you had relapsed using cannabis on one occasion as demonstrated in the screening on 15 May 2015).

Conclusion

48The seriousness of your offending is manifest, and can only be characterised as serious offending.  Although I accept that the armed robberies may not have involved sophisticated planning, it is plain enough that you had the wherewithal to cover your faces on various occasions and for you to be armed with various threatening objects. 

49Although I am not prepared to find that you were affected by ice at the time of the robberies, I do accept that you had descended into regular and significant use of ice only a relatively short time prior to this offending which had caused your employment to come to an end and a marked deterioration in the relationship with members of your family causing you to be effectively evicted from the family household in October 2013.

50Most of the premises in which the armed robberies were committed can only be described as "soft" targets.  In particular I refer to the armed robbery committed at the beauty salon (Charge 5).  The effect on the victims of that robbery has been dramatic as evidenced by the various victim impact statements.  Indeed, after having viewed the video material in relation to most of the armed robberies, it must have been terrifying for the various occupants at the premises when confronted by you and on occasion a further co-offender carrying weapons, yelling out and making threats.

51I consider that general deterrence, specific deterrence, just punishment and denunciation are important sentencing considerations in this matter.  However, I do consider that the issues of specific deterrence and just punishment are somewhat tempered by:

a)The principles set out in R v Lacey on the basis that I am satisfied that on the balance of probabilities there was a link between your drug addiction and the commission of the subject offences.  In this respect I consider that because of your drug addiction you became homeless and had no funds to support yourself;

b)The principles enunciating R v Mills and Azzopardi v R as a result of which your rehabilitation becomes a significant factor in this sentencing disposition.

52I do accept that your plea of guilty can be characterised as an early plea and, furthermore, you have shown genuine remorse for such offending.

53Perhaps more importantly, you have demonstrated real commitment to commencing your rehabilitation by seeking professional help and
re-establishing your various relationships with friends and family.

54After reading the various references and hearing from your father, I consider that you are in a largely fortunate position in having a very solid family base to give you support and encouragement and also having paid employment in an area in which you enjoy.

55I refer to the guideline judgment given by the court in Boulton v The Queen pertaining to the operation of community corrections orders which have been available to Victorian courts since January 2012.  As that court stated, the Community Correction Order is a radical new sentencing option with the potential to transform sentencing in this State. Although a non-custodial order, such order has certain mandatory conditions laid down by the legislature and the sentencing court can attach to a Community Correction Order a range of conditions which are variously ‘coercive, prohibitive, intrusive and rehabilitative’. As pointed out by the Court of Appeal, a Community Correction Order is a “flexible sentencing option enabling punitive and rehabilitative purposes to be served simultaneously”.

56I refer to s 5(4) and (4C) of the Sentencing Act which states:

"(4) A court must not impose a sentence that involves the confinement of the offender unless it continues for the purpose of purposes for which the sentences imposed cannot be achieved by a sentence that does not involve the confinement of the offender. 

……

(4C) A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community corrections order to which one or more of the conditions referred to in s.48(f), 48(g), 48(h), 48(i), 48(j) are attached."

57As the Court of Appeal has stated, s 5(4C) of the Sentencing Act 1991 prohibits the imposition of a sentence of imprisonment unless the sentencing court has paid specific and careful attention to:

the purposes for which the sentence is to be imposed on the offender; and whether those purposes can be achieved by a community corrections order to which one or more of the specified onerous conditions is attached.

58I also refer to Appendix 1 to the Court of Appeal judgment which is headed 'Community Corrections Orders: Guidelines for Sentencing Courts.' Pursuant to that document, it is necessary that I first assess the objective nature and gravity of the offence and moral culpability of the offender. As I have already recorded, I consider these offences committed to be of a serious nature but your moral culpability is reduced to some extent by the principles I have already referred to and furthermore, rehabilitation is of great importance.  I am then called upon to consider whether:

a)The crimes are so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment would suffice to satisfy the requirements of just punishment; or

b)The community correction order either alone or in conjunction with a sentence of imprisonment would satisfy the requirements of just punishment.

59In particular the Court of Appeal stated in relation to young offenders, that is that a community corrections order is

“likely to be a particularly important sentencing option in the case of a young offender where there may be perceived conflict between the need to punish the offender and the importance both to the community and the offender of rehabilitating the offender.  Since the community corrections order can be used to rehabilitate and punish simultaneously, the conflict is likely to be reduced instead of needing to giving less weight to denunciation or specific or general deterrence in order to promote the young offender's rehabilitation, the court would be able to fashion a community corrections order which adequately achieves all of these purposes at once.'"

60After careful consideration I consider that the appropriate sentencing disposition should be a period of imprisonment representing the time served, together with a community correction order for a period of three years with various added conditions. 

61I propose to convict you of each offence. I consider that pursuant to s.40 of the Sentencing Act 1991 the six offences are of the same or of a similar character and accordingly I propose to sentence you in relation to all offences to a period of imprisonment representing the time you have served, together with one community correction order for a period of three years. I do not intend to order a condition that you perform unpaid community work given the punitive aspect of your period of incarceration for 196 days.

62In relation to Charges 1, 2, 3, 4, 5 and 6, you are convicted of each offence and are sentenced to:

(I)An aggregate period of imprisonment of 196 days being the time that you have served prior to this sentence in relation to these offences; and

(ii) A community correction order for a period of three years from this date.

63Pursuant to s.48D(3)(a) of the Sentencing Act 1991, you are to undergo assessment and treatment (including testing) for drug abuse and dependency.

64Pursuant to s.48D(3)(e) of the Sentencing Act 1991, you are to undergo any mental health assessment or treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility.

65Pursuant to s.48D(3)(f) of the Sentencing Act 1991, you are to undergo any program which addresses factors relating to your offending behavior.

66Pursuant to s.48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary to the Department of Justice.

67Pursuant to s.48K of the Sentencing Act 1991 I order that you be monitored by the court on a six monthly basis with the first review under s.48L of the Sentencing Act on 1 December 2015, at 10.30 am, at which time you are to provide information to the court in written form as to the various testing and assessment you have undertaken, together with results of drug use and drug dependency.

68I declare that the 196 days that you have served over the period from 22 May 2014 to 3 December 2014 be administratively deducted from this sentence as the time already served and representing the total period of imprisonment.

69Pursuant to s.6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have imposed a sentence of 18 months' imprisonment followed by a four year community corrections order.

70I also make the disposal orders sought by the Crown.

71(Disposal order signed and acknowledged.)

72MR MOGLIA:  As Your Honour pleases.

73MS BROADBENT:  As Your Honour pleases.

74HIS HONOUR:  Mr Wathen, you have had quite a bit of time to reflect no doubt on what you have done.  As you heard me stating in these comments, armed robbery is a very serious offence and, indeed, the community will not tolerate such offences.  As you probably gathered just listening to the victim impact statements from the people at the hair studio, they have gone through hell because of your actions.

75The question then comes the best way to deal with you.  As you have heard, I have considered that the period of imprisonment which you have served already, together with a three year community corrections order is an appropriate course. 

76You have to understand that the community corrections order is a sentence.  If you do not comply with the conditions you will be brought back to me and I can amend it, or change it and I can send you to prison in a flash.  You understand that, don’t you? 

77You have got a chance to continue on with continuing your rehabilitation.  It is still relatively early days yet, but the things you have done to date are very, very promising and it is really up to you.  As I have said in these comments, you have got a very good family base and friends around you who are going to be supportive.  You are also fortunate enough to be able to obtain employment.  These are the two major things I have found, from my experience at least, which tend to keep people on the straight and narrow.

78You are required, as your counsel will explain to you in due course, one of the conditions I have made is a slightly unusual condition that you are going to be subject to judicial monitoring.  What that means, you come back to me on the date I have stated and I want some information about what you have done about your drug issues and, in particular, screening.  You have to keep that in mind.  If you fall off in the next few months or within the next three years, you will be back before me as quick as you can say "Jack Robinson," do you understand that?

79It is really up to you now, but it is very important you remember that a community corrections order is a sentence and you must abide by its terms.

80Yes, thank you.

81MR MOGLIA:  As Your Honour pleases.

82MS BROADBENT:  As Your Honour pleases.

83HIS HONOUR:  Yes, we will print the orders off.  Anything in relation ‑ ‑ ‑

84MR MOGLIA:  No, Your Honour.

85MS BROADBENT:  Nothing arises, Your Honour.

86HIS HONOUR:  Yes, very well.  We will just have the orders printed off.  I will just adjourn for a few minutes, there are few administrative matters that have to be dealt with then I will come back in.

87MR MOGLIA:  Yes, Your Honour.

88MS BROADBENT:  As Your Honour pleases.

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