Director of Public Prosecutions v Watts

[2015] VCC 778

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00312

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARYL WATTS

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 June 2015
CASE MAY BE CITED AS:	DPP v Watts
MEDIUM NEUTRAL CITATION:	[2015] VCC 778

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Buckland
For the Accused	Mr M. White

HIS HONOUR: 

1Daryl Graham Watts, you are to be sentenced for one charge of attempted armed robbery.  The maximum sentence is 20 years' imprisonment.  You are also to be sentenced for the summary offence of breaching a conduct condition of bail. 

2I do not think I have been told what the maximum for that is.

3MR BUCKLAND:  It is three months' imprisonment, Your Honour, off the top of my head.  I'll double-check that.

4HIS HONOUR:  I am going to impose a month for that.

5MR BUCKLAND:  It's in the actual opening, Your Honour.  It was quite certain that it - - -

6HIS HONOUR:  Is it?  I looked and couldn't find it.

7MR BUCKLAND:  It's sort of over the last page. 

8HIS HONOUR:  Yes, it is.  Yes. 

9MR BUCKLAND:  It's 30 penalty units or three months, Your Honour.

10HIS HONOUR:  Thank you.  I will just go back.  You are also to be sentenced for the summary offence of breaching a conduct condition of bail.  The maximum penalty for that offence  is three months' imprisonment.

11You pleaded guilty before me on 19 March 2015.  You were not interviewed by police upon arrest for the attempted armed robbery offence on 30 November 2014 in that you were deemed unfit because of intoxication.  You entered a plea of guilty at a committal mention hearing on 26 February 2015. 

12You receive the benefit of your plea of guilty and cooperation both from an early stage. 

13At your plea hearing, which ran before me on 19 March, Ms Boston for the Crown tendered a written Crown opening, photographs of the weapon you produced and CCTV footage of the armed robbery you committed on 13 November 2014 at a Kensington convenience store.  Ms Clarke for you provided me with a written outline of plea submissions and the sentencing reasons of Judge Murphy of this court when he sentenced you on 28 January 2014.

14The circumstances of your offending are comprehensively described in the Crown opening, which is tendered as Exhibit A.  My own summary may therefore be shorter. 

15Judge Murphy sentenced you to 16 months with a minimum term of ten months in January 2014 for offending similar to this.  Given pre-sentence detention, you were released from prison in early November.  You served the whole sentence, not receiving parole because of prior breaches.  You left prison to motel accommodation and no supports.

16Whilst you were in prison your partner of seven years had died.  You did not attend her funeral.  Ms Clarke told me that you had visited her grave at an estimate of 18 times in the three to four weeks of your release.  By the end of November you had returned to heavy drug use and were on bail for further offending.  There was a curfew condition which you breached in the early hours of 13 November when attempting to commit this armed robbery.

17At about 3 am you entered the Coles Express service station store in Smithfield Road, Kensington.  You were intoxicated, likely heavily, by abuse of prescription drugs.  After waiting for a time outside, you entered.  You approached the attendant, Sanath Gollapalli, and asked for cigarettes.  Upon his request for payment, you produced a 20-centimetre-long kitchen knife and placed it on the counter.  Sanath Gollapalli called the police, saying they were likely close by.  He told you to leave.  He stayed on the phone.  You did not go.  You moved around the store, at one point ordering food and, at another, taking drinks from the fridge.  You selected and placed sunglasses on your head. 

18The tendered CCTV footage, which I viewed, captures most of this.  You approached Sanath Gollapalli and the counter a number of times.  You did not threaten him with the knife, which you had put back in your pocket.  Approximately eight minutes went by before police arrived.  They knocked on the window of the store and indicated to you to exit the store.  You complied and were arrested without resistance.  You were found to have 70 cents in your possession.

19Sanath Gollapalli did not make a victim impact statement.  I have no doubt that he was in fear of you.

20You are aged 35 and present as the sad product of a deprived early life, drug abuse and long-term incarceration.  You have spent about eight of the past 12 years in prison.  You were raised in Geelong.  Your father was a violent alcoholic.  You left school in year nine.  During primary school you attended a special school once a week.  I would find that you function no better than in the borderline intellectual capacity range.  Concerns about that led me in March to seek a report as to your eligibility for Intellectual Disability Services.  You do not qualify.   I also sought a report as to your suitability for a community corrections order.  You were found not suitable.  Both reports are very short and somewhat scant.  The reason you do not qualify for intellectual disability support is not made absolutely clear.  There is some possibility, as put by Mr White who acted for you today, that drug use and head injury arising out of such a lifestyle may mean your poor intellectual performance has developed after the age of 18.  As I have said, it is not clear. 

21You cannot read or write.  You have worked in labouring jobs.  You have an extensive criminal history.  As stated, you have mainly been in prison over the past 12 years.  You began using drugs when young, heroin at 15.  I accept that your criminal history is drug related.  In recent years you have moved from heroin to abuse of prescription medications.

22This was a serious offence which brings to bear as particularly relevant the sentencing considerations of deterrence and denunciation.  Your moral culpability cannot be seen as reduced by intoxication.  That is not a mitigating factor.  The proportionate punishment must be a sentence of imprisonment.  However, I see in this case a number of important moderating factors.  They include the following.

23(1) Your plea of guilty and cooperation.

24(2) The very sad circumstances of your life past and at the time of this offending.

25(3) To some extent the less adverse features or circumstances of the offence.  These are set out in Ms Clarke's outline.

26(4) Further, I see this as a case in which sympathy for you and your situation can be seen as legitimately felt.  I find that you should receive a more merciful sentence than the objective circumstances of the offending and your record might be seen to require.  On release from prison you plan to live with family in Coffs Harbour.  You hope, away from Melbourne to be able to reform from drug use and not return to prison. 

27Stand up, please.  I sentence you as follows.

28For one charge of attempted armed robbery you are sentenced to nine months' imprisonment; on the summary offence of breaching bail, you are sentenced to one month imprisonment.  The total effective sentence I set is nine months.  I declare, under s.18, 194 days of pre-sentence detention.  That is time already served.  Had you not pleaded guilty, I would have imposed a sentence of 18 months with a minimum term of 12 months.  Take a seat.

29MR BUCKLAND:  If Your Honour pleases.

30HIS HONOUR:  What else do I need to do?

31MR BUCKLAND:  There's disposal orders in relation to the knife, Your Honour.

32HIS HONOUR:  Yes, I will make those.  I will sign them now.  You've got them, have you?

33MR BUCKLAND:  Yes, Your Honour.  I'll just clarify, it's quite obvious, Your Honour, that those sentences are concurrent.

34HIS HONOUR:  Yes.  I declare the total effective sentence of nine months.  Yes.

35MR BUCKLAND:  Yes.

36HIS HONOUR:  That's right.  He's not in a situation which I need to deal with that.  He was not on parole. 

37MR BUCKLAND:  Yes.

38HIS HONOUR:  Oh, he was on bail?

39MR BUCKLAND:  I see.

40HIS HONOUR:  I don't think that requires exceptional circumstances.

41MR WHITE:  No, it doesn't, Your Honour.

42HIS HONOUR:  I'm grateful to your instructor, Mr Buckland, and to you for pointing that out.

43MR BUCKLAND:  Yes.

44HIS HONOUR:  Was he on bail for the matters that are coming up?

45MR WHITE:  That's right.

46HIS HONOUR:  Section 16, yes.  Unless otherwise directed - yes, I direct otherwise.  To make it clear, I direct otherwise, then, in accordance with s.16(c) - is it (c)?  Sorry, s.16(3C).  Yes.  I think my reasons for that are made clear in my reasons for the moderation of his sentence.  In an unusual way, but I think in a relevant way, the offences are closely aligned, aren't they?  If he wasn’t out and about, full of prescription medication,   he might argue that he wouldn't have done this;  but that was the very breach of the bail conditions.

47MR WHITE:  Yes.

48HIS HONOUR:  Yes, all right.  Thank you for bringing that to my attention.  Now I need to sign the disposal order.  Who's the family he's returning to, he's going to live with, in Coffs Harbour?

49MR WHITE:  His mother.

50HIS HONOUR:  His mother.  Yes, thank you.  I'd be amazed if he wasn't on the forensic sample data system.

51MR BUCKLAND:  I'm sure my previous instructor would have checked that, Your Honour.  We'd seek that order if that's the case.

52HIS HONOUR:  Yes.  You'd be pretty worried if he wasn't.

53MR BUCKLAND:  Yes.

54HIS HONOUR:  All right.  Can I thank you both again for being available at short notice and pass on my thanks to those instructing you, too - - -

55MR BUCKLAND:  Thank you, Your Honour.

56HIS HONOUR:  ‑ ‑ ‑ for arranging that.  I think it would have been - well, given my sentence, I think it wouldn't have been fair if he had to wait for another three months.

57MR WHITE:  Yes, Your Honour.

58HIS HONOUR:  All right.  Well, thank you very much.  I'll adjourn until Tuesday at 10 o'clock.

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