Director of Public Prosecutions v Watts

[2014] VCC 11

IN THE COUNTY COURT OF VICTORIA Revised
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-01883

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARRYL GRAHAM WATTS

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	28 January 2014
DATE OF SENTENCE:	28 January 2014
CASE MAY BE CITED AS:	DPP v WATTS
MEDIUM NEUTRAL CITATION:	[2014] VCC 11

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Goodfellow	Office of Public Prosecutions
For the Accused	Mr M. White	White & Associates

HIS HONOUR: 

1Darryl Graham Watts, you have pleaded guilty to one count of robbery on 9 July 2013 of James Gagousoulas at Balaclava, maximum penalty 15 years' imprisonment, and one summary count of assault with a weapon on the same complainant, maximum penalty two years' imprisonment, the weapon being a knife.  You have admitted prior convictions.

2The circumstances of the offending were set out in the Crown opening which was read in open court this morning and which I incorporate by reference.  Essentially, you were at a pharmacy, with another gentleman who is contesting the charges, to collect your daily dose of methadone, when one or other of you saw the complainant.  The complainant apparently had been involved in some sort of financial dispute with your co-accused and allegedly owed him money, and for no reason you then proceeded to assault him.  His two mobile phones fell out of his pockets and they were taken by one or other of you or your co-offender.  That is what constitutes the robbery. 

3He was punched in the nose and kicked on the ground according to the Crown summary, which is not disputed by your counsel.  Then the two of you were going towards the car and he attempted to retaliate against you.  You then pulled out some sort of pocketknife or knife and thrust it towards him.  Then you jumped in the car and went away with your co-accused and you were subsequently apprehended at a property in Reservoir.  The presentation of a bladed implement, apparently part of a pocketknife or some sort of key ring, constitutes the second count of assault with a weapon.

4Assessing the objective seriousness of the offences.  First, these offences were committed as submitted by the Crown prosecutor in a public street in broad daylight.  Although no victim impact statement has been made by the complainant, it must have been a frightening experience for him.  This applies even if, as you assert in your record of interview, he allegedly owed some money to your fellow accused.  You had no right to take the law into your own hands and assault him in company with your co-offender and make off with his two phones.  This was a cowardly attack by the two of you which must be utterly condemned.  You told the police that the complainant had been "mucking around" your co-offender regarding the money and you took the ball up for him.  Two other matters must be taken into account.  There is no victim impact statement so an inference is open that there have been no lasting effects on the complainant.  Next, one of the phones has been recovered.

5Turning to your personal culpability, the offence does not have the appearance of being premeditated.  You were at that location to obtain methadone and it appears that the complainant just happened to be there at the same time.  Thus the offence does not appear to have been premeditated but was rather impulsive.

6On the plea your counsel tendered a discharge summary from the Alfred Hospital.  You had in fact been in a fight the previous morning or late evening and had been to Casualty, and there is evidence of you suffering bruising as a result of being hit in some sort of bar room event.  In the record of interview you indicated that you had been intoxicated the previous night and had drunk a bottle of vodka.  This leads to the conclusion that you may still have been under the influence at the time of this offending which would explain your disinhibition.

7Turning to the second offence of assault with a weapon, the fact that the weapon was a combination of a screwdriver or a pocketknife does not take away the fact that after you and your co-offender had attacked and robbed the complainant, when he sought to recover his stolen property you proceeded to threaten him with the pocketknife and drove off.  The offence itself occurred some eight months after you had been dealt with in the Magistrates' Court for possession of a controlled weapon.

8That leads me to your prior convictions.  You have admitted an unedifying list of prior court appearances in this state and in New South Wales dating back to when you were aged 17.  As the learned prosecutor submitted, you have some 16 appearances before Victorian courts, including two before this court.  Your prior convictions include convictions for theft, burglary, other theft-related matters, causing serious injury and armed robbery, as well as drug-related offences.  You also have a number of prior convictions for possession of controlled weapons.

9Your most serious prior convictions in reverse order are on 19 April 2000 at the Lismore District Court, when you would have been about 21, on one charge of aggravated robbery with wounding you were sentenced to four year's imprisonment with a non-parole period of two and a half years.  On the same date you were also dealt with for robbery armed with an offensive weapon and you were sentenced to 21 months' imprisonment and a non-parole period of nine months was set.  There were also conditions on your release that you be the subject of alcohol and drug psychological counselling.

10Your next serious appearance before the higher courts was before this court on 18 February 2004 where on a count of armed robbery you were sentenced to 24 months' imprisonment, false imprisonment, 12 months' imprisonment, six months concurrent, making a total effective sentence of 30 months with a non-parole period  of 18 months, and also you were dealt with theft of a motor vehicle, which was six months concurrent.

11On 23 November 2006 in this court again you were dealt with for recklessly causing serious injury and sentenced to 18 months' imprisonment with a non-parole period of six months.  On 19 July 2007 you were before the Coffs Harbour Local Court on a count of assault occasioning actual bodily harm and you were sentenced to imprisonment for six months, along with one month's imprisonment for fail to appear and two months' imprisonment for resisting an officer in the execution of his duty.

12Your most recent appearance on your criminal record was before the Magistrates' Court at Dandenong on 14 November 2012 when you were sentenced to three months' imprisonment for theft, aggregate sentence, three counts of possessing a controlled weapon without excuse, three months concurrent, and unlicensed driving, fail to answer bail, and possessing cannabis.  You were also dealt with on that date for a breach of an earlier suspended sentence of burglary, possessing a controlled weapon without excuse, and theft from a motor vehicle and failure to answer bail, those sentences having been imposed on 30 November 2010.

13Your counsel provided a helpful chronology as to your appearances and your custodial history.  That indicates that between 2004 and 2013 you spent only relatively limited periods when you were not in custody. Thus there was a period of nine months from May 2008 to February 2009, 16 months from August 2009 to December 2010, eight months from March to November 2012.  You had only been released from custody for a period of about seven weeks when you committed these offences.

14Your counsel submitted that your periods of incarceration lead to a danger that you will become institutionalised.  I agree that this is certainly a risk.  At the same time, the fact that you continue to re-offend upon release means that specific deterrence and protection of the community becomes salient.

15I turn to your personal circumstances.  You are now aged just over 34 and you were brought up in the Geelong area and you had difficulties at school.  You left school after Year 8 and were able to work in the construction industry in the period up until you had turned about 18. At that stage you were introduced to heroin and your first court appearance was when you were aged 17.  At that point you were dealt with for theft, criminal damage, and breach of a going equipped to steal, and you breached a Community-Based Order on an appearance on 20 May 1997, an earlier appearance on 21 April 1997, and an earlier appearance on 18 February 1997.

16As I indicated, after you commenced in the criminal justice system it appears you have spent substantial periods of your life within custody.  You have had drug problems, and the fact that you were at the pharmacy to collect methadone supports the submission that you were still having drug and indeed alcohol problems.  Your counsel submitted that you had been prescribed Xanax for anxiety after your release from prison and that you had been taking that drug at the time of the offending.  The offending occurred, he submitted, in circumstances where you were living a chaotic life with the effect of alcohol and no real support in the community.

17Your counsel did not submit that there were any Verdins considerations here; however, he submitted that these two matters could, at the election of the prosecution, be dealt with summarily.  I accept that, but the matters I am satisfied are properly serious enough to be dealt with before this court.

18I turn to matters in mitigation.  I accept that you have pleaded guilty and also that the plea was entered at the earliest possible opportunity at the committal mention.  This has had an significant utilitarian effect and value for the community.  I give you full credit for your plea of guilty and the fact that it was early.  Further, in the record of interview you took responsibility for your conduct and you are entitled to the benefit of your cooperation with the police and taking responsibility.  Your plea of guilty is some evidence of remorse.  I accept, however, the Crown submission that this was a strong Crown case, albeit circumstantial, but I have taken into account and give you full credit for your plea of guilty and some evidence of remorse.

19Your counsel submitted that you had guarded rehabilitation prospects.  You want to move back to New South Wales when you obtain release, where your family reside up in the Coffs Harbour area, and break free from bad company in Victoria.  You have had no support in Victoria and have not had any visits in prison and have been in protection.  I have taken the fact that you have no links in Victoria into account and that prison will be somewhat more burdensome than for a person who may have community contacts and family in Victoria.

20I have considered your prospects of rehabilitation.  I would regard them as between poor and guarded given your prior failure to respond to lenient dispositions and your continual recidivism.  Notwithstanding that assessment, I will set a non-parole period and it may be that you can convince the authorities that you can have proper support in New South Wales with your parents.

21I turn to the purposes of sentencing.  The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society. 

22As I have indicated, you have been before this court on two occasions, and I obtained from the records the sentencing remarks of His Honour Judge Gullaci, now retired, on 18 February 2004 when he dealt with you for armed robbery and false imprisonment.  At paragraph 7 he said:

"I turn to factors personal to you.  You are aged 23 years of age [which you were in 2004.]  You come from a dysfunctional family.  Your father is an alcoholic and has been abusive towards you and other members of your family.  You grew up in Geelong.  At age nine you were diagnosed with attention deficit disorder and were placed on medication.  A report from a psychologist, a Mr Anderson, Exhibit 1, indicates that you have a long-term borderline intellectual capacity and function and that you fall within the bottom of the intellectually handicapped range and are only marginally above the frankly intellectually handicapped."

23He then goes on to say that you left school at Year 9 and obtained employment but became involved in drug abuse at the age of 15.  On the basis of the comments of Judge Gullaci where he did find that you were at the bottom of the intellectually handicapped range and just marginally above the frankly intellectually handicapped, I am prepared to give you some moderation of general deterrence, as he did in that case.

24I turn now to specific deterrence.  As I have indicated, this is a significant consideration in your case because you continue to recidivate after being dealt with for theft and other offences.  Protection of the community is also a factor, given that you have a criminal record spanning effectively since aged 17.  Denunciation is a factor that must be considered.  Your conduct is totally unacceptable.  It is just totally unacceptable that debts, of whatever type, should be sorted out by way of violence and grabbing other people's property.  That is not the way to deal with matters.  In sentencing you, rehabilitation cannot be ignored.  However, in your case at your age it is time you showed some maturity.  I will, however, seek to give you the opportunity to convince the authorities to grant you parole and transfer you to New South Wales.

25I have taken into account all the matters put on your behalf by your counsel and I have taken into account the Crown range, which was for a non-parole period of between eight to 12 months and a head sentence of 12 to 18 months. I have also taken into account the Crown's submission that this was serious offending, given that it was violent and it was in the middle of the day in a public street. 

26On Count 1, you are sentenced to 16 months' imprisonment.  On Count 2, you are sentenced to four months' imprisonment.  The sentences are concurrent.  I order that you serve a non-parole period of ten months.  I declare that you have served 203 days pre-sentence detention.  I make the forfeiture order for the knife.  Pursuant to s.6AAA I declare that, had you not pleaded guilty, I would have imposed a total effective sentence of 22 months with a non-parole period of 15 months.

27Are there any other matters, Mr Goodfellow?

28MR GOODFELLOW: No, Your Honour.

29MR WHITE:  No, Your Honour.

30HIS HONOUR:  I thank counsel.  I thank you, Mr White, for your submissions and your chronology and the submissions that you provided before the hearing.

31MR WHITE:  Thank you, Your Honour.

32HIS HONOUR:  Adjourn the court.

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