Director of Public Prosecutions v Wawu

[2019] VCC 2132

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02243

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAAN WAWU

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 December 2019
CASE MAY BE CITED AS:	DPP v Wawu
MEDIUM NEUTRAL CITATION:	[2019] VCC 2132

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Raimondo	Office of Public Prosecutions
For the Accused	Mr W. Blake	Balmer and Associates

HER HONOUR:

1Raan Wawu, you have pleaded guilty before me to one charge of attempted armed robbery.  The facts underlying your offending are as follows.

2You came to Australia in September 2019 but by the time of this offending on 3 October 2019, you were already subject to two sets of bail arising from offending on 1 September 2019 being a charge of shoplifting relating to, as I understand it from the prosecution, the theft of a bottle of alcohol and then on 6 September 2019 on charges of assault, theft and criminal damage again devolving around theft of alcohol.

3At about 2.30 pm on 3 October 2019, the complainant, Luke Gretsch, who was aged 24 was walking along Bunbury Street in Footscray when you approached him.  You were armed with a silver tyre lever, you acted aggressively and told Mr Gretsch you wanted to fight him, grabbing his arm and trying to remove his gold coloured watch to his left wrist.

4There was a struggle between the two men but then two police, Sergeant Zezolo and First Constable Hockey, who were driving in a police car along Bunbury Road when they saw the fight.  Police stopped and approached the two of you at which time you were still in possession of the tyre lever and you were arrested.

5You made a no comment record of interview but entered a plea of guilty to the matter at a committal mention on 11 November.

6I now turn to your personal circumstances.

7You are 18 years of age.  You have a difficult family history as many people who have come from South Sudan have.  You were born in Sudan, you came to Australia when you were three with your mother, your stepfather and younger brother.  You have got an older sister now aged 23 who continues to live in Sudan with your mother's mother.

8You told psychologist, Pamela Matthews, whose report was tendered on the plea, that you have a few memories of Sudan but you do recall the detainment centre, the overcrowded facilities and daily violence.

9Your family then separated and settled in South Australia.  Your mother repartnered when you were very young.  He has always been a father figure to you and you do call him your father as your biological father died before you were born.  Your parents went on to have another six children who are still at school.

10Apparently your stepfather was physically abusive towards you from the time you were small and for no particular reason.  This stopped when you were now 15 and you told Ms Matthews you do have a good relationship with him.  You said it appears without the two of you having any particular conversation that he regrets the abuse.  At one stage, the school you were attending had to take out an intervention order against your father.

11You said that there was verbal and physical violence between your parents when you were younger although this had settled and you said your mother had never been violent with you.  Indeed, you have a good relationship with her.

12Apparently your father was an occasional drinker who often gave the children alcohol to make them sleep and you recalled being about five and being given alcohol for that reason.

13You are unable to tell Ms Matthews of any happy memories of your childhood except perhaps at school.  You transferred through a number of primary schools in South Australia, then your family relocated in Melbourne and you went to Traralgon primary school where you completed Grade 6.  Your family also lived in Sydney for about six months.

14Your mother had the occupation of home duties but your father now works at an abattoir and appears to have done various labouring jobs in periods before that.  Your parents apparently separated about 10 years ago, sometimes reconciled but are now permanently separated, I understand, and your mother has repartnered.

15You said you had difficulties learning to read and were only able to do so when you were about 15.  You reported enjoying maths.  Apparently you are a talented sportsman, particularly good at basketball. You stopped mainstream schooling around the ages of 12 to 13 because you were placed in a Youth Justice Centre.  You have a long prior criminal history from South Australia beginning in 2012 when you were 10 or 11.

16You have offended nearly every year since on charges involving dishonesty, trespass, damage, driving offences, failure to comply with bail, disorderly behaviour, unlawfully on premises, what is called serious criminal trespass, criminal damage.  I note that in 2014, you were sentenced to 15 months in a Youth Justice Centre on charges of theft, aggravated serious criminal trespass which it would seem, I am assuming is some form of burglary, assaults, there were something like 26 charges for which you were sentenced on that date.

17On release, you continued to offend on a regular basis, again, offending for matters of dishonesty, burglary, disorderly behaviour, drinking in a public place in 2017 and on 22 June 2017, again, on a large number of charges of the same type; you were sentenced to four months in a Youth Justice Centre.

18Again, in 2018, you were charged with driving offences involving alcohol.  Then later that year, you were dealt with for theft and resisting police and then in December 2018 for committing an offence using force for which you were sentenced to detention for 11 months.  Your final offence was on - dealt with on 2 June 2019.  You then, as I said, came to Victoria.

19On coming to Victoria, you resided with your uncle who shares with another person and it would appear this is an address known to police.  Your mother remained and your siblings remained in South Australia.

20You told Ms Matthews that just before you committed this offence, you yourself were attacked and your watch was taken and that you thought you recognised Mr Gretsch as one of your attackers and thought you recognised his watch.

21You also have however told Ms Matthews that you were carrying a bottle opener in the shape of a tyre lever.  Photographs were tendered of the weapon you were carrying at the time and it was undoubtedly a tyre lever.

22There is some concern that you may have minimised your offending and that was confirmed by evidence on the plea by a senior Youth Justice advisory officer situated at the Melbourne Magistrates' Court, Gene Bell.  He interviewed you for the possibility of you being placed on Youth Justice supervised bail after you offended in the way that has brought you before this court.

23It was his view that you minimised your offending to the point of being misleading, that you also very much minimised your alcohol consumption which was found by Ms Matthews to be a particular problem for you.  You have experimented with other drugs; fortunately not ice but it is quite clear and it was clear from the evidence that Mr Bell gave based on his materials that were sent to him from the South Australia Youth Justice Centre that alcohol continues to be a real problem for you.  I note that the offending for which you have still to be dealt with involves theft of alcohol.

24You were found not to be suitable for supervised bail.  The uncle you were living with was at an address known to police and the reports from South Australia were that whilst you engaged well in custody in South Australia, there were particular Youth Justice officers you engaged with but you refused to engage with others.

25Over the years you had taken what Mr Bell said was a standover role within the gaol.  In particular of concern to this court is the fact that whilst you would engage well in custody, towards the end of that time, you would disengage, you would then be released into the community and almost immediately offend.

26It was the diagnosis of Ms Matthews that you suffer from post-traumatic stress disorder, longstanding depression and anxiety due to the violence you received as a child and due to the memories you have as a result being a refugee.

27It was quite clear that no report could be obtained for the purposes of assessing your suitability for Youth Justice until after Christmas which means you would be in a difficult position custodial-wise.  That is because you have been held in custody in adult gaol, your first experience of adult gaol.  There has been a management difficulty arising from a fight and you are now held in management at Ravenhall which is a very difficult environment where you are released from your cell only for a few hours a day.  This is a particularly difficult position from a young person such as yourself.

28It was clear in any event that, according to Ms Matthews and the testing she did, you present as a high risk of offending.  Given the information forwarded to Mr Bell from South Australia, it would appear that your chances of being assessed as suitable for Youth Justice are small.

29At the same time, whilst it was not conceded by the prosecution that a community corrections order would not be an inappropriate way of dealing with you, it had been conceded that the offending is very much at the lower end of the scale of seriousness insofar as the range of offending for this type of offence is concerned.  Your capacity to carry out a community corrections order is very limited.

30You have been offered a home with your 24 year old cousin.  Your mother has spoken of moving across to Victoria and resettling here but that is still very much up in the air and I am not satisfied you would have appropriate accommodation.

31I am also not satisfied, given your past record, that you would comply with a community corrections order and it would seem to me that any assessment officer from Corrections would have to be provided with the material Mr Bell has in those circumstances.  You are unlikely to be found suitable for placement on such an order.

32In those circumstances, given your very extensive prior criminal history, the fact that in the few weeks that you have been in Victoria, this is the third time you have come to the attention of police, protection of the community is the most important issue before the court.

33At the same time, I must take into account the fact that you are only 18, that it is undesirable that an 18 year old boy be placed in adult prison with more hardened criminals and it is particularly undesirable that you be held in management which is the current position.

34After anxious consideration, it is my view that the best way to deal with you is to impose a term of imprisonment which would take into account the time you have already served.  It will be a little extra that you will serve but will mean that you will serve an unusually low term of imprisonment for offending of this kind but this takes both into account the seriousness of the offending, your serious prior criminal history and your youth at the same time.

35So, therefore, on the sentence of attempted armed robbery, I am going to sentence you to three months and three weeks' imprisonment.

36On the summary charge of committing an indictable offence whilst on bail which summary charge you agreed to have heard in this court and pleaded guilty to, I am going to sentence you to two weeks' imprisonment and order that one week of that sentence be served cumulatively to the sentence imposed on Charge 1.

37That means you have got a total effective sentence of four months.

38I declare that 75 days of that sentence has already been served by way of pre-sentence detention.

39MR RAIMONDO:  Seventy four, Your Honour.

40HER HONOUR:  I am including today.

41MR RAIMONDO:  All right.  Well, today is the start of it - sorry.  Today is the start of his sentence, Your Honour.

42HER HONOUR:  All right.  Seventy four days.

43MR RAIMONDO:  All right.  That is all right.

44HER HONOUR:  Pursuant to s.6AAA, I declare that had you not pleaded, I would have sentenced you to a term of imprisonment of 10 months and order that you serve a minimum term of seven months.

45Can you stand up Mr Wawu?

46Because this is a more serious court, I have to give a very legal sounding sentence.  Does that make sense to you?  I have to use legal language and that might mean none of this makes sense to you.  All right?

47What I have decided is this; you have committed so many offences in South Australia and you are only here for a month and three times you have been picked up by police, right?

48When you got someone like you who just keeps committing offences, a judge has to think about what is called protection of the community.  That is they have to say, 'Look, this is a bloke - a person who never stops offending and I just have to keep him out of circulation for a while'.  Does that make sense to you?

49OFFENDER:  Yes.

50HER HONOUR:  I have no confidence that you would complete a community corrections order.  Now, a community corrections order is an order where I say, 'Okay, for 14 months you stay out of trouble, you have to report to a community corrections office, you would have to have counselling for mental health difficulties because Ms Matthews reckons you got post-traumatic stress disorder and also for your drinking', right?  Do you understand that?

51OFFENDER:  Yeah.

52HER HONOUR:  I just do not think you could do that because what has happened in the past is you do well with certain people inside and then when you get out, you just start drinking and you start offending again; plus you have got no proper family supervision in Victoria.

53So what I have decided is that I am going to give you a short sentence, much shorter than you would ordinarily get.  Do you understand?  All right.

54So you are going to have about, what, six weeks to go.  All right?

55Now, you need to understand this and you need to understand this really hard, all right, Mr Wawu?  When you have gone to court before when you have been in trouble, it has always been the Children's Court, right?  And the Children's Court is mainly worried about rehabilitation.  You got that?

56OFFENDER:  Yeah.

57HER HONOUR:  You are too old now.  Every time you commit an offence, you are going to come to an adult court.  Mary, are you understanding what I am saying?  Can you explain it to her?

58MR BLAKE:  I will explain it to her, Your Honour.

59HER HONOUR:  So, you know what has happened today.  Well, I have looked at your prior convictions and there are so many of them now, just so many of them, that if you keep getting into trouble in the future, the court - any court is going to say, 'This is an adult court'.  You are now said to be an adult because you are 18.  So we are not so worried about rehabilitation.  We are a bit worried about it but not as much as when you were 16 or 17.

60What we are worried about is that you do not seem to learn a lesson, you keep offending and so we are just going to put you in gaol till you stop.  You are going to get a gaol sentence every time you come back.  Do you understand that?  And most likely, it is going to be adult gaol because to go to Youth Justice here, you have to get a report saying that you are suitable for Youth Justice and already it has been decided that you are not.

61So when you finish this sentence, No.1, it is a bit of a detox for you from alcohol, but when you get out, do you understand, if you get into trouble again, you are just going to keep going back to gaol, adult gaol.  Does that make sense to you?

62OFFENDER:  Yeah.

63HER HONOUR:  Can you say back to me what I just said to you?

64OFFENDER:  If I keep my - committing crimes, I'll go to gaol.

65HER HONOUR:  Pardon?

66OFFENDER:  If I keep offending, I am going to go to gaol.

67HER HONOUR:  You are just going to go - it will be just in and out of gaol, in and out of gaol, in and out of gaol.  You have seen some of those older blokes in gaol?

68OFFENDER:  Yeah.

69HER HONOUR:  The ones in their 40s?  Did you see some of them wandering around?

70OFFENDER:  Yeah.

71HER HONOUR:  Do you know they spend their whole lives in gaol, out gaol, in gaol, out.  Nothing ever happens.  They just go to gaol, they come out, they go to gaol, they come out, their whole life.  Did you speak to any of those people?

72OFFENDER:  No.

73HER HONOUR:  No.  You have a good look.  You have a good look in the gaol.  Have a look at some of the older blokes.  Their lives are nothing.  They have never had a career, they have never had a job, they do not have a good family relationship, their kids never see them.  They come out, they got nothing.  Just lonely old men.  All right?

74That will be you unless you do something about this.  All right?  You need to stop pretending you are not as bad as everyone - it is not as bad as everyone says.  You know, alcohol is a really bad problem for you.  All right?  You were nicking alcohol that is why you got picked up.  Were you drinking the day that you did this offending?

75OFFENDER:  No.

76HER HONOUR:  The bloke with the watch?  You were not.  Yes, I do not know.  Anyway, you have got to do something about alcohol when you get out.  You know who to go to, do you not?  You can go to Alcoholics Anonymous, you can get counselling, you could go back to South Australia and get in contact with the Youth Justice people who looked after you before and ask them to put you into some services that help you.

77Otherwise you are going to have this really sad life of going to gaol and not building anything up for yourself.  Do you want to have a job one day?

78OFFENDER:  Yeah.

79HER HONOUR:  Do you want to have a wife?

80OFFENDER:  Yeah.

81HER HONOUR:  Do you want to have kids?

82OFFENDER:  Yeah.

83HER HONOUR:  What sort of dad do you think you are going to be if you go to gaol all the time?

84OFFENDER:  Not a good one.

85HER HONOUR:  No.  Do you think you might be if you keep drinking a daddy who belts his kids?  Yes, I know, you all say that.

86If you keep drinking, if you are drinking, if you are drunk, when you got little kids around, you belt them.  It will happen.  It always happens.  The most violent fathers are the people with drug problems and alcohol problems.  All right?  And you got an alcohol problem.

87So you want to have any sort of life outside gaol, you want to have a job, you want to have a marriage where you wife stays with you, you want to have kids who love you, you want to have a good relationship with your kids, all this has got to stop.  You need some help, you need - you know the sort of help you need.  You have had lots of psychologists, have you not?

88OFFENDER:  Yep.

89HER HONOUR:  Lots of counsellors?  Lots of social workers?  My advice to you is go back to South Australia, live with your mum, go and see Youth Justice people and ask for some help here because you are too old now, you are just not going to get the chances and you are not going to get Youth Justice.  It is going to be gaol, gaol, gaol, gaol, Port Phillip, Fulham, all the gaol we have got here.  That is going to be your life and it does not have to be that.  All right?

90You are good at maths.  You have got some brains.  You can have a life.  All right?  Up to you.

91So I am giving you this short sentence because I just want you to finish your sentence, come out, you do not know anybody, nothing, and you just decide what you want to do next.  All right?

92Thank you.  Have a seat.

93I reserve the right to edit that diatribe.  Thank you.

94MR BLAKE:  Your Honour, one just final thing ‑ ‑ ‑

95HER HONOUR:  Yes.

96MR BLAKE:  ‑ ‑ ‑ that might be noted on the record of orders.

97HER HONOUR:  Yes.

98MR BLAKE:  Mr Wawu has not been seen by a doctor.

99HER HONOUR:  Yes.

100MR BLAKE:  He has got some issues with skin.  If it can be recorded as a custody management issue to ‑ ‑ ‑

101HER HONOUR:  We do not do that the way - we can do it, can we?

102MR BLAKE:  I believe so.

103HER HONOUR:  Does Judge Allen do it a bit, does he?

104MR BLAKE:  He did.

105HER HONOUR:  Excellent.  Well then we will do that.  Could we record as a custody issue that he is required to see a doctor.

106MR BLAKE:  A medical assessment if it can be ‑ ‑ ‑

107HER HONOUR:  A medical assessment should be arranged.  What is the skin problem?  Is it psoriasis?

108MR BLAKE:  He has got very sensitive skin and it has been irritated since he has been moved into prison.

109HER HONOUR:  All right.  For skin difficulties.  All right?

110MR BLAKE:  Thank you, Your Honour.

111HER HONOUR:  Just do your best, all right, Mr Wawu?  No one wants to see you in gaol for ever and ever.  All right?  All right.

112Thank you.  Look after yourself.  You are not going to have a very happy Christmas because you are going to be in gaol and I note that part of the reason for my sentence, the length of my sentence is that he is serving time in management which is hard time.

113All the best, Mr Wawu.  I hope you can really, really change things when you get out.  All right?

114OFFENDER:  Thank you very much.  Will I be able to speak to my solicitor?

115HER HONOUR:  Of course, he will come down and see you.  No worries.  He will come down in the cells, all right?

116OFFENDER:  Thank you.

117HER HONOUR:  Thank you very much.

118MR RAIMONDO:  If Your Honour pleases.

119MR BLAKE:  If Your Honour pleases.

120HER HONOUR:  We will stand down.  Thank you very much.  We will adjourn till 9.30 tomorrow morning.

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