Director of Public Prosecutions v Waycott

[2020] VCC 918

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00086

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK WAYCOTT

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	19 May 2020 & 22 June 2020
DATE OF SENTENCE:	25 June 2020
CASE MAY BE CITED AS:	DPP v Waycott
MEDIUM NEUTRAL CITATION:	[2020] VCC 918

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Armed robbery; Common assault – Drug abuse – Community Correction Order
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:
Sentence: Total effective sentence of 2 year Community Correction Order – s.6AAA declaration – 3 year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Harrold	OPP
For the Accused	Ms E. Millar	VLA

HIS HONOUR:

1Mark Allan Waycott, you have pleaded guilty to one charge of armed robbery contrary to s.75A of the Crimes Act 1958. The maximum penalty for that offence is 25 years imprisonment. You have also pleaded guilty to one charge of common assault contrary to common law. The maximum penalty for that offence is 5 years imprisonment.

2You have pleaded guilty at committal mention and I have taken your early plea into account in your favour in mitigation of sentence.  Your plea is evidence of remorse in your case and I accept that you are also genuinely remorseful for your offending. 

3You have admitted a limited criminal history for driving offences, criminal damage and minor drug offences.  You have no subsequent convictions and there are no outstanding charges in your case.

4An agreed prosecution opening was tendered in evidence and your offending may be summarised as follows –   

5On 4 September 2019, you attended the All Seasons Hotel in Bendigo with three friends and were there playing the poker machines.  During the course of the evening, tensions in relation to a drug debt arose between your associates and another person who was present, Jake Gray.

6After the venue closed at approximately 1 am, you and your associates prepared to confront Gray in the adjacent car park.  He had however left the area and you and an associate, Simon Bergman, decided to walk to your home.

7As you were walking home, you were told that Gray and others were waiting for your nearby and so you got into the rear of a utility driven by an associate to look for him.  You approached the two victims in this case mistakenly thinking they were Gray and an associate of his.  You armed yourself with a tomahawk probably from the utility and approached the two men and threatened them.  Bergman realised it was not Gray and withdrew from the scene.  You chased both men threatening them with the tomahawk and after confronting the victim, Bristow, you punched him multiple times and robbed him of his mobile telephone and keys.

8Your offending was reported to police and you were arrested a short time later.  You made no comment to questions put to you by the investigators and were then charged and remanded in custody where you remained before you were released on bail on 16 September 2019 on a condition that you comply with the Magistrates' Court CISP program.

9The victims of your offending have not made victim impact statements but I accept that your offending would have had a terrifying and traumatic effect upon them.  They were complete strangers to you with no knowledge of the dispute between your associates and Gray.

10I should add that you had no personal dispute with Gray and your decision to offend in the way you did cannot be explained.  It would appear that your conduct was the result of the ingestion of a range of drugs of dependence by you earlier that day. 

11Bristow's keys and mobile phone was subsequently recovered by police and returned to him.

12Armed robbery is a serious offence and the sentence I impose must be calculated to deter you and others from offending in this way.  It is also the responsibility of the court to protect the community and its citizens from unprovoked acts of street violence and from the use of weapons such as occurred in this case.

13I now turn to your personal circumstances. 

14You were born in Melbourne 17 February 1984 and are now aged 36.  Your childhood and formative years were characterised by poverty, your parents' alcoholism and the abusive conduct of your father.  Your parents divorced when you were 10 and you left home at the age of 14.  You left school in Year 9.

15I accept that your youth was disrupted and disadvantaged.  You lived in hardship and were bullied at school.  You also suffer from deafness in your right ear since your childhood.

16Your drug use commenced in your early teen years and after leaving school you worked in a range of unskilled occupations prior to commencing work as a wool classer at the Ferguson Wool Company.

17You suffered a serious back injury in the course of your employment with that company and for reasons that are not clear to me, you did not receive appropriate compensation for your work-related injury.  You now suffer ongoing severe backpain requiring medication and you are effectively unable to work in any manual capacity and you have not worked since your injury.

18You have two sons aged 13 and 10 who now reside with your father and stepmother in Wangaratta.  Their mother, your ex-partner, also resides in Bendigo and she too has a history of serious drug abuse.  You reside alone in a Ministry for Housing flat and accept you are isolated from your friends and family. 

19Your personal circumstances are plainly now characterised by hardship and I am firmly of the opinion that you would benefit from ongoing support and engagement in the community.  This will, in turn, assist you to resume contact with and responsibility for your children which you are keen to do.

20I have received in evidence a psychological report of Ms Alison Mynard setting your background and psychological profile.  I accept that you suffer from major depressive disorder and substance abuse disorder.  It would appear that your drug abuse is currently in remission although you stated yourself in court that you continue to use cannabis.

21I have also received in evidence a neuropsychological report of Bendigo Psychology prepared for the Department of Health and Human Services in relation to your parenting capacity.  The report details your cognitive and intellectual functioning and recommends that you require intensive psychological counselling and support. 

22You also have a history of seizures that may have been caused by the medication prescribed for your back injury together with your use of illegal drugs of dependence.  Your last seizure was approximately six months ago.

23Whilst I accept that your offending was serious and fuelled by your use of illegal drugs, I am satisfied that based on the material before me, the purposes for which this sentence is to be imposed would be best met by you serving a Community Correction Order.  In arriving at this conclusion, I have also taken into account that you have served 13 days on remand and further that the hardship of imprisonment is now compounded by the COVID-19 restrictions that are in place.

24Your rehabilitation and thereby the protection of the community is dependent upon you receiving the support and supervision of Corrections Victoria in the community.  Furthermore, I also accept that imprisonment in your case will entail a level of hardship than would otherwise be the case due to the chronic pain you suffer from your back injury together with your major depressive disorder.

25You have been assessed as suitable for a Community Correction
Order by Corrections Victoria and for the reasons I have set out in these reasons, the sentence of the court is as follows –

26On the charges of armed robbery and common assault, you are convicted and sentenced to serve a Community Correction Order for a period of two years on the core conditions provided for in the Sentencing Act and on the further special conditions that you perform 150 hours of unpaid community work during the course of the order, that you be under the supervision of a community corrections officer during the course of the order, that you undertake assessment and treatment for mental health and that you undertake treatment and assessment for drug dependency.

27Do you agree to entering an order on those conditions, Mr Waycott?

28OFFENDER:  Yes.  Yes, Your Honour.

29HIS HONOUR:  But for your plea of guilty, I would have imposed a Community Correction Order for a period of 3 years. 

30I have made the forfeiture order sought by the prosecution.

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