Director of Public Prosecutions v Weinberg
[2019] VCC 1789
•1 November 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00430
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GRADY WEINBERG |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 8 August 2019 | |
DATE OF SENTENCE: | 1 November 2019 | |
CASE MAY BE CITED AS: | DPP v Weinberg | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1789 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Piacentino v The Queen [2019] VSCA 153; Poidevin v The Queen [2016] VSCA 165; Director of Public Prosecutions v Dalgleish [2017] 262 CLR 428; The Queen v Verdins; Buckley; Vo [2007] 16 VR 269; Luchian v The Queen [2019] VSCA 145; R v McKee and Brooks (2003) 138 A Crim R 88
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Hamill | Solicitor for the Director of Public Prosecutions |
| For the Offender | Mr J Miller | Haines & Polites |
HIS HONOUR:
Introduction
1 Grady Weinberg, you have pleaded guilty to one charge of armed robbery, contrary to s75A of the Crimes Act 1958 (henceforth “Crimes Act”), which carries a maximum penalty of 25 years’ imprisonment.
2 You have also admitted your criminal record.
Circumstances of the offence
3 The circumstances in which you came to commit this offence are set out in the summary of prosecution opening for plea dated 12 March 2019, which was tendered at your plea hearing on 8 August 2019 and marked Exhibit A. I will confine my remarks here to a summary.
4 On Saturday evening, 15 July 2017, your victim in this matter, James Cozzani, went to visit James McDonald at his apartment in Stud Road, Wantirna South. He parked his BMW X3 sports utility vehicle with registration No J1M1 in a nearby car park at Swinburne University. There was a social gathering at the apartment of James McDonald, and shortly after Mr Cozzani arrived, you and your co-offender, Thomas Baker, arrived.
5 After engaging in a discussion with Mr Cozzani in relation to drugs and other matters, you and your co‑offender told Mr Cozzani that you could take him to get some Xanax, and the three of you left the Wantirna South apartment at 4.23am on 16 July 2017.
6 When Mr Cozzani left the party with you and Mr Baker, you all got into Mr Baker’s vehicle, a silver Mitsubishi utility. Mr Baker drove the three of you to Swinburne University car park where Mr Cozzani’s vehicle was parked. The three of you then transferred to Mr Cozzani’s vehicle.
7 Mr Cozzani was driving his vehicle, with your co‑offender, Mr Baker, in the rear seat of the vehicle. You sat in the front passenger seat. Upon arrival at an address where it was said that Xanax could be purchased, the three of you waited inside the vehicle. At this point, Mr Cozzani used his mobile phone to access his bank application to transfer money to Mr Baker in relation to the Xanax (which was never acquired). When Mr Cozzani used his telephone banking application for this purpose, you and Mr Baker saw the balance in Mr Cozzani’s bank account, being $25,000, which was an inheritance from Mr Cozzani’s mother’s estate.
8 You then produced a knife and Mr Baker removed Mr Cozzani’s phone. Both you and Mr Baker then demanded the phone and PIN number to the bank application on Mr Cozzani’s phone. You held your knife against Mr Cozzani’s neck.
9 When Mr Cozzani provided his PIN number, Mr Baker transferred funds from Mr Cozzani’s account into another account affiliated with Mr Baker.
10 You then got into the driver’s seat of Mr Cozzani’s car, with Mr Cozzani moving into the front passenger seat, whilst Mr Baker remained in the back seat. You then drove to several ATMs, at each one trying to use the phone to withdraw money unsuccessfully. At one ATM, Mr Cozzani withdrew $500 cash.
11 You then drove to Jacobs Walk in Ferntree Gully where Mr Cozzani got out of his vehicle. Threats were made to Mr Cozzani that if he was to call the police, he would have “bigger problems” to deal with. Mr Baker then moved into the front passenger seat, and you drove off, leaving Mr Cozzani behind, having taken his vehicle and mobile phone.
12 Having been abandoned at this location, Mr Cozzani went to a nearby resident’s house and asked for help. The matter was then reported to police.
13 Later that morning, Mr Baker, having been contacted by the host of the party the previous evening, James McDonald, sent Mr McDonald a “pin drop map”, being the GPS co-ordinates as to the whereabouts of Mr Cozzani’s car.
14 The total value of items taken during the commission of the armed robbery was $51,350. The BMW vehicle owned by Mr Cozzani was valued at $23,500. The mobile phone was valued at $1,200. Monetary funds to the value of $26,650 were taken, broken down to four Netbank transfers to the affiliated account of Mr Baker, one transfer into Mr Baker’s phone account valued at $5,000, and the ATM withdrawal at $500.
15 Mr Baker was arrested 11 days later, on 27 July 2017. You were arrested on 17 August 2017, when you were interviewed by police and made a “no comment” interview.
16 The motor vehicle and mobile phone were subsequently recovered and returned to Mr Cozzani. The monetary amounts stolen were reimbursed to Mr Cozzani and his sister, Stephanie, (noting that the account was a joint account); however, this process took some four or five months for the funds to be reimbursed, in circumstances which would no doubt have been most stressful to Mr Cozzani and his sister.
Victim Impact Statements
17 Victim Impact Statements were provided by James Cozzani and his sister, Stephanie Cozzani. They were tendered at your plea hearing on 8 August 2019, and marked Exhibit B. I have carefully considered the contents of both statements for the purposes of sentencing.
18 In his Victim Impact Statement, Mr Cozzani indicated that he had only purchased the motor vehicle a few months prior to this incident, and the funds in his account represented a shared inheritance with his sister following the death of their mother. Mr Cozzani indicated that, “All of my independence was taken from me, for no reason, I was so furious.” Mr Cozzani indicated that he had difficulties getting to work, his routine was all messed up, and he started drinking more often, sometimes during the day. He also stated that the incident had put stress on his relationships with people around him. He also indicated that the incident had a negative impact on his ability to find employment, and his ability to spend time with his children. He indicated that he started getting counselling following the incident and that his general practitioner had prescribed anti-anxiety and depression medication. He expressed the following sentiments:
“I often feel overwhelmed by life and just getting through the day, but I'm really looking forward to one day feeling normal again and having a clear mind and feeling genuinely happy.”
19 According to Stephanie Cozzani in her Victim Impact Statement:
“Ultimately this incident was the catalyst to watching my brother fall back into a downward spiral of darkness and depression.”
20 She also said that as a result of the incident, she had started seeing a therapist, and had invested so much mentally and emotionally in supporting her brother that she felt that her own life and mental and physical health had suffered. She indicated that she and her brother were “just so exhausted”. Ms Cozzani also referred to the significant financial impost as a result of the incident, including taking time off work to help transport her brother around, and time spent dealing with police, insurance companies, banks, the Financial Ombudsman and the Court.
21 Victim Impact Statements are an important means through which victims can participate in the sentencing process. They enable victims to convey to the Court the often far reaching consequences of criminal behaviour. I have taken into account both Victim Impact Statements in relation to your offending. In combination, they represent a powerful example of the adverse effects of crimes of this nature, which can be long lasting and far reaching.
Nature and gravity of offending
22 The gravity of the offence of armed robbery is reflected in the maximum penalty, being 25 years’ imprisonment.
23 As I indicated when sentencing your co‑offender, Thomas Baker, on 2 November 2018, the offending engaged in by yourself and Mr Baker collectively represents a serious and concerning example of the crime of armed robbery. Whilst in company with another, you took advantage of a vulnerable victim whilst he had been isolated from the others with whom he had been socialising. A knife was held to the victim’s neck whilst the relevant demands were made. The transferring of funds into accounts connected to Mr Baker, and accompanying the victim for multiple attempts at ATM withdrawals represents sustained offending, and shows a degree of determination. After veiled threats were made to the victim, he was left abandoned, in the early hours of 16 July 2017, without his car, mobile phone or money.
24 The monetary value of the items taken was substantial. A person’s motor vehicle is a substantial asset to them, and as explained by Mr Cozzani, important for a person’s independence.
25 I accept that there is no basis upon which I could be satisfied beyond reasonable doubt that your offending was planned or premeditated. The prosecution opening referred to yourself and your co‑offender observing the bank balance of the victim on his mobile phone whilst in the car, and it would appear that the genesis of your criminal conduct occurred then.
26 I also accept that the prosecution case against you does not include an allegation of physical injuries to the victim, although the psychological impact as demonstrated in the Victim Impact Statement of Mr Cozzani is clear. Further, all property has been recovered, though I note the understandable frustration, stress and trauma which had been caused to Mr Cozzani and his sister in relation to the delays associated with the return of the funds in question.
27 In terms of your role in the offending, clearly you played a significant role in the commission of the armed robbery, holding a knife to the victim’s neck. Your conduct in this regard was shameful, and no doubt contributed to the trauma inflicted upon your victim. As submitted by the prosecution, your involvement in the commission of the crime was overtly physical. Your conduct represents overt physical intimidation of Mr Cozzani in order to facilitate the crime of armed robbery.
28 Your co‑offender, Mr Baker, is six years older than you. It is clear from the materials which have been produced for your plea hearing, the details of which I will later expand upon, that you have an intellectual disability. The aspects of your disability are extensively canvassed in the psychological reports of Mr Warren Simmons, together with the material provided by Disability Justice. Previous assessments confirming your disability extend back to 1999, when you were assessed as having impaired functioning which fell within the mild intellectual disability range. At that time, at the age of 13, your adaptive functioning was considered to be equivalent to a child aged three years and seven months. Mr Simmons, in his report dated 26 April 2019,[1] attributes your offending behaviour to a combination of factors, including deficits in adaptive functioning, limited intellectual ability and ongoing substance abuse. Whilst there is some doubt as to whether Mr Simmons was referring to the offending for which you now fall to be sentenced, or other offending, I am satisfied that Mr Simmons’ opinion that you are more likely to “follow the leader” likely applies to the current offending.
[1]Mr Warren Simmons, Psychological Report (29 April 2019), paragraph 13
29 In submissions before me, Ms Hamill who appeared on behalf of the Director of Public Prosecutions, indicated that she would not cavil with the submission that Mr Baker was the mastermind of the armed robbery, in the context of its genesis occurring in the car when you and Mr Baker saw the bank balance on Mr Cozzani’s phone. Taking into account all of the surrounding circumstances and background material, I am satisfied on the balance of probabilities that this was the case. However, whilst Mr Baker may have been the directing mind, your physical actions demonstrate that you were heavily involved in the commission of the offence. In my view, you are both equally responsible for the commission of this crime. As I indicated when sentencing your co‑offender, Mr Baker, in my view the offending sits at the lower end of the middle range of examples of armed robbery offences. The prosecution did not dispute this categorisation.
Procedural chronology, plea of guilty and remorse
30 As indicated in the summary of prosecution opening, this matter resolved and you entered a plea of guilty to the charge of armed robbery on 22 October 2018, the first day of the trial, before any evidence or pre-trial argument had commenced. You have been in custody since the date of your arrest for this matter, being 17 August 2017, now in excess of two years. However, you have also served sentences of imprisonment since this date. Not counting today, you have now been in custody in relation to this matter for a period of 350 days.
31 Clearly, your plea cannot be considered a plea of guilty at the earliest possible opportunity. The matter proceeded to a contested committal hearing where witnesses were cross-examined, prior to the resolution of this matter.
32 However, I accept that your plea of guilty has saved the witnesses the trauma of a criminal trial, which has also saved the community the cost and delays associated with it. Your plea of guilty warrants a sentencing discount for utilitarian reasons in the context of the details that I have just outlined.
33 On the issue of remorse, psychologist, Mr Warren Simmons, indicated:
“Mr Weinberg does accept responsibility for his behaviour and although there are some suggestions of remorse, Mr Weinberg's intellectual and verbal language difficulties make this difficult to articulate.”[2]
[2]Mr Warren Simmons, Psychological Report (29 April 2019), paragraph 30 (exhibit five)
34 Furthermore, during the extended pre-sentence assessment undertaken through Ringwood Community Correctional Services for the purposes of an assessment as to your suitability for a Community Correction Order,[3] you acknowledged that your felt sorry for your victim, but clearly minimised your involvement in the offence. As indicated by Ms Hamill on behalf of the prosecution, in submissions on 17 October 2019, in discussions with the assessing officer, you appeared to have distanced yourself from aspects of the offending, including denying the use of a knife.
[3]Report dated 23 September 2019
35 I accept that you have exhibited a degree of remorse for your offending, through your plea of guilty together with your comments to others conducting assessments of you. I also accept that whilst you may have minimised your involvement, and your expressions of remorse may be limited, an assessment in relation to your remorse is complicated by virtue of your intellectual impairments.
36 In all the circumstances, I have made some modest allowance in terms of the sentence to be imposed, on the basis of remorse.
Personal circumstances
37 I turn now to your background and personal circumstances. You are now 25 years of age. At the time of the offending you were 23 years of age and, as conceded by the prosecution, you were therefore a youthful offender.
38 In written submissions, your counsel indicated that you have had a chaotic and turbulent upbringing, characterised by drug and alcohol abuse and domestic violence. The Department of Health and Human Services were involved in your life from an early age, and you moved between family homes, foster care and secure residential units.
39 An analysis of your background confirms your deprived background.
40 You were born in Melbourne, but grew up in Emerald and Mooroolbark until the age of eight. You were subsequently taken into care by the Department of Health and Human Services, resulting in your childhood being quite erratic. Your mother, who passed away in 2014 when you were in gaol, had a history of substance abuse.
41 You have never met your father. You understand, however, that he was abusive and had a history of substance abuse.
42 You are the only child to your parents, though you have three older half-sisters, the youngest of which committed suicide in May 2018, and there has been mention also of a brother in the materials.
43 Following your parents’ separation, your mother had numerous subsequent relationships, and many of these men had a history of violence and substance abuse. You essentially grew up surrounded by violence and substance abuse. At around the age of eight, you were taken into care by the Department of Health and Human Services due to the chaotic circumstances in which you were being raised, and you remained in care until the age of 18. You have described living in many residential units and placements over the years, and you have indicated that you would often run away, explaining that you wanted to be with your mother. You have also described periods of time living on the streets as a teenager, and spending periods of time in secure welfare. Unsurprisingly, throughout your childhood and youth, you felt isolated and unsupported.
44 At the age of 18, you returned to the care of your mother, but her life was chaotic. During this period, your mother suffered a stroke and did not recognise the children for some time. You then moved in with your then girlfriend, a few months before being incarcerated in 2014.
45 In terms of your education, you attended Emerald and Mooroolbark Primary Schools, indicating that you had always had an integration aide for the entire time that you were at school. You repeated your first two years of school, before leaving at the beginning of Year 4, never returning to school. You have described being harassed by your peers because of your intellectual difficulties, leading to behavioural problems on your part.
46 Perhaps, unsurprisingly, you have had extremely limited employment over the years, save for a period working as a concreter for one of your sister’s boyfriends for a period of months.
47 In terms of your relationship history, at the age of 16 you met Megan, who was three years your senior and living at the same residential unit as you at the time. You formed a friendship and then a relationship which continued for some nine years. Megan also has an intellectual disability. Together, you have two children, Eli, aged six, and Ari, aged four. The Department of Health and Human Services have been involved in relation to the children, and I understand that you had contact with them until being placed on remand on this occasion. Your relationship with Megan ended in the context of your incarceration.
48 In terms of your drug and alcohol history, you were introduced to cannabis by another foster child in the unit, where you were then staying, at the age of nine. You smoked cannabis nearly every day, until you were remanded in custody in 2014. You have indicated to Mr Simmons, psychologist, that, at its peak, you were smoking up to 14 grams of cannabis a day.
49 When you were about 12, you commenced ingesting Xanax whenever you were able to obtain them, disclosing a pattern of intermittent use until the age of 18. You have also experimented with methamphetamines on a few occasions, as well as heroin for a period of months. Significantly, upon your release from custody on your previous sentence, you were introduced to methamphetamines by friends you were then mixing with. This drug made you feel invincible. Your usage increased to daily almost immediately and continued until your current incarceration.
50 I have already made mention of your intellectual disability. The Department of Education assessed you with a mild intellectual disability in 1999, when you received an integration aide. The material provided by Disability Justice in relation to your suitability for a Justice Plan clearly confirms your longstanding intellectual disability, and its impact on your daily functioning.
51 As indicated by the prosecution, you have a relevant and lengthy history of prior offending, including multiple offences of violence and dishonesty, including dishonesty involving the theft of motor vehicles. You have previously received sentences which have been designed to foster your rehabilitation, many of which have incorporated your diagnosis of intellectual disability. By way of example, in October 2012, you were subject to an adjourned undertaking with conditions that you follow the directions of Disability Client Services. In January 2014, you received a Community Correction Order with a Justice Plan attached. In December 2014, you received another Community Correction Order with a Justice Plan attached. In May 2016, you received an adjourned undertaking with a Justice Plan attached. You have also received terms of imprisonment followed by some form of supervised release into the community. You have breached all four previous Community Correction Orders that have been imposed, often by further offending.
52 Sadly, you have spent much of your life in custody.
53 As confirmed by a document setting out your remand summary since 2013, over the past six years you have spent all but two years and two months in custody. You were out of custody between January and August 2014, between December 2014 and November 2015, between May 2016 and July 2016, and between April 2017 and August 2017. Concernedly, you had only been out of gaol for a matter of months as at the commission date of this armed robbery.
54 It is sad to say that an analysis of your background reveals a rather bleak history, and real issues in relation to your prospects for rehabilitation, as confirmed by Mr Warren Simmons at paragraph 31 of his most recent psychological report.
55 According to Mr Simmons, your mother’s substance use in your early years would have modelled this as normative behaviour for you.[4] Your intellectual disabilities were well established at a very early age and the resulting behaviour at school almost certainly led you into constant conflict with authority figures.[5] You have had little to no employment and been in custody for most of your adult life.[6] Your childhood would have left you vulnerable to substance abuse.[7] According to Mr Simmons, your intellectual disability is further compounded by the fact that you have significant issues with language:
“… This resulted in him experiencing difficulties in understanding, interpreting and managing events happening around him and leading to problems in the control of his emotional state. Mr Weinberg clearly has a limited repertoire and it was noted that he has been a client of Disability Services for some time now. Mr Weinberg's overall adaptive functioning appears to be limited.” [8]
[4]Mr Warren Simmons, Psychological Report (29 April 2019), paragraph 25
[5]Ibid paragraph 26
[6]Mr Warren Simmons, Psychological Report (29 April 2019), paragraph 26
[7]Ibid paragraph 27
[8]Ibid paragraph 29
Circumstances leading up to the offending
56 Psychologist, Mr Warren Simmons, notes that you are a poor historian. Indeed, there appear to be some discrepancies in your account of your progress in recent years, as reported by the various individuals who have authored reports for the purposes of your plea hearing. However, I accept that over the past few years you have experienced the trauma of multiple deaths of family members, which have had a profound impact on you, particularly given your significant periods in custody.
57 In a meeting on 17 September 2019 with the author of the Disability Justice Client Overview Report, you reported that your mother had died of a stroke in 2014, your brother in a road accident five days’ later, and a sister committed suicide in May 2018. You have also suffered the death of your grandmother from heart and age-related factors. In your counsel’s written submissions dated 7 August 2019, it was indicated that you had been allowed temporary release from custody in order to attend your mother’s funeral, but this was not the case for your brother. The Disability Justice Client Overview Report indicates that you have sought psychological support within the prison system during your current period of remand, due to the psychological impacts of these significant losses to you.
58 In relation to the circumstances leading to your current offending, you have explained to psychologist, Mr Warren Simmons, that upon your previous release from custody some three months prior to the armed robbery, you had visited both the graves of your mother and your brother, as you wanted to see where they were buried. You were homeless at the time, couch-surfing with other people and starting to mix with those who were using drugs. You indicated that you had relapsed into drug use in the form of methylamphetamines, and you have reported that your involvement in the commission of the armed robbery was drug-motivated.
Progress in custody since arrest on this offence
59 You were arrested in relation to this matter on 17 August 2017. You have been in custody since this date, however a significant proportion of this period is referrable to other sentences of imprisonment. On 21 December 2017, you received a sentence of imprisonment of eleven months, with 126 days being declared pre-sentence detention for a large number of offences, including burglary, theft, handle stolen goods, reckless conduct endangering serious injury, offending on bail, drugs and driving offences. Concernedly, some of the offending which resulted in that term of imprisonment was committed in August 2017, after the commission date of the armed robbery for which you now fall to be sentenced.
60 Furthermore, on 30 April 2019, at Ringwood Magistrates’ Court, you were sentenced to a term of imprisonment of four months for charges of theft of motorcar and theft. No further information was provided by the prosecution in relation to these offences.
61 Sadly, the offences which have resulted in the most recent terms of imprisonment are consistent with your substantial criminal history. Collectively, your criminal history tends to suggest that your rehabilitative prospects are guarded at best, and that there is a need for the community to be protected from you.
62 In the extended pre-sentence assessment – Outcome Report, dated
23 September 2019, it was indicated that since your incarceration in August 2017, you had been involved in behavioural incidents within the prison system and, as at that date, you were currently on lockdown for 24 hours a day. There were also reports of suicidal ideation in late 2017. As indicated in the Disability Justice Client Overview Report, you have reported significant impacts due to the multiple deaths of family members whilst in custody. You have apparently sought psychological support. However, “this has been inconsistent due to the inability for the prison to assign one practitioner to your case.”[9] I accept that your behavioural issues whilst in custody have likely occurred in the context of your difficulties in relation to the loss of family members.
[9]Page 4
63 In submissions before me on 17 October 2019, your counsel submitted that you had now returned to mainstream within the prison system, and that you had stabilised within the custodial setting.
64 A bundle of custodial certificates, tendered at your plea hearing on 8 August 2019, and marked Exhibit 1, confirmed your participation in various courses within the prison system, and the provision of negative urine screens in relation to drug testing. Furthermore, I have taken into consideration a number of character references tendered on your behalf on 8 August 2019, and marked Exhibit 2. Included in those references are letters from your father, Mark, and your oldest sister, Shirynne. Both speak positively in relation to your desire to start afresh moving forward, and both indicate that you maintain the support of you family. I also considered a letter from Mr Darryl Ramsay, from the Prison Fellowship Victoria, who indicated as follows:
“I know Grady wants to be a better man, and he’s expressed a willingness to seek help and support, and to utilise some of the resources available to him within the system, in order to achieve this goal. I am currently willing to continue to support him also, and I genuinely wish him all the best for the future.”
65 At your plea hearing on 17 October 2019, your counsel indicated that
Mr Ramsay is continuing to work with you in relation to the possible provision of accommodation subsequent to your release from prison.
Assessment reports
66 To assist in the formulation of an appropriate sentence, I ordered an extended pre-sentence assessment report to be obtained from Corrections Victoria. That report, dated 23 September 2019 from Ms Claire Haughey, canvassed various matters of relevance to sentencing, some of which I have already referred to in my Reasons for Sentence. In particular, the author noted:
“Whilst it is acknowledged that Mr Weinberg has a history of non-compliance with previous community-based dispositions, he is, on this occasion, found suitable for a Community Correction Order. This recommendation is made in consideration of Mr Weinberg’s age, his current motivation, and the benefit that monitoring and support could have on his integration back into the community. It is also of note that Mr Weinberg has not been subject to a Community Correction Order for three years, and in this time, he has experienced a number of changes in his family and support systems. Mr Weinberg has been able to identify several goals and motivations for change, and it is acknowledged that he will benefit from support upon his release to work towards implementing positive behaviour change.”[10]
[10]Page 4
67 Various conditions were recommended in relation to any Community Correction Order imposed, with a delayed release to allow supports to be put in place before your reintegration back into the community.
68 Various reports were also provided pursuant to s80 of the Sentencing Act 1991 (henceforth “Sentencing Act”), in relation to any Justice Plan condition attaching to a Community Correction Order. A Statement of Intellectual Disability dated 10 October 2019 from the Department of Health and Human Services was provided. Furthermore, I have already made reference to the Disability Justice Client Overview Report dated 1 October 2019 from Carolyn Husenovic. In addition to the background matters to which I have already referred, the report refers to the need for appropriate supports in relation to housing upon your release from prison.
69 As confirmed by a representative from Disability Justice at the further plea hearing before me on 17 October 2019, you have now provided your consent for a referral to the Forensic Disability Statewide Assessment Service, for you to be considered for the Disability Interim Justice Accommodation Service that can provide up to three months’ accommodation, whilst longer term options can be explored. I was informed that this assessment process can take several weeks.
70 Finally, I received from Disability Justice a “Justice Plan” dated 1 October 2019, which set out various recommendations in relation to forensic disability supports and mental health supports in your case. The Justice Plan indicated:
“The Department recommends the above available services to reduce the likelihood of Mr Weinberg re-offending. The Department will monitor the client’s participation in the services recommended in the Justice Plan and will advise appropriate authorities if the Justice Plan requires review.”
Sentencing submissions
71 Your counsel submitted that, in all the circumstances of your case, a term of imprisonment combined with a Community Correction Order with a Justice Plan condition would be appropriate.
72 Whilst the prosecution initially submitted that a term of imprisonment with a non-parole period ought be imposed, in submissions before me on 17 October 2019, Ms Hamill, who appeared on behalf of the prosecution, indicated that whilst this remained the primary submission, in light of the new material now before the court, a sentence of imprisonment combined with a Community Correction Order is not necessarily wholly outside the range of sentences that might be imposed.
Sentencing factors
73 In formulating an appropriate sentence in your case, I have considered all of the matters set out in s5(2) of the Sentencing Act.
74 I have considered the maximum penalty for the offence, in this case being
25 years’ imprisonment.
75 I have considered the nature and gravity of your offence, and I refer to my comments earlier in my Reasons for Sentence in that regard.
76 I have considered the impact of your offence on any victim, and I refer to my earlier comments in my Reasons for Sentence in that regard.
77 I have considered your plea of guilty and the issue of remorse, together with your previous character. Again, I refer to my earlier comments in my Reasons for Sentence in that regard.
78 I have considered your culpability and degree of responsibility for the offence. I have already described your level of involvement as compared to Mr Baker.
79 In further submissions before me on 17 October 2019, the issue of whether or not your intellectual disability enlivened the Verdins’[11] principles in relation to your role in the offending was the subject of submissions. I did not understand your counsel to be submitting that your moral culpability was reduced by virtue of your intellectual disability, nor to any significant extent was the application of specific or general deterrence moderated for the same purpose.
[11]The Queen v Verdins; Buckley; Vo [2007] 16 VR 269
80 Ms Hamill, who appeared on behalf of the prosecution, conceded that the second Verdins’[12] principle, “the condition could have a bearing on the kind of sentence that was imposed and the conditions in which it was to be served” had some applicability in your case, but it was submitted that there was an absence of evidentiary support for the other Verdins’[13] principles. Ms Hamill referred me in particular to paragraphs 29 and 30 of Piacentino v The Queen [2019] VSCA 153 on this point.
[12]Ibid
[13]Ibid
81 In my view, save for Verdins’[14] principle two, it is difficult to make a substantial allowance, pursuant to the Verdins’[15] principles, on the basis of the material provided in your case. As indicated by Ms Hamill, the opinions of psychologist, Mr Simmons, in relation to the connection between any functioning deficits on your part and this offending is somewhat opaque. At paragraph 30 of Mr Simmons’ report, it is somewhat unclear as to which offence Mr Simmons is referring to when he expresses his opinions.
[14]Ibid
[15]Ibid
82 I have made an allowance in relation to any sentence imposed due to the second Verdins’[16] principle. In my view, there is an absence of evidentiary foundation to make any further allowance pursuant to the first, third and fourth Verdins’[17] principles. I have, however, taken into consideration your intellectual disability in a general sense, in terms of your deprived background, the struggles you have encountered in complying with previous supervisory court orders, and your general difficulties whilst in custody.
[16]The Queen v Verdins; Buckley; Vo [2007] 16 VR 269
[17]Ibid
83 I have also taken into consideration your relative youth (being only 23 at the time of the offence) and your chronically disadvantaged upbringing. In particular, you were exposed to drug use from a very young age, before you were sufficiently developed in order to make rational choices regarding your own drug use, and its associated problems.[18]
[18]R v McKee and Brooks (2003) 138 A Crim R 88, 12
84 I have also considered the principle of parity, which requires that when two or more co-accused are sentenced for the same offending, any significant disparity between the sentences imposed must be capable of rational explanation. Your counsel appropriately drew to my attention the sentence I imposed on your co-offender, Mr Baker, who received a term of imprisonment of 463 days with a two year Community Correction Order with conditions to follow. Your counsel submitted similarly, that a term of imprisonment combined with a Community Correction Order was appropriate in your case. Whilst it was conceded on your behalf that the criminal histories of Mr Baker and yourself are very different, with Mr Baker having an extremely limited history, it was submitted that Mr Baker was older than you and that, in contrast to Mr Baker, you were not the directing mind in relation to the armed robbery.
85 The primary sentencing submission from the prosecution was that a term of imprisonment with a non-parole period ought be imposed. In relation to the parity principle in the context of the sentence imposed on Mr Baker, the prosecution submitted that the parity principle had less forceful application where the circumstances of the offenders and their offending can be distinguished. It was submitted that the imposition of a head sentence and non-parole period on you would not give rise to a legitimate sense of grievance, due to your extensive criminal history, and the respective roles played in the offending.
86 In submissions before me on 17 October 2019, Ms Hamill, who appeared on behalf of the prosecution, referred me to paragraphs 35-37 of Piacentino,[19] which set out a recent analysis of the parity principle.
[19]Piacentino v The Queen [2019] VSCA 153
87 I have considered the parity principle in formulating an appropriate sentence in your case. The application of the principle is somewhat problematic in your case, given the disparate circumstances as between you and Mr Baker. Whilst you have a significant criminal history, you also have a longstanding and significant intellectual disability, and a background of chronic disadvantage.
88 In all the circumstances, I am not satisfied that your circumstances are significantly different so as to justify a more significant penalty in your case than the sentence imposed on Mr Baker. In my view, your particular circumstances warrant a term of imprisonment coupled with a significant and comprehensive Community Correction Order, with a Justice Plan attached, which will best facilitate appropriate supervision, treatment, and rehabilitation given your intellectual disability.
89 As earlier indicated, in submissions before me on 17 October 2019, the prosecution provided altered sentencing instructions to the effect that a term of imprisonment combined with a Community Correction Order in your case would not necessarily be wholly outside the range of sentences that might be imposed.
90 I have also taken into consideration current sentencing practices in formulating an appropriate sentence in your case. A number of authorities were provided by the prosecution, including the decision of Piacentino[20], and Luchian v The Queen [2019] VSCA 145.[21]
[20]Ibid
[21]See also Poidevin v The Queen [2016] VSCA 165
91 Whilst it was submitted that the facts of Piacentino[22] were most similar to the circumstances of your armed robbery, I note that in Piacentino[23] a chainsaw was used to lacerate the victim’s arm, clearly constituting extremely serious circumstances of that armed robbery. In Luchian[24], the sentencing court imposed a term of imprisonment combined with a significant Community Correction Order in relation to what the prosecution has described here as a “typical armed robbery”. I note in that case that, whilst the sentencing court took particular note of the availability of an immediate residential facility to break the cycle of institutionalisation on the part of that offender, that individual did not have an intellectual disability, as is the case here.
[22]Piacentino v The Queen [2019] VSCA 153
[23]Ibid
[24]Luchian v The Queen [2019] VSCA 145
92 In formulating an appropriate sentence in your case, I have considered each of the authorities provided to me, together with the Sentencing Snapshot from the Sentencing Advisory Council in relation to armed robbery.[25] As is often said, it is difficult to engage in a factual comparison with other decisions, in order to arrive at an appropriate sentence in any given case. In any event, pursuant to the High Court case of Director of Public Prosecutions v Dalgleish,[26] current sentencing practices are but one factor to take into consideration in the sentencing synthesis, and no one factor should dominate.
[25]Sentencing Snapshot No 212, June 2008
[26]DPP v Dalgleish [2017] 262 CLR 428
93 The offence for which you now fall to be sentenced represents a serious instance of criminality. Your involvement in it was significant, as your physical intimidation of the victim whilst holding a knife clearly facilitated the crime being committed. Crimes of this nature require denunciation on behalf of the community and appropriate punishment. Other likeminded individuals must be deterred from engaging in such serious criminality. Your significant criminal history means that you also must be deterred from engaging in such criminality. Indeed, your criminal history, coupled with the gravity of this offence, means that community protection must also be a significant sentencing purpose. However, you were aged 23 at the time of the armed robbery and, therefore, a youthful offender. Rehabilitation must therefore remain a significant and important sentencing purpose. You had a most difficult and disadvantaged background and, as highlighted by the latest report of psychologist, Mr Warren Simmons, any assessment as to your rehabilitative prospects must be guarded.
94 However, having considered all of the relevant matters, particularly the extended pre-sentence report and the documentation from Disability Justice, I am satisfied that the appropriate sentence in your case is a term of imprisonment coupled with a significant, comprehensive, and targeted Community Correction Order which is tailored to your intellectual disability.
95 In my view, such a disposition both protects the community and fosters your rehabilitative prospects. It is hoped that in the intervening period between sentencing and your release on the Community Correction Order, appropriate arrangements can be put in place through Disability Justice for appropriate housing and supports.
Sentence imposed
96 On the charge of armed robbery, you are convicted and sentenced to 400 days’ imprisonment. Pursuant to s18 of the Sentencing Act, I declare a period of 350 days be reckoned as the period of imprisonment already served under the sentence I have imposed, that does not include today. For the sake of clarity, it is my intention that you be released from prison in 50 days.
97 Furthermore, in accordance with s44 of the Sentencing Act, in addition to the term of imprisonment, I order that you undertake and complete a Community Correction Order for a period of two years. This order will commence on your release from prison.
98 I order that you undertake and complete 275 hours of unpaid community work during the period of the Community Correction Order. Further, I order that you be subject to supervision, that you undergo assessment and treatment for drug abuse, that you participate in offending behaviour programs as directed, that you be subject to the Justice Plan dated 1 October 2019, and that your compliance with the order be monitored by this court.
99 To that end, I order that you attend before me for a review of your compliance with this order, pursuant to a judicial monitoring condition. This is to occur on 10 March 2020 at 9:30am.
100 I order that 80 hours of the treatment and rehabilitation component of the Community Correction Order be counted towards unpaid community work pursuant to s48CA(2) of the Sentencing Act.
101 Before I proceed further Mr Weinberg, you need to provide your consent in relation to the Community Correction Order. That is, you need to agree to comply with the order that I am imposing. Now in order for you to do so you need to understand what is involved in the order. Have your lawyers explained to you what is involved in a Community Correction Order?
102 OFFENDER: Yes.
103 HIS HONOUR: You understand that there are a number of what are called mandatory conditions attaching to the order. I will not go through all of them now but they include things such as you must not commit any other offence punishable by gaol, you must not leave Victoria without first getting permission, you must let Corrections know within two working days if you change your address or your job. And you must follow all directions and receive visits from Corrections. Do you understand those conditions?
104 OFFENDER: Yes.
105 HIS HONOUR: The additional conditions that I have imposed are again as follows. The order will run for two years. So it starts on two years from the date of your release from prison in 50 days' time. During that two years you have to perform 275 hours of unpaid community work. Do you understand that?
106 OFFENDER: Yes.
107 HIS HONOUR: You also have to be supervised by Corrections for the two year period. You have to undergo assessment and treatment including testing for drug abuse or dependency as directed. And you have to undergo programs and courses that address any factors relating to why you committed the offending. Do you understand that?
108 OFFENDER: Yes.
109 HIS HONOUR: 80 hours in your treatment part of the order can be counted towards the 275 hours of unpaid work. Do you understand that?
110 OFFENDER: Yes.
111 HIS HONOUR: You also have to comply with a Justice Plan which is a comprehensive document which has been prepared through Disability Justice which will involve programs and services that are tailored to your intellectual disability. Do you understand that?
112 OFFENDER: Yes.
113 HIS HONOUR: And finally you must reappear before me for judicial monitoring, the first occasion being 10 March next year at 9.30am. Do you understand that?
114 OFFENDER: Yes.
115 HIS HONOUR: If you breach this order by anything, committing an offence punishable by gaol, not turning up to appointments, not following directions, not undertaking courses, refusing to undergo drug testing, things like that, you can be breached on this order. And breaching means you come back to court and you can be punished for breaching the order but you can also be resentenced in relation to this armed robbery. Do you understand that?
116 OFFENDER: Yes I do.
117 HIS HONOUR: Knowing all of that Mr Weinberg, do you agree to comply with this CCO?
118 OFFENDER: Yes.
119 HIS HONOUR: Thank you. I am just going to have the documentation taken down to you. Mr Tomlinson, if you could accompany my associate down for signing. Can I enquire as to whether people from Corrections can hear me?
120 MS HAUGHEY: Yes Your Honour, we can hear you.
121 HIS HONOUR: Very good. Can I just enquire; you have obviously heard the sentence that I have imposed and the conditions on the Community Correction Order. Is there anything to say in relation to those conditions, are they clear?
122 MS HAUGHEY: Yes Your Honour they are clear.
123 HIS HONOUR: Yes thank you. And the representative from DHHS who is in court at the moment, the framing of the order to comply with the Justice Plan dated 1 October is sufficient for your purposes?
124 MS HUSENOVIC: Yes.
125 HIS HONOUR: Yes thank you.
126 Pursuant to s6AAA of the Sentencing Act, I declare that had you pleaded not guilty to this charge and been found guilty of it, I would have sentenced you to four years’ imprisonment with a non-parole period of two years and 10 months.
127 Having considered the seriousness of the circumstances of the armed robbery, which is a forensic sample offence, I am satisfied that, in all the circumstances, the making of a forensic sample order pursuant to s464ZF(2) of the Crimes Act is justified. I note that the application was not opposed by you and, in my view, the granting of the order is in the public interest. Accordingly, I propose to make that order.
128 Mr Weinberg, what that is all about is as follows. I have ordered that a forensic procedure for the taking of a scraping from your mouth be undertaken by an authorised representative of Victoria Police at a later time. That is not a process that hurts, it is like a paddle pop stick that is scraped across the inner cheek of your mouth. Do you understand that?
129 OFFENDER: Yes.
130 HIS HONOUR: I need to inform you that if at the time of the request for that sample you do not agree or consent to the taking of the mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that?
131 OFFENDER: Yes.
132 HIS HONOUR: Yes. Thank you, you can take a seat Mr Weinberg.
HIS HONOUR: Yes, Ms Hamill, have I covered everything?
MS HAMILL: Yes, your Honour.
HIS HONOUR: Thanks. Mr Tomlinson - - -
MR TOMLINSON: Yes.
HIS HONOUR: - - - any issues?
MR TOMLINSON: No issues Your Honour.
HIS HONOUR: Yes, so released from prison in 50 days' time subject - - -
MR TOMLINSON: Perhaps, sorry just while Corrections are still here raise - - -
HIS HONOUR: Yes.
MR TOMLINSON: - - - a potential issue around that, by my quick calculations has it now on 21 December.
HIS HONOUR: Yes.
MR TOMLINSON: - - - which is the Saturday prior to Christmas. He would obviously need to attend within 48 hours of release, I just want to confirm that they will be open on either the 23rd or the 24th for him to do that.
HIS HONOUR: That's a very good question Mr Tomlinson. Anyone from Corrections able to answer that question?
MS HAUGHEY: Yes Your Honour, we'll be open, we will only be closed on Christmas Day and Boxing Day.
HIS HONOUR: There you go. Hard working Corrections Victoria. Thank you very much for your assistance and attendance today and thank you also to the representative from DHHS for being here in court today. I wish you well
Mr Weinberg, when you are released from prison in 50 days' time please comply with this order to the letter. You understand you're coming back before me next year and I will be expecting a positive report on your progress because with your criminal history, there is very limited room to move. Do you understand?
OFFENDER: Yes.
HIS HONOUR: Yes thank you.
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