Director of Public Prosecutions v Welding
[2018] VCC 1610
•18 December 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-00930
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RYNO WELDING |
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| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 September, 10 October 2018 |
| DATE OF SENTENCE: | 18 December 2018 |
| CASE MAY BE CITED AS: | DPP v Welding |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1610 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCING
Catchwords: Attempted armed robbery – theft – handle stolen goods – related summary charges of committing an indictable offence whilst on bail – young offender – rehabilitation principal sentencing consideration – Community Correction Order imposed
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E Tueno (Plea) Ms K. Farrell (Sentence) | John Cain, Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms S. Seoud | Melinda Walker & Associates |
HER HONOUR:
1On 10 October 2018, this matter came before me and Mr Welding having pleaded guilty on indictment to one charge of attempted armed robbery, four charges of theft, one charge of handle stolen goods and two summary charges of committing an indictable offence whilst on bail was dealt with by way of a deferral of sentence until 12 April 2019.
2He was requested to undergo detoxification because of his addiction to methylamphetamine and to generally undertake steps to address his underlying offending behaviour which was primarily associated with the use of methylamphetamine.
3In the intervening period, he has not been fully compliant with a Community Correction Order that has been issued by the Melbourne Magistrates' Court on 17 August 2018 and there is evidence that he has been using methylamphetamines. There was a positive drug screen on 31 October 2018. He has comprehensively failed in his endeavours to achieve real change in addressing his drug issues and therefore it is my decision that the order deferring sentence is to be cancelled today and he will be sentenced today in respect to the offending.
4The offending is serious and that is reflected in the maximum penalties prescribed by Parliament; 20 years' imprisonment for attempted armed robbery, 15 years' imprisonment for handle stolen goods, ten years for theft and the summary charge of committing an indictable offence whilst on bail, three months' imprisonment and/or 1,200 penalty units.
5I will now proceed to sentence Mr Welding on the basis of the Crown opening that was read at the plea hearing and is marked Exhibit 1.
6The attempted armed robbery involves Mr Welding together with another, Claire Camilleri, entering the Li Kong Liquor store, Preston, on Monday, 15 January 2018 at approximately 3.20 pm. At the time, he was aged 18. He is now aged 19.
7Mr Welding, you approached the shop attendant, Ms Li, and requested some cigarettes. She requested payment from you where upon you said you had no money and left the store. About five minutes later, you re-entered the store together with your co-accused, Ms Camilleri, wearing hooded jumpers with the hoods pulled up. You walked up to the counter and requested Ms Li give you some cigarettes and on that occasion she again asked you for payment. You repeated your demand for cigarettes without any attempt to pay.
8The above process repeated itself two or three times and on the third demand for payment, you produced a knife from your pocket and demanded the cigarettes from Ms Li. She described the knife as being a blade approximately the size of a pen in length. You pointed the knife at her and forcefully demanded the cigarettes.
9In response, she refused your request and told you to get out of the store. On being asked to leave, you refused to leave and continued holding the knife pointing towards her in a threatening manner. At this point, she pressed the duress alarm and told you both that she had called the police. At that point, you left the store and that is Charge 3, attempted armed robbery.
10In respect of the theft charges, they concern the following. On Sunday, 14 January 2018, you and your co-accused, Ms Camilleri, attended an address in Preston where, without the permission of the owner, Monique Lafontaine, you removed the registration plates from her vehicle and placed those plates on your own vehicle. That is Charge 1, theft.
11On Monday, 15 January 2018, you and Ms Camilleri attended the BP Service Station Preston where you filled your car with fuel to the value of $51.40 and departed without payment for either fuel or items of food and confectionary that you had taken to the value of $29.03. That is Charge 2, theft.
12On Wednesday, 17 January 2018 at about 3.30 pm, you and the co-accused attended a different address in Preston and again without the permission of the owner removed the registration plates from a different vehicle this time belonging to Antonietta Colaci and placed those plates on your vehicle. That is theft, Charge 4.
13On 17 January 2017 at approximately 3.30 pm, you again attended a BP Service Station at a different location in Preston and again you filled your car with fuel to the value of $46.25 before driving away without making any attempt to pay and that is Charge 5, theft.
14On Thursday, 18 January 2018, you attended the Northland shopping centre with the co-accused, Ms Camilleri, and again on that occasion you removed registration plates without permission belonging to Ashley Brown and drove away. That is Charge 6, handle stolen goods.
15On your arrest, you were interviewed and made full admissions to the offending. You tried to deflect blame by saying that you were in a state of duress as your co-accused, Ms Camilleri, forced you at knife point to commit these offences. That was denied by Ms Camilleri and I reject that as being fanciful and merely just an attempt by you to deflect responsibility for your own criminal conduct.
16Ms Camilleri is 18. She has no prior criminal history. She was dealt with by way of diversion in respect to one charge of attempted armed robbery, one charge of receive stolen goods and two charges of theft. She was placed on a diversion program for 12 months effective from 21 June 2018 and ending on 21 June 2019.
17At the time you committed these offences, you did not have a criminal history. There are, however, subsequent matters. You were on two sets of bail in relation to other offending, that relates principally to driving offences and unlawful assault, persistent contravention of family violence orders, committing an indictable offence whilst on bail, reckless conduct endangering serious injury, threat to distribute intimate image of a person, dangerous driving whilst being pursued by police all of which charges were dealt with at Melbourne Magistrates' Court on 17 August 2018. On that date, you received a total effective sentence of 120 days imprisonment to be followed by a Community Correction Order of 18 months with conditions you perform unpaid community work, 250 hours, supervision, treatment and rehabilitation including treatment and testing for drug abuse and dependency, mental health and a mental health assessment. Your licence was cancelled and you were disqualified from obtaining another for a period of 24 months effective from 17 August 2018.
18You were released from prison on 10 September 2018 and commenced on the Community Correction Order. Initially you were engaging well. You had been referred for drug counselling and had been seen by Susan Thompson at IPC Health, St Albans. A mental health care plan was put in place and you were undertaking some community work. However, in the most recent past, it is documented that you have been using methylamphetamines and you have tested positive for methamphetamines in one random urine screen testing undertaken at the request of Community Corrections.
19You have completed 14.30 hours of unpaid community work and you have been sporadic in complying with supervision and overall your commitment to the Community Correction Order is poor. At this stage, I have not been informed whether contravention proceedings are to be instigated.
20In sentencing you in respect to these matters the subject of the indictment and the two summary charges, I have had regard to sentencing principles applicable to youthful offenders. You are defined as a young offender as you are under the age of 21 at the time of the commission of these offences. I have had regard to the principles set out in R v Mills[1] and Azzopardi and others[2].
[1] [1998] 4 VR 235
[2] [2011] 35 VR 43
21I consider that the offending is reflective of your level of immaturity and also your inability to be able to fully appreciate the nature, seriousness and consequences of your own criminal conduct. Ultimately, it is important for you to be rehabilitated which is in your interests and also in the public interest.
22You have been assessed by Community Corrections as being a high risk of reoffending. At this time, you now face fresh charges and you are back in remand in an adult custodial facility. That is for further offending and for failure to comply with bail conditions.
23You have been assessed as to your suitability for a Youth Justice Centre Order and the report of 18 December 2018 completed by Mr Gene Bell, senior court advise officer, Youth Justice, says that you are suitable for a Youth Justice Centre Order. He makes the point in his report that you are a person who has demonstrated a lack of engagement with Youth Justice in the past. You are quite immature in your approach to dealing with your offending behaviours and you struggle to openly express any remorse for your behaviour.
24He has set out his difficulties in determining your prospects for rehabilitation. He says that you attribute your current situation to not being given the level of drug counselling that you requested whilst on a Community Correction Order. Again, that is a fanciful suggestion on your behalf. Every effort has been made to accommodate you to facilitate your detoxification and also to address your underlying offending behaviours, but it is only your immaturity and your irresponsible attitude that has meant that you have not taken up the opportunity that was afforded to you and the suggestion that Corrections did not afford a detox referral as you requested is not correct.
25You are a very immature young man who does lack motivation to accept responsibility for your offending and unless you do take responsibility for the consequences of your actions, I can only be guarded in terms of your prospects for rehabilitation. But you are a young man and it is important that you be encouraged to reform and rehabilitation is very much in your own interest and that of the community.
26You do have a supportive family whom you have shown complete lack regard and respect for in the past. Your parents have provided you with a home and shelter. Your relationship with the family has been fraught and no doubt part of your behaviour and attitudes and the disrespect you have shown to them is a by-product of your use of methylamphetamines that you have been indulging in heavily since your 18th birthday which was on 9 November 2017.
27You were born in South Africa and migrated to Australia in 2010 and you are an Australian citizen. You have been educated to Year 9. You left midway through Year 10 to commence a pre-apprenticeship course. You have successfully worked in the area of mechanics but unfortunately, you did not take up the opportunity and never completed your mechanical apprenticeship notwithstanding you had an opportunity at Ford and then Hyundai.
28Your drug using lifestyle impacted dramatically upon your ability to work and impaired your work such that you were asked to leave your job. It is unfortunate because you do have the capabilities of working. You are a person who has demonstrated that in the past, and, hopefully with some further time to reflect on your offending behaviour and the consequences of your actions, you might take a better approach in the future.
29Yours is an unfortunate reflection of just how insidious methylamphetamines can be. You are a person who has had a short but significant period of heavy drug use and it has impacted upon all your lifestyle and your relationships.
30I have had regard to the assessment of Carla Ferrari, consultant psychologist. In her report of 6 August 2018, she confirms you suffer symptoms of major depressive disorder, generalised anxiety disorder, amphetamine type substance use disorder, in partial remission, and I will provide that report to the authorities to assist them.
31Despite being aware of the negative impact of ongoing substance use and the link between use and offending, you have not taken up the opportunity that was afforded to you by this court when your sentence was deferred on 10 October 2018. It is important that you do address your addiction to methylamphetamine because that seems to be the catalyst for your criminality and you are a person who does remain vulnerable and at high risk of further offending if you continue to indulge in drug taking.
32I have had regard to the matters Ms Seoud highlighted in relation to the mitigatory factors. You entered a plea at an early stage. The plea has real utility and is indicative of a degree of remorse. You have spared the victims the trauma of having to come to court to give evidence at the trial. You were fully cooperative with police and made admissions to some of the offending.
33You are a youthful offender and therefore rehabilitation is given greater prominence in sentencing however, it was conceded on your behalf, the offending was serious and that it is necessary for the need for rehabilitation to be balanced with the principles of deterrence and just punishment.
34I have had regard to the sentence imposed on Ms Camilleri. She was dealt with for similar offending on the basis that she received a deferral of sentence although I note she did not have any outstanding charges and was not charged with committing an indictable offence whilst on bail and also your circumstances are somewhat different to hers in that you were given the opportunity by the court for a deferral of sentence to focus on your rehabilitation and you have failed that comprehensively.
35In all the circumstances, I do not consider that there is any other alternative in terms of sentence other than the imposition of a term of detention in a Youth Justice Centre to reflect just punishment for your offending. I will be imposing an aggregate term of imprisonment in respect to the six charges as set out in the indictment as well as the two summary charges given that the offending arises out of the same series of offences of the same or similar character and what that means is one term of detention will be imposed to reflect the criminality of all the charged offences having regard to the gravity of the offences and the other matters I have referred to.
36Could you please stand now, Mr Welding?
37In relation to the one charge of attempted armed robbery, four charges of theft, one charge of handle stolen goods and two summary charges, one of committing an indictable offence whilst on bail and one of theft - yes, theft. Summary Charge 11. Yes. Committing indictable offence whilst on bail and Summary Charge 11 is theft. Is that right? Sorry. What is the charges? Summary Charge 9 and 10?
38MS FARRELL: Yes.
39HER HONOUR: Yes. Are they both committing an indictable offence whilst on bail?
40MS FARRELL: Yes.
41HER HONOUR: Yes. One was attempted armed robbery and theft and the other was theft. All right.
42MS FARRELL: Yes, Your Honour.
43HER HONOUR: So they are both nine and ten. Is it nine and ten?
44MS FARRELL: Charges 9 and 10.
45HER HONOUR: Yes. Commit indictable offence whilst on bail.
46In relation to all those charges, I order that you be detained for nine months aggregate sentence at a Youth Justice Centre and I make the following declaration pursuant to s.6AAA, but for your plea of guilty, I would have imposed 12 months' detention at a YJC as an aggregate sentence.
47MS FARRELL: As Your Honour pleases.
48HER HONOUR: I make the order for retention of the forensic samples pursuant to s.464ZFB and I make the disposal order sought. I think that covers everything.
49MS FARRELL: There is one matter, Your Honour.
50HER HONOUR: Yes.
51MS FARRELL: I understand the accused spent six days in custody ‑ ‑ ‑
52HER HONOUR: Did he?
53MS FARRELL: ‑ ‑ ‑ in relation to these matters early on.
54HER HONOUR: All right. So I need to make ‑ ‑ ‑
55MS FARRELL: And they should ‑ ‑ ‑
56HER HONOUR: ‑ ‑ ‑ a PSD declaration of six days.
57MS FARRELL: Yes, Your Honour.
58HER HONOUR: Yes.
59MS FARRELL: Under s.35(1) of the Sentencing Act. It is a slightly different section because it is a YJC.
60HER HONOUR: All right. I have got that here.
61Pursuant to s.35(1) of the Sentencing Act 1991, I declare that you have been held in custody for six days in relation to these proceedings ‑ ‑ ‑
62MS FARRELL: As Your Honour pleases.
63MS SEOUD: As Your Honour pleases.
64HER HONOUR: ‑ ‑ ‑ and I direct that that time must be reckoned as a period of detention already served under the sentence I have just proclaimed. Correct?
65MS FARRELL: Yes, Your Honour.
66HER HONOUR: Yes. All right. Thank you. That concludes the matter. Do you want me to sign the orders? Yes.
67MS FARRELL: Yes. That would be appreciated, Your Honour.
68HER HONOUR: Yes. I will do those now. Mr Welding can be taken downstairs. Just before he goes, he needs to be told that the forensic sample - this is a retention order that I have made. This is not a retention order. This is a undergo one. My understanding was he had had one.
69MS FARRELL: Retention is automatic now, Your Honour.
70HER HONOUR: Is it? So this is not necessary, this order. We have just got to check the forensic sample. Has it been taken or not? My understanding was that it was. A retention.
71MS FARRELL: I think the sample is requested and then the retention is also sought.
72HER HONOUR: Sorry? I cannot hear you. Why would we get both? There is only one.
73MS FARRELL: If he has already provided a sample, it would be retained but if he has not, then it is to take the sample and retain it. The opening seems to indicate that one was not taken.
74HER HONOUR: Yes. I understand he has had - you have had a forensic ‑ ‑ ‑
75OFFENDER: No.
76HER HONOUR: No, you have not? You have never had a little cotton bud given to you?
77OFFENDER: No.
78HER HONOUR: All right.
79MS FARRELL: We would be seeking both of those orders, Your Honour.
80HER HONOUR: All right. I will make the orders sought, what that means, Mr Welding is that at some stage whilst you are in custody, you will be given a cotton bud to put in your mouth to rub on the side of your cheek and provided you do that, you would comply with the order, but if you do not, then I have to tell you that reasonable steps can be taken for the sample to be taken with a blood sample but hopefully that will not be necessary. Yes.
81MS FARRELL: As Your Honour pleases.
82MS SEOUD: As Your Honour pleases.
83HER HONOUR: And that is because of the seriousness of the circumstances of the offence and also the orders by consent and the granting of the orders in the public interest.
84All right. That concludes the matter. I have signed those orders so they can be handed back to the Crown and Mr Welding can be taken back downstairs and the orders will be made and provided shortly. All right. Thank you. We can adjourn.
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