Director of Public Prosecutions v Weldon

[2018] VCC 1731

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01253

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS WELDON

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	8 October 2018
DATE OF SENTENCE:	22 October 2018
CASE MAY BE CITED AS:	DPP v Weldon
MEDIUM NEUTRAL CITATION:	[2018] VCC 1731

REASONS FOR SENTENCE
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Subject: Theft; attempt burglary; home invasion; burglary; possess a drug of dependence; resist an emergency worker on duty and commit an indictable offence whilst on bail
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic (Plea) Ms Y. Giannopoulos (Sentence)	Office of Public Prosecutions
For the Accused	Ms S. Vardy	Balmer & Associates

HER HONOUR: 

1THOMAS WELDON, you have pleaded guilty to a number of offences:  four counts of theft; attempted burglary; home invasion; burglary; possessing a drug of dependence; and resisting an emergency worker on duty.  You have also agreed to have dealt with by me and pleaded guilty to the related summary offence of committing an indictable offence whilst on bail.  You elected to have your plea heard in the Koori Court.

2The maximum penalty for these offences, for home invasion is 25 years; for theft and burglary 10 years; attempted burglary and resisting an emergency worker, 5 years; possessing a drug of dependence, in your circumstances 1 year or 30 penalty units; committing an indictable offence whilst on bail, 30 penalty units or 3 months

3Additionally, in respect of the theft of a motor car it is mandatory that I cancel your licence and disqualify you from obtaining another licence for the period that I specify.

4The circumstances of your offending are set out in the Summary of Prosecution Opening (Exhibit A) and can be summarised as follows:

5Between 21 March 2018 and 22 March 2018, you and a friend went to a block of units in Hawthorn.  You went down the driveway and forced entry into a car and stole some work boots - Charge 1 - Theft (7d).

6At approximately 4.00 am on 22 March 2018, you and a friend went to a house in Richmond.  You tried to get in the house by removing a fly wire screen from the kitchen window but you were unsuccessful.  Police later located your fingerprint on the window - Charge 2 - Attempted Burglary (12m).

7You then went into another house in Richmond approximately 50 meters away, gaining access through an unlocked rear door.  The four residents were asleep.  One of them, Mr Werner, woke and originally thought that it was another resident going to work. You closed the door of his bedroom behind you, and confronted him demanding cash and property. You had a torch and your face was covered with a bandanna and you were armed with a large yellow handled screwdriver.  Your co-offender was armed with a steak knife.  You continued to make demands as to the whereabouts of items and you threatened to stab him if he did not co-operate.  Mr Werner described both of you as aggressive, agitated and unpredictable, causing him to fear for his life - Charge 3 – Home Invasion (4y).

8You stole various personal items and demanded he provide you the PIN codes for his phone, cards and iPad - Charge 4 – Theft (12m).  You stole his keys from the bedside table and demanded that he tell you which car was his.  He asked you not to take his car as it had his work tools in it.  You told him you were taking the car and he was to go with you.  He refused and you threatened him not to follow you - Charge 5 – Theft of Motor Vehicle (18m).

9The car was worth about $26,000 and the tools $5,000. 

10You and the co-offender dumped the car in an apartment carpark in Hawthorn.  Later, police located inside that car the screwdriver and torch used by you, as well as other property stolen from Mr Werner.  Both you and your co-offender were captured on the CCTV footage obtained from the nearby Hawthorn Library.

11At approximately 5.02 am, you went to an apartment block in Hawthorn and opened a garage door at the base of the building- Charge 6 – Burglary.  You stole a mountain bike from the garage - Charge 7 – Theft (12m).

12Police were tracking you using the 'Find My iPhone' app on the stolen phone and you were spotted on various occasions by police in and around the streets near Swinburne University. 

13At approximately 5.30 am, police activated sirens and followed you.  You were still riding the stolen mountain bike.  You were chased by Senior Constable Wattie.  He tackled you off the bike and you both crashed into a brick wall.  You wrestled with Wattie and screamed “I’m iced off my head.”  You continued to struggle with police and resisted arrest - Charge 9 – Resist an Emergency Worker on Duty.

14When arrested, police located small quantities of diacetylmorphine and methyl amphetamine - Charge 8 – Possess Drug of Dependence.  And at the time of this offending you were on bail entered on 7 March 2018 - Summary Charge – Commit indictable offence whilst on bail.

Arrest and Interview

15You were arrested and conveyed to the Richmond Police Station.  You were then taken to St Vincent's Hospital and cleared medically to return for an interview.  Upon hearing this, you removed the cannula from your arm and put it in your mouth, threatening to swallow it.  You refused to spit it out and co-operate with police.  Due to this behaviour, you were taken directly to the Melbourne Magistrates’ Court without an interview.

Victim Impact Statement

16I was not provided with a victim impact statement, however Mr Werner in his statement said

“This whole situation has made me feel anxious, pissed off, a little bit worried and scared, it’s not ideal.  At the time I was afraid for my life as these people are unpredictable and threatened to stab me.  The whole time I just did what they wanted me to do out of fear of being hurt or killed by them.  I do not know at this time if this will have a long term effect on me.  The whole time they were demanding my things they continuously threatened to hurt me or stab me if I didn’t do what they wanted.”3

PERSONAL CIRCUMSTANCES

17I was provided with a neuropsychological report of Dr Loretta Evans dated 17 September 2018.  Reference was made to earlier psychological and neuropsychological reports and these assessments were considered in Dr Evans's report.  I was also provided copies of this material and I take all the reports into account.

18You are currently aged 26 years (22 October 1992).  You were born in New South Wales and lived there until relocating to Victoria with your mother Beryl Weldon in about 2005.  You come from a large family of six children.  Your father, who attended court with you, Mr Glen Jones, was in a long-term dysfunctional relationship with your mother and you witnessed extreme violence between them. 

19You spent some of your childhood living on the streets with your mother in order to escape the domestic situation.  Once separated, your mother formed a new relationship with Mr Tim Needham, who you classify as your step-father and with whom you had a good relationship.  Your mother recently passed away in 2017 and you have also experienced the trauma of finding Mr Needham deceased in the lounge room of your mothers’ home in March 2018.

20You attended at least four primary schools sporadically, before moving to Melbourne, where you attended Secondary School in both Kensington and  Collingwood.  Whilst in youth detention you undertook educational classes at Parkville College whilst detained and in 2010 and 2011, then whilst on Youth Parole, you enrolled in the Learning Pathways Program, through Swinburne TAFE.  Your attendance was sporadic and you ultimately disengaged from that program.  Given your limited education you have very limited numeracy and literary skills.

21You have never been employed, and have no formal qualifications.  You have lived on government assistance.  You have expressed a desire to work with your hands with an interest in welding.   

22You began regular consumption of alcohol at age 15 and you drank on a daily basis, though you report now limited alcohol use.

23You started smoking cannabis at age 13 or 14, and continued, resulting in a daily habit of about 2-3grams per day, though you ceased cannabis use when you were 18. 

24You commenced using amphetamine at 17 years of age, using ½ gram per week.  You then progressed to methylamphetamine use at 18 and both smoked and intravenously injected this up to 3 points daily.  You were released from custody in December 2017 and began using methylamphetamine almost immediately until your remand in March 2018.  Whilst you have a longstanding relationship with illicit substances and alcohol, you have had significant periods of forced abstinence due to his multiple periods of detention and incarceration.

25You have been diagnosed with an intellectual disability within the meaning of the legislation and have previously been assisted by disability services in your youth.  As indicated in the reports provided to me, you function with an extremely low level of adaptive behaviour.  Dr Evans opines that:

“impaired communication, low intellect at the outset, together with lack of effective adaptive functioning have the combined effect of producing an overall profile of cognitive and behavioural difficulties that are within the mildly intellectually disabled ranges” in accordance with the DSM-5.

26It should be recognised that individual performances in tests including verbal comprehension, memory, processing as noted in Dr Evans report, are important.  This is particularly so in relation to executive functioning noting your:

“ verbal and nonverbal reasoning below the 1^st percentile and well within intellectually disable ranges reflecting your difficulty with conceptual reasoning for information seen, heard or said.  Your appreciation of socially acceptable behaviour or understanding about expected social protocols is minimal.”

27To the extent that Verdins incorporates intellectual handicaps, I accept that your moral culpability for this offending is reduced.

28You have an extensive criminal history, with 11 previous court appearances since May 2007 from the time you were aged 15.  Given your relatively young age now, your history is of significant concern. 

29Your offending commenced whilst you were a child and you appeared before the Children's Court receiving various dispositions including youth detention.  Your offending has involved many dishonesty offences accompanied with violence, including armed robbery, robbery and aggravated burglary.  You also have a number of driving and assault offences. 

30Most significantly, your first appearance in the adult jurisdiction was for rape, armed robbery, aggravated burglary, reckless conduct, false imprisonment threats, criminal damage, robbery, burglary and indecent assault. 

31You were sentenced by His Honour Judge Smallwood of this court to a total effective sentence of 6 years with a non-parole period of 3 years and 3 months.  I was provided with His Honour’s sentencing remarks, in the course of which he indicated that the rape was very serious example of that crime.  You served the whole of that 6 year sentence and committed these offences only 3 months after your release.

Plea of guilty and remorse

32You indicated an intention to plead guilty at the earliest opportunity.  I accept that your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit.  Your plea has saved the community the cost of any court proceedings and you have saved witnesses, particularly Mr Werner, the trauma of reliving the incident that occurred at his home.  Your plea is also indicative of remorse and consistent with your presentation during the sentencing conversation and the remarks in Ms Evans' report.  In her report she notes you acknowledged the wrongfulness of your offending, expressing remorse and empathy for your actions. 

Bugmy

33I accept the submission made by your counsel that I should give full weight to your difficult childhood (see Bugmy v R [2013] HCA 37). Growing up you were exposed to domestic violence, drug use, transience and homelessness, lack of education and a dysfunctional family life.

34The effect of such deprivation does not diminish over time.  This history, along with your limited intellectual ability, has contributed to the choices that you have made with drug use and the commission of very serious offences. 

35As a consequence I have moderated the application of both specific and general deterrence, and recognise a limited reduction in your moral culpability for this offending.  However, other sentencing considerations of just punishment, and given your prior history and quick descent into offending on your release from custody, the protection of the community need also to be taken into account.

Honeysett

36I also take into account your level of participation in the Koori Court process.  You were able to actively engage in the sentencing conversation with elders and expressed an understanding of the issues raised by them. 

37Your presentation was much more impressive than expected, given your background and the material regarding your intellectual capacity before the Court.  You expressed a desire to give up drugs and to get on with your life. 

38As indicated, I formed the view you had genuine insight into your offending and remorse.  This was the first time that you had been involved in the Koori Court process. 

39I have considered and take into account the matters to be taken into account in mitigation as outlined in the recent Court of Appeal decision in Honeysett [2018] VSCA 214. The Court set out three factors which sentencing courts can use in assessing the weight to give to an accused’s participation in the Koori Court process. Namely, (1) that the participation is voluntary and may be confronting to the offender, likely involving him being ‘shamed'; (2) the fact the offender, rather than ‘hiding behind counsel’ is taking the opportunity to personally demonstrate remorse, demonstrate insight into the reasons for, and the seriousness and effect of the offending; and express any intention to reform. It also goes to the court's assessment of the genuineness of an offender's statement during the sentencing conversation. (see paragraph 54).

Rehabilitation

40When you were last before the Court, the sentencing judge viewed your rehabilitation prospects as concerning, with the chance of your re-offending considered to be high.  His Honour also expressed concern that you will become institutionalised. 

41Unfortunately such sentiments appear to have come to fruition.  Given your considerable and relevant prior criminal history, your counsel submitted, and I accept, that your prospects for rehabilitation are guarded and are contingent on your ability to be provided with, and to engage successfully with ongoing supports whilst in custody and then in the community.

42Dr Evans in her report provided a detailed treatment plan and a number of recommendations for your treatment, considering your capacity and capabilities.  She is of the view that you are not a suitable candidate for ‘traditional forms of therapy’ as these are likely beyond your cognitive capabilities. 

43She recommends referrals to culturally-appropriate supports, drug relapse prevention strategies and vocational and literacy programs in custody.  Further, that in the community you require ongoing support and assistance through long-term case management through National Disability Scheme and Disability Employment Network.

Objective gravity of offending

44This was very serious offending.  Much of it occurred whilst you were in the company of a co-offender and you both had weapons.  The aggravated burglary took place in the early hours of the morning when the residents were asleep. You were aware that one of the victims needed his tools that you stole from his car for work.

45The maximum penalty, 25 years, for aggravated burglary and home invasion also reflects the seriousness of this offence.

Sentencing submissions

46Your counsel conceded that the only appropriate disposition was the imposition of a term of imprisonment.  However, it was submitted that given that these offences were of a similar character and occurred over a short period of time, that I should impose an aggregate sentence.  I do not propose to adopt that course but will take into account principle of totality as I am required to do in making orders for cumulation. 

47This is a very difficult sentencing exercise.  The sentence imposed must recognise your traumatic background, intellectual capabilities, involvement in the Koori Court process and your plea of guilty.  You are only 26 years old. 

48However, given your significant history, the seriousness of this offending and guarded rehabilitation prospects, other sentencing considerations are important.  Specific and general deterrence though moderated, for reasons outlined above still have a role to play.  As indicated, just punishment and protection of the community are also important sentencing considerations.  If you could please stand, Mr Weldon. 

49In respect of theft, Charge 1, you are convicted and sentenced to a term of imprisonment of 7 days.

50In respect of attempted burglary, Charge 2, you are convicted and sentenced to a term of imprisonment of 12 months. 

51In respect of the aggravated burglary home invasion, you are convicted and sentenced to a term of imprisonment of 5 years.

52In respect of theft, you are convicted and sentenced to a term of imprisonment of 12 months. 

53In respect of theft of the car you are convicted and sentenced to a term of imprisonment of 2 years.

54In respect of burglary, Charge 6, you are convicted and sentenced to a term of imprisonment of 12 months.

55In respect of the theft of the bike, you are convicted and sentenced to 6 months' imprisonment.

56For possession of drug of dependence, 7 days imprisonment.

57Resisting an emergency worker, convicted and sentenced to a term of imprisonment of 2 months.

58And committing an indictable offence when on bail, convicted and sentenced to a term of imprisonment of 7 days. 

59Three months of the sentence imposed on Charge 2 and three months of the sentence imposed on Charge 6 will be cumulative on the sentence imposed on Charge 3, giving a total effective sentence of 5 years and 6 months.

60And I set a non-parole period of 3 years.

61In respect of Charge 5, the theft of a motor car, any licences you have are cancelled and you are disqualified from obtaining a licence for a period of 3 years.

Section 6AAA

62Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have imposed a term of imprisonment of 7 years and 6 months with a non-parole period of 5 years.

63What is the PSD please?

64MS GIANNOPOULOS:  214 days Your Honour.

65HER HONOUR:  I declare 214 days pre-sentence detention.  Have the disposal orders and forfeiture orders been made? 

66MS GIANNOPOULOS:  They haven't yet, Your Honour.  They are to be made, but they've been lodged.

67A disposal order is sought pursuant to section 78 of the Confiscation Act 1997.

68A forfeiture order is sought pursuant to section 33 of the Confiscation Act 1997.

69HER HONOUR:  Have you got those?  You haven't got copies of them?

70MS GIANNOPOULOS:  I haven't copies, I believe they've been e-lodged, Your Honour.  If you don't have copies I can organise my instructor to send them over. 

71HER HONOUR:  All right, my associate will forward those to you once those have been signed and printed out.  Are there any other matters?

72MS VARDY:  No, Your Honour. 

73HER HONOUR:  No.  Thank you. 

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