Director of Public Prosecutions v Wells

[2010] VSC 469

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 0141 of 2010

DPP
v
CHRISTOPHER LEE WELLS	Accused

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 October 2010
DATE OF SENTENCE:	21 October 2010
CASE MAY BE CITED AS:	DPP v Wells
MEDIUM NEUTRAL CITATION:	[2010] VSC 469

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CRIMINAL LAW – Sentencing – Attempted armed robbery – Theft – Plea of guilty.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C.M. Quin	Office of Public Prosecutions
For the Accused	Mr M.A. Hird	Paul Vale

HIS HONOUR:

1. Christopher Wells, you have pleaded guilty to one charge of attempted armed robbery and one charge of theft.  The maximum term of imprisonment for attempted armed robbery is 20 years.  The maximum term of imprisonment for theft is ten years.

1. In March 2010, you and Dean Rizkalla were residents at a residential lodge in Brunswick. You had known each other for approximately three months.  At about 9.30pm on 10 March 2010, you were both out on bicycles in the Brunswick area.  You came across one Ralph Eberlein, who was then out walking.  You cut in front of Mr Eberlein’s path and demanded his money or wallet.  Mr Eberlein responded that he did not have any money or a wallet on him.  You made a further demand on Mr Eberlein for his car keys, before then holding out the blade of a pair of scissors and pointing it directly at Mr Eberlein’s chest.  You were standing about one metre away from Mr Eberlein and Dean Rizkalla was in the middle of the road behind Mr Eberlein.

1. Mr Eberlein emptied his pockets, revealing some beads.  He was able to convince you and Dean Rizkalla that these beads were of no use to you.  You and Dean Rizkalla then rode off.  Mr Eberlein spoke to a security officer at Barkly Square.  Police were called and, soon after, you were apprehended.

1. In a record of interview conducted that night, you admitted to the attempted armed robbery of Mr Eberlein.  You also admitted to the theft of some confectionary earlier in the day from Safeway when you had put a number of items inside your clothing and walked out of the Safeway store.  You have been in custody in respect of these matters since the night you were apprehended.

1. You are aged 22.  You were born in Hobart.  At the age of seven you were taken into care in the north and north-west of Tasmania.  You had numerous different foster placements and were molested sexually on three occasions in your early teens.  You struggled at school and tended to attend special schools before completing Year 8 and leaving school at the age of 14.

1. You have had employment in gardening, farming and factory jobs.  You moved to Melbourne in late 2009, but have not worked here.  At the time of your offending, you were living in a residential facility for people with mental health and learning difficulties.

1. You have previously been diagnosed with schizophrenia.  You have a substance abuse history involving alcohol, cannabis and methamphetamine.  You have also taken cocaine, GHB, ecstasy, LSD and heroin.

1. You were examined in July 2010 at the Port Phillip Prison by a consultant forensic psychiatrist, Dr Danny Sullivan.  Dr Sullivan found you to have what he described as “a clear intellectual disability [which] appears to be solidly in the mild range”.  IQ testing in 2004 revealed that your IQ was 73.  Dr Sullivan describes your intellectual disability as being apparent in your poor judgment, concrete thinking and impaired psychosocial adjustment.  You have been on various psychiatric medications since childhood.  Whilst currently there is apparently no obvious indication of psychotic illness, you have suffered from transient psychotic symptoms – which are thought to reflect personality difficulties and substance abuse.

1. You have an extensive criminal history going back to 2003.  Your offences include thefts, burglaries, destruction of property and contravention of various court orders, culminating in a term of imprisonment for ten months in 2009.

1. You have spent the last seven months in custody in a specialised unit for people who are vulnerable due to mental health or intellectual disability.  The Director submits that, because of the psychological and psychiatric matters to which I have made brief reference, time served is sufficient for sentencing purposes.  Having considered all the matters I am required to consider in passing sentence, I agree.  That is not to accept or excuse your disgraceful behaviour in pointing the scissors at Mr Eberlein, and demanding money from him, on 10 March.

1. For the offence of attempted armed robbery, I sentence you to seven months’ imprisonment.  For the offence of theft, I sentence you to a period of one month’s imprisonment to be served concurrently with the sentence for attempted armed robbery.  If you had not pleaded guilty, I would have sentenced you to a period of ten months’ imprisonment.

1. I declare that, pursuant to s 18(4) of the Sentencing Act, you have already served a period of 226 days in custody, and I direct that this fact be noted in the records of the Court. I also make the disposal order, the forfeiture order and the order sought under s 464ZF(2) of the Crimes Act for the taking of a forensic sample.