Director of Public Prosecutions v Wells

[2018] VCC 850

IN THE COUNTY COURT OF VICTORIA

AT LA TROBE VALLEY

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-12-01202

DIRECTOR OF PUBLIC PROSECUTIONS

V

CHRISTOPHER WELLS

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JUDGE:	HIS HONOUR  JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 June 2018
CASE MAY BE CITED AS:	DPP v Wells
MEDIUM NEUTRAL CITATION:	[2018] VCC 850

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms I. Siriwardana	Office of Public Prosecutions
For the Accused	Ms C. Salter	Paul Vale Criminal Law

HIS HONOUR:

1       Christopher Leigh Wells, you have pleaded guilty to one charge of armed robbery.  That crime carries a maximum penalty of 25 years' imprisonment.  You indicated your intention to plead guilty at an early stage and albeit through your own absconding you did not actually plead for a significant period of time.  I do take that into account.

2       It is clear from your record of interview that you have remorse in respect of the matter.  There also must be a utilitarian benefit given.

3       You do have prior convictions of relevance but they are now of some antiquity even though there has been a number of matters that have occurred since.  There has been a very significant delay in all this.  As I understand it you have now been in gaol continuously for something over five years, so totality also has to play a significant part in this sentencing process.

4       

The offending itself can be summarised very briefly.  On 2 February 2010 at

2 o'clock in the afternoon you and another person named Stevens got on a 96 tram heading towards St Kilda.  Stevens had a folding pocket knife and you knew that he did.  At around about twenty past two in the afternoon a victim got on the tram and had a mobile phone call with his wife.  It was in view of you two.  You were standing nearby, Stevens stood up and walked towards the rear of the tram, stood behind the victim's seat and you stood in the aisle.  While the victim was on his phone, Stevens said to him, "Give me your phone" and pushed the point of the knife that he had against the right side of his ribs.  He was holding the knife in his right hand.  The victim immediately gave his phone to Stevens who walked away.  You and Stevens got off the tram and remained standing nearby.  The victim approached the open door and Stevens threatened him.  He tried to get his phone back from Stevens who moved away and Stevens still had the silver knife in his hand.  It had the blade open.  The pair of you then ran.

5       You were subsequently identified from CCTV footage and as I understand the situation there was an alert put out for you.  Some two years later you were arrested in Glenlyon Road in Brunswick on a random police interception.  Astonishingly in the betwixt time you had served a sentence for an attempted armed robbery which had occurred subsequently to the matter that I have just referred to.  How that went through the system without it being realised I have got absolutely no idea.  But in any event you underwent that sentence and this matter eventually came on for hearing.  When it came on for hearing before Judge Hogan you had already absconded to Tasmania.  I will be going through that chronology in a moment.

6       Obviously it has to be regarded as serious albeit at the lower end of armed robbery because of the application of general and probably specific deterrence as well as denunciation and appropriate punishment.  As I understand it there is no victim impact statement but I daresay the experience was frightening and humiliating for the victim.

7       A chronology of it is that and I will go through your personal materials while I do this as well. 

8       You are an Aboriginal man, you were born in Tasmania, in 1987 your parents separated when you were two years of age.  Your mother and father both had mental health issues and you had an abusive and traumatic childhood.  You were removed from your mother's care by the Tasmanian equivalent of DHS when you were about seven because of her conduct towards you and you were placed in a foster home with two of your brothers. You have a number of siblings, but you were then separated.  In that scenario you were subjected to further violence and abuse including sexual abuse.  It is estimated that you had 17 different placements during your childhood arranged by DHS.  As a nine year old you commenced smoking cannabis and then went onto further use of drug. You have had drug induced psychoses including auditory hallucinations and paranoia.  You began using methamphetamine and heroin when you came to Melbourne in 2009. 

9       Back in Tasmania though when you were 15 you were put back in your mother's care, you commenced a certificate in construction.  In September 2003 you were sentenced to a youth detention in Tasmania for burglary and other offences.  And in 2004 you were diagnosed with intellectual disability, atypical psychosis, mood disorders unspecified, polysubstance abuse, cluster B personality disorder and that was all while being cared for at the North West Area Mental Health Service.  Your IQ was assessed as 73.  You came to Victoria in 2009 as I have said.  In 2010 this offending occurred.  I note that this offending occurred within a month of you having been admitted to the Broadmeadows Inpatient Psychiatric Unit. 

10      You in October of 2007 were sentenced in the Supreme Court of Victoria to seven months for the attempted armed robbery that I have referred to which occurred subsequent to these matters.

11      It also appears that in around the end of 2012 you absconded from your bail in this State and went to Tasmania.  In March of 2013 you were remanded in custody for offending in Tasmania.  In August you were given five with a three.  You completed that entire sentence and have been ultimately extradited back to Victoria.  Accordingly you have been in custody since your remand back in March of 2013.

12      Tendered on your behalf were reports from Dr Sullivan from 2010 and also a much more updated report from Dr Ferrari, that is from February of this year.  Also there were submissions of your counsel as well as certificates that you have completed whilst in prison.  I think it can be very simply described without having to go through all of the detail of it that Ms Ferrari in her opinion says you meet the criteria for schizoaffective disorder, post traumatic stress disorder. opioid use disorder, borderline personality disorder, intellectual disability and I think that is sufficient for these purposes.  I am well aware of the principles in Verdins, well aware of the principles enunciated in Bugmy in terms of disadvantaged childhood and I am well aware as I said of the principles of totality.  The prospects of your rehabilitation are really up to you.  The risk of your re-offending objectively would have to be seen as high but you have been in gaol for a long time now and if you are going to turn it around now is the time to do it.

13      I had you assessed for a community corrections order, that has taken quite a while to achieve because, it would appear, of disagreement between various authorities as to who is responsible for doing it.  Accordingly this matter was supposed to come on back in March and it has been another almost three months that it has been delayed while you have been assessed, and I take that into account as well.

14      I had you assessed for a community corrections order and you have been found to be suitable for that.  You have 179 days on my calculation pre-sentence detention for these matters and in my view together with a CCO is sufficient punishment. 

15      Accordingly on the charge of armed robbery, you are sentenced to be imprisoned of a period of 179 days. 

16      There is also a summary matter of fail to appear which is before me and which you pleaded guilty to.  Following the sentence that I have imposed, you are to undergo a corrections order for two years, the conditions being (1j supervision and (2) adherence to a Justice Plan.  That Justice Plan has been obtained and has been made available as I understand it to all the parties. 

17      You have signed a Community Corrections Order and I now make that order.

18      So on armed robbery, 179 days.

19      To follow on the armed robbery and the fail to appear, a two year CCO with conviction, conditions of supervision and adherence to the Justice Plan. 

20      And I direct that 179 days be reckoned as having been served under this sentence and as soon as this order is sent through which it will be soon, you will be entitled to release as I understand it.

21      Simply the delay in this has been enormous, it is extremely unusual circumstances so 6AAA is probably a bit meaningless but in the circumstances bearing in mind your background, the loss of concurrency from the matters that were dealt with in the Supreme Court and all those mattes, I say that but for your plea of guilty I would have sentenced you to a term of imprisonment for a period of 18 months with a minimum term of nine. 

HIS HONOUR:  There is no other orders I need to make Mr Siriwardana or

Ms Salter?

MS SIRIWARDANA:  Not from the prosecution Your Honour, no, thank you.

MR SALTER:  Not for defence thank you Your Honour.

HIS HONOUR:  All right.  I've signed the CCO so that is all under control.  So do you follow that Mr Wells?

PRISONER:  Yes Your Honour, I do.

HIS HONOUR:  Yes all right, thank you for that. 

PRISONER:  Thank you very much.

HIS HONOUR:  All right good luck with it.

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