Director of Public Prosecutions v Welsh

[2018] VCC 1269

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00691

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE BENJAMIN WELSH

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	10 August 2018
DATE OF SENTENCE:	14 August 2018
CASE MAY BE CITED AS:	DPP v Welsh
MEDIUM NEUTRAL CITATION:	[2018] VCC 1269

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:  Attempted Armed Robbery, Intentionally Damage Property
Legislation Cited:  Criminal Procedure Act 2009,
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Foot (Plea) Ms L. Hunter (Sentence)	Director of Public Prosecutions
For the Accused	Mr J. Anderson	James Dowsley & Associates

HIS HONOUR:

1Luke Benjamin Welsh, on 10 August 2018 you pleaded guilty to the two charges on indictment No. J10099696: 

Charge 1, was attempted armed robbery.  This charge has a maximum penalty of 20 years' imprisonment;

Charge 2, was intentionally damage property.  This charge has a maximum penalty of 10 years' imprisonment. 

2You also pleaded guilty to a related summary offence of committing an indictable offence whilst on bail. You consented to the transfer of this charge to this court, pursuant to s.145 of the Criminal Procedure Act 2009. The maximum penalty for this offence is three months' imprisonment.

3You have admitted your prior criminal record.  I will refer to your prior criminal record when dealing with your personal circumstances. 

Circumstances of Your Offending

4At the time of the offending you were 30 years' old.  Mr Simon Bousen, the victim of your criminal activity, was a 69 year old man.  You were not known to one another. 

5On 9 January 2018 at approximately 5 pm, Mr Bousen drove his silver Mazda 3 to the Westpac Bank on the corner of Hartnett Drive and Seaford Place in Seaford.  He went there to use the ATM.  Mr Bousen parked his car and walked toward the ATM.  He noticed a red Commodore station wagon also pull up in the car park with a male driving.  That male was you, Mr Welsh.

6Mr Bousen withdrew $400 from the ATM and walked back to his car.  Mr Bousen noticed that you were walking towards the ATM.  Mr Bousen got into his car and started counting the cash that he had withdrawn from the ATM.  He then saw you standing at his driver's door side window, which was closed.  You were holding a tyre jack in your right hand.  You held the jack above your head and said to him, "Give me your money".  Mr Bousen said, "No".  You have then made two more demands for the money.  As Mr Bousen refused to hand over the cash, you have then hit the window three times with the tyre jack.  On the third strike the window broke, and shattered glass went all over Mr Bousen.  That is the charge of criminal damage.

7Mr Bousen was very fearful and thought he needed to get out of the car to avoid being struck by the jack.  He opened the door and tackled you to the ground.  The two of you then were wrestling.  You tried to reach into Bousen's pocket and continued to demand the money, which Bousen had left in the car.  You did not take anything from Mr Bousen.  Those facts constitute the charge of attempted armed robbery.

8Bystanders came over to the two of you, wrestling on the ground and broke you up.  You continued to struggle and broke free from the bystanders who were holding you back.  You then ran off towards your car.  You were chased by a number of bystanders who caught up with you as you attempted to get into your car.  They took your car keys from you and you were detained by them. 

9Police were called and all involved, including you, waited until they arrived.  By this stage you were resigned to the fact that you had been caught by the bystanders and were sitting in the gutter.  You told them that you went to withdraw money from the ATM, however your account was empty.  You apologised to Mr Bousen in an attempt to get Mr Bousen to allow you to leave (before the police arrived).  You were arrested by police shortly after that time, which was 5.15 in the evening.  The value of the damage to the car belonging to Mr Bousen was $195. 

10At the time of these events, Mr Welsh, you were on bail for offending which had occurred on 20 April 2017.  That is the related summary charge of committing an indictable offence whilst on bail.

11You were interviewed by the police on 9 January 2018.  You told police that you went to the ATM to get $600 out, however it had been taken out by your ex- partner.  You stated that you had blacked out and the next thing you knew, you were pretty much pulling another guy out of a car to get his wallet.  You said that when you realised the money was not in your account, you were feeling angry, frustrated, anxious and overwhelmed and that is when you blacked out.  You then presumed that you had smashed the car window with a jack, as the jack from your car was on the ground, but you cannot remember doing it yourself.  You told police you thought the car jack was on the back seat of your car, but you cannot remember getting it out at the time of the incident.

12Mr Welsh, you also told the police you were frustrated because the last time you had had a blackout, was when you had committed an armed robbery on a pharmacy, six years prior to this event.  You said you targeted the victim this time because you had seen him withdrawing the money from the ATM. You were not sure if you were on bail, but you thought you might have been.  You have since resiled from the version that you had blacked out, and accept your responsibility for this offending.

Impact on Your Victim

13In this case a victim impact statement dated 13 February 2018 was filed by a Simon Bousen.  It was Exhibit “B” on the plea.  The victim impact statement was read in open court by the prosecutor.  Mr Bousen described how your offending has left him numb, disbelieving the crime happened to him, but is now confused, angry and in fear.  Despite his advancing years and that his immediate response was to fight back against your attack, I accept that you have left Mr Bousen in a state of fear.  Mr Bousen has had to pay the sum of $195 for the replacement window of his driver's door.  You consent to the compensation order for the sum of $195.

Your Personal Circumstances

14You were 30 years' old at the time of the offending.  You are now 31.  You have served 196 days pre-sentence detention on my calculations.  In the period of your arrest for this offending, you have also served a sentence of imprisonment of 21 days for unrelated summary offences. 

15Your mother was 17 years' old when you were born.  You have had little or almost nothing to do with your biological father.  When you were a young boy your mother partnered with a man by the name of Phil Hiam.  You refer to him as your stepfather. 

16Both your mother and yourself were subjected to physical and emotional abuse at the hands of Mr Hiam on a regular basis.  Your mother and you sought protection in refuges, due to family violence.  By the time you were 16 years' old, your mother separated from Mr Hiam.  You left school at the same time.  You had been, at that time, diagnosed as having dyslexia. 

17You have a long and established history of drug abuse.  At the age of 13 years you commenced occasional use of cannabis.  By the age of 15 you had commenced using amphetamines.  Your use of amphetamines escalated to an addiction level by the time you were 20 years' old.  At the age of 20, you had commenced using heroin.  You became addicted to your drug of choice, which was heroin, and have for the past seven years engaged in a methadone program with mixed success.  Relevantly, when you went into custody for these matters in January 2018, your daily dose of methadone was 70 milligram.  Over the period of your incarceration you have reduced this dose to nothing.  This is confirmed in the patient notes from Corrections, which was Exhibit “5” in this plea.

18I note for completeness that you are prescribed 40 milligrams twice daily of Atomoxetine, for your ADHD diagnosis.  Exhibit “6” was a Victoria Police medical notes document, which recorded that you had had heroin the day before your offending, and you stated that at that time you were injecting 1.7 gram of heroin a day.  Whilst prison is a controlled environment, you have made considerable progress in confronting your drug addiction and doing something to recover from it. 

19You have engaged in a number of courses and rehabilitation related studies whilst in custody.  The certificates for those courses were Exhibit “3” in this plea.  These courses substantiate that you are serious about trying to rehabilitate yourself, and try to live a drug free life when you leave prison.  You are currently working in the kitchen at Barwon Prison. 

20You have been examined by Warren Simmons, forensic psychologist.  His report is dated 11 April 2012.  The relevance of his report in thistre://ftr/?label="CC 7-3"?datetime="20180814094107"?Data="b24608b5" sentencing process is the confirmation of your dyslexia diagnosis and an assessment of your below average range of intellectual functioning.  You have also been examined recently by Dr Leon Turnbull, psychiatrist.  Dr Turnbull's report is dated 3 April 2018.  Dr Turnbull is of the opinion your drug addiction is the main factor in your offending;  Dr Turnbull was not as convinced about your diagnosis for ADHD as Dr Clare McInerney, the psychiatrist who is prescribing your current medication for that diagnosis.  Dr Turnbull's opinion is that if you abstain from illicit drug use, your chances of reoffending are markedly diminished. 

21You have an extensive criminal history, commencing in April 2007 at the Ringwood Magistrates' Court.  Prior to the offending in this case, you had 14 separate court appearances for numerous charges.  Your offending includes dishonesty and violence offences.  On 4 June 2012 you were sentenced for a charge of reckless conduct endangering serious injury.  On 18 April 2012, you were sentenced for armed robbery at the Melbourne County Court.  On that occasion you received a sentence of three years with 18 month non-parole period.  This is your most relevant and significant prior conviction.  I will not detail the litany of all the other offending over the past ten years, but your drug addiction runs parallel with that offending.

Sentencing Considerations

22The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community.  In sentencing you, I must have regard to a range of factors, such as the seriousness of your offences, your culpability for them and your personal circumstances and those of your victim.  I am required to balance the interests of the community in denouncing your criminal conduct, with the interests of the community in seeking to ensure, as far as possible, you as an offender are rehabilitated and reintegrated into society. 

23Further to that, you have pleaded guilty.  You have pleaded guilty at a relatively early stage in these proceedings.  The plea was indicated at the committal mention hearing.  Your plea of guilty has a utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of court and police resources to deal with other matters.  Your plea vindicates the public confidence in the legal process set up to protect the community and you have, by your plea, relieved your victim from giving evidence against you.  It facilitates some closure for him as a victim of your offending.  The plea of guilty also demonstrates remorse on your part.

24The charge of attempted armed robbery is a serious offence.  General deterrence is an important consideration in sentencing for that offence.  The importance of general deterrence is affected by the circumstances of the commission of the crime, and the factors personal to you as the offender. 

25The relevant features of your attempted armed robbery and connected criminal damage charge are as follows:  
(1) the obvious vulnerability of your victim;
(2) Mr Bousen had just taken $400 from the ATM and appeared to you to be an easy target;
(3) the use of a car jack by you raised fear in your victim;
(4) the use of the car jack also shows the impromptu nature of your offending; (5) the randomness of your attack in broad daylight, on a public street;
(6) the prevalence of offending against people in similar circumstances raising disquiet in the community about this type of offending; and
(7) you were on bail at the time of the offence.

26The circumstances of the offending are consistent with this offence, being opportunistic and lacking planning.  This goes to your moral culpability for the offending.  After you were subdued by your victim and other civic minded witnesses you have remained at the scene awaiting your fate when the police arrived. 

27You have undertaken many courses whilst in custody to enhance your chances of rehabilitation.  Most significantly you have taken measures to overcome your addiction to drugs. 

28Of course, in the structural environment of a prison, abstinence from drugs may be easier to achieve than in open society, where availability of drugs is prevalent.  Nevertheless, you have taken significant steps to address your addiction. 

29Taking into account your extensive criminal history and your recent attempts to address your addiction to drugs, I assess your prospects of rehabilitation as guarded, but hopeful.  Your counsel submitted that an aggregate sentence was an appropriate disposition for Charges 1 and 2 on the indictment, because each offence occurs in the same space of time and action.  He conceded imprisonment was the only appropriate sentence. 

30The prosecution submitted that the totality of your offending calls for an immediate term of imprisonment.  I have previously referred to the maximum penalties set out in each of the offences set by Parliament.  The prosecution submitted that the considerations of general and specific deterrence and denunciation of your actions, were to be accorded full weight given the circumstances of this case.  I accept that the considerations of specific and general deterrence, combined with the denunciation of these offences, are very significant factors in sentencing you.

31I have regard to the current sentencing practices for this type of offending.  This is only one of the matters I have to take into account when sentencing you.  The nature of your offending and your personal circumstances are different from other offenders and comparisons to other sentences are of limited use, but are a relevant consideration. I do not consider that your diagnosis of ADHD by Dr McInerney is a basis for the application of limbs five and six of Verdins case.  You are appropriately medicated for the condition and the medical notes tendered, which are marked as at Exhibit “5”, indicate your symptoms are well controlled.

32In respect of your offending whilst on bail, I find it appropriate to cumulate that sentence on your other sentences, to mark out the extra layer of criminality you engaged in on this occasion.  This is not double punishment but a discrete sentence for a discrete crime.  You have breached a court order whilst offending on bail.

33You have also served a 21 day sentence for unrelated offending since your arrest for these charges.  It was submitted that you have lost the chance of serving that sentence concurrently with these sentences, and that the principle of totality applies when sentencing you in this instance.  In sentencing you, I take into account you have been in custody since your arrest for these offences, on 9 January 2018.  A term of imprisonment is the only appropriate sentence.

34I have assessed your prospects of rehabilitation as guarded as I said before. The closer supervision under parole would be more likely to increase your rehabilitation success upon your release from prison.  The Adult Parole Board can also assist you in obtaining accommodation, drug rehabilitation and to continue what you have already commenced, as your own rehabilitation. 

Would you stand please

35On Charges 1 and 2 on the indictment, you are convicted and sentenced to two years and nine months' imprisonment.  This is an aggregate sentence.

36On summary Charge 1, you are convicted and sentenced to one month imprisonment.  I order that the sentence of one month imprisonment on summary Charge 1, be served cumulatively on the sentences on Charges 1 and 2 on the indictment.  That is a total effective sentence of two years and ten months. 

37I set a non-parole period of 18 months.  Section 6AAA, which is, but for your plea of guilty, I would have sentenced you to a period of imprisonment of three years and six months, with a minimum non-parole period of two years and six months.

38I declare that you have served 196 days.  Is that a correct calculation?

39MS HUNTER:  It is, Your Honour.

40HIS HONOUR:  Yes.  196 days pre-sentence detention in respect of the sentence I have imposed.  I order that compensation order of $195 to be paid by you to Mr Bousen.  And there was to be a disposal order for the car jack, but I have not got it yet.

41MS HUNTER:  The disposal order was e-lodged, Your Honour, but I can - I can ‑ ‑ ‑

42HIS HONOUR:  Is it?  All right.  Thank you, I will get it.  Thanks.  Thank you, you can take a seat.  Does that cover everything, Mr Anderson?

43MR ANDERSON:  I think so, Your Honour.  Yes.

44HIS HONOUR:  Thank you.  Thanks.  Mr Welsh, just before you go.  I have no doubt you have had a really hard run in life, and drug addiction has been your end result.  But as you know, your criminal record and your serious drug addiction run directly parallel.  One with the other.  About ten years of just a mess.  If you can get over this drug addiction you have got a chance to live a normal and productive life.  Unfortunately, the only person who can beat the drug addiction, is you.  So good luck with it.  Serve your sentence.  Take all the advice and help you can get from the Parole Board when you are out, and hopefully get on with your life and get back together with Mum when she is around.  Thank you.

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