Director of Public Prosecutions v Welsh

[2015] VCC 172

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 14-02075

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES ROBERT WELSH

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Shepparton
DATE OF HEARING:	23 February 2015
DATE OF SENTENCE:	23 February 2015
CASE MAY BE CITED AS:	DPP v Welsh
MEDIUM NEUTRAL CITATION:	[2015] VCC 172

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr J. Livitsanos	Office of Public Prosecutions
For the Accused	Mr R. Higgins	Rod Higgins Lawyers

HIS HONOUR:

1You James Robert Welsh have pleaded guilty to before me to one count of armed robbery.  The circumstances giving rise to this charge have been fully outlined in the court this morning and are set out in detail in Exhibit A, the summary of prosecution opening, which was read to the court by Mr Livitsanos, who appears for the prosecution.

2You and a co-offender, Mr Watt, who was 19 at the time, and you were aged 28 or 29 were both living a transient lifestyle and found yourselves in circumstances, which have been explained to me, in a caravan park in Cobram.  You were residing there with others.  Your circumstances were that you were clearly destitute.  You and your companions had little or no finances available, no form of occupation and clearly were in the grips of a significant addiction to methylamphetamine.  The facts of that addiction and the results of it are well known to the court and sadly well known to the community and lead almost inexorably to offending of this type, even in persons of your age without prior convictions.

3On about 30 or 31 July, there was discussion initiated by Mr Watt, who was very much your junior, about robbing a servo.  That conversation was re-agitated some days later and you and he left in your vehicle with you driving.  I pause to note that as a consequence of this conviction, the prosecution have sought the confiscation of that vehicle and that has not been opposed by counsel on your behalf, and of course I have no doubt that it will cause you some financial hardship.

4You and your co-accused drove into Cobram, to a Caltex service station.  Mr Watt then disguised himself, armed himself with a knife about 30 cm in length, and he then entered the service station and there threatened the attendant, a woman of 51 years.  She then responded to your threats and the banging of the knife and gave you a bag of money and a bag of cigarettes.

5The police, in what can only be regarded as fairly clever detective work, managed to procure various CCTV footage from the surrounds and were able to identify the vehicle and in due course, were able to identify yourselves as the owner of that vehicle.  You made full admissions to your offending when you were arrested.

6Various orders were sought by the prosecution and not opposed by counsel on your behalf, and I will make those orders, including as I say the confiscation of the vehicle that you were driving to the robbery on that occasion, in addition to a compensation order in the amount of $650 as well as a forensic sample order.

7A victim impact statement has been tendered in this matter and I have had the opportunity of reading that victim impact statement this morning, and I am sure you will be not surprised to understand that you caused the woman working in that garage considerable anxiety and that will remain with her for a period of time.

8You have recognised that to some extent, and the exhibit that you put before the court, is your letter of apology.  Mr Livitsanos and the informant should make that document available to the victim of this matter if they think it appropriate.  I have no doubt about its sincerity given the recent turnaround in your life and hopefully the fact that you have been able to stop and hopefully rid yourself of your addiction to that terrible drug.

9You have pleaded guilty and there are a number of mitigating factors, and of course you have pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so.  The community has, by your plea, been spared the time and cost of a trial and clearly witnesses have been spared the ordeal of giving evidence upon your trial and I can tell you the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.

10Further, I take into account in your favour that you intimated early an intention to plead guilty to these charges.  You were quickly apprehended in the circumstances I have just described and readily admitted in your part in the crime and in the circumstances, and particularly in circumstances of your letter of apology, I accept that in case, your plea indicates true remorse for your actions.

11I have been told something of your personal circumstances and your history and Mr Higgins has helpfully outline those matters and particularly the fact that you were born in Melbourne, that your mother and biological father separated shortly after, in circumstances where it was discovered your father had a significant drug problem and clearly that has persisted since that time.  You spent some time in Queensland before your mother returned to Shepparton and began another relationship which persists to this day and she and your stepfather are now able to hopefully ensure that you keep your life on its present course.

12Clearly the time you spent in Queensland with your biological father led you into contact with drugs and alcohol at a very early time and a vulnerable time in your life and further, there is reference to the fact that your sister and you both clearly suffered at his hands in other ways as well.  I do not doubt for a moment that that relationship has had a significantly deleterious effect on you at a very vulnerable time in your life.

13When you returned to Victoria and took up residence in the area of the Goulburn Valley, it is clear that you brought with you that addiction to drugs, and notwithstanding you began a relationship and had a child.  The drugs of course had their inevitable effect and led you to the circumstances in the caravan park as have been described, sharing drugs with others and of course, inevitably seeking funds to sustain that habit, which led you the offence for which you are before the court, and which of course will forever remain part of your criminal record and I have no doubt that that will be a penalty in and of itself in the years to come.

14Happily, however, since you have committed this offending, there have been a number of very positive signs in your life and particularly the matters that your mother points out in her letter, which is addressed to the magistrate as well as the County Court, dated 23 February 2015.  It is clear that she and your stepfather and others surrounding you have done all they can to assist you in coming to deal with your addiction to drugs.  She and the others supporting her deserve a commendation for the fact that they have stuck with you and clearly assisted you in a very significant way in doing the things that you have been able to do since your arrest on this offence.  It is a great credit to her and of course to you that those matters have worked out very positively, at least at this stage, although of course, given the sentence I intend, you will have another two years in which you must continue to reveal the same commitment to your rehabilitation that you have revealed since the commission of this offence.  Of course, if you fail to keep any one of these appointments or fail to attend for the drug and alcohol counselling or fail to attend for the community work, then of course you will be back before me and can expect to be sentenced to a lengthy term of imprisonment.

15You do have no prior convictions and I sentence you as a person of previous goof character.  As I say, I have taken into account those two letters to which I have referred in addition to the letter from the Family Relationship Centre, which explains why it is that you currently have no access to your daughter.

16There are no subsequent matters and I am satisfied the chances of your rehabilitation are quite positive in the circumstances described to me, and particularly adverted to in the letter from your mother.  With respect to your role in the commission of the crime, it is clear that notwithstanding the major player is ten years your junior with an extensive criminal record, albeit in the Children's Court, your role appears to be a relatively minor one in the sense that you drove the car to the premises and then away from the premises.

17Of course, as well as those matters personal to you, to which I referred including the question of rehabilitation, I must also take into account deterrence, and of course general deterrence is of great significance, taking into account the fact that a woman of relatively advanced years is by herself in a vulnerable situation and she is confronted by youths such as yourselves under the influence of drugs, carrying significant weapons.

18Specific deterrence is not of great significance given the absence of prior convictions and hopefully in the circumstances, where you are no longer physically addicted to the drugs, which were relevant on this occasion.  I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your reoffending, which I find to be modest.

19I particularly bear in mind the remarks of the Court of Appel in the case of Boulton and noting that the Court in recent times has spoken of the community corrections order and the importance of it and where it stands in the sentencing regime.  Indeed, this is a matter recently adverted to by Priest and Beach JJA on 4 February in the case of Chantelle McAleer v The Queen where the Court referred to the case of Boulton, which provides guidelines concerning the imposition of community corrections orders and Their Honours quoted the Court at Paragraphs 113 to 115 and I think it appropriate to reflect upon what Their Honours had to say, albeit fairly briefly:

"The availability to the community corrections order dramatically changes the sentencing landscape.  The sentencing court can now choose a sentencing disposition, which enables all of the purposes of punishment to be served simultaneously in a coherent and balanced way, in preference to an option (imprisonment), which is skewed towards retribution and deterrence.

"The community corrections order option offers the court something which no term of imprisonment can offer, namely the ability to impose a sentence which demands of the offender that he take personal responsibility for self-management and self-control and depending on the conditions, that he pursue treatment and rehabilitation, refrain from undesirable activities and associations and avoid undesirable persons and places.  The community corrections order also enables the offender to maintain the continuity of personal and family relationships and to benefit from the support they provide.

"In short, the community corrections order offers the sentencing court the best opportunity to promote simultaneously the best interests of the community and the best interests of the offender and of those who are dependent on him.  On this analysis, if defence counsel submits that a community corrections order would be appropriate, it is no answer for a prosecutor or indeed a judge to say how could a community corrections order be appropriate given that an offence of this seriousness has always received imprisonment.  As we have endeavoured to explain, that question should mark the beginning, not the end of the court's consideration."

20Bearing in mind all of the matters that the court has directed my attention to, it seems to me in the circumstances a community corrections order is appropriate in your circumstances.  Further, as I say, the various orders sought by the prosecutor are not opposed by counsel on your behalf, will be signed by me in chambers and that includes a forensic sample order.  I am satisfied that it is in the interests of justice having regard to the seriousness of your offending, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you.  That sample may be taken by a doctor or nurse or other authorised person.  A saliva sample is taken by wiping a swab inside your mouth, and although you have consented, if you change your mind, I must inform you that the police may use reasonable force to enable that procedure to take place.

21This is without doubt a very serious offence and in all the circumstances it seems to me that it is appropriate to impose a community corrections order and there will be a conviction and the length of that order will be for a period of two years.  There will be an order for 200 hours of community work, bearing in mind the fact that you will be employed, and doing your apprenticeship, that is a reasonably modest amount of work, but I have no doubt that your weekends for the next two years will be occupied with doing community work and will remind you of why it is that you are doing that, and will hopefully ensure that you remain on the path to which you are presently committed.

22In addition to that, there will be the various conditions, which are recommended by the author of the community corrections order assessment outcome report and that will include treatment and rehabilitation for drugs.  Treatment and rehabilitation for medical matters and supervision.  Of course, you need to understand that those matters and those appointments are very important and are effectively the same as orders of the court, to be treated by you as such, and any breach of them will mean that you come back before me.  You will need to make sure that whilst in Geelong, hopefully completing your apprenticeship, you will need to ensure that the appropriate officer down there takes over the role of the community corrections order and setting up the various appointments for you.  Hopefully that will continue the good work begun by your mother and yourself and you will understand that taking that drug leads to desperate and terrible consequences for you and for others.

23Of course, you understand that breach of the community corrections order means you come back before me.  All of what I have had to say today is being recorded and in the unhappy event that you come back before me, it can all be replayed, so I can remind myself of what it is that you have, by signing this order and your consent to it, agreed to do and what the consequences are if you fail.  Do you understand all that?

24OFFENDER:  Yes, Your Honour.

25HIS HONOUR:  All right.  Anything further gentleman?

26MR LIVITSANOS:  No, Your Honour.  I've got the paperwork here for the order.  I will hand those up Your Honour.  There is the compensation order, it is Mr Welsh's half share of $325.

27HIS HONOUR:  Yes.

28MR LIVITSANOS:  And also the forfeiture order and confiscation order in relation to the vehicle.

29HIS HONOUR:  All right.

30MR LIVITSANOS:  And only one correction, Your Honour.  It was a 464 retention order.

31HIS HONOUR:  A retention.

32MR LIVITSANOS:  It is automatic now, Your Honour.

33HIS HONOUR:  Yes, all right.  Thank you.  All right, I think I will sign them.  Mr Welsh and Mr Watt, you gentlemen can come out and join your families.  Thank you, I have signed those orders.

34MR LIVITSANOS:  As Your Honour pleases.

35HIS HONOUR:  Thank you gentlemen, I think that completes your matter and we will see Mr Watt back in about three months' time and hopefully all the news is good news.

36MR HIGGINS:  As Your Honour pleases.

37MR LIVITSANOS:  As Your Honour pleases.

38HIS HONOUR:  All right, thank you.

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