Director of Public Prosecutions v Welsh
[2014] VCC 2090
•8 December 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-02291
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASHLEY WELSH |
---
JUDGE: | His Honour Judge Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 November 2014 | |
DATE OF SENTENCE: | 8 December 2014 | |
CASE MAY BE CITED AS: | DPP v Welsh | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2090 | |
REASONS FOR SENTENCE
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Roper | OPP |
| For the Accused | Ms F. Todd | VALS |
HIS HONOUR:
1 Ashley Welsh, you have pleaded guilty to one charge of armed robbery and one charge of threat to inflict serious injury. The maximum penalty for armed robbery is 25 years' imprisonment. The maximum penalty for the second offence is 5 years' imprisonment.
2 A summary of your offending was tendered as exhibit A at the plea hearing. It is not my intention to repeat the whole summary.
3 Briefly, the first charge occurred in the following circumstances. On 18 February 2013 at about 2.15pm you entered the Woolworths supermarket in Sunshine with the intention of stealing items to sell for heroin. You took a cooler bag from inside the store and moved through various aisles placing items from the shelves into the bag. Staff informed the manager of your behaviour and he approached you and asked if he could look in the bag. After some discussion the manager said that if you did not show him what was in the bag you would be shown out of the store. You pulled part of the packaging from a kitchen knife that you had picked up earlier. You pointed the knife towards the manager and the security officer who was also in attendance and said, “I’ve just got out of jail, I don’t care if I stab you.” Both men were fearful and let you pass. You left the store still pointing the knife at them and without paying for the items that you had stolen.
4 The second charge occurred after the security officer followed you from the store. You walked towards the Big W store when you stopped and waved the knife at him. You said, “Just go away, fuck off. I don’t give a fuck. I just got out of jail and I don’t care. I’ve got nothing to lose.”
5 These are serious offences. The offending occurred in a place where there are always a large number of people. You produced a knife and challenged the store manager and threatened the security officer. In cases of this type general deterrence is a highly relevant sentencing consideration.
6 You have admitted a large number of prior court appearances, most of them in the Children’s Court. A large number involve low-level violence. The armed robbery represents an escalation in your offending behaviour. Given these facts, specific deterrence and protection of the community are relevant sentencing considerations.
7 I accept that the offending was unsophisticated. You were not wearing any disguise. You clearly gave no thought to the likely consequences of stealing property in the way that you did. The production of the weapon was impulsive and the knife not completely removed from its packaging. These are matters that place the offending at the lower end of the scale of armed robberies.
8 Sometime after the incident you saw the security officer at the shopping centre and told him, “I just wanted to say sorry about the previous incident.” This is to your credit.
9 You will be given credit for your plea of guilty. It is an acceptance by you of responsibility for your criminal acts. I saw and heard your responses when the elders spoke to you about the offending. I am satisfied that you are genuinely remorseful.
10 Your guilty plea has also allowed the victims to avoid the trauma of giving evidence and saved the community the costs associated with a criminal trial. Although the plea has come fairly late in the process, I accept that your lawyers wanted to assess all of the evidence and that notices of relevant additional witnesses were not served until August 2014.
11 I have already referred to your prior history. It commences with an appearance at the Heidelberg Children’s Court In April 2005. You were 13 years old at the time. An appearance at court at that age is indicative of a child with very difficult family circumstances.
12 Your mother is a Gunditjamara woman. She was part of the stolen generation. She was raised by a non-Aboriginal family in Gippsland. Although your mother has a good relationship with her foster family, she has struggled with a serious alcohol problem throughout her life.
13 Your father is an Aboriginal man from Deniliquin. He and your mother separated in 2001. You were 9 years old. In that year, your mother entered Odyssey House to deal with her addiction. You resided with your mother at Odyssey House for a period of 12 months.
14 After your parent’s separation, your mother tried to support you and your siblings but the difficulties she was experiencing in her life compromised her ability to keep you protected and safe. By the age of 11 you were regularly attending the City with other young children and drinking alcohol. From the age of 14, you were away from home for lengthy periods and living on the streets. You were sniffing harmful substances. At the age of 16 you followed the example of an elder sister and commenced the use of heroin. Your heroin dependency has dominated your life from that time until you went into custody for other offences in the middle of 2013.
15 You come from a background of significant social disadvantage. You were introduced to heroin at a young age and that addiction has profoundly affected your life. These circumstances reduce your moral culpability. The sentence should be moderated accordingly. Your disadvantaged background also moderates the application of the principles of deterrence.
16 I have read a report from Dr Cunningham, psychologist, stating that you present with a major depressive disorder. He expresses an opinion that you were pre-disposed to the development of this disorder by the instability in your childhood environment. It is not submitted that the disorder is directly connected to the offending so as to reduce your culpability or ameliorate the application of deterrence. However, I do accept the submission that your time in prison has been harder for you than it would be for someone without your depressive disorder. Your sentence should be moderated accordingly.
17 You are still a young woman. Given your age, rehabilitation is still a highly relevant sentencing consideration. You have spent the last 17 months in custody. I will talk about this more fully in a moment. I am satisfied that this time in custody has caused you to reflect on your life. You now have a clear understanding of the significant consequences that attach to offending behaviour.
18 You are drug free. You are on a methadone program and you have stated that you are strongly committed to remaining drug free and building a law abiding lifestyle. One advantage of the Koori Court process is that it allows a court to directly hear from an offender on their plans for the future. I was impressed with what you said about rejecting the temptation to access drugs in prison and how you felt “rehabilitated.” You indicated to the elders that you would like to use your experience in a positive way to assist and counsel young Koori woman to stay away from drugs and offending.
19 I have already briefly mentioned the time you have spent in custody. I will now expand upon that.
20 On 23 October 2013 you were sentenced in the Magistrates’ Court to a 14-month jail term on a large number of offences. Some were offences of shop steal and some were related offences of violence. You were also dealt with for breaching a Community Based Order. The magistrate fixed a minimum term of 6 months before you would be eligible for release on parole. You had already served 118 days by way of pre-sentence detention. The magistrate clearly intended that you would be released on parole just before Christmas 2013. It was your first sentence of imprisonment. However, because of the existence of these charges you were not granted parole. You served the full 14-month sentence ordered by the magistrate. This is a significant matter for me to take into account when determining sentence in this case.
21 Upon completion of your 14-month sentence you made no application for bail. It is agreed that you have served a further 103 days by way of pre-sentence detention. It is now nearly one year beyond the date that the magistrate envisaged you would be released on parole.
22 Ms Welsh, in determining the sentence I am strongly influenced by the fact that you have been in prison for nearly 18 months. You have undergone your first sentence of imprisonment. You are on a methadone program and apart from that drug, you are drug free. You are healthy and you have an expressed determination to remain drug free. I am told that your mother is addressing her problems and is willing to support you. The armed robbery is at the lower end of the scale in terms of seriousness. In these circumstances, I can see little benefit to the community (or to you) in extending your time in prison. On the last occasion that you appeared before me I explained that I was considering an order that involved the imposition of a jail term followed by a Community Corrections Order. I have had you assessed for such an order. The assessment is favourable.
23 Ms Welsh, you are convicted on the armed robbery and sentenced to 103 days imprisonment and in addition sentenced to a Community Corrections Order for a period of 12 months. The Community Corrections Order will commence today and you will be required as part of the order to attend at the Broadmeadows Community Corrections office within the next 48 hours. I make a direction that you have served 103 days by way of pre-sentence detention. You are also convicted on the second charge and sentenced to 60 days imprisonment; this order to be served concurrently with the sentence imposed on the armed robbery.
24 The Community Corrections Order will have the following conditions attached. You are to perform 180 hours of community work; attend for assessment and treatment (including testing) for drug abuse or dependency and alcohol abuse and dependency; be under supervision for the period of the order; and you must attend for mental health assessment and treatment.
25 Had you pleaded not guilty and been found guilty after trial I would have imposed a total effective sentence of 15 months imprisonment with a minimum of six months before you would be eligible for release on parole.
26 Ms Welsh, I also order that you undergo a forensic procedure for the taking of a scraping from your mouth. You must attend at the Broadmeadows Police Station within 28 days for the sample to be taken. If you fail to co-operate in the taking of the sample, the authorities may use reasonable force to obtain it. I make this order pursuant to Sections 464ZF(2) and 464ZF(2)(A) of the Crimes Act 1958. I make the order for the following reasons; the seriousness of the offending, your prior criminal history, the order is in the public interest and the order is consented to.
27 Ms Welsh, I just want to explain briefly to you the impact of the Community Corrections Order. Now that you are on that order you are required to be of good behaviour. You cannot commit any further offences. Should you commit further offences you will breach the order, you will come back to court and you will be dealt with again for this charge. Given what you told me and given what you told the elders in the court hearing you can understand why I would be very unhappy and why I would be most likely, if you breach the order by further offending, to send you to jail. It is important that you understand that. Of course, the order has conditions attached which must be complied with. If you do not comply with the conditions of the order again the order will be breached and you will be brought back before me and I will sentence you again on this offence. So you are being given an opportunity today which you should seize and make the most of and prove to this court that you will do the things that you told us you will do which is to remain out of trouble, remain drug-free, rebuild your life.
28 What is going to happen now is you are going to be taken back downstairs. You will not be released immediately. The court has to prepare papers and they have to be provided to the office downstairs. The Koori Court officer will make contact with the Melbourne Magistrates Court. She will obtain a letter from that court which she will deliver to you before your release. It will enable you to go across the road to the Magistrates Court and get some assistance to get from Melbourne back to your home. But because the Koori Court officer is going to be involved in another case in this court very shortly she will not be able to do that for a couple of hours or so. So I want you to understand that you are going to have to go back downstairs and remain there until we have been able to prepare the paperwork and get the letter which will enable you to get assistance to get back home. So I do not want you to panic when you are downstairs, you are going to have to stay down there for a little while and I want you to understand why that is. But when we have heard the other case in this court and when the Koori Court officer is able to make contact with the Melbourne Magistrates Court we will then provide the documents downstairs and then after that has been done the Koori Court officer will meet you downstairs and give you the letter so you can go to the Magistrates Court. Do you understand all that?
29 PRISONER: Yes I do.
30 HIS HONOUR: You do, very well. What we are going to do now though is get you to sign the orders acknowledging your willingness to undertake a Community Corrections Order.
31 Very well. Ms Welsh, I have got another case I am now going to have to commence. So I will ask you to go back downstairs and you understand that there is going to be a little bit of time before we organise everything that will facilitate your release. So just patiently, all right.
32 PRISONER: Thank you.
33 HIS HONOUR: Yes, thank you. Thank you, Ms Todd, thank you Mr Roper.
- - -
0
0
0