Director of Public Prosecutions v Weribone
[2025] VCC 224
•6 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01677
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY WERIBONE |
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JUDGE: | HIS HONOUR JUDGE D. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 February 2025 | |
DATE OF SENTENCE: | 6 March 2025 | |
CASE MAY BE CITED AS: | DPP v Weribone | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 224 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Attempted armed robbery
Legislation Cited: Crimes Act1958; Disability Act 2006; Sentencing Act1991
Cases Cited:Bugmy v R (2013) 302 ALR 192; Muldrock v The Queen (2011) 244 CLR 120; R v Verdins & Ors (2007) 16 VR 269; HA (a Pseudonym) v The Queen [2021] VSCA 64
Sentence: One year and Six months’ imprisonment with a Non-Parole Period of One year
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms V. Worrell | Office of Public Prosecutions |
| For the Accused | Ms S. Molina | Middleton Maisner Legal |
HIS HONOUR:
Introduction
1Anthony Weribone, on 3 February 2025 you appeared before me at a Plea Hearing in the Koori Court. On that day you entered a plea of guilty to an indictment containing one charge of attempted armed robbery, which carries a maximum penalty of 20 years' imprisonment.
2You also admitted your criminal record.
Circumstances of offending
3The circumstances of your offending were set out in the Summary of Prosecution Opening on Plea dated 26 November 2024, Exhibit 1 at your Koori Court plea hearing.
4Your offending can be briefly summarised.
5At about 10.30 pm on 30 June 2024, your victim in this matter, LD, was walking home from work in Collingwood. You approached LD and asked him for a cigarette. LD told you that he only had a vape and you responded, 'I don't want your vape, I want money for a drink'. LD told you that he did not have cash, and you responded, 'don't make me get out my knife'.
6LD kept telling you that he did not have any money. You then pulled out a knife, approximately 6-8 centimetres long, from your left jumper pocket. LD then said he would go to a 7-Eleven store on Smith Street to take money out.
7While you walked with LD to the 7-Eleven store, you put the knife away and put your hands in your pockets.
8At the shop, you told LD to take out $100 and LD told you that he only had $50. When you and LD approached the shop counter to take out the $50, the staff member told you that an item needed to be purchased before taking out cash. As you walked to the back of the store to select an item, LD used this as an opportunity to run out of the store and away from you. You returned to the shop counter and asked the staff member where LD had gone. After which, you left the shop.
9LD ran back to his workplace in Fitzroy and called the police. While LD ran away, he threw his coat and backpack under a car because they were weighing him down.
10LD never took out any money and you never obtained anything from him.
11The police obtained CCTV footage from the shop and also obtained CCTV footage from surrounding locations in Collingwood. An image was produced by police and provided to LD. He then identified you as the offender.
12On 4 July 2024 at about 10.53 am, police attended your address for the purpose of executing a search warrant. You were found on a couch in the loungeroom and identified yourself. You were ultimately arrested and conveyed to Richmond Police Station.
13On this same day at around 1.34 pm, you participated in a recorded interview with police and made several statements. These statements included that:
a.You could not remember anything about the attempted armed robbery;
b.You just remember going to sleep on the lounge;
c.All you remember is having a little drink with a couple of mates and then falling asleep;
d.You can't remember nothing from that day;
e.Your memory is 'a bit fucked' from doing drugs;
f.You also don't remember anything from the next day;
g.You hadn't heard of Bedford Street;
h.LD didn't look familiar to you;
i.On the 30th, you were using weed and a bit of alcohol;
j.It was your second time drinking ever;
k.You'd only had a couple cans of premixed bourbon and coke;
l.You've been jumped heaps of times, you carry knives for self-defence.
14You were remanded in custody on 4 July 2024 and 245 days in custody are attributable to this matter by way of pre-sentence detention.
Victim impact statement
15A Victim Impact Statement was completed by LD on 24 September 2024.[1] In that statement, LD indicates that as a result of your offending upon him, he has changed his route of commuting to and from work to a new route which is better lit and contains more foot traffic providing somewhat of an increased sense of safety. Due to the nature of his work, LD finishes well into the evening and has no option other than to walk home in the dark. He finds himself constantly checking his surroundings, and experiences a constant sense of fear, paranoia and anxiety whilst walking to and from work. He has stopped using his mobile phone and headphones during this commute to increase his awareness. He feels that his sleep has dramatically worsened as a result of the incident. Partly due to the impacts upon him arising from this incident, LD has planned to fast track a move from his house. Overall, LD referred to a reduction in socialising in his area, particularly after dark.
[1]Exhibit “2”
16Clearly, your serious offending has adversely affected LD. Members of the public are of course entitled to go about their daily affairs whilst feeling safe in the community. Through your actions, you have made your victim feel unsafe.
17Victim Impact Statements are an important means through which victims of crime can meaningfully participate in the sentencing process, by informing the Court of the often significant adverse impacts of offending upon them. In formulating an appropriate sentence in your case, I have taken into consideration as one of the sentencing factors, the impact of your offending upon your victim.
Nature and gravity of your offending and your level of responsibility for it
18The offensive weapon that you had with you at the time of the offending is particularly concerning – a bladed implement, namely a knife. Self-evidently, such an item is capable of causing significant injury to others. Whilst you may well have been carrying the knife for self-defence, that you would both threaten to produce and then produce the knife in the presence of LD is highly concerning. The danger associated with your actions in this regard, particularly in circumstances where you told the police in your interview that you were then consuming cannabis and alcohol, and were presumably affected by those substances, is apparent.
19Your victim, LD, was a vulnerable member of the public, walking home from work on his own in the dark.
20Your offending was somewhat protracted. After producing the knife you walked with LD to a 7-Eleven store so that he could get the cash that you were demanding from him. In that sense this was not a momentary crime, and it can be reasonably expected that LD was in a state of considerable anxiety for a period of time whilst walking to the 7-Eleven, accentuating the gravity of your offending conduct.
21
However, I accept that your offending can appropriately be described as opportunistic. There is no evidence that you targeted LD specifically when you approached him on the street. Your conduct once you had arrived at the
7-Eleven store was haphazard – you left your victim at the counter when you walked further into the store to select an item for LD to purchase to get out, providing LD a clear opportunity to escape. You were not in any way disguised, which would have made you clearly identifiable from CCTV footage, and indeed, it appears that you were identified by police fairly quickly after your offending conduct.
22Whilst ultimately your offending can be described as opportunistic and haphazard, it was inherently dangerous and has clearly shaken your victim considerably. Your conduct must therefore be seen as a concerning example of the offence of attempted armed robbery, for which you must be appropriately punished.
Background and personal circumstances
23You are currently 25 years old, with your 26th birthday approaching in May 2025.
24You are of Aboriginal heritage, identifying as a Barkindji man.
25You are the middle child of seven, with three sisters and three brothers. Two of your brothers have passed away. One older brother died in 2020 at the age of 23 following a heroin overdose. Another brother died in November last year due to a heart attack. On Monday I was informed that your sister Chara died last Thursday 27 February 2025.
26You have a difficult history of childhood trauma. You were born in Queensland. Your father had a history of drug addiction. He physically and sexually abused you when you were a child. When you were four years old, the New South Wales Department of Child Safety removed you and your siblings from your father's care, and you now report no contact with your father. You were close to the woman you knew as your mother who had her own issues with regard to substance use, and you apparently witnessed your father assaulting her after your parents had separated and when he would visit. Sadly, she passed away when you were 15.
27You were taken into foster care between the ages of four and 16. You would often run away from foster care placements.
28During your childhood, you developed a significant connection to foster parents, Uncle Jeff and Aunty Leah Hunt, at Gol Gol. They are apparently very connected to the Aboriginal community and cultural heritage, and have for many years cared for many Aboriginal children. Whilst not involved in the current proceedings, they have apparently supported you at Court in your previous Court cases.
29In the context of your traumatic upbringing, you struggled at school and were disruptive. You were assessed in 2013 when you were in Year 7 at Mildura Christian College to have an intellectual disability. On 1 December 2014 you were issued with a statement of intellectual disability pursuant to the relevant provisions of the Disability Act 2006 (Vic).
30Leaving school at a young age, you have never been formally employed, nor have you undertaken any formal training or any apprenticeship. Your main source of income has for some time been a disability support pension. You are currently the recipient of an NDIS package.
31You have two surviving children. A daughter aged nine who lives in Sydney, and you have no contact with her, and a son aged approximately two to three years old who lives in Mildura, with whom you also have no contact, but apparently you can contact him when you are not in custody.
32Whilst you have given differing accounts to different people, it seems clear that you have a chronic drug and alcohol history. You apparently started smoking cannabis from the age of 12 or 13 with the woman described as your mother, and following her death you started using methamphetamines or ice as well, to deal with your grief.
33You have a significant and concerning criminal history. As indicated by your counsel, this will be the fourth time that you have been sentenced for the offence of attempted armed robbery. In 2020, you received a sentence of imprisonment of 285 days together with a 12 month community correction order for the offence of attempted armed robbery. In 2021, you received a nine month sentence of imprisonment together with a 12 month community correction 0rder for the offence of attempted armed robbery. In 2022, you received a 12 month sentence of imprisonment together with an 18 month community correction order for the offence of attempted armed robbery. The sentencing remarks with regards to these prior matters were provided to the Court, and I have read and considered those decisions carefully. I note in the most recent sentence of His Honour Judge Cahill in 2022, your moral culpability for the offending was reduced by virtue of your disadvantaged background pursuant to the Bugmy principles, and intellectual disability pursuant to the principles encapsulated in the decision of Muldrock.[2] Clearly, given your relevant criminal history, any sentence I impose today must seek to deter you from again engaging in this serious species of offending. For whatever reason, previously imposed combination sentences incorporating terms of imprisonment in combination with a community correction order have not deterred you.
[2]Paragraph 86 of that Decision
34A number of psychological and neuropsychological reports were tendered on your behalf, dating back to 2013. In conducting an assessment as to your background, personal circumstances, and psychological functioning at the relevant times, I have principally relied upon the most recent comprehensive neuropsychological report of Dr Linda Borg dated 19 December 2024, Exhibit 'B' at your plea hearing.
35According to Dr Borg, you present with numerous neurodevelopmental disabilities – ADHD, a specific learning disorder with impairment in reading, and an overall IQ score that borders on impaired levels.[3] These disabilities are likely compounded by your history of exposure to trauma during childhood, which according to Dr Borg is highly detrimental to ones capacity to learn as well as being highly detrimental to brain maturation.[4] According to Dr Borg your childhood experiences are verified, and these events are likely to have negatively affected your overall brain maturation, social development, and mental health. Your history and clinical presentation therefore implicates a diagnosis of post-traumatic stress disorder, with your early trauma exposure appearing to have contributed to emotional instability, impulsivity and difficulty with interpersonal relationships, with a suggested diagnosis of borderline personality disorder indicated.[5] Given your history, you also meet the diagnosis of a stimulant use disorder which is currently in sustained remission in a controlled environment.
[3]Paragraph 49
[4]Paragraph 50
[5]Paragraph 51
36In terms of the connection between your psychological profile and your offending for which you now fall to be sentenced, according to Dr Borg you have a history of emotional dysregulation and difficulties with impulse control which suggest the likelihood of any intact decision making skills being applied when heightened or under threat, whether perceived or actual, is likely to be limited. You present therefore with a tendency for decision making which is emotional or need driven rather than informed and rational. Your mental disorganisation and impulsivity associated with ADHD and PTSD and borderline traits are likely to contribute to emotionally immature and volatile decision making, with a tendency to respond disproportionately to triggers or to place your own needs at the forefront of others. According to Dr Borg these underlying vulnerabilities would be more prominent when acutely intoxicated. Dr Borg concludes therefore that taken together, the available evidence indicates that your neurodevelopmental disabilities and psychiatric profile, as well as acute intoxication, are potential contributors to your offending.[6]
[6]Paragraph 52
37Having regard to the unchallenged opinions of Dr Borg, I am satisfied that your moral culpability for the offending now before me is reduced by virtue of your significant history of childhood trauma and its impact upon your brain development in accordance with the Bugmy principles. I am also satisfied that your neurodevelopment disabilities impacted on your decision making at the time of your offending, such that your moral culpability is lessened by virtue of Verdins limb 1. However, such a moderation is diluted by virtue of your likely intoxication with substances at the time of the offending.
Applicable sentencing factors and purposes
38In formulating an appropriate sentence in your case, I have taken into consideration your plea of guilty, conceded by the prosecution as being entered at the earliest opportunity. Through your early plea of guilty, you have facilitated the course of justice and spared your victim from reliving the experience through giving evidence. Given the matters which I will shortly outline, I am also satisfied that your early plea of guilty reflects your acceptance of criminal responsibility – in other words you know that what you did was seriously wrong. A significant sentencing discount is therefore warranted.
39I am also satisfied that a further sentencing discount is warranted by virtue of your remorse. In addition to aspects of the Koori Court Sentencing Conversation, the details of which I will shortly outline, the topic of remorse was discussed in your assessment with neuropsychologist Dr Linda Borg.[7] According to Dr Borg, concepts such as remorse and regret were explained to you, and you expressed some capacity to apply these concepts to the circumstances of your offending. You acknowledged the wrongfulness of your actions because 'it's not right'. On the day which I had intended to sentence you, Monday 3 March 2025, I was informed that you had recently written a letter of apology to your victim, LD. This was suggested as an appropriate action by one of the elders at your Sentencing Conversation on 3 February 2025. I accept that in simple terms you have expressed your remorse for your serious offending against LD. Your remorse lessens the need for any sentence I impose to seek to deter you from reoffending and is a positive matter with regards to an assessment of your prospects of rehabilitation. Given this and the further matters articulated by you in the Koori Court Sentencing Conversation, I am satisfied that you are indeed remorseful for your offending, and you appreciate the impacts of your conduct on LD, such that a further sentencing discount is warranted.
[7]Paragraph 24
40I turn now to the Koori Court Sentencing Conversation, and the impacts on the sentencing exercise. As is now widely known and accepted, the intergenerational trauma brought about by colonisation has wreaked havoc on the Aboriginal community, and its effects are inexorably linked to the overrepresentation of Aboriginal people in custody. Courts have an overriding duty to be conscious of the need to avoid compounding Aboriginal incarceration rates, unless there is a good reason for doing so.[8] In recognition of this, the Koori Court represents a significant attempt to ameliorate the disadvantages caused to Aboriginal offenders, and seeks to facilitate meaningful participation in the Court process, and appropriate sentencing responses to offending. The Sentencing Conversation is a centrepiece of the Koori Court model, bringing a culturally safe and appropriate component to the sentencing process.
[8]HA (a Pseudonym) v The Queen [2021] VSCA 64 at Paragraph 59
41On 3 February 2025, you participated in a Sentencing Conversation, in the presence of two Aboriginal elders, as part of the Koori Court plea hearing procedure. As is often the case, that Sentencing Conversation was substantial, direct and at times confronting for you. In my view, you engaged meaningfully with the elders whilst they discussed your life, and the circumstances of your offending with you. You indicated that you carried a knife for your protection as a result of an incident involving bikies when you were younger. You told the elders that you felt sorry for your victim, and you know that you should not have done what you did. You acknowledged that you were attempting to better connect with your culture whilst in custody, and you indicated that whilst you feel more comfortable inside, you know that you cannot stay there forever. You proudly displayed some of the Aboriginal artwork that you had been working on whilst in custody. In my view you conducted yourself appropriately in the Sentencing Conversation, by maintaining politeness and good eye contact with the elders throughout the conversation.
42Part of the Sentencing Conversation to which I have referred involves a shaming aspect, which in my view you genuinely embraced. I have no doubt that this would have been particularly confronting for you, and your willingness to expose yourself in this way is to your credit. Meaningful engagement in the Koori Court Sentencing Conversation may operate as a mitigating circumstance. You faced the shaming that is an integral part of these proceedings, and you were prepared to be accountable for your offending. Participation in the process of a Koori Court is more burdensome than appearing at a traditional plea hearing, and participation therefore may of itself be rehabilitative.
43Having regard to the opinions expressed by Dr Borg, and as conceded by the prosecution, I am satisfied that a further mitigatory allowance is warranted due to the additional burden of a sentence of imprisonment having regard to your neurodevelopmental disabilities. Put simply, I am satisfied that due in particular to your ADHD and PTSD symptoms, you will likely find the unpredictable and inherently dangerous prison environment to be particularly burdensome, and without ongoing mental health monitoring and treatment there is indeed potential for a term of imprisonment to potentially become increasingly more onerous for you, such that a sentencing discount is warranted in your case.
44I was informed and accept that due to your difficulties with a group of people when younger, you have spent much of your recent time in protective custody, which has no doubt made your time in custody even more onerous. Further, according to your counsel, you only recently learned of the existence of your biological mother, Dorothy Weribone, who resides in Queensland. You appear to have been unaware of her in the context of your difficult and traumatic upbringing and until recently you understand that another woman was your mother. When contacted by your mother, Dorothy, on 27 February 2025, she informed you also of the death in difficult circumstances of your sister, Chara, that day. I accept that your recent discovery of fundamental changes to your family make up, the death of your sister, and your isolation from family whilst in custody must be very upsetting for you and will likely make your sentence of imprisonment even harder, warranting a mitigatory allowance on sentencing.
45I have already referred to, in a sense, your rehabilitation. Particularly having regard to the fact that you are still only 25 years of age and therefore a relatively young offender, the facilitation of your rehabilitation remains a very important sentencing purpose in your case. You have had more than your fair share of trauma and disadvantage in your life, and you present with particular psychological fragilities which no doubt will pose challenges with regards to your ongoing rehabilitation. You have previously been given community correction orders which do not appear to have succeeded in preventing your reoffending. Your criminal history as I have stated is concerning, and you appear to have a particular tendency to engage in the serious crime of attempted armed robbery. According to Dr Borg, you represent a high risk of general reoffending, and as a matter of priority, addressing your drug addiction, ADHD, unmanaged PTSD and borderline personality traits is critical to your rehabilitation prospects. According to the prosecution, having regard to all of the circumstances and in particular that this offending was committed only two months after being released from custody, your prospects of rehabilitation should be assessed with caution. I agree. However, your productive participation in the Koori Court Sentencing Conversation and your willingness to accept meaningful responsibility for the adverse consequences of your offending on LD do give me some hope that with appropriate interventions, you are capable of rehabilitation. Furthermore, it is hoped that upon your ultimate release, you wholeheartedly embrace the supports offered to you by the MDAS representative who also participated in your Sentencing Conversation on 3 February 2025, and who indicated a preparedness to assist you with regards to appropriate referrals and linkages with appropriate cultural supports upon your release from prison.
46Whilst you have indicated a desire to relocate to Queensland to be with your mother Dorothy, the fact is that you will require considerable supports upon your release and in my view a structured and comprehensive support and monitoring arrangement will be critical to reducing your risk of reoffending and ultimately becoming a productive member of the community.
47As is inevitably the case in most sentencing decisions, the formulation of an appropriate sentence in your case involves a complex analysis of the relevant sentencing purposes contained in the Sentencing Act 1991. As I have stated, your relative young age means that a facilitation of your rehabilitation remains important. However, given your concerning criminal history and the nature of your current offending, the sentencing purposes of specific deterrence, general deterrence, and community protection remain prominent in the sentencing exercise. In any event, in your case you have yet again turned to a serious crime, attempted armed robbery, again committed on a member of the community simply going about their day. This conduct must be denounced, the community must be protected, and you must be appropriately punished.
Sentencing submissions and sentence to be imposed
48You have now spent 245 days in custody since being arrested in relation to this matter. According to your counsel you have approximately six months owing on a New South Wales parole cancellation, which in addition to the other matters to which I have referred, is no doubt impacting upon your level of anxiety. Ultimately, your counsel submitted that time spent in custody may be an appropriate disposition in the circumstances of your case. As I indicated at your plea hearing, I do not agree. In my view, the time spent in custody to date does not adequately reflect the seriousness of your offending in the overall circumstances of your case.
49Having carefully considered your case, I have determined consistent with the parsimony principle that a sentence of imprisonment incorporating a parole eligibility component is the only appropriate sentence in your case. In the particular circumstances of your case, having determined an appropriate head sentence, I have set the non-parole period, having regard to the minimum time that justice requires in your case, in order to facilitate your supported re-integration to the community on parole, if deemed appropriate by the authorities. In my view, this matter is simply too serious for a combination sentence incorporating a term of imprisonment and a community correction order, a penalty which you have previously received.
50On the charge of attempted armed robbery, you are convicted and sentenced to 18 months’ imprisonment. I order that you serve a period of 12 months before becoming eligible for parole.
51Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 245 days has been served by way of presentence detention and I order that this period be administratively deducted from your sentence.
52Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty but been found guilty at trial, I would have imposed a sentence of two years' imprisonment with a non-parole period of 18 months' imprisonment.
53I confirm, Ms Worrell, there are no ancillary orders sought in this matter.
54MS WORRELL: No, Your Honour.
55HIS HONOUR: Does that conclude the matters as far as the Crown are concerned? I have not missed anything?
56MS WORRELL: No, Your Honour, thank you, it does.
57HIS HONOUR: Ms Molina, any issues or ambiguities with regards to the sentence I have announced? I'll just have you unmuted for a moment. Thanks, try again. Any issues or ambiguities. You have been unmuted, but I can't hear you, it might be on your end.
58MS MOLINA: Can you hear me now, Your Honour?
59HIS HONOUR: Yes, I can now hear you. Any issues or ambiguities?
60MS MOLINA: No, Your Honour.
61HIS HONOUR: Would you like me to leave the link open to you for a few minutes after I leave the Bench so that you can speak with your client?
62MS MOLINA: Yes, Your Honour.
63HIS HONOUR: Thank you.
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