Director of Public Prosecutions v Weribone

[2022] VCC 1845

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00651

DIRECTOR OF PUBLIC PROSECUTIONS

v

Anthony WERIBONE

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JUDGE:	His Honour Judge Cahill
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2022
DATE OF SENTENCE:	23 November 2022
CASE MAY BE CITED AS:	DPP v Weribone
MEDIUM NEUTRAL CITATION:	[2022] VCC 1845

REASONS FOR SENTENCE
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Subject:Attempted Armed Robbery – Theft

Catchwords:              Guilty plea – low-end offending – early plea – relatively young aboriginal offender – sentencing conversation - childhood deprivation – intellectual disability – relevant criminal history – risk of prisonisation

Legislation Cited:      Disability Act 2006 (Vic)

Cases Cited:DPP v Myles Truman (a pseudonym) [2021] VCC 2023; R v Steelie Morgan [2010] VSCA 14; R v Mills (1998) 4 VR 235; Bugmy v R (2013) 249 CLR 571; Muldrock v R (2011) 244 CLR 120; Ryan v the Queen (2001) 206 CLR 267; Gulak v The Queen [2015] VSCA 300; Worboyes v The Queen [2021] VSCA 169; Bugmy (2013) 249 CLR 571; Muldrock v R (2011) 281 ALR 652; R v Verdins (2007) 16 VR 269; Honeysett (2018) 56 VR 375; Heyfron [2019] VSCA 130; Morgan [2010] VSCA 14; R v Mills (1998) 4 VR 235; DPP v Weribone [2020] VCC 1675

Sentence:                  Aggregate sentence of 12 months’ imprisonment with an 18 month Community Corrections Order with justice plan attached

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J Fallar and Ms E Dane	Office of Public Prosecutions
For the Accused	Ms J Ball	Martin Middleton & Oats Lawyers

HIS HONOUR:

1Anthony Weribone, you have pleaded guilty to:

(a)   one charge of Attempted Armed Robbery (Charge 1); and

(b)   one unrelated charge of Theft (Charge 2).

Circumstances of offending

2The circumstances of your offending are set out in the Summary of Prosecution Opening.[1]

[1] Exhibit A: Summary of Prosecution Opening on Plea dated 22 June 2021.

3Around 4:00 AM on 29 January 2022, Jonty Wilson, stopped his motorcycle at San Mateo Drive, Mildura. He was standing at the kerb in front of his bike, waiting for the engine to warm up, with its headlight on, when you rode up to him on a bicycle.

4“Safe Streets” CCTV cameras captured the movements and voices of Mr Wilson and you.[2]

[2] Exhibit B: Safe Streets CCTV Footage.

5It shows you stopping on the footpath. He was standing on the roadway, next to his motorcycle which was between him and you. You spoke to him for a minute or two and then produced a box cutter. When you did, he quickly stepped backwards away from you and behind an adjacent motorcar car.

6You remained on your bicycle on the footpath. You said, “I’m sorry I have to do this to ya… I’m scattering out… Pass your smokes bro and any money you got brother.”[3]

[3] Exhibit A: Summary of Prosecution Opening on Plea dated 22 June 2021, p.2.

7When he told you he did not have any cash but had cigarettes, you told him you needed money because you were homeless and said, threateningly, “[t]he last person… I stabbed bro, straight out.”[4]

[4] Ibid.

8You then put the box cutter back in your pocket and said, “ I don’t want to hurt you, bro”.[5] Mr Wilson responded “[y]eah, I  know” and stepped toward you and handed you a cigarette across his motorbike.[6] He also gave you his lighter and you lit the cigarette. After you did that, you gave the lighter back to him. Before you rode off you said, “[d]on’t call the police or I’ll come for you cuz” (Charge 1 – Attempted Armed Robbery).[7]

[5] Ibid.

[6] Ibid.

[7] Ibid, p.3.

9Mr Wilson got on his motorbike and left the area before calling police.

10On 31 January 2022, you stole a bicycle which was leaning against the front of a house in Pearl Avenue Mildura (Charge 2 – Theft).

11On 2 February 2022, police arrested you at a flat at San Mateo Avenue, Mildura. The stolen bicycle was outside the house.

12When police questioned you, you admitted you spoke to Mr Wilson on 29 January 2022. You said you asked him for a cigarette. You denied the offending.

13You said you struggled to remember the incident as you had consumed “a handful of Xannies” and were “pilled off [your] face”.[8]

[8] Record of Interview, Q&A 50-56.

14You admitted you stole the bike. You said you could not “be bothered walking any more” after consuming “a fair bit” of alcohol with friends.[9]

[9] Record of Interview, Q&A 27-37.       

15You were charged with attempted armed robbery and theft  and remanded in custody.

16At a committal mention, you pleaded guilty to the two charges.

Criminal history

17You have admitted an extensive criminal history.

18You have appeared in the Children’s Court and Local Courts in New South Wales a number of times, between 2015 and 2018, for property, theft, assault and bail offences.

19More relevantly, you have one prior conviction for robbery and two prior convictions for attempted armed robbery.

20On 15 November 2019, at the Mildura Magistrates’ Court, you were convicted of robbery and unlawful assault and sentenced to an 18-month Community Correction Order (‘CCO’).

21On 21 October 2020, in this Court, you were sentenced to 285 days’ imprisonment and a 12-month CCO for attempted armed robbery and bail offences[10].

[10] DPP v Anthony Weribone [2020] VCC 1675 (Her Honour Judge Lawson).

22On 13 December 2021 you were sentenced to 9 months’ imprisonment with a 12-month CCO for an attempted armed robbery and a bail offence.[11]

[11] DPP v Myles Truman (a pseudonym) [2021] VCC 2023 (Her Honour Judge Lawson).

23You were released from prison on 31 December 2021.

24The index offending breaches the CCO.

25You had previously breached the CCO imposed in 2019 and the CCO imposed in 2020 by further offending.

Personal circumstances

26You were born in May 1999 in Queensland. You were 22 years old when you offended. You are now 23.

27You are a Barkindji man and the middle child of 7.

28You have three younger sisters and three brothers; only two of them survive. An older brother died from a heroin overdose in December 2020.

29You have a difficult history of childhood trauma.

30Your father had a history of drug addiction. He physically and sexually abused you when were a child. When you were 4 years old the NSW Department of Child Safety removed your siblings and you from his care. Your mother brought you to Victoria where she had family networks. You have not spoken to your father since.

31You were close to your mother.

32When were 14 years old, she died from cancer. You found her body at home.

33Left without parents, you were placed in the care of foster parents, Uncle Geoff and Auntie Leah Hunt, at Gol Gol. They are very connected to the aboriginal community and cultural heritage. For many years they have cared for many aboriginal children.

34Auntie Leah supported you at court and spoke in the sentencing conversation.

35You struggled at school and were disruptive.

36In July 2013, when you were in Year 7 at Mildura Christian College, a psychologist, Wendy Leane, assessed you with an intellectual disability.[12]

[12] Exhibit 4: Psychological report of Wendy Leane dated 26 July 2013.

37On 1 December 2014, you were issued with a statement of intellectual disability, within the meaning of the Disability Act 2006 (Vic), on the grounds you have:

(a)   significant subaverage general intellectual functioning; and

(b)   significant deficits in adaptive behaviour.

which became manifest in your childhood.[13]

[13] Statement of Intellectual Disability dated 13 December 2021.

38You have a chronic drug and alcohol history.

39When you were 12 or 13 years old, you started smoking cannabis with your mother. After her death, you started to use ice, as well, to deal with your grief.

40You have never worked for any meaningful period of time. The disability support pension is your primary income.

41You have two children from different relationships. You do not see your 5-year-old daughter who lives with her mother in Sydney. You have some contact with your 6-month-old son and his mother.

Psychological opinions

42Elizabeth Treston, a forensic psychologist, assessed you on 19 September 2020.[14]

[14] Exhibit 2: Psychological report of Elizabeth Treston dated 27 September 2020.

43In her opinion, you suffer Post-Traumatic Stress Disorder (‘PTSD’) which is the effect of the complex trauma of your childhood.

44She also diagnosed you with stimulant use disorder characterised by a pattern of self-medication with illicit drugs.[15]

[15] Ibid.

45Dr Linda Borg, a neuropsychologist, assessed you on 5 November 2021.[16]

[16] Exhibit 3: Neuropsychological report of Dr Linda Borg dated 15 November 2021.

46She agreed with Ms Treston’s diagnoses of PTSD and stimulant use disorder.

47Additionally, in her opinion, because of your exposure to traumatic events during your formative years, you have developed a borderline personality disorder:

which significantly influences your thinking and behaviour: resulting in a tendency for suicidal behaviours, as well as a tendency for reactive and impulsive action particularly under situations of stress/perceived loss of control/heighten agitation.[17]

[17] Ibid, [37] and [38].

48She concluded your:

substance use, poor cognitive and emotional coping mechanism and entrenched maladaptive personality features… are likely to have been contributors [to your] offending.[18]

[18] Ibid, [38].

49In relation to your offending, you told Dr Borg you were sorry you had scared your victim. You said you felt some regret but could not make clear why.[19] In her opinion, your low intelligence could explain a limited capacity for insight and remorse.[20]

[19] Ibid, [17].

[20] Ibid, [31].

50You told Dr Borg you intended not to reoffend, that your “mindset” has changed and you are telling yourself you are “going to do good this time”.[21]

[21] Ibid, [18].

51At the same time, you told her prison is “all right”. You were in two minds about the prospect of an extended prison term.[22]

[22] Ibid, [19].

Sentencing conversation

52In a conversation with two elders,[23] you said, not for the first time,[24] you offended to go back to prison because it was somewhere to sleep and to “get a feed”.

[23] Uncle Warren Clarke and Uncle Andrew Arden.

[24] Exhibit 2: Psychological report of Elizabeth Treston dated 27 September 2020, [91].

53You said to the elders it was hard for you to identify with your culture or who you are. You said you wanted to be proud of it culture and you have enjoyed the prison Koori arts program.[25]

[25] The object of the sentencing conversation is to advance the reformation of an aboriginal offender. See R v Steelie Morgan [2010] VSCA 14, p.11.

54You agreed you need to break your cycle of offending and imprisonment. You acknowledged, when you take illegal drugs, you are a risk of committing crimes.

55You were supported by Aunty Leah, who said you have always been always kind and respectful but you are a different person when on ice.

Defence Submissions

56Ms Ball, who appeared on your behalf, in written and oral submissions, acknowledged the undoubted fear you put your victim in.[26]

[26] Exhibit 1: Defence Outline of Plea Submissions dated 30 August 2022.

57She conceded your offending is aggravated because you were subject to a CCO at the time.

58She submitted, considering your actions were spontaneous and non-violent, but nevertheless threatening, your offending falls in the lower range of seriousness.

59In mitigation of your penalty, she relied on:

(a)   your early guilty plea for its high utilitarian value;

(b)   your Koori Court engagement;[27]

(c)   your relative youth;[28]

(d)   your traumatic and dysfunctional childhood[29] and intellectual disability[30] to moderate your moral culpability.

[27] R v Steelie Morgan [2010] VSCA 14.

[28] R v Mills (1998) 4 VR 235, p.241.

[29] Bugmy v R (2013) 249 CLR 571, [44].

[30] Muldrock v R (2011) 244 CLR 120.

60She submitted, to best protect the community and to address your risk of institutionalisation, I should impose a composite sentence of imprisonment with a therapeutic CCO to promote your rehabilitation.

Prosecution Submissions

61Counsel for the prosecution,[31] in written[32] and oral submissions, fairly acknowledged:

(a)   your offending is a low-end example of a very serious offence;

(b)   your guilty plea was made early and has high utilitarian value;

(c)   your background of disadvantage and intellectual disability moderate your moral culpability; and

(d)   because you are a relatively young offender, your rehabilitation is important.

[31] Ms J Fallar (2 September 2022) and  Ms E Dane (23 November 2022).

[32] Exhibit A: Summary of Prosecution Opening on Plea dated 22 June 2021.

62The prosecution submissions referred to concerning aspects of your offending, namely:

(a)   your index offending, on 29 January 2022, is a repetition of your offending on 9 December 2019 and 8 March 2021;

(b)   you were subject to a CCO each time; and

(c)   you have built an extensive criminal history in a comparatively short time.

63The prosecution submission was a term of imprisonment is warranted and, to reduce the risk of your reoffending, a sentence with supervision, either under parole or by a CCO, is  required.

Presentence assessment and disability overview report

64To enable me to consider sentencing options, I  obtained an extended presentence  assessment[33]  and  disability overview report.[34]

[33] Extended Pre-sentence Assessment – Outcome Report dated October 2022.

[34] Disability Overview Report dated 18 October 2022; Justice Plan dated 18 October 2022.

65You seemed unwilling to talk to either the Community Corrections Services Officer or Disability Justice Officer who interviewed you.

66Unsurprisingly, considering your failure to engage with three previous CCOs, you were assessed as unsuitable for another.

67The Community Corrections Services Officer, Glenn Bellini, reported, in the past, you have relapsed into further offending, after your release from prison, before programs could be made available and despite attempts to help you to change your behaviour.

68The Disability Justice Coordinator, Elizabeth Ellis, recommended the Forensic Disability Program for you to reduce the likelihood of your reoffending.

69Ms Ellis reported you are now a National Disability Insurance Services (‘NDIS’) participant with a current funding plan coordinated by Sarah Hayden.

70Helpfully, Mr Bellini, Ms Ellis and Ms Hayden all appeared at the plea hearing.

71Under a Justice Plan, you can access specialised offender related programs including an “Ambivalence Towards Change” course.

72Community Corrections Services can provide drug and alcohol intervention through ACSO COATS.

73Through the NDIS, you can access therapeutic counselling.

74When you offended earlier this year, you were homeless. Ms Hayden is working to obtain a place for you at the Wiimpatja Healing Centre residential rehabilitation program, at Warrakoo Station, when you are released from prison.

Consideration

75Your offending is serious.

76Your victim was scared of you. When you produced the box cutter, he quickly backed away to put a parked car and a distance between the 2 of you. He had stopped his motorbike to warm the engine before he rode to his home about half an hour away. While he waited, he was entitled to feel safe and not be intimidated by you.

77You were on the streets riding a pushbike. You did not point the box cutter at him. You said you were sorry but nevertheless demanded his cigarettes and money. And threatened him. When you saw he was anxious you said you did not want to hurt him. He gave you a cigarette and his lighter. You took them and returned the lighter to him before you rode off.

78Your actions were not planned. They were impulsive. Your threatening behaviour was short-lived. You did not physically harm your victim.

79I accept your crime as a low-end example of the offence of attempted armed robbery.

80Your criminal history is disturbing.

81This offending is a repetition of two other similar episodes when you were sentenced to a combined sentence of imprisonment and a CCO.

82On each occasion, you reoffended shortly after your release from jail. Jail has not discouraged you from committing further crimes. This pattern of wrongdoing cannot be ignored.[35]

[35] Ryan v the Queen (2001) 206 CLR 267, [67]; Gulak v The Queen [2015] VSCA 300, [23].

83The seriousness of your crime requires me to impose another prison term.

84There are a number of factors which I take into account to reduce your sentence.

85Firstly you are entitled to a significant sentencing discount to your early guilty plea.[36]

[36] Worboyes v The Queen [2021] VSCA 169.

86Secondly, your disadvantaged background[37] and intellectual disability[38] , moderate your moral culpability.

[37] Bugmy (2013) 249 CLR 571.

[38] Muldrock v R (2011) 281 ALR 652.

87Your intellectual disability is also relevant to reduce the weight given to deterrence as the purpose of sentencing and to the type of sentence I should impose on you[39].

[39] R v Verdins (2007) 16 VR 269.

88Thirdly, although this is not the first time you have agreed to have your case heard in the Koori Division, I do not lose sight of your participation in the sentencing conversation.[40] You are to be given credit for allowing yourself to be challenged by the elders and not “hiding behind” your barrister in the plea hearing.

[40] Honeysett (2018) 56 VR 375; Heyfron [2019] VSCA 130; Morgan [2010] VSCA 14, [33]-[40].

89Fourthly, you are still relatively young. Your rehabilitation is a very important sentencing consideration.[41]

[41] R v Mills (1998) 4 VR 235.

90Now, and in 2020,[42] you said you offended because you were homeless and jail would put a roof over your head. The prison environment for you is “all right”.

[42] DPP v Weribone [2020] VCC 1675 (Her Honour Judge Lawson).

91Prison can harmfully shape and transform people. There is a risk a person gradually becomes less able to think and act independently because of having lived for a long time under prison rules.

92I have tailored your sentence, in two ways, to reduce your risk of prisonisation.

93Firstly, I will impose a lesser prison term.

94And, secondly, I will combine your prison sentence with a CCO which has a justice plan attached. The plan will give you access to specialised programs.

95While I must be guarded about your prospects of rehabilitation, the services which will be available to you, particularly residential rehabilitation upon your release, give me some optimism you can break the cycle of reoffending.

96Mr Weribone, please stand.

97By the sentence I impose I must denounce your conduct, punish you, and deter you, and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.

98Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charges of attempted armed robbery (Charge 1), and theft (Charge 2), you are sentenced to a term of imprisonment of 12 months with an 18-month CCO.

99Your presentence detention is 296 days.

100The CCO will commence upon your release from prison in approximately 2 months’ time.

101In accordance with Mr Bellini’s recommendations, I attach the following special conditions:

(a)   supervision;

(b)   justice plan;

(c)   drug and alcohol treatment; and

(d)   mental health treatment.

102Again, in accordance with Mr Bellini’s recommendation, the duration of the order will be 18 months.

103To reduce the risk of reoffending, it is very important you have somewhere to live when you are released from prison.

104To monitor your progress, at least in the early stages of your CCO, I direct you attend this court for judicial review on 14 February 2023 at 9:15 AM.

105While there is some artificiality to the process, I declare, but for your plea of guilty I would have sentenced you 20 months’ imprisonment and fixed a minimum non-parole period of 12 months.