Director of Public Prosecutions v Weribone
[2020] VCC 1675
•21 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
KOORI COURT DIVISION
Case No. CR-20-01081
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY WERIBONE |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 September 2020 | |
DATE OF SENTENCE: | 21 October 2020 | |
CASE MAY BE CITED AS: | DPP v Weribone | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1675 | |
REASONS FOR SENTENCE
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Subject: Criminal law – Sentencing
Catchwords: Attempted Armed robbery, possess drug of dependence (cannabis), contravene conduct condition of bail and commit an indictable offence whilst on bail – youthful offender – early plea of guilty – combination sentence imposed
Legislation Cited: Sentencing Act 1991
Cases Cited:Ryan v the Queen (2001) 206 CLR 267, Gulak v the Queen [2015] VSCA 300,The Queen v Steelie Morgan [2010] VSCA 14; Honeysett v The Queen (2018) 56 VR 375 DPP v Heyfron [2019] VSCA 130; R v Mills [1998] 4 VR 235; Bugmy v R (2013) 249 CLR 571; Boulton v The Queen (2014) 46 VR 308; Akoha v the Queen [2017] VSCA 214.
Sentence: Combination sentence imposed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Harrold | A Hogan, Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr B Nibbs | Valos Black & Associates |
HER HONOUR:
1 Anthony Weribone, you have pleaded guilty before me to one charge of attempted armed robbery, one charge of possess a drug of dependence (cannabis) and two related summary charges, being Summary Charge 4, contravene a conduct condition of bail and Summary Charge 6, commit an indictable offence, namely possess a drug of dependence, whilst on bail.
2 The offences are serious, and that is reflected in the maximum penalties that are prescribed by law and they are: 20 years’ imprisonment in respect of attempted armed robbery; possession of cannabis, 5 penalty units, and contravene condition of bail and commit indictable offence whilst on bail, 30 penalty units or 3 months’ imprisonment.
3 You have admitted your prior criminal history for offending that has occurred in NSW and Victoria. The appearances in the Children’s Court and Local Court NSW show a concerning pattern of offending over the years including, assaults, breach of AVO orders, aggravated burglary, theft, property and other offences.
4 Your past criminal history in Victoria spans the period from 30 October 2014 to 15 November 2019.
5 In Victoria, you have three appearances in the Children’s Court and one in the Mildura Magistrates’ Court. On 15 November 2019 you were convicted of robbery, unlawful assault and possess cannabis. You were ordered to serve a Community Corrections Order (‘CCO’) of 18 months duration, the purpose of which was, in part, to enable your attendance and participation at Wulgunggoo Ngalu Learning Place (‘WNLP’) in Yarram.
6 On 19 November 2019, after staying four nights, you voluntarily exited the WNLP program. You did not settle into the program so arrangements were made for you to transfer from Sale Community Correctional Services (CCS) to Mildura CCS.
7 You failed to report at Mildura CCS on 20 November 2019 as directed and therefore you were charged with contravention of the CCO imposed on 19 November 2019 on the basis that, without reasonable excuse, you failed to comply with the conditions of the CCO. The penalty for such offence is a maximum of three months’ imprisonment.
8 Your current offending forms part of a pattern of offending. That is not an aggravating feature and you are not to be punished twice for past offending, but the pattern is a concerning one that cannot be ignored.[1]
[1]Ryan v The Queen (2001) 206 CLR 267 at [67]; Gulak v The Queen [2015] VSCA 300 at [23].
9 The current indictment relates to offending that took place on 9 December 2019 during the currency of your CCO and that is an aggravating feature of the offending that also reflects poorly on your rehabilitation prospects.
10 In addition to the Indictable matters there are two Sentence only appeals before the Court.
11 The sentences were imposed at the Mildura Magistrates’ Court on 9 September 2020. On that date you were convicted and sentenced in relation to the contravention of the CCO and resentenced on the original charges as well as being dealt with for other separate offending that is detailed at the end of these reasons for sentence.
Indictment C2013374 and related summary charges
12 I shall now proceed to sentence you based on the Summary of Prosecution Opening a summary of which was read at the Sentencing Conversation.
13 The indicatable offences took place on Monday, 9 December 2019. At around 4.30pm you were with a group of four very young male friends riding bikes and scooters near the Mildura Wharf.
14 The victim, Eric Woulfe, who was then aged 14, was also present in the same area with some of his friends. They had caught the bus to the area to have a swim after school.
15 As Eric and his friends were starting to pack up to leave you walked over to the group. You spoke to one of the other boys initially and then called Eric away from the group to ask him if you could call someone on his phone. He said “no”. You asked him if the phone had credit and if it was protected by a password. He answered “yes” to both questions. You told him to get rid of his password on the phone. He refused to give you his phone.
16 You then unzipped a bumbag that you were wearing and pulled a flick knife out and said words to the effect, “give me your phone or I will stab you”. (Charge 1 – attempted armed robbery).
17 He refused your request and you put the knife back into your bumbag.
18 The victim was scared and walked back to his friends and told them what had happened. Eventually, the victim left the area and called his mother, Sally Woulfe in a panic. She rang 000 and then collected her son from nearby and took him straight to the police station to report the incident.
19 You were arrested the following day on 10 December 2019 and interviewed in the presence of an Independent Third Party.
20 You admitted that you were at the wharf with a group of friends on the day of the offending but denied responsibility for the attempted armed robbery. You told police that you had consumed two cups of port that afternoon but did not recall robbing anyone on the day of offending.
21 At the time of the offending, you were drinking heavily and couch surfing.
22 You told police that you were in a bad headspace as you were missing your mum, dad and your deceased brother. Whilst explaining your actions this does not excuse your behaviour.
23 You were charged and bailed at the filing hearing on 11 December 2019. You were required to reside at an address noted on your bail conditions and there was a non-association condition relating to named co-offenders.
24 Summary Charge 4, contravene a conduct condition of bail, is a rolled-up charge consisting of two instances of contravention. The first instance occurred on 6 January 2020 when police attended at the prescribed address set out in your bail conditions and they were told that you no longer lived at the address. The second instance occurred on 19 January 2020 when you associated with Liam Johnson (one of your co-accused) contrary to the non-association bail condition.
25 When you were apprehended police found a small quantity of cannabis in the bum bag being worn by you (Charge 2- possession of a drug of dependence).
26 You were arrested and charged for these offences on 10 December 2019. You were released on bail on 12 December 2019.
27 You were arrested again on 19 December 2019 and remanded in custody. You were formally interviewed and made full admissions to the possession of cannabis and breaching your bail conditions. You have remained in custody since that time.
28 Anthony Weribone your actions have had consequences. The prosecutor, Ms Harrold, read out Eric Woulfe’s Victim Impact Statement.
29 Eric is a young Aboriginal person. He states that notwithstanding the passage of time he remembers the incident and it still haunts him. Your actions have changed his life. He felt real terror when you pulled the knife on him and threatened to harm him. He was very hurt that a much older Aboriginal man would want to hurt him. His emotional and psychological scars are a constant reminder of what happened. He states that he does not wish for such thoughts to define his future.
30 Your offending is serious involving, as it does, the attempted armed robbery of a young child who was enjoying being with his friends in a public place where he is entitled to feel safe.
31 Your actions on this occasion, threatening Eric with the knife in order to rob him of his mobile phone, must be condemned.
32 Deterrence, denunciation and just punishment are important sentencing considerations.
33 In relation to the gravity of the offending, I am satisfied that this offence falls at the lower end of seriousness for this serious offence of attempted armed robbery. It was ill-conceived, impulsive and opportunistic offending.
34 The offence was fortunately of a short duration and it is also fortunate that you did not physically harm Eric. There is, however, always a chance that when you carry knives and wield them that potentially really bad consequences can flow. You must learn from your mistakes and take steps to avoid this sort of offending again in the future.
35 Mr Nibbs, on your behalf, confirmed in his written submissions that you do not have a specific memory of the attempted armed robbery but that you accept the evidence of your offending and you are ashamed of what you did. You realise that you caused significant fear in your victim and his friends and that you would like to change that, but you know that you cannot do so.
Koori Court Participation
36 You are 21 and were 20 at the time of the attempted armed robbery.
37 You are Aboriginal of Barkinji descent.
38 An important aspect of your case was that you consented to the matter being dealt with in the Koori Court Division.
39 The matter proceeded by way of a plea hearing in the Koori Court on 28 September 2020. This is your first appearance in the Koori Court Division.
40 You participated in a process that involves appearing before Elders and Respected Persons from the Koori community. The process is described as a “Sentencing Conversation”.
41 The Court of Appeal in Victoria has recognised that the "Sentencing Conversation" in the Koori Court is designed to further the reformation of an Aboriginal offender.[2]
[2]See The Queen v Steelie Morgan [2010] VSCA 14 at page 11.
42 The Sentencing Conversation took place with Aunty Ada Peterson and Uncle Mark Bland.
43 During the conversation you offered an apology to Eric Woulfe for your behaviour. You openly acknowledged that what you did was wrong.
44 You genuinely participated in the Sentencing Conversation and responded appropriately when both elders condemned your behaviour and challenged you about the need to commit to changing your behaviour. They encouraged you to focus on the future.
45 Both Uncle Mark Bland and Aunty Ada Peterson encouraged you to take up the many supports offered through Mallee District Aboriginal Services (MDAS) to assist you to remain drug free and to seek counselling and support to deal with all the complex traumas that you have experienced.
46 They recommended that you obtain a health assessment and incorporate regular mental health support and drug and alcohol treatment to assist you with your healing.
Mitigating factors
47 Your genuine participation in the Sentencing Conversation is a factor that mitigates punishment and that has been recognised by the Court of Appeal in Victoria.[3]
[3]See The Queen v Steelie Morgan [2010] VSCA 14 at [11], confirmed in Honeysett v The Queen (2018) 56 VR 375 and DPP v Heyfron [2019] VSCA 130.
48 There has been some delay in your matter proceeding. The committal mention was adjourned twice due to the impact of COVID-19 restrictions. You eventually indicated a plea of guilty to these matters on 4 September 2020 when the matter was booked for a committal hearing.
49 The matter proceeded by way of straight hand-up brief. No witnesses were called to give evidence. It is accepted by the prosecution that the plea was entered at the earliest stage in the proceeding.
50 One unfortunate consequence was that you were transported from Melbourne to Mildura for the committal by the authorities notwithstanding the committal hearing was to be conducted via video link. This meant that you were transported unnecessarily and had to spend a week in police cells in Mildura before being transported back to Melbourne. I accept that was very disruptive and placed an additional burden on you.
51 I have had regard to your personal history and background.
52 The report of Elizabeth Treston, Consultant Forensic Psychologist, dated 27 September 2020 was tendered and it sets out in detail your complex family and trauma history.
53 You are a fragile and vulnerable young man. You have attempted self harm on a few occasions in the past. You are currently single with no dependents. You do have a three-year-old daughter who is cared for by her mother from whom you are estranged. They live in Sydney and you have had no contact with your daughter for some time.
54 Ms Treston raises the possibility of foetal alcohol syndrome disorder (‘FAS-D’) but states that further testing would be required to confirm this diagnosis. She recommends further assessment to determine your cognitive and intellectual functioning.
55 She documents depression and states that you told her that you have an intellectual disability, but you do not know the diagnosis. You have also been diagnosed with ADHD.
56 She diagnosed symptoms consistent with Post-Traumatic Stress Disorder (‘PTSD’) related to your extremely difficult childhood and death of your mother, your father’s abuse and lack of stability and support in your formative years. She also confirmed Stimulant Use Disorder, ADHD, and symptoms consistent with anxiety and depression.
57 Overall, she considered that you have poorly thought through behaviours with impaired impulse control, an inability to rationalise, or consider alternative responses, or take into consideration the feelings of others. This subsequently impacts your decision-making ability without consideration of the consequences.
58 Ms Treston noted your desire to want to change aspects of your cannabis and ice addictions however she states that you do not have the psychological tools to be able to do this.
59 She recommends a full neuropsychological assessment, referral to a psychiatrist for treatment for the ADHD and counselling to address your complex trauma history.
60 You were born in Queensland and are the third child of seven children. You have three younger sisters and had three brothers, two older and one younger brother. Sadly, one of your older brothers died from a heroin overdose the week prior to the attempted armed robbery.
61 Since being on remand you have been able to speak to your siblings most days. You enjoy a good relationship with your sisters who live at home with their grandmother.
62 Tragically, your mother died when you were aged 14 and you have no connection to your father who subjected you to extensive physical, sexual and emotional abuse as a young child up to the age of four.
63 The Department of Child Safety (‘DOCS’) NSW were involved and you, your siblings and mother were removed from the situation that was occurring between your parents and you came to live in Victoria where your mother has relatives and extended family.
64 You were very close to your mother and you were living with her when she died. You woke to find her dead in bed, and her death has been very difficult for you to bear. It has affected you deeply.
65 As a result of your mother’s death you were placed in foster care with Uncle Geoff and Aunty Leah Hunt and lived with them and their extended family in Gol Gol.
66 They are Aboriginal and are very connected to the Aboriginal community and Aboriginal cultural heritage. They have for many years cared for many Aboriginal children as foster carers. You remain close to them but cannot live with them.
67 You have little by way of formal education. There were difficulties experienced during your education and you were expelled from your local high school during Year 9 due to your disruptive behaviour.
68 You have a chronic drug and alcohol history. You began to use cannabis initially with your mother and, after her death, you continued using and then started to use Ice as well. You used drugs to assuage your grief and have continued to use substances to cope.
69 Over the years you have struggled with your addictions and there has been some attempts made for you to try and deal with those addictions. In the past you have had support through Terry Brennan, AOD Counsellor at MDAS and Gerald Purchase, psychologist, Mildura.
70 You understand the connection between using drugs and offending and have expressed a strong desire to remain drug free.
71 You intend to live with your older brother, Richard, in Mildura on your eventual release. He has recently returned to live in Mildura with his family. You do have some community support in Mildura and can connect with the culturally supportive programs offered by MDAS on your release.
72 Whilst in prison, you have been doing some artwork and you are keen to make a better connection to your culture on your release. Aunty Ada made suggestions to you about connecting with Uncle Peter Peterson, a highly respected Elder in Mildura, who could guide you concerning your culture.
73 You had a job assisting a bricklayer just prior to your arrest and you believe that you still have prospects for re-employment for the future.
74 You were receiving a Disability Support Pension at the time of your arrest.
75 In sentencing you, I have had regard to your background and circumstances. You are a person who has experienced significant traumas and disadvantage throughout your formative years. I accept that the circumstances of your deprivation, the significant and traumatic abuse and other social disadvantages you have experienced during your formative years have been profound and that impact has not diminished with the passage of time and repeat offending.
76 I have applied the principles of Bugmy.[4] The High Court recognised that:
“because the effects of profound deprivation do not diminish over time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision.”[5]
[4]Bugmy v The Queen [2013] HCA 37,[40],[43] –[44]
[5]Ibid, paragraph 42
77 I have reduced your moral culpability and have given full weight to your deprived background in formulating the appropriate sentence.
78 I am satisfied that your chronic substance abuse is in large part related to your past traumas and your inability to cope and that also gives context to and explains your past pattern of offending.
79 You are still a relatively young man and are a young offender under the Sentencing Act 1991. The principles of R v Mills[6] apply and therefore significant weight is placed on your rehabilitation.
[6][1998] 4 VR 235
80 Overall, I consider that your prospects of rehabilitation are somewhat guarded however, given your current level of insight, appropriate expressions of remorse, and acceptance of responsibility for your wrongdoing there is some cause for optimism.
81 Those prospects are dependent on you engaging in appropriate treatment upon your release and you need to take up all the good supports that are available in the community to make good your expressed intention to remain drug free.
82 You are a vulnerable person within the jail system and your successful rehabilitation is in the community’s interest. Prolonged exposure to negative adult peer influences in adult custody does have the real potential to impact adversely upon your rehabilitation prospects.
83 In formulating the appropriate sentence, I have had regard to all the matters put in mitigation including your role in the sentencing conversation.
84 Your plea of guilty entered at the earliest opportunity has real utility and is reflective of an acceptance of responsibility on your part. You have spared the State the cost and expense of a trial and importantly spared the young victim the trauma of having to relive his experiences. You have facilitated justice and your sentence will be discounted accordingly.
85 The utilitarian effect of the plea is a significant and relevant mitigating factor particularly in the context of the pandemic taking into account the difficulties of running trials and compelling witnesses to give evidence.
86 You have progressed well whilst in custody. You are drug free and clear headed. You show insight into your offending behaviour. You acknowledge the link between offending and abusing drugs and mixing with negative peers. You have committed to engage appropriately with further programs directed at addressing your underlying offending behaviour.
87 I accept that the plea is indicative of genuine remorse.
88 I have had regard to the circumstances in which you have been held following the declaration of the COVID-19 pandemic. This is longest period that you have been held in adult custody. There have been very real impacts for you following the implementation of restrictions in response to the pandemic. Programs have been impacted and you have been denied personal visits. You have spent long hours isolated in your cell and you have found that experience difficult. The situation is particularly difficult for you being so young and being so far removed from your usual community and supports.
89 It is accepted that the impact of COVID-19 is causing additional stress and concern for prisoners and their families.
90 Mr Nibbs sought an order that combined time served to be followed by a Community Correction Order fashioned to address your underlying offending behaviour.
91 Ms Harrold, the prosecutor, agreed with the matters put in mitigation and emphasised the significant importance of rehabilitation noting your young age and antecedents. In all the circumstances, she agreed that a sentence that combines time spent in custody to be followed by a Community Correction Order would be an appropriate disposition. The question of how much time to be served is a matter for the Court.
92 As was made clear in the guideline judgment of Boulton,[7] in an appropriate case, a Community Correction Order does provide a flexible sentencing option, enabling both punishment and rehabilitation purposes to be served together.
[7]Boulton v The Queen (2014) 46 VR 308.
93 A Community Correction Order can be fashioned to address your circumstances, the causes of offending and minimise the risk of reoffending by promoting your rehabilitation. Although, as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, the Court of Appeal has said a Community Correction Order may remain open even in cases of very serious offending.[8]
[8]Ibid, 338 [131].
94 I have had regard to the principles that apply to the sentencing of youthful offenders and, ultimately, I have concluded that all the relevant objectives such as general and specific deterrence, denunciation, just punishment, protection of the community and your rehabilitation can be best served by the imposition of a gaol term to be followed by a Community Correction Order.
95 The court has received a favourable report as to your suitability for a CCO. In addition to the core conditions, I accept the recommendations that your order contain conditions of supervision, treatment and rehabilitation for alcohol and drugs, mental health and offender behaviour programs.
96 I am impressed that you have adopted a more mature approach to the imposition of a CCO as evidenced by your discussion with Paul Sguerzi, the assessing officer, as set out in his report dated 6 October 2020.
97 You have had the conditions of the CCO explained and have verbally consented to the making of the order in the terms proposed. Your consent will be entered into the records of the court.
98 You further have been advised what will happen if you contravene the order. You will face a penalty of up the 3 months imprisonment for the contravention and would likely be resentenced on these charges.
99 In sentencing you I must impose just punishment. I have had regard to the principles of totality. I have also taken into account the 40 days that you served in respect to AP-20-1146 that represents Renzella time.
100 The formal court orders are as follows.
101 On the one charge of attempted armed robbery and two related summary charges, being Summary Charge 4, contravene conduct condition of bail and Summary Charge 6, commit indictable offence whilst on bail, you will be convicted and sentenced to serve 285 days to be followed by a 12 months’ Community Correction Order with the terms that I have described. That is, supervision, treatment and rehabilitation including testing for drug abuse or dependency, mental health and/or offending behaviour programs with the judicial monitoring.
102 Judicial Monitoring will take place on Wednesday, 3 February 2021 at 10 am. You will be permitted to appear via video link via the Mildura Courthouse or the Mildura Community Corrections Office.
103 In respect to Charge 2, possess drug of dependence, you will be convicted and discharged.
104 I make the following s6AAA Sentencing Act 1991 declaration, but for your plea of guilty, I would have imposed a term of imprisonment of 15 months to serve 9 months.
105 You have served 279 days pre-sentence detention and I direct that that be entered into the records of the court.
106 I turn now to the two sentence only appeals.
Appeal 20-1145
107 This is an appeal against sentence imposed by the Mildura Magistrates Court on 9 September 2020 in respect to five summary charges.
108 Where the Informant is Lamba, it relates to offending that occurred on 17 January 2020, and comprises Summary Charge 2 - throw missile to danger of a person and Summary Charge 3 - wilful damage to property.
109 Shaniqua Kirby-Wightman, a friend, is the victim. You attended at her home address in Mildura at approximately 10.30am and asked her for a cigarette. She let you in and gave you a cigarette. You became angry with her about something she said. You grabbed a ceramic bowl and threw it at the wall. Shaniqua was scared and uncomfortable following your aggressive behaviour and left the room. Whilst she was walking out you threw a ceramic cup at her causing the cup to smash.
110 Shaniqua went and told an uncle what had happened and asked him to intervene. Meanwhile you ran away from the house.
111 You were arrested on 19 January 2020 and made a “no comment” response to questions asked concerning this incident.
112 Where the Informant is Saunders it relates to offending on 2 September 2019. It comprises Summary Charge 4 - handling stolen goods, Summary Charge 5 obtain property by deception and Summary Charge 6 attempt to commit indictable offence (‘OPBD’).
113 The circumstances of this offending are that you used a stolen credit card to purchase a packet of cigarettes (value $38.75) from Cappy’s Corner Store and then you tried to purchase more cigarettes, but you were not successful. You were identified from CCTV footage that captured the transactions. You were arrested but made no admissions. It is accepted by the Prosecution that you did not steal the credit card, rather, it is your use that constitutes the criminality for which you must be sentenced.
114 You were convicted of all charges and sentenced to an aggregate sentence of seven days’ imprisonment with 7 days pre-sentence detention declared. The Magistrate ordered that 7 days was cumulative upon the sentence imposed on AP-20-1146.
Appeal 20-1146
115 This appeal concerns the contravention of the Community Corrections Order that was imposed at the Mildura Magistrates Court on 15 November 2019. You were convicted and ordered to serve 30 days imprisonment to be followed by a Community Corrections Order in relation to one charge of robbery, one charge of unlawful assault and possess cannabis.
116 The order was for 18 months duration and had special conditions of 100 hours unpaid community work, supervision and treatment for drug addiction and mental health. This was your first attempt at such an order.
117 You commenced the order on your release from prison after you had served a total of 40 days imprisonment.
118 Apart from attending Wulgungoo Ngalu Learning Place (WNLP) for 4 days you did not comply with the conditions of your order.
119 The contravention report dated 3 December 2019 recommends that the order be cancelled and that you be resentenced on the original offences.
120 The offending took place on 6 October 2019 at approximately 3.10pm. You approached the victims, Max Hilton-Wood (aged 13) and Seth Hilton-Wood (aged 10) who were walking together along the street. You asked them what the time was and then you stopped and said, “have you got any money in your pockets?” and “empty your pockets right now”. One of the boys gave you $35 and then they both ran away from you. They told their father what had happened, and police were informed. You were arrested shortly thereafter and when arrested police found a small quantity of cannabis in a satchel that you were wearing.
121 You made full admissions when interviewed by police about this offending.
122 You were remanded in respect to this offending on 6 October 2019.
123 The contravention was by way of non-compliance in that you left WNLP and did not report to Mildura CCS as directed on 20 November 2019 and thereafter completely disengaged from the order. You did not therefore fulfil any of your obligations under the order.
124 The contravention was admitted as well as the terms of the contravention report.
125 You were arrested on the 13 December 2019 in respect to the contravention of the CCO.
126 On the 9 September 2020 the contravention was found proven and the CCO was cancelled and you were sentenced to 10 days imprisonment for the contravention offence.
127 The Community Correction Order was cancelled, and new orders were made on the original offences. You were convicted and sentenced to an aggregate sentence of 20 days imprisonment for the robbery and unlawful assault and convicted and discharged for the possess cannabis charge.
128 The total sentence for this appeal is therefore 30 days imprisonment and 30 days pre-sentence detention was declared.
129 The overall sentence for both appeals is therefore 37 days.
130 In formulating a just sentence in respect to the matters the subject of the Appeals I have had regard to your pleas of guilty entered at an early stage. There is real utility in those pleas and your sentence is discounted accordingly.
131 I have also had regard to your history and background as detailed earlier in these remarks.
132 You were and remain a vulnerable, young Aboriginal man who has a complex history of trauma with chronic drug and alcohol addictions. I have had regard to the time that you spent at WNLP. The conditions at WNLP are quite strict, with no town visits, no visitors, no mobile phones, and your ongoing involvement being dictated by your positive participation in the various programs.
133 Given those conditions, I have taken into account the 4 days that you spent there into account in accordance with the principles enunciated in a case called Akoha.[9]
[9]Akoha v The Queen [2017] VSCA 214
134 Given your complex history and background I consider that every effort should be made to address your underlying offender behaviours through the provision of culturally appropriate programs such as those offered through Mallee and District Aboriginal Services such as the program offered at the Wimpatja Healing Centre.
135 I set aside the orders made by the Mildura Magistrates Court made on 5 September 2020 in respect to both Appeals and make the following orders -:
Appeal 20-1145
136 Informant Lamba - offending on 17 January 2020 - Summary Charge 2 - throw missile to danger of a person and Summary Charge 3 - wilful damage to property.
137 Informant Saunders - offending on 2 September 2019 - Summary Charge 4 - handling stolen goods, Summary Charge 5 obtain property by deception and Summary Charge 6 attempt to commit indictable offence (OPBD).
138 You will be convicted in respect to each charge and released on an adjourned undertaking for 6 months from today’s date.
139 You understand and agree to the adjourned undertaking. Your verbal consent has been recorded.
Appeal 20-1146
140 This appeal concerns the contravention of the Community Corrections Order that was imposed at the Mildura Magistrates Court on 15 November 2019. You were convicted and ordered to serve 30 days imprisonment to be followed by a Community Corrections Order in relation to one charge of robbery, one charge of unlawful assault and possess cannabis.
141 I find the contravention proved and take no further action.
142 I otherwise confirm the original order.
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