Director of Public Prosecutions v Wetzel
[2020] VCC 1934
•3 December 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-00704
Indictment No: L10249473.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GEOFF WETZEL |
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| JUDGE: | HER HONOUR JUDGE CARLIN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 November 2020 |
| DATE OF SENTENCE: | 3 December 2020 |
| CASE MAY BE CITED AS: | DPP v Wetzel |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1934 |
REASONS FOR SENTENCE
---Subject: Criminal Law
Catchwords: Armed Robbery; low level obtain property by deception; armed robbery planned; soft target; offender low cognitive functioning; excessive drug use from young age; moral culpability high; access to NDIS support on release from prison
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic)
Sentence: Four years, one month imprisonment with a non parole period of two years and eight months. 6AAA six years four months with non-parole period of four years and 10 months---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Harrold | Office of Public Prosecutions |
| For the Accused | Ms P. Smith | Emma Turnbull Lawyers |
HER HONOUR:
Introduction
Geoff Wetzel at approximately 7.20pm on 21 January this year you walked into the Ikonic Hair Studio in Ballarat East. You had on black sunglasses, a black hoodie and a mouth covering and were carrying a small kitchen knife. Hairdressers, Georgia CHRYSTIE, Jacqueline CAREY and Tamieka CHEW, were standing at the front counter when you walked in and Ms Christie was counting money. You waved the knife around and pointed it at Ms Christie saying “give us the money”. She gave you a container of coins, but you demanded all of the money and grabbed notes from the counter and a set of keys before running out the door. All up you took something in the order of $200.
Your identification came about mainly as a result of other crimes you had committed nine days before. That is, in the early hours of the morning on 12 January this year you used a stolen NAB debit card at three different service stations in and around Ballarat to buy fuel and cigarettes. You also used it to buy phone credit. Two of the service stations had CCTV cameras which captured you and the car you were driving, a blue Ford Futura (OVS457). This car belonged to your cousin’s father, with whom you were living at the time.
Shortly after the armed robbery a man wearing a black hoody and black hat and carrying something that sounded like rattling coins was seen running and getting into the passenger seat of a blue late model Ford which then drove off quickly.
Police investigators studied CCTV footage from the hair dressing salon and noticed a blue Ford Futura (OVS457) driving past the salon at 5.20pm and 7.07pm. You could be seen in the passenger seat at 5.20pm, although your identity was not then known.
After the CCTV footage from the hair dressing salon was disseminated within the police station an officer recognised the blue Ford Futura from the service station CCTV footage and identified you.
You were arrested and interviewed on 30 January 2020. You admitted using the stolen NAB bank card on 12 January but, notwithstanding the fact you produced from your pockets the set of keys taken from the hair dressing salon, you denied involvement in the armed robbery. You were remanded in custody and have been there ever since, a total of 308 days to today.
On the 6th of February 2020, you unwittingly made an admission to two undercover police operatives who had been placed in the cells of the Ballarat police station with you. You told them you were not responsible for the armed robbery but when they asked if you needed them to hide anything you told them that ‘the knife was gone’.
On 28 May 2020 you were committed to this Court for trial by way of straight hand-up brief. Shortly after the Initial Directions Hearing, which was on 16 July 2020, you indicated your intention to plead guilty and in fact pleaded guilty on 26 August 2020 to one charge of Armed Robbery relating to the hair dressing salon (Charge 5) and four charges of Obtain Property by Deception relating to the following:
·Optus phone credit to the value of $30 (Charge 1);
·$40 worth of fuel purchased at Caltex in Sebastopol at 4:34am (Charge 2);
·$30 worth of fuel and a packet of cigarettes valued at $29.99 purchased at BP in Sepastopol at 4:40am (Charge 3); and
·A packet of cigarettes valued at $59.98 purchased at BP in Latrobe Street, Ballarat (Charge 4).
A plea on your behalf was conducted before me on 5 November 2020 and it now falls to me to sentence you for your conduct. In arriving at an appropriate sentence, I am required by law to have regard to a number of factors which are sometimes overlapping and sometimes contradictory in nature.[1] Some tend towards leniency and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each one the weight it deserves in order to arrive at a just sentence.
[1] Section 5(2) of the Sentencing Act 1991.
Objective Gravity of your offending and moral culpability
10.The offence of Obtain Property by Deception is an offence of widely variable seriousness and is punishable by a maximum penalty of 10 years. After coming into possession of a stolen credit card you used it on four occasions on a single night to purchase relatively inexpensive items. I accept that this was low level offending.
11.The offence of armed robbery is an inherently serious offence punishable by a maximum penalty of 25 years' imprisonment. Your offence was not a spur of the moment thing. You arranged a getaway car, donned a disguise and armed yourself with a knife. You chose a ‘soft target’, meaning you knew the salon was staffed and patronised by women and that you would meet little, if any, resistance. You also chose the end of the day when it could reasonably be expected there would be few, if any, customers and more money in the till. Once inside the store you went straight to the women at the counter and waved and pointed your knife at them. Your conduct was outrageous and terrifying.
12.In your favour, the incident was over very quickly, you were unaccompanied and you did not use physical violence or threatening language. Further, I accept that your driving past the hairdressing salon at 5.20pm was coincidental. It was too far in advance of the armed robbery to amount to a canvassing of the premises and, in any event, there was no need for you to do that, as you were well familiar with the salon, living very close by.
13.Whilst not detracting from the seriousness of what you did, both the prosecutor, Ms Harrold and your counsel, Ms Smith categorised your armed robbery as a mid-range example of the offence and I agree with that assessment.
14.Your motivation was to obtain money to buy drugs, in particular, ICE. About a week before the armed robbery you had relapsed into ICE use after a period of abstinence due to some serious family conflict. By the time of the armed robbery you were severely sleep deprived and using nearly a gram of ICE a day.
15.You were assessed by a neuropsychologist, Dr Loretta Evans, on 24 September 2020 by way of a non-contact interview and psychometric testing. The testing revealed that you had an overall IQ of 69 signifying limited cognitive capacity approaching mild intellectual disability, consistent with your history of language and learning difficulties and illiteracy. Dr Evans considered it was likely there were a number of factors which contributed to your low cognitive functioning including developmental, environmental, psychological and chemical. As to the latter, she considered your chronic and excessive cannabis use to have caused a mild acquired brain injury. Despite your limited cognitive ability, Dr Evans described your level of adaptive functioning as sufficient at a day to day level. In particular she noted that apart from difficulties with the internet and managing your financial affairs, you have lived independently, can drive a car and have had full time employment. Significantly, Dr Evans said that you clearly understand right from wrong, and societal expectations, and have the ability to make mature decisions. Whilst noting that you are particularly susceptible to stress and distress, Dr Evans did not consider that your cognitive limitations contributed to the commission of the offences. Rather, she said, acute intoxication from ICE was the likely cause.
16.Given, Dr Evan’s opinion, Ms Smith specifically disavowed any reliance on a well known case of Verdins to argue that your moral culpability was reduced on account of your mental functioning. That is not to say your difficult upbringing, psychological issues and cognitive limitations are not relevant to your moral culpability. Clearly, you are not to be regarded the same as someone without those disadvantages. However, in my view they do not reduce your culpability significantly.
17.The fact is a little over six months after you were released from prison, you decided to take drugs and offend again. You told Dr Evans the armed robbery was ‘a spur of the moment thing’ and that you ‘didn’t think’ and ‘didn’t intend to cause injury’. I accept you may not have intended to cause physical injury, but the armed robbery was clearly planned. Further, you knew what you were doing was wrong and that it would have been terrifying to your victims. The fact you did it to obtain money for drugs explains your conduct, but in no way excuses it. I regard your moral culpability as high.
Current Sentencing Practices
18.One of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices. The reason is to promote consistency of approach in sentencing, particularly, the application of relevant sentencing principles.
19.The most recent Sentencing Advisory Council Statistics of the higher courts (June 2019) indicate that almost 80% of people charged with armed robbery over a five year period received an immediate term of imprisonment with the most common term being three to four years.
20.Whilst no two cases are ever truly the same, of more use than statistics are sentences imposed in comparable cases. Such sentences are not binding precedents to be applied or distinguished, nor do they set the outer parameters of appropriate sentences. They are simply a guide or yardstick against which to measure any sentence I propose in this case.
21.The prosecution conducted a review of recent sentences for armed robbery in this Court and the Court of Appeal to determine the most comparable to yours. Ms Smith agreed the cases to which I was referred were a fair representation. I have had regard to those cases noting that whilst there were similarities, there were, of course, differences both in the circumstances of the offending and the personal circumstances of the offender. The sentences ranged from combination sentences of imprisonment and corrections orders, to a sentence of six years with a non-parole period of four years and six months for a 48 year old offender with an extensive criminal record. There was also a youth justice centre order for a young offender. The different penalties imposed in these cases highlights the fact that ultimately my duty is to impose a just and appropriate sentence on you in the circumstances of this case.
Impact of your offending
22.I am also required to consider the impact of your offending on your victims and their personal circumstances. When you walked into the salon there were four female members of staff and one female client. The distress caused to all five women by your actions is obvious from a viewing of the CCTV footage. Further, Ms Chrystie and Ms Carey submitted victim impact statements to the Court. Not surprisingly they reported poor sleep, nightmares and anxiety as a result of your actions. Ms Carey described now being wary of strangers. Both of them felt the need to attend a psychologist. They also explained that they have had to make changes within the salon to ensure their safety in the future. A plan that took you only a matter of minutes to execute has had enduring consequences for your victims. All because you wanted money to buy drugs.
Plea of Guilty, co-operation and remorse
23.You are entitled to a significant discount in your sentence for the fact you have pleaded guilty and did so at a relatively early stage. Although you denied committing the armed robbery in your record of interview and pleaded not guilty at committal, you indicated your intention to plead guilty soon after.
24.In pleading guilty you have facilitated the course of justice and taken legal responsibility for your crimes. This is particularly important in the current environment where COVID-19 has placed the criminal justice system under considerable strain. You have also spared your victims the trauma of giving evidence.
25.Moreover, I accept that you are remorseful. Dr Evans considered your expressions of remorse to her were credible and I accept that your initial denials were motivated by fear of the consequences. It is also notable that the committal proceeded by way of straight hand up brief.
Background and personal circumstances
26.Your background and personal circumstances were set out in detail in the Outline of Defence Submissions and the report of Dr Evans tendered on your plea and marked as Exhibits 1 and 2, respectively.
27.Very briefly, you are now 30 years old. In fact, your birthday was yesterday. You were born in Ballarat and have two older sisters. You were raised primarily by your mother after your parents separated when you were a baby. You told Dr Evans that your father was an interstate truck driver and you did not have regular contact with him during your childhood. You have a large number of half-siblings and have a close relationship with your half-brother Steven.
28.You told Dr Evans that you had a ‘good’ childhood although you were teased and bullied at school because of your poor literacy. You struggled academically and moved to a ‘Special School’ when you were 11 or 12 years old, which you found embarrassing and stopped attending. You have not had any formal education since you were 13.
29.Your social and academic difficulties led to you becoming rebellious and associating with older friends who were a negative influence. With little purpose or direction, you started using cannabis and then amphetamines and committing offences. You have used cannabis since you were 12, amphetamines since you were 16 and ICE since you were 21.
30.The Disability Support Pension has been your main source of income, however you have had a number of unskilled jobs including as a plasterer and potato picker. You prefer working in the outdoors.
31.You have had one significant relationship and believe you may be the father of twin girls aged 3 or 4, but you have never seen them. You are currently single.
32.At the time of the offences you were living with your cousin and his father and working as a fencing contractor for Steven. You were essentially independent in your daily living.
33.You have the continued support of your parents and siblings and Steven has undertaken to employ you again upon your release from prison.
Your character and risk of reoffending
34.You have a long criminal history consisting mainly of dishonesty related matters, burglaries, drug offences and driving offences. There are also some crimes of violence against person and property and one robbery. Worryingly, this armed robbery is your most serious offence to date.
35.You have received a variety of dispositions and it is obvious the courts have been cognisant of your difficulties and have attempted to impose sentences that would assist you, unfortunately without success so far. You told Dr Evans you had derived some benefit from a three month drug rehabilitation program.
36.You have received a number of custodial dispositions, one of them involving a non-parole period. That was in 2013 and I was told you were denied parole.
37.Your criminal history suggests your prospects of rehabilitation are bleak. However, Ms Smith argued that I should not be so pessimistic because for the first time you have access to intensive support. This comes in the form of an NDIS support plan which started on 27 July this year and will continue upon your release. $118,000 has been allocated for your tailored rehabilitation plan including skill development, counselling and assistance to find your own accommodation. You told Dr Evans you intended to take full advantage of the services offered upon your release and not reoffend.
38.That is not the first time you have indicated an intention not to reoffend. When sentencing you on 5 July 2019 in this Court His Honour Judge Mason stated:
a.'Your mother has provided a letter to the court outlining issues in your past and communicating your intentions to get a job and live a quiet life on your release'.
39.As I have already mentioned the current offending occurred a little over 6 months after you were released on that sentence.
40.Dr Evans considered your level of insight, remorse and realistic goals for change were all positive factors for change, but she did note that your prospects would be seriously compromised if you did not receive ‘significant support’. With that in mind I will ensure the NDIS receive a copy of these sentencing remarks.
41.Overall, I have considerable doubts about your prospects of rehabilitation, but the NDIS supports do give rise to cautious optimism.
The burden of imprisonment
42.In fixing any term of imprisonment it is important to consider how prison would be likely to impact you, particularly given your cognitive limitations. You are currently in the mainstream prison environment. You did not report any particular difficulties with your present or past experiences of incarceration to Dr Evans and she did not consider imprisonment to have any major adverse effects from a cognitive perspective. Indeed, she commented that with appropriate supports the present term may allow you to address the underlying factors which have led to your drug taking and offending behaviour in the past and improve your prospects upon release.
43.I do, however, take into account the effect of the COVID–19 pandemic. Whilst the chance of being infected with coronavirus in prison is speculative, I accept that the worry of contracting the virus may be an additional burden, as are the lockdowns, curtailment of various activities and programs and the abolition of personal visits.
Purposes of Sentencing
44.In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community. I am obliged not to impose a more severe sentence than is necessary to achieve those sentencing purposes. A custodial sentence must only be imposed as a last resort but is inevitable in your case. Ms Smith rightly conceded that this was so. That said, I am obliged not to impose a longer sentence than is necessary.
45.Further, when there are multiple charges, as here, the sentence must not offend the principle of totality. What that means is that you must not be punished any more than is proportionate and appropriate to your overall criminality.
46.In your case general and specific deterrence, denunciation and community protection loom large in the sentencing process. For the reasons already discussed I am not satisfied that your cognitive limitations and background justify any significant moderation of general and specific deterrence. In any event to the extent that some moderation is warranted, the need for community protection is increased.
47.Of course, the need for my sentence to deter you and others and denounce your conduct is not the end of the matter. I must and do take into account the various mitigating factors I have already outlined in detail. It is important not to crush your prospects of rehabilitation. Ultimately, community protection is best achieved by your rehabilitation. In this regard I accept Ms Smith’s submission that the involvement of NDIS means I should fix a lower non parole period than I would otherwise.
Sentence
48.As I said, I will not ask you to stand. I am just about to impose a sentence on you.
49.On Charge 5 the armed robbery charge I convict and sentence you to four years' imprisonment.
50.On Charges 1 to 4 I impose an aggregate sentence, meaning one sentence to cover all four offences. This is appropriate given all four offences were committed within a matter of hours and were of a very similar character involving the one stolen bank card. On those charges you are convicted and sentenced to three months and I direct that one month of that sentence is to be cumulative upon the sentence imposed on Charge 5.
51.That makes a total effective sentence of four years' and one month. In respect of that sentence I set a non-parole period of two years and eight months. That is the earliest time at which you can be released. Whether you are released is up to the Adult Parole Board.
Presentence Detention
52.I declare that you have served a total of 308 days pre-sentence detention, not including today, in respect of this sentence and order that this declaration be entered in the records of the court and that the period be deducted administratively.
Section 6AAA
53.If you had pleaded not guilty to these charges and then been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of six years' four months' with a non-parole period of four years' 10 months.
54.I direct that a copy of these sentencing remarks and the report of Dr Evans be provided to Corrections and the NDIS.
55.Now, Mr Wetzel, do you understand the sentence that I have imposed? Sorry, we just had you muted. Sorry, Mr Wetzel, could you just answer that again. Do you understand the sentence? Yes. I am still not hearing you, but you are nodding.
56.Now, is there anything, any issues counsel want to raise, any orders that I have forgotten to make?
57.MS HARROLD: Not from my part, Your Honour in terms of any orders or the like. I was just going to ask whether it would be worthwhile to tender the email that came through to chambers from my learned friend's instructor about NDIS supports. That was on 8 November.
58.HER HONOUR: Okay, that was not tendered, is that right? Let me have a look.
59.MS SMITH: Yes, my learned friend is right, Your Honour. Sorry, I forgot about that. That was on 8 November. My instructor sent that through, an email from a Tracy Barbara.
60.HER HONOUR: Yes.
61.#EXHIBIT 5 - Email, dated 08/11/20, re: NDIS Supports for Mr Wetzel.
62.MS HARROLD: Other than that, Your Honour, I have nothing further.
63.MS SMITH: Nor do I, Your Honour.
64.HER HONOUR: All right. Thank you. We will adjourn the court temporarily.
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