Director of Public Prosecutions v Wheeler

[2017] VCC 1361

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR -17-01481

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT WHEELER

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	20 September 2017
CASE MAY BE CITED AS:	DPP v Wheeler
MEDIUM NEUTRAL CITATION:	[2017] VCC 1361

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Mahady
For the Accused	Ms E. Allan

HIS HONOUR:

1Robert William Wheeler, you have pleaded guilty to the following offences:

·Attempted armed robbery, which carries a maximum penalty of 20 years' imprisonment;

·Armed robbery, which carries a maximum penalty of 25 years' imprisonment;

·Theft, which carries a maximum penalty of ten years' imprisonment; and

·The summary offence of loitering with intent to commit an indictable offence, which carries a maximum of two years' imprisonment.

2You have admitted a prior criminal history which dates back to February 1967. These include 16 prior convictions for armed robberies committed in Western Australia.  I shall return to the question of your prior convictions later in these sentencing remarks.

3The Crown tendered the summary of prosecution opening.  A brief summary of your offending is as follows:

4The first offence occurred on 19 April 2017, when you attempted to rob a service station at the Coles express in Moe.  You were observed with a dark balaclava over your face and holding what the victim believed to be a double-barrelled shotgun.  The weapon was no more than two pieces of pipe taped together with electrical tape.  Nevertheless, in the conditions in which it was seen by the victim and in the circumstances in which you brandished it, she believed it to be a real weapon.

5The victim was working at the Coles Express when she saw you entering an unoccupied service station.  Watching from outside, the victim called out to you. In response, you turned and pointed the imitation firearm at the victim and said something to her.  In fear, she ran to the Coles supermarket, where she sought refuge and had another staff member call the police.  You fled empty-handed.

6The second charge of armed robbery, occurred on 21 April 2017 at the Australia Post store at Churchill.  The store is operated by two family members;
a 26-year-old female and her 32-year-old brother.  Just after midday, you arrived at the shopping centre where the post office was located.  You changed into a blue coloured jumper and put on the balaclava, which you wore as
a beanie.  You  took a shopping bag from the boot of your car which contained the two pieces of pipe taped together, to resemble a side-by-side
double-barrelled shotgun.

7You waited until there were no customers in the shop.  You covered your face and approached the counter.  You pointed the makeshift weapon at the female victim, yelling, “Give me your money.  Give me all of your money” and then you handed the shopping bag to the victim.  The brother came out of the back office and saw you pointing what he believed to be a side-by-side double-barrelled shot gun in the direction of both him and his sister.  You escaped with just under $5,000 cash.

8The third charge of theft occurred on 3 May 2017 and was the theft of a $15 windcheater from Kmart in Moe.  The offence is made more serious by the fact that you took this windcheater with the intention of using it as part of your disguise in a further armed robbery planned for the following day.

9The related summary offence of loitering with intent to commit an indictable offence, occurred on 4 May 2017.  You told police that you intended to commit an armed robbery at the Australia Post at Moe.  You put on a pair of grey tracksuit pants and the windcheater you had stolen the day before.  You took the imitation firearm from the back of your car.  You walked past the post office on a couple of occasions, but then sat down on a bench outside the Moe RSL, where you were arrested by police SOG members.

10You were interviewed by police on 4 May 2017, after your arrest, in a taped record of interview.  You made very full admissions to each of the offences you committed, including telling police that you were checking out the post office in Moe, but that you got cold feet.

11You were remanded and have remained in custody since 4 May 2017.  You have now served 139 days of pre-sentence detention, excluding today.

Analysis of your offending

12The attempted armed robbery, in this instance, is very serious.  When you were called out by the shop attendant, you pointed your imitation weapon at her.  
I conclude that you could only have done so in order to intimidate her and to make good your escape.

13The victim impact statement of this young woman attests to the fear and fundamental change in her life that your actions have caused.  Your actions have brought about a truly devastating heightening of her fears and mistrust, whilst adversely affecting her independence.  It is apparent from her statement that it will take a long time for her before she again achieves a level of normality in her life.

14In this instance, the fact that your offending was only an attempt, is only marginally less serious than the completed offence.

15In the second instance, you once again chose a soft target, where the suggestion that you had a weapon was sufficient to intimidate your victims. Once again, your initial victim was a young woman who complied with your demands for cash as you pointed the weapon at her.  Her brother also felt powerless on seeing your makeshift weapon pointed in his direction.  Your intimidating actions enabled you to escape with nearly $5,000 cash.

16As I have already observed, your theft was serious, as you were providing yourself with part of your kit for the disguise.

17Finally, in this respect, the charge of loitering with intent to commit an indictable offence was, on your own admission, to be the makings of an armed robbery on a further soft target.  On this occasion, you hesitated and thankfully were arrested by police.

18You chose soft targets, you intimidated two female staff members and another young man by brandishing your imitation weapon and you did so against a vast background of having committed this type of offence previously.  Your offending was marked by its planning, preparation and in particular, the callousness to the trauma that you knew your actions would cause to your victims.

19The community is entitled to expect that criminals who target single operators or small staff businesses with violent and intimidating conduct, will face severe punishment.  You repeatedly targeted these very types of businesses.  You did so, brandishing an instrument that was calculated to cause fear in those vulnerable staff members and to ensure that you could make good your escape.

20It was submitted on your plea that you waited until there were no customers in the shop and that by use of an imitation weapon, there was no potential for accidental discharge of a weapon or the like.  Whilst your actions objectively reduced the potential audience that you put at fear, I find nothing chivalrous about your behaviour.  The victim impact statement of the Coles attendant speaks of the fear you caused and the ruin that you have visited on her life.

21The offence of armed robbery carries a maximum penalty of 25 years' imprisonment.  It is a very serious category of criminal offending.  Your crimes are serious examples of that offending.  Your conduct must be met by the application of the principles of general deterrence and denunciation. Furthermore, in your case, there is a need for a large measure of specific deterrence.  Your offending will be met by severe punishment.

22I turn now to your personal circumstances.

23You are 69 years of age and were born in August 1948.  You were raised in Perth in a strict family.  Your father was an alcoholic and a disciplinarian. Nevertheless, after you finished school, you were still playing football and you had work as a shop assistant in a hardware store.  Your girlfriend became pregnant when you were 18 and you married in 1967.  You have two children from that marriage.

24Your life took a very severe turn for the worse when your wife was killed in
a motor car accident in 1974.  Your daughters went to live with your parents and your gambling problem, (which I suspect had already commenced years earlier, looking at your prior convictions) spiralled out of control.

25You worked as a cook in the mining industry and remarried in 1987.  You have two children from that marriage.  Both now live in Victoria and your daughter lives in the Latrobe Valley.  You were divorced from your second wife in 2003.

26Your adult life has been spent in and out of prison in Western Australia.  I was told that this was largely attributable to your gambling addiction.  Your criminal history sheet spans back over 50 years.  You have been convicted over the years on about 245 charges of false pretences.  You have many other prior convictions for many different types of offending.

27Your offending escalated when you turned to armed robberies in Western Australia.  I note that:

·In October 1991, you were convicted of three counts of armed robbery and sentenced to seven years' imprisonment;

·In November 1991, you were convicted of four counts of armed robbery and sentenced to four and a half years' imprisonment;

·In August 1997, you were convicted of five counts of armed robbery and sentenced to ten years' imprisonment; and

·In June 2006, you were convicted of four counts of armed robbery and sentenced to ten years' imprisonment;

·In addition, in 1990 on a count of robbery, you received a sentence of three years' imprisonment.

28On your release from custody in 2014, you were encouraged by your daughter, Chantelle, to move to Victoria.  You relocated to Victoria in about October 2016 and you were living peacefully in the local area.  You had started a relationship online with a woman, Gina, who travelled to meet you in February 2017.

29Unfortunately at the same time, your son, Joshua’s marriage was in trouble.  He came to live with you and you helped him out financially by taking a telephone and internet account for him.  Within a short period of time, these accounts were several thousand dollars in debt.  Your son did nothing to help you meet the debts which were accrued in your name.  It was this financial pressure which lead you to commit the offending.

30Since you have been in custody, Gina has returned to the Philippines to live. Nevertheless, Gina remains in contact with you and you have plans to marry upon your release from custody.

31You also have contact once a week with your daughter, Chantelle, but not with any of your other children.

32In September/October 2016, you were found to have an enlarged heart.  The medical notes of 29 September 2016 indicate however, that you have had no sign of heart failure.

33At the same time, it was discovered by doctors that you have a fibrous tumour in your stomach.  Doctors considered that an examination of the entire lesion would be necessary to confirm the diagnosis and that excision was recommended, however you did not attend the next scheduled appointment.  It has still not been determined whether the tumour is benign or malignant.

34You were assessed by psychologist, Carla Lechner.  She considers that you suffer from stress and anxiety, although she considers that these are reactions to your environment and general circumstances.  Ms Lechner also noted that you lack a range of adaptive problem-solving skills; that possibly you struggled to manage life on the outside and as a consequence, continued to make poor choices.  Ms Lechner notes with concern, that notwithstanding your many years of imprisonment and your reflection on the trauma inflicted on previous victims, you did not take into account the trauma you would inflict on these occasions.  Of further concern was that you did not come up with an alternative strategy to deal with the problem of this debt.  Ms Lechner considers that you will need supervision and support upon your release back into the community.

35Ms Lechner also reports that you made no attempt to shirk responsibility, or to minimise the seriousness of your actions.  You told the psychologist that the victims would be traumatised.

Defence submissions

36I turn now to the defence submissions.  Mr Fitzgerald, on your behalf, submitted that your sentence should be mitigated by the plea of guilty.  I note that the plea of guilty was indicated from the outset.  Given that the offending occurred only four and a half or so months ago, I consider that the plea has a real utilitarian benefit.

37Furthermore, it was submitted that the plea is attended by remorse and insight. I note that you made frank admissions to the police and made expressions to Ms Lechner that indicate some empathy for the victims.  Your plea of guilty and expressions of empathy satisfy me that the plea in this case facilitates the course of justice and that the sentence should be mitigated as a result.

38Mr Fitzgerald made a cautious submission about the effect of your advancing age on your sentence.  Those who commit serious crimes at an advanced age, cannot expect to escape the consequences of what they have done, simply because of their age.  Age, in many cases, will be a relevant sentencing consideration, whether it be youthful or advanced.  But age alone cannot be permitted to justify the imposition of an unacceptably inappropriate sentence.

39I also note your counsel’s submission as to your uncertain medical condition.  For the most part, your condition is uncertain, only because you have done nothing about it.  The appointment was booked for you in Western Australia for October 2016, but you did not attend.  After travelling to Victoria, you did not revisit the issue.  Nevertheless, I note that the stomach tumour is still present.

40The substantial part of Mr Fitzgerald’s submission focused on your prospects for rehabilitation.  Mr Fitzgerald submitted that when I have regard to the following, that is:

·First, your full and frank admissions to the police;

·Second, your expression of empathy for the victims to Ms Lechner;

·Third, your plea of guilty;

·Fourth, the existence of your relationship with Gina and the prospect it gives you for stability into your future; and

·Finally, what Mr Fitzgerald described as a glimmer of a transition, in that you told police that on 4 May that you were going to commit a further armed robbery, but you got cold feet.

41Having regard to those five circumstances, he submitted that I should not discard all prospects for your rehabilitation.

42On the other hand, you have committed offences for over 50 years.  Your history of armed robberies span over 26 years and you have served decades in prison, without deterrence.

43It is perhaps only advancing old age which will deter you from committing further offences.  In truth, I find your prospects for rehabilitation to be very poor.

44Nevertheless, I recognise that when you are eventually released, you will require considerable assistance in order to reintegrate back into the community. In order to do so, you will need to have the active supervision and structure of a period of parole.  Parole is an incentive to which you can work towards, it is not a guaranteed release.  If it is granted however and if in fact you are determined to rehabilitate, the period of your parole will be of assistance in your reintegration back into society.  You must work towards achieving parole, or you will be a very old man by the time you are released. 

Sentence

45On Charge 2 on the indictment, the charge of armed robbery, you are convicted and sentenced to a period of imprisonment of five years and six months.

46On Charge 1, the attempted armed robbery, you are convicted and sentenced to a period of four years' imprisonment. I order that two years of that sentence be served cumulatively on Charge 1. 

47On Charge 3, the charge of theft, you are convicted and sentenced to one months' imprisonment.

48On Charge 5, the summary charge of loiter with intent to commit an indictable offences, you are convicted and sentenced to six months' imprisonment. I order that three months of that sentence be served cumulatively on Charge 1.

49The total effective sentence is therefore one of seven years' and nine months' imprisonment.  

50I order that you serve a non-parole period of five years and eight months. 

51I declare the period of 139 days pre-sentence detention as already served, excluding today. 

52But for the plea of guilty, I would have imposed an overall sentence of ten and a half years, with eight and a half years to serve.