Director of Public Prosecutions v Whelan
[2011] VCC 2097
•16 December 2011
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01962 and CR-11-01967
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE WHELAN |
---
JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 December 2011 | |
DATE OF SENTENCE: | 16 December 2011 | |
CASE MAY BE CITED AS: | DPP v Whelan | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 2097 | |
REASONS FOR SENTENCE
---
SUBJECT – CRIMINAL LAW
CATCHWORDS – Sentence – Armed robbery – Attempted armed robbery – Soft targets – Heroin addiction – Extensive criminal history – History of mental illness – No defence of mental impairment
LEGISLATION CITED – Sentencing Act 1991
CASES CITED – R vVerdins& Ors [2007] VSCA 102
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D Plummer | Solicitor for Office Public Prosecutions |
| For the Accused | Mr S Lindner | Tait Lawyers |
HER HONOUR:
1 Shane Anthony Whelan, you have pleaded guilty to three charges of armed robbery and one charge of attempted armed robbery. The maximum penalty for armed robbery is twenty-five years' imprisonment and the maximum penalty for attempted armed robbery is twenty years' imprisonment.
2 As the maximum penalties reflect, these offences are regarded by Parliament as most serious.
3 The learned prosecutor, Mr Plummer, opened your offending as follows.
Circumstances of Offending
4 On Thursday 2 June 2011 at 6.30am, Harry Wong (“Wong”) opened the “Fast n Ezy” convenience store in Johnston Street, Abbotsford. He noticed you walk past the shop at about 6.50am. Wong recognised you because you had entered the shop on a few previous occasions.
5 A short time after 7.00am, you entered the store. You approached the side of the counter. You pushed the doors open. You entered the service area behind the counter. Wong backed into the corner. Wong held a chair out in front of him to push you out. You said, “Give me the money”. Wong saw a syringe in your hand. It was blood coloured. Wong said, “Get back behind the counter and I’ll give you the money”. Wong then tried to push you back with the chair. You pushed Wong back. You took all the notes from the till. You stole about $150 to $180 from the till. You ran from the store. Wong followed. He hit you once with the chair. You ran off towards Hoddle Street.
6 At about 7.20am, Wan Qi Wong (“Ann”), Wong’s daughter, was in bed when she heard some voices coming from the front of the shop. The door to their residence at the back of the shop was closed. The voices got louder. Ann then heard the sound of things hitting the floor. She got up, got dressed and went to the front of shop to check on her father. She noticed chocolate bars, lollipops and blocks of chocolate all over the floor near the counter area. The store was empty. Shortly after Wong returned to the shop. He told Ann what had happened. Ann phoned police.
7 At about 7.30am, Glenn Agnew (“Agnew”) made a delivery to the IGA Supermarket on Johnston Street. As he was loading empty crates into his delivery truck he heard a commotion from across the road. He saw you and Wong involved in what appeared to be a scuffle or fight inside the ‘Fast n Ezy’ store. A chair went across the counter. You ran from the store with Wong in pursuit. Agnew gave chase along the other side of Johnston Street. By the time he managed to cross Johnston Street through traffic, you were gone.
8 At about 7.30am Ben Power (“Power”) was driving to work along Johnston Street towards Hoddle Street. As he was stopped in peak hour traffic, he noticed arms and legs and a chair going everywhere inside the “Fast n Ezy” store. He saw you run out of the store. Wong ran after you and hit you with a chair. You turned left into Hoddle Street.
9 These facts give rise to Charge 1 and the surrounding circumstances.
10 On Sunday 12 June 2011 shortly before 7.00am, you caught a taxi from near the Glen Iris train station. Shirshah Ghairat (“Ghairat”) the taxi driver was suspicious of you. He asked you if you had money. You responded, “I’ll pay by card”. Ghairat stopped at a BP petrol station at 1367 High Street, Malvern. He told you to withdraw some money from the ATM inside the service station.
11 You entered the service station. You walked to the ATM at the back of the store. You stood at the ATM for a couple of minutes. You then left the store. You walked back to the taxi. Ghairat was suspicious that you had not withdrawn any money. He locked the taxi doors and drove away.
12 You returned to the store. You approached Sandeep Sikaria (“Sikaria”) who was behind the counter. You went behind the counter area. You said,“Open the till”. You were pointing a syringe at Sikaria. The syringe was thin and blue in colour. You held it close to his body at his waist. You repeated his demand for Sikaria to open the till. Sikaria walked to the till. You followed just behind. Sikaria opened the till. You took all of the notes from the till. You left the coins. You stole about $100 to $150.
13 You then told Sikaria to take out his wallet. Sikaria obeyed. You checked the wallet for cash. It had none. You gave it back to Sikaria. You asked where the phone was. Sikaria showed you. You pulled the receiver from the phone. You then ran from the store. Sikaria closed the doors and pressed the security alarm. He called 000 from his mobile phone. Sikaria was initially shocked when confronted by you. He didn’t understand what was going on. He was very scared. He did what he was told to be safe. These facts give rise to Charge 2.
14 On 17 June 2011 at about 3.58am, a Surya Kalla ("Kalla") was working behind the counter at the BP Service Station at 1367 High Street Malvern. He heard the door buzzer go off. Kalla walked to the counter window. He observed you for about 30 seconds. He was sceptical about letting you in. Kalla knew the regular customers on night shift. He did not recognise you but decided to let you inside. Kalla watched you from behind the counter. You were the only customer inside the store. You walked around the store for a short time. You then suddenly walked quickly to the counter. You went behind the counter and repeatedly said, “Open the till”. You held a syringe in the left hand. The tip was pointing upwards. It was about half full with a very dark coloured liquid. Kalla stopped behind the counter. You walked towards him, continuing to demand that he open the till. Kalla responded, “Okay mate, I’ll open the till”. Kalla hit the open button. The till opened. He stepped back. You took notes and coins from the till. You stole about $250 from the till.
15 You then said, “Where’s your wallet, where’s your wallet?” Kalla said, “It’s in my home”. Kalla was scared that you would make him get his wallet out of his car. After putting all of the money into your pants pocket you said, “Don’t call the cops. Where’s the phone?” The phone was behind Kalla who stepped to the side. You pulled the receiver from the phone on the third attempt. You then told Kalla to open the doors. Kalla did so. You ran from the store. These facts are the basis for Charge 3.
16 On Saturday 18 June 2011 at about 9.20am, Yan Ping Liu (“Liu”) was working at Ryan’s Grocery and Liquor store (trading as Vic Vin) in Johnston Street, Collingwood. At 9.18 am, Liu noticed you enter the shop. You walked to the rear of the shop. A few minutes later you approached Liu who was standing behind the counter. You said “Open! Open!” Liu didn’t initially understand what you meant. Liu then noticed a syringe in your hand. There was no cap on the needle tip. It was full of red liquid that looked like blood. You walked behind the counter and started hitting the buttons on the register as you pointed the syringe at Liu.
17 Liu’s sister, Li Na (“Na”) yelled at Liu to call the police. Liu could not call them because you were between her and the phone. Liu picked up a metal pole and hit your hand that was holding the syringe a few times. You left the store. Na and Lui followed you out of the store. Na ran after you. She shouted, “Call the police”. You ran away. Na returned to the store. She phoned 000. These facts give rise to Charge 4.
18 At about 9.43am, police observed you outside the high rise Commission apartments at 240 Wellington Street. You entered the building. Police ascertained from CCTV footage that you took a lift to level 8. A short time later members of the Critical Incident Response Team arrested you on level 8.
Record of Interview
19 You were taken to the Melbourne West Police Station. An interview commenced. A short time later the interview was suspended due to concerns for your mental well-being. A Forensic Medical Officer was not available to assess you. Police advised you that they were considering contacting the Critical Assessment and Treatment Team (“CATT”). You said that you were feeling better and wanted to complete the interview. You exercised your right not to answer questions regarding the offences. You were charged and remanded in custody. In fact, I was told by your Counsel that there was a second record of interview conducted after this time in relation to some of these offences. Again, you made a no comment record of interview.
20 In each instance of your offending, you chose soft targets – that is, lone victims who were operating small businesses and were vulnerable to being accosted by offenders such as you. In the case of the victim of Charge 3, you chose to offend in the early hours of the morning, when your target was especially vulnerable due to the fact that there would have been very few people around at that time. Your selection of soft targets is an aggravating feature of your offending. In three instances, you took with you a syringe filled with a coloured substance intending that your victims believe you were threatening them with a blood-filled syringe. The fact that you prepared yourself in this way on those occasions reveals a certain level of pre-planning, albeit fairly crude or basic. To this limited extent, I regard your pre-planning, such as it was, as being an aggravating feature of your offending in respect of Charges 1, 3 and 4. Whilst you threatened harm to your victims, you did not actually inflict any, so your offending is not as serious as it might have been.
21 However, if you had harmed someone, this would have been either an aggravating feature of the offences to which you pleaded guilty or the subject of a separate charge. The fact that you did not harm someone is not a mitigating feature, but really amounts to a lack of an aggravating feature. I sentence you on the basis of what you have done, rather than on the basis of what you have not done, but take into account the objective seriousness of your offending in all of the circumstances. Objectively, your offending is quite serious, even if not as serious as it might have been.
22 You have chosen to behave in this most frightening manner on four occasions over the space of sixteen days. You behaved in this fashion in order to feed your heroin addiction, which you have been battling for a good deal of your life. However, you were not so drug-addled or adversely impaired by the need for heroin that you were not able to act in a purposeful and deliberative manner on the occasion of each of the offences. In some instances, the offending would appear to be of a rather prolonged duration. In respect of Charges 2 and 3, you demanded not only money from the till, but the victim’s wallets. Also, in relation to Charges 2 and 3, (which was the same BP Service Station), you asked each victim where the phone was and then pulled the receiver from it. On the other hand, it would not appear that you sought to disguise yourself in any way, so your instincts for self-preservation were, again, rather crude.
23 None of the victims have provided Victim Impact Statements, save for Yan Ping Liu, who did not wish her Victim Impact Statement to be read aloud. I have read the Victim Impact Statement and unsurprisingly, this person, who was doing no more than trying to make a living, now feels unsafe and suffers from sleeplessness and anxiety about what might have happened if the syringe that you wielded contained any disease. The sentiments of this victim are readily understandable and you should appreciate the immense fear and anxiety that you have caused this victim, and no doubt, others.
24 You have a concerning criminal history, which I understand is largely tied up with your substance abuse over the years. Your counsel took me through your criminal history, helpfully providing details of a number of offences you committed from 1992 onwards. You have never before committed the offences of armed robbery or attempted armed robbery, although you do have a prior conviction for robbery and in 2003, you committed the offence of assault with intent to rob. You have also committed some other offences for violence.
25 Save for an appearance at the Melbourne Magistrates’ Court on 4 October 2005 for possess controlled weapon, you have not committed any offence since 13 January 2003, which was the date on which you were convicted and sentenced to a wholly suspended sentence of six months' imprisonment for theft of a motor vehicle, unlawful assault and the previously mentioned assault with intent to rob.
26 Between 1993 and 1997, you did not commit any offences which was explained by your counsel as being due to the fact that you were working in an abattoir in Geelong and managed to stay away from drugs and things were going very well. Unfortunately, your work ended and you drifted back into the drug scene, which resulted in the charges of trafficking heroin, using heroin and theft, for which you were convicted on 16 December 1997.
27 In 1999, you committed further offences which meant that the wholly suspended sentence previously imposed on 16 December 1997 was breached and you were ordered to serve four months of that sentence concurrently with dishonesty offences which breached the suspended sentence.
28 You are now aged forty-two. It would appear that your drug addiction had become so severe as at the time that you committed the offences for which I now sentence you, that you resorted to most serious offending in order to feed your drug addiction.
29 You were remanded on 18 June 2011 and bailed on 26 October 2011 and had therefore spent 131 days by way of pre-sentence detention before the plea hearing. I was told that since you were released on bail, you have engaged well in addressing your drug addiction and mental health difficulties. In this regard, I take into account the report of David Silcoff, accredited mental health nurse, dated 9 December 2011, and of Dr Halewood, dated 9 December 2011. I also note that you have completed courses in respect of drug education and drug relapse during your time on remand. It appears that you have done well so far in addressing these issues. However, you have been able to address them in the past and yet, unfortunately, relapsed into drug abuse. I must factor these matters into my assessment of your prospects of rehabilitation.
30 I must also impose a sentence which gives appropriate weight to the need to impose a just punishment upon you and to denounce your conduct.
31 You have a well documented history of mental health issues dating back to 1993, as recorded by North Yarra Community Health Centre. In that regard, I refer to the report dated 18 October 2011 prepared by Dr Susan Baglow. In the past, you have suffered from anxiety, panic attacks, and in 2004 you suffered episodes of psychosis, although schizophrenia was not confirmed. In 2006, you were diagnosed with Hepatitis C and in 2007 you suffered acute renal failure (now resolved), secondary to heroin overdose. In 2010, you were placed on a Methadone program, but I was told by your counsel that you have been unable to maintain Methadone as a means to deal with drug addiction because of its unfortunate side effects upon you.
32 In a report prepared by Dr Peter Bosnac, of St Vincent’s Mental Health, he indicates that from 16 June 2004 to 21 June 2004, you were admitted to the acute in-patient service after suffering suicidal ideation and auditory hallucinations. You were prescribed an anti-psychotic medication at that time. Your condition settled during the course of your admission on that occasion and you were discharged from a follow-up community mental health service in October 2005. Subsequently, you had contact with the Crisis Assessment and Treatment Team in August 2007 and July 2008 with acute mental state deterioration. You presented in July 2008 with a mild depressive disorder, chronic anxiety and previous heroin abuse. It was noted that there was no evidence of a recurrence of your psychotic disorder. You were prescribed medication to assist you with your mental health difficulties at that time.
33 You were re-assessed by the Crisis Assessment and Treatment Team from St Vincent’s Mental Health on 29 April 2010, upon referral by your general practitioner, in order to manage “agitation”. At that time the reported stressors were said to include recent cessation of Methadone, benzodiazepine dependence and conflict with family members. It appears that you were experiencing a relapse of your psychotic disorder and were medicated at that time. You were followed up by CATT, including psychological support until 1 May 2010. You were then admitted overnight to St Vincent’s Emergency Department after which you were discharged to Ozanam House. At that time, it was recommended to your general practitioner that you be referred to Forensicare in respect of your mental health issues, which included ongoing anxiety and depressive symptoms. It does not appear that there was such follow-up.
34 A report prepared by Dr Lester Walton, consultant psychiatrist, was tendered on your plea. Dr Walton examined you on 10 August 2011 at Port Phillip Prison. You told Dr Walton that on each occasion that you offended, you were motivated to do so by your need to purchase drugs. At that time you said you were consuming about half a gram of heroin a day. You had been stealing from your mother in order to finance your drug abuse, but once this had been detected, she had made you leave her home. You then lived in a boarding house and experienced some auditory hallucinations urging you to kill yourself.
35 Dr Walton said:
“While it is possible that Mr Whelan may have been experiencing psychotic symptoms precisely at the times of his offending (although he has no specific recollection of that) it would seem the particular type of hallucinations which he was experiencing have no immediate relevance to the offending; rather he was driven by his drug addiction.”
36 In his mental status evaluation of you, he found that although you said you were experiencing some anxiety which you were inclined to attribute to impatience, you did not appear to be markedly clinically anxious to Dr Walton’s observation. He said that consistent with your own account that “hallucinatory phenomena are now in abeyance”, he saw nothing to suggest that you were experiencing hallucinations and you voiced no deluded ideas. He said that there was no thought disorder exhibited by you, nor evidence of current psychosis. He found you to be of normal intelligence and that you remained cognitively intact.
37 In his concluding opinion, Dr Walton said that there was some doubt in his mind as to whether or not you had suffered from recurring bouts of drug-induced psychosis or schizophrenia complicated by substance abuse. However, he said that making such a diagnostic distinction did not “have forensic relevance” to your particular case. He said that you were to be properly described as a substance-dependent person with heroin being the most relevant substance. He was of the view that your offending was entirely typical of that undertaken by a narcotic addict seeking the means to purchase further heroin and said that you were not “being assailed by hallucinations directing (you) towards the offending”. He said that, whilst you may have been “somewhat distracted by hallucinations” you did not have a formal defence of mental impairment available to you.
38 Further, he said that your mental illness would appear to have peripheral significance only insofar as the principles enunciated in R v Verdins & Ors [2007] VSCA 102 are concerned. He explained, “someone distracted by hallucinosis likely will experience some impairment of judgment but that is not the principal explanation for this man’s offending. That rests with his drug addiction.”
39 It appears that you are able to recall and report hallucinations that you have had on other occasions but on the occasion of these offences, you made no such report. I bear in mind the fact that upon your arrest, there was a concern by police as to your mental state but there was no follow up in this regard. Therefore, I am unable to know what an expert might have said at a time closer to the time of your offending. However, in all of the circumstances, and in view of the report of Dr Walton in particular, as well as the purposeful conduct in which you engaged for a particular reason that you had – namely, you needed money to feed your drug problem – I am unable to find that your moral culpability is reduced by impairment of mental function operating at the relevant time. Nor do I take the view that the weight which I would otherwise attach to specific and general deterrence or the need to impose a just punishment should be moderated.
40 However, I take into account the fact that you do have mental health difficulties which are ongoing and you also have physical health concerns, the major one of these being that you suffer from irritable bowel syndrome. Also, sadly, both your father and one of your brothers died whilst in prison. All of these matters will make it harder for you to serve a period in gaol than for someone not afflicted by these difficulties and sadnesses. Therefore, I shall moderate the sentence that I would otherwise impose, allowing for these matters.
41 To your credit, you entered your plea of guilty to these offences at a very early stage, being at a committal mention on 19 October 2011. This means that you have saved the witnesses, particularly the victims, the trauma and trouble of giving evidence at contested proceedings and you have also saved the community the time and significant expense of contesting these matters. You are therefore entitled to a substantial discount in the sentence that you would otherwise receive.
42 Although you exercised your right to make “no comment” answers to questions put to you in the course of two separate records of interview, I accept that you have subsequently expressed genuine remorse in relation to your offending and I accept that your pleas of guilty are indicative of your remorse.
43 I take into account your background which was referred to by your counsel and contained in the report of Dr Walton. You are the fourth of nine siblings. Your mother has been involved in a number of short term relationships, resulting in nine children to seven different fathers. Your mother has her own health problems and it would appear that she is dependent on her children to assist her. In this regard, you have played a fairly major role in assisting your mother from time to time.
44 You described your childhood as being a happy one. However, your counsel indicated that objectively your childhood must have been rather disrupted. You had moved from place to place and from one school to another on many occasions. You completed Year 10 at Preston Technical School and have worked at meat works for various periods, as well as working as a plasterer.
45 Dr Walton indicates that you were diagnosed with schizophrenia around nine years ago, but this is not clear from the St Vincent’s Hospital records. In any event, I have referred to your history in this regard. Dr Walton said that you had applied yourself to taking anti-psychotic medication haphazardly at best and had been medication free for about three months before the offending. You had re-established on Zyprexa as at the time he examined you and that situation continued as at the time of your plea.
46 You told Dr Walton that you developed a good relationship with your stepfather who was the father of two younger siblings and that you have maintained ongoing contact. Your brother, Jamie, died in prison in 2000 from an accidental drug overdose. Unfortunately, this was also the fate of your partner, with whom you were in a relationship for three years. You have a twenty-two year old son from that relationship but you do not have any ongoing contact with him.
47 You expressed to Dr Walton some optimism about your future and said that you were pleased that you are now being assisted with drug abuse. You are hopeful that you can remain drug-free once released into the community again and said that you would participate in drug rehabilitation, including Methadone maintenance. In this regard, I bear in mind the fact that you have not maintained a Methadone program in the past because, you have suffered constipation as a side effect. However, in the fairly brief period in which you have been released on bail, you have shown an ability to re-engage with drug rehabilitation and also engaged whilst on remand. As against this, you have relapsed into drug abuse on more than one occasion now and the need for drugs was the motivating factor in your offending, only six months ago.
48 Whilst I am very hopeful that you do succeed in your battle with drugs, when I take into account all relevant matters, including your mental health concerns and relapses, I am afraid that I regard your prospects of rehabilitation as fairly poor.
49 Because you have offended on a number of previous occasions and your present offending marks an escalation of these, I must attribute not insignificant weight to specific deterrence. Moreover, the offences of armed robbery and attempted armed robbery are such that significant weight must be given to the principle of general deterrence. That is, a strong message must be sent to those in the community who might be tempted to behave as you have, that offending such as yours will be met with strong sanction. I must also impose a penalty which give appropriate weight to the need to protect the community.
50 I take into account the fact that these offences occurred within a short period of each other, but I must also have regard to the fact that they impacted on a number of different victims and were separate incidents which you decided to embark upon. Therefore, a level of cumulation is warranted as between the sentences which I will impose, being mindful as I must, of the principle of totality.
51 Upon being invited to do so, the learned prosecutor submitted that a range of three to four years' imprisonment with a non-parole period of between two to three years was appropriate in your case. He submitted that R v Verdins only had application to you insofar as your impairment of mental function would make time in gaol harder for you. Your counsel submitted that the head sentences were appropriate and within range, but he submitted that a non-parole period should be at the lower end of the submitted range, if not a figure below this. He submitted that a lengthy parole period ought be allowed for in order to assist you with rehabilitation.
52 I have considered this submission and whilst you will be allowed a period on parole which will be of considerable duration, I do not regard the circumstances of your case as being deserving of a parole period which would be greater than would ordinarily be the case.
53 Please stand up, Mr Whelan.
54 I make the disposal which is consented to by you. I make the compensation order which is not opposed by you in the terms set out in the order handed to me by the learned prosecutor.
55 In relation to each of the charges, you are convicted and sentenced to periods of imprisonment as follows:
56 Charge 1 – two (2) years' 3 months imprisonment.
57 Charge 2 – two (2) years' imprisonment.
58 Charge 3 – two (2) years' three months imprisonment.
59 Charge 4 – eighteen (18) months' imprisonment.
60 I order that six (6) months of the sentences imposed on Charges 2 and 3 and three (3) months of sentence imposed on Charge 4 be served cumulatively with each other and with the sentence imposed on Charge 1, resulting a total effective sentence of forty-two months imprisonment, or three (3) years six (6) months, and I direct that you serve twenty-eight (28) months imprisonment, that is two (2) years four months, before becoming eligible for parole.
61 If not for you pleas of guilty, I would have sentenced you to five (5) years' imprisonment with a non-parole period of three (3) years three (3) months imprisonment.
62 I declare that you have already served 133 days pre-sentence detention which will be reckoned as the period already served in respect of this sentence.
- - -
0