Director of Public Prosecutions v White

[2015] VCC 291

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00932

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE WHITE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	11 and 13 March 2015
DATE OF SENTENCE:	13 March 2015
CASE MAY BE CITED AS:	DPP v White
MEDIUM NEUTRAL CITATION:	[2015] VCC 291

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Coombs
For the Offender	Ms T. Burns

HIS HONOUR: 

1Shane Michael White, you have pleaded guilty to one charge of intentionally cause serious injury and one charge of armed robbery.  Those crimes carry maximum penalties of 20 years and 25 years respectively.  You have also pleaded guilty to an uplifted charge of unlicensed driving.  On that charge, you are convicted and discharged.  You pleaded guilty immediately prior to what was to be a trial.  You are now 43 years of age.  The plea of guilty, I must give effect to the utilitarian purpose of it, in that it saved a trial and saved the community the expense.  It is of course to be noted that the victim of this matter was in fact called to give evidence at a committal so that the total utilitarian benefit of it is not necessarily the case.  Insofar as remorse is concerned it is, as I have indicated during the course of argument.

2You have had tendered a letter reportedly addressed to the complainant and I have read what you have said to the psychologist and said to other people.  You ought to be sentenced on the way that the Crown have put this case, and I sentence on no other basis.  Your letter that was purportedly addressed to the complainant in my view traverses the plea and in this situation where you have endeavoured to at least minimalize as much as possible your involvement, the question of remorse is very problematic indeed.  Obviously, you have to get some benefit of the plea, but the level of remorse which you may have expressed bears no relationship to that expressed by your co-accused.

3You have a very long criminal history and have been incarcerated on more than a dozen occasions that I can count.  I have not obviously and would not take into account any Children's Court matters, but prior to your adult incarcerations, you were also incarcerated for juvenile justice.  You have a prior conviction for armed robbery, for which you received an 18 month sentence.  You have prior convictions for the possession of weapons including a firearm.  And you also have convictions for violence and dishonesty. 

4The circumstances surrounding this offending as alleged by the Crown in your particular situation are that you and the complainant one Irene Anastasiadis had known each other for about 20 years.  In the months prior to this offending occurring, there had been contact between you but you had indicated to her that you had another girlfriend. On Tuesday 10 September 2013, there had been telephone contact between you and the victim.  The victim said that you had been ultra-nice to her on the phone but I note from now having read the depositions that she had made contact with, not just you with her.  There was discussion about meeting up.  When that occurred, you were at church in Box Hill where you had met before. 

5At approximately 7 pm, you had arranged to meet there.  She left her parents' house, which was nearby and walked to the church and you were there waiting.  You greeted each other, and decided for reasons I do not know, to walk over to the Box Hill Town Hall.  This was all taking place, obviously, in Whitehorse Road.  On the Crown summary, at that point in time, the victim saw your co-offender, one Natalie Hayes, standing near the wall of the church.  She asked you who that was.  You said that you did not know.

6As you both walked across Whitehorse Road, Hayes followed.  I note at the committal that the victim that she had never seen Hayes before in her life.  The victim continued to walk with you towards the Town Hall and then noticed Hayes running across Whitehorse Road towards you.  Hayes then started walking again.  You arrived at the town hall on the right hand side closest to Station street.  She said that you were smiling a lot at her at this time.  As you reached the car park near the town hall, Hayes grabbed the victim by the shoulders and forced her into the nearby bushes.  On the material before me, you were helping Hayes by dragging the victim.  Clearly that flies in the face of your assertions that you were somehow unable to stop all this.

7Hayes held the victim down and tried to force her to eat dirt and rocks from the gravel, at the same time telling her that she was fucked and not to talk to you.  You and Hayes were each referring to each other as "babe".  Whilst on the ground, Hayes attacked and punched the victim and you stood by and watched.  I interpolate at this stage that the Crown put their case on the basis of aid and abet, which would now be described as joint criminal enterprise and I take it that there is no suggestion, or there is no puttage here that you have punched or stabbed the victim.

8A witness, a Mr Considine walked into the car park at this time and approached you to see what was happening.  You were yelling, ranting and raving and said to Considine, "Don't worry, they're only mucking around". You banged on his car window saying, "Go on, rack off, mate".  He noted the registration of the car that you were in, which turned out to be one associated with Ms Hayes. The victim was able to get out of the bushes, and had blood on her and at one stage managed to grab hold of the car.  Hayes told her not to put blood on her car, she was dragged back into the bushes where she was further assaulted.  Hayes told her that she was going to cut her throat and drown her.  You remained close by watching this assault and undoubtedly able to hear. The victim was bundled into the back of Hayes' car with the help of you.  You said to Hayes, "stay with her babe". 

9Once in the car, the victim had her jacket pulled over her head and was told to "keep her fucking head down".  As the car came out of the car park, you were driving and witnesses noted that and noted the victim in the back of the car.  Whilst in the back of the car, your co-accused Hayes stabbed the victim repeatedly and if my memory serves me correctly, there was something in the order of 14 individual stab wounds.  You and Hayes demanded her bank debit card and pin and you threw her purse to her.  She says that she you were aware it was her payday, but I do not necessarily operate on that.  You went to the NAB branch in Whitehorse Road in Box Hill where you personally tried to withdraw $200.  Failing that, you withdrew $190.  You were captured doing that on CCTV.

10Whilst that was happening, the victim was held down in the backseat by Hayes.  You then got back in the car and drove a short distance, where according to the victim she was stabbed again before the car stopped in Kent Road in Box Hill.  Hayes told her to get out of the car.  She got out.  The victim said in her statement that you and Hayes drove off at speed yelling abuse. 

11Fairly soon after getting out of the car, she was found by a passerby and an ambulance was called. She texted a message to her son saying she had been stabbed.  She was taken to the Alfred Hospital and remained there until 14 September.  That is, approximately four days, being treated for multiple stab wounds, laceration, scratches, facial bruising and arterial bleeding.  Her treatment included a blood transfusion.  When interviewed ultimately by police, you said that it was essentially that it was a "bitch fight" and that you were not going to get involved.  I will deal with that again in a moment.

12The knife was found in Hayes' car with the victim's blood on it, as well as DNA belonging to Hayes.  There was also a folding knife in the car, which had Hayes' fingerprint on it and the ATM card was also found in that car.  A search warrant was executed at your premises and I do not need to go into the detail of all that.  As I indicated, insofar as remorse was concerned, there was a letter tendered on your behalf and I make it quite clear that having examined the surrounding material, I find aspects of that letter simply preposterous.  At one point in that letter you say, this addressed apparently to the victim, "I didn't know that you ripped her off for $200 years ago for heroin.  I only knew that when you offered to pay her back so went to bank.  You told me to get it out and you two were still arguing.  I wish you had have asked me to help.  I just didn't know what to do.  I just wanted it to finish so I could bring you back home."

13You described yourself as being helpless and a witness who gave evidence on your behalf said that you were remorseful for what you should have done but could not do.  I do not accept any of that, quite frankly.  You are a man who has been around the traps for a long time, Mr White.  You have been in gaol on many occasions.  On your version, your soulmate was on the ground having gravel forced into her mouth and you did nothing.  To work on the basis that she could be stabbed in the back of a car 14 times and you know nothing about it, I do not accept, and I also take obviously into account that you have pleaded guilty to armed robbery so must have therefore been aware of the knife and you also pleaded guilty to intentionally cause serious injury and the injuries are indeed serious on any basis.

14I have read the victim impact statement of the victim.  She said it was the most horrific fear she had ever experienced, and that what occurred on that night had “screwed” her life.  A very significant gaol sentence is inevitable.  As I have indicated, you have a prior for armed robbery and you have been in gaol many occasions before.  I then look at matters personal to you.  Tendered on your behalf was a report from Mr Bernard Healy, where you again asserted there was not much you could do about all this.  He goes through your background but at the age of 43, but does not lend you great assistance.  I accept that you had a very difficult background, including at least, the potential you say, of having been sexually assaulted. 

15You have been using - or abusing substances since obviously a very early age and you left school at an early age.  You had been in a relationship with the victim over a period of time, and I accept that.

16In your particular situation, the report of Mr Healy does not give rise to the principles of Verdins in my view.  I take into account that you do have a low intellect, but it is certainly not within disability level.  There is nothing in your state of mind or anything like that to give rise to the principles.  What, however, I do take into account in your circumstances very much is that you are currently in protection and as far as I am aware, will remain there and have been there for some time.  I accept that for somebody in your position, and hopefully that may change when you are actually classified, that that is a difficult process indeed.  I am told from the Bar table that you are in 22 hour lockdown, and I have confirmed from the prison officers that you are in fact in protection.

17The other issue involved in this is that of parity.  On 12 September 2014, I sentenced your co-accused Ms Hayes.  Firstly, insofar as this offending is concerned, it is a sustained and I think when sentencing, Ms Hayes referred to it as almost torturous attack on the victim.  She feared for her life, she said, and it is obvious why that was the case.  It is a serious example of intentionally cause injury and a serious example of armed robbery.  Obviously they arise in the same incident, so there has to be significant concurrency between the two.  You of course have previously been gaoled for armed robbery. 

18I sentenced your co-accused, who in this plea is to be regarded as having done the stabbing, to five and a half years with a minimum term of three years and three months.  She was significantly younger than you.  She had far less of a prior criminal history.  She had an actual intellectual disability which I took into account.  Hers was an early plea, and was accompanied by appropriate remorse.  Her sentence was also mitigated because I sentenced her on the basis that you had given her the knife.  You are not being sentenced on the basis that you did that.  I just simply point that out as something of a mitigating factor insofar as she was concerned.  It certainly does not aggravate yours.

19As I have said, or should have said, the lack of remorse does not aggravate the circumstances of the offending.  It simply takes away what is usually the most significant mitigating feature, as indeed it was with your co-accused.  I think that there are great differences between yourself and your co-accused insofar as parity is concerned.  But because of the away in which this matter has unfolded, and because you have in the ultimate pleaded guilty and avoided the cost and difficulties pertaining to a trial, I have kept the sentence within range of what she was given.

20My initial view was that it may well have been open to me, instead of imposing an opportunity for parole, to impose a community corrections order by declaring something in the order of 18 months served.  As indicated to your counsel prior to these sentencing remarks commencing, that having had a chance to review all the material, and review the sentencing remarks in the circumstances of your co-accused, it is my view that a minimum term of three and a half years in these circumstances would be in error.  However, as I have indicated, I take into account very much the circumstances of your position.  You must be very close to if not already institutionalised in terms of what has happened to you, and you will be doing gaol in difficult circumstances.  However, a significant sentence must be imposed. 

21On charge 1 of intentionally causing serious injury, a sentence of five years.  On charge 2 of armed robbery, a sentence of four years.  I direct that one year of the sentence imposed on charge 2 be served cumulatively on the sentence imposed on charge 1, which gives a head sentence of six years and I direct that you serve a minimum term of four years before you become eligible for parole.  I direct that 547 days be reckoned as having been served under this sentence.

22Pursuant to s.6(aaa) I say that but for your plea of guilty, and I have indicated the utilitarian basis of that, you would have been sentenced to imprisonment for a period of eight and a half years with a minimum term of six and a half.  Are there any other orders that I have to make?

23MS COOMBS:  Your Honour, can I just get some instructions?

24HIS HONOUR:  464 was clearly a retention.

25Ms COOMBS:  May I have a moment, Your Honour?

26HIS HONOUR:  Yes.

27MS COOMBS:  Your Honour, I'm instructed not to make any application for 464.

28HIS HONOUR:  When I was able to go through it, it was clear from the depositions that a DNA sample was taken from him at Box Hill police station.

29MS COOMBS:  Yes.  It was just disposal of those items, Your Honour.  I think Your Honour's already made those orders.

30HIS HONOUR:  I've already done that.

31MS COOMBS:  That's right, yes.

32HIS HONOUR:  All right.  Thank you.  You can go now.  10.30 Monday.

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