Director of Public Prosecutions v Whiting
[2016] VCC 1270
•17 August 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-00861
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NEIL WHITING |
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JUDGE: | Her Honour Judge Quin | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 August 2016 | |
DATE OF SENTENCE: | 17 August 2016 | |
CASE MAY BE CITED AS: | DPP v Whiting | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1270 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Henderson | |
| For the Accused | Mr H. Rattray |
HER HONOUR:
1 Neil Whiting, you have pleaded guilty to one charge of attempted armed robbery. The maximum penalty for that offence is 20 years imprisonment. You can sit down and I will tell you when to stand up at the end, Mr Whiting. Thanks. On Saturday 13 February 2016 Kevin McAllister went out with a group of friends drinking in the city. He stayed out with them until the early hours of Sunday 14 February 2016. At approximately 3.15 to 3.30 am Mr McAllister was seen walking along Queen Street near the intersection of Little Collins by Hugh Robertson and Rory Skopez. Mr McAllister attempted to engage with them both but they both observed him to be affected by alcohol or drunk and they continued walking along Queen Street.
2 They then noticed you close by wearing a hooded jumper. You approached Mr McAllister and grabbed him around the waist and said words to the effect of, "You owe me money for drugs". You produced a kitchen knife and held it to his back. Mr Robertson called out to you and you ran away towards Flinders Lane. A passing police car was flagged down and police officers chased you. You dropped the kitchen knife into a stormwater drain on Flinders Lane. You were arrested and gave a no comment interview. Police later recovered the kitchen knife from a stormwater drain. A subsequent examination of the kitchen knife revealed your right index fingerprint on the blade.
3 I was informed that Mr McAllister had declined to make a victim impact statement. It is apparent from his statement in the depositions that he has a very limited recollection of the events on this night, presumably due to his level of intoxication.
4 You are currently 31 years old though at the time of this offence you were 30. I received a report from Dr Aaron Cunningham, forensic psychologist, dated 5 August 2016 and I take that material into account.
5 You had a disruptive childhood with your parents separating and you moving frequently, consequently attending many different schools. Your mother had several different partners, some of which resulted in her being involved in or the subject of an abusive relationship. You lived with your father from the age of 14. In that environment you were exposed to drugs and other criminal activity. You left school around this time during Year 8. You have had various jobs as a machinist and an apprenticeship though you have been unemployed for the last ten years.
6 You have two children of your own. You have a son Jade aged 14 with whom you maintain contact. However, you have only limited contact with another son Levi, aged six. Both children live in Sydney.
7 As to your drug use, this commenced in your teenage years when you lived with your father. Your drug of choice was heroin although also methylamphetamine if you could not obtain heroin. You also have engaged in significant alcohol abuse.
8 On your release from custody in March this year you have attempted to address your substance abuse issues. You began treatment with SECADA in May and have attended weekly counselling sessions. I received a letter from Jim Panakis, alcohol and drug counsellor, SECADA dated 9 August 2016 who provides a positive report of your progress with that service and outlines your current treatment regime. It was submitted that you were linked to this organisation through the CISP bail program and that you have been compliant with opiate replacement treatment. You have frankly admitted some relapses since being involved with this service and I note I was not provided with any urine screens.
9 As to your mental health, Dr Cunningham is of the view that you present with a diagnosis of post-traumatic stress disorder. He notes, you present with distressing recollections of prior trauma. You present with negative alterations in cognition and mood in the form of feelings or worthlessness, emotional disconnection from others and the belief that bad things will eventuate. You present with marked arousal in the form of hyper-vigilance, difficulty concentrating, sleep disturbance, irritability and outbursts of anger and reckless and self destructive behaviour.
10 Your mother gave evidence as to her current medical condition and prognosis for her cancer. She indicated that you had provided significant support for her through her illness and treatment when she had recently undergone surgery and subsequent therapy. She indicated her condition was such that the focus of her treatment was now on pain management. Her condition was stable though the surgery was unsuccessful in removing all the cancer and her prognosis was not good.
11 She also indicated that she had recently separated from her partner and was proposing finding accommodation with you depending on the outcome of these proceedings. She gave evidence that if you were incarcerated she would have to return to Sydney to live with other family members who could provide her assistance in accessing treatment and other medical services.
12 Your counsel submitted that the circumstances were such with your mother that you have shown exceptional circumstances, given the level of dependence that your mother has on you, her precarious health situation and her indication she would need to move to New South Wales if you were not available to assist her. Your counsel submitted that exceptional circumstances had been established in respect of your mother's situation and dependence on you, such as to invoke the exercise of mercy in sentencing you. In the alternative it was submitted that your sentence should be reduced given your appreciation of your mother's predicament and that that hardship on her will increase the burden of imprisonment on you.
13 The situation with your mother is clearly a significant matter to take into account and I accept that this situation is such that any time in custody would be more onerous for you. I accept that exceptional circumstances exist given the effect of incarceration of you would have on your mother. However, this situation needs to accommodate itself to your degree of criminality for the offence. See The Queen v Ramezanian [2013] VSCA 71 at 26.
14 You have a significant criminal history in New South Wales and Queensland with 23 court appearances between June 2004 and March 2015. These matters are principally dishonesty, driving, drug and other summary offences dealt with by local or Magistrates' Courts. You have been dealt with mainly by way of fine or suspended terms of imprisonment. This current offence was committed while you were subject to a suspended sentence imposed on 25 September at Brisbane Magistrates' Court in 2014. You were remanded in custody for this matter on 14 February 2016 but bailed on 8 March and you have spent 24 days in custody.
15 This matter resolved on 18 May 2016 at the second committal case conference. The Crown concedes this was a plea at the earliest opportunity. Your counsel drew my attention to the depositions, particularly the statements of Mr McAllister and Mr Skopez and submitted that given that material your plea of guilty to this offence should be accorded significant weight. It was, however, conceded that by your plea you accepted the circumstances as outlined in the summary. You will receive full benefit for your plea including it being indicative of remorse.
16 I accept your plea is indicative of remorse. It is apparent from your presentation in court, your mother's evidence and as reported from your counsellor that you have shown remorse regarding this offence. Your plea has a significant utilitarian value or benefit and shows a willingness by you to facilitate the course of justice and acceptance of responsibility of your criminal behaviour.
17 As to your rehabilitation prospects, you have a significant criminal history. I note that your counsellor reports that you have acknowledged the effect of drugs on your life activities and actions including this offending. You have expressed a desire to live a drug free life, to access employment and to be a contributing member of society. It is reported you are taking advantage of SECADA, your general practitioner and other family supports including from your mother.
18 Given your history and background I am cautious about your prospects though I acknowledge that you have made some positive steps. I was, however, also informed that you have been charged with two minor shoplifting offences since you have been on bail for this offence.
19 This was an unprovoked random attack by you on a person who, although intoxicated after a night out, was entitled to feel safe walking the streets of Melbourne at night. Your counsel submitted I should impose a combination sentence. That is a term of imprisonment with a community correction order to be undertaken at the end of that term. Further, it was submitted that any term of imprisonment imposed given your pre-sentence detention, that that should be the time that you are required to serve and hence the CCO should commence immediately.
20 Reliance was placed on Boulton and the principles therein particularly that the punishment aspect of your sentence can be accommodated through community work and that you can continue with the progress that you have already made towards rehabilitation. Corrections have assessed you as suitable for a CCO but also note that you are a high risk of re-offending. The prosecution submitted a combination sentence was within range of sentencing options available to me.
21 Of concern to me is the seriousness of this offending particularly compared to your prior history. This is a step up. General deterrence and in your case specific deterrence are important sentencing considerations. Random acts of violence will not be tolerated and those who engage in such conduct should know they will be punished. It is apparent to me that although you have made some progress towards rehabilitation you still have a long way to go in addressing your drug issues, a task made more difficult by your personal circumstances, criminal and personal history including your mental health and issues surrounding your mother's health.
22 It is with some reservation that I am prepared to place you on a Community Corrections Order with strict conditions including judicial monitoring for me to ensure compliance and also to monitor your progress on the order.
23 Mr Whiting, could you please stand up now? What I propose to do is place you on a Community Corrections Order for a period of three years. You will be required to perform 150 hours of community work. There will be a condition regarding drug assessment and treatment. There will be a condition regarding offender behaviour programs. There will be a condition regarding mental health treatment. A condition regarding supervision and finally a condition regarding judicial monitoring.
24 What is proposed at the moment is that you report to Dandenong on Thursday. If, however, you change your residence with your mother you will need to inform Corrections of that change of address and perhaps have to change the place where you report.
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HER HONOUR: Sorry, you want to say something, Mr Whiting?
OFFENDER: Yeah. Yeah, I'm not an idiot so I'm not going to - I've got - at the current situation um I don't have an address of today 'cause I was meant to go prison so me and my mother need to change our address over the next week.
HER HONOUR: Yes. No, I understand that. Your mum said that in evidence. I understand that.
OFFENDER: All right.
HER HONOUR: So what you'll need to do is talk with the people - after you see the people at Corrections in Dandenong on Thursday you tell them. Keep them up to date as to where you're living with your mother.
OFFENDER: Right.
HER HONOUR: I am sure your mother understands that. Yes, all right. I understand, Mr Whiting, that the conditions and requirements of the order have already been explained to you and that you understand the obligations that you have under the order?
OFFENDER: Um - um I'm sorry. He's looking at me. Don't speak. Can I speak or - - -
HER HONOUR: Yes, you can speak.
OFFENDER: Yeah. Um I do like community service?
HER HONOUR: Yes.
OFFENDER: Urine test after drugs. Don't eff up.
HER HONOUR: Yes.
OFFENDER: Stay out - live a normal life and I'm not going back in?
HER HONOUR: Great. I hope that is right.
OFFENDER: So that's what it means in English?
HER HONOUR: No. No, I really hope that that is what happens.
OFFENDER: Yeah, so do I. So do I.
HER HONOUR: And I am giving you the opportunity - - -
OFFENDER: So do I, yeah.
HER HONOUR: I am giving you the opportunity now to do that and what I'm going to do is have you come back here in a month anyway.
OFFENDER: Yeah and if I - - -
HER HONOUR: And I'm going to be looking at you pretty carefully, Mr Whiting.
OFFENDER: So I - if I - in English without barrister's terms and stuff I - I eff up I'm copping three years. Is that how - is that how the system works here?
HER HONOUR: No. What happens - if that happens in terms of if you don't comply with the order - - -
OFFENDER: Yep.
HER HONOUR: - - - you'll come back before me and I'll sentence you and I'll have very limited - - -
OFFENDER: You'll re-sentence me on this?
HER HONOUR: Yes, that's right and I'll have very limited options in what I can do.
OFFENDER: Yeah, I understand Your Honour.
HER HONOUR: All right?
OFFENDER: Yep.
HER HONOUR: All right. I am pretty sure you do understand.
OFFENDER: Thank you. Thank you. Thank you, Your Honour - Your Worship.
HER HONOUR: That's all right. You'll notice in your sentence that I haven't included the 24 days but I have taken that into account in terms of the order that I am making. Pursuant to s.6AAA of the Sentencing Act I would have sentenced you to a period of 18 months imprisonment if you had not pleaded guilty to this matter, that just would have been a straight sentence and I made the Confiscation Act order the other day, didn't I?
MR HENDERSON: As far as I'm aware, thank you.
HER HONOUR: Yes, thank you. All right. Well I'm reasonably confident, Mr Whiting, you understand that this is all up to you.
OFFENDER: Yeah.
HER HONOUR: And I know it's not going to be easy.
OFFENDER: You gave me the rope. It's up to me what I do with it.
MR RATTRAY: Your Honour, the judicial monitoring date?
MR HENDERSON: Yes, the date?
HER HONOUR: Yes, the judicial monitoring date, 20 September. I'll see you back here on 20 September, Mr Whiting, and I hope you haven't got yourself into any more trouble and that you are providing as much support as you can to your mum.
OFFENDER: Um I've already got outstanding like - - -
HER HONOUR: You'll have to talk to Mr Rattray about that.
OFFENDER: Will that - will that interfere with this?
HER HONOUR: I don't know. You'll have to work that out with Mr Rattray, all right.
OFFENDER: Oh okay.
HER HONOUR: All right. I can't do anything about that. All right.
OFFENDER: They can't (indistinct) what you've just given me?
HER HONOUR: No, unless you commit other offences after today.
OFFENDER: Yeah, after today if I - I - - -
HER HONOUR: Yes, that's right.
OFFENDER: If I don't eff up I'm straight.
HER HONOUR: Yes.
OFFENDER: Right so thank - - -
HER HONOUR: Yes, no breaches from today and we'll be right.
OFFENDER: Thank you very much.
HER HONOUR: All right. I'll see you in a month.
MR RATTRAY: Thank you, Your Honour.
HER HONOUR: Sorry, you've got to sign the order.
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