Director of Public Prosecutions v Whyte

[2015] VCC 1695

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

AT WODONGA
CRIMINAL JURISDICTION

CR 15-01628

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER WARREN WHYTE

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JUDGE:	HER HONOUR JUDGE HARBISON
WHERE HELD:	Wodonga
DATE OF HEARING:	19 November 2015
DATE OF SENTENCE:	20 November 2015
CASE MAY BE CITED AS:	DPP v WHYTE
MEDIUM NEUTRAL CITATION:	[2015] VCC 1695

REASONS FOR SENTENCE
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Subject: armed robbery, theft
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Offender	Mr J. Kantor

HER HONOUR:

1Peter Warren Whyte, you have pleaded guilty before me to one charge of armed robbery and one charge of theft. 

2These offences occurred on 26 July 2015 at the KFC store in Elgin Boulevard, Wodonga.  You, together with your co-offender Jamie Smith, entered that store at about 7.30 in the evening.  You were wearing a dark hooded jumper, and you pulled the hood over your head before entering.  You were armed with a wheel brace from the motor vehicle that you had been driving.  You produced the wheel brace to staff and demanded that a staff member open the register.  When the first staff member who you had threatened ran away, you continued to threaten other staff members with the wheel brace in order to get them to open the tills or alternatively open the safe at the store so that you could obtain money.

3Whilst you were doing so you shouted at them, yelling "Take me to the safe or I'll smash your fucking head in", and "You've got five seconds before I start smashing heads in."  The staff were unable to open the safe because it had a timing lock.  They were able to open two tills.  You grabbed the money out of both tills and stuffed it in your pocket.  You also took a purse from one of the members of staff, which contained approximately $200.

4This taking of the purse is the subject matter of the second charge of theft, and your other activity on the night is the subject matter of the charge of armed robbery.

5You subsequently left the restaurant with your co-accused. 

6Your threatening behaviour as I have described it was observed by many patrons of the restaurant, including some small children nearby.  Clearly the patrons, and especially the children, would have been disturbed and frightened as these events unfolded. 

7You were chased by a brave bystander, Jeremy Cello, who yelled at you to drop your weapon and followed you along the street.  He was able to restrain you until a police vehicle attended, although you initially drove off before that police vehicle was able to intercept you.  Police were later able to track you down through the car registration number that Cello obtained.  You were arrested the next morning at a motel in Wodonga, when you made full admissions. 

8Mr Whyte, armed robbery is a very serious offence.  It is an offence which carries a maximum of 25 years' imprisonment.  It is very important that persons who commit the offence of armed robbery are dealt with in such a manner as will dissuade other members in the community from committing this offence.  Thus, the principle of general deterrence is very important in sentencing you today. 

9This was a very cowardly attack, on what your barrister accepted was a very soft target.  Not only were the employees of the store relatively young and defenceless, but you committed this crime in the presence of customers, including children.  Further, you brandished the wheel brace, an object capable of causing dire injuries, in an extremely threatening manner at your victims.  The words you used whilst doing so must have struck terror into them.  Although there are no victim impact statements before me, clearly your actions on that evening must have caused great fright to your victims, both the primary victims being the store employees  to whom you directed your aggression, and also the customers of the store.

10As well as general deterrence, I need to consider the question of specific deterrence.  You are a man with a very significant criminal history.  It is concerning that your criminal history contains several convictions for offences of violence.  One of the very significant principles in sentencing you today is therefore the need to deter you from criminal activity into the future. 

11It is worth noting that at the time of your offending you had been given short-term accommodation through a local church in Jindabyne, and that one of the members, who was 84 years of age, had in fact hired the motor vehicle that you were using for yourself and your co-accused.  It was hired on the basis that you would use it to drive to Canberra airport and then proceed to Queensland to see your family.  Instead of doing so you took advantage of the hospitality of your benefactor and you used the car to drive to Wodonga, looking for a suitable business to rob. 

12I have received a report from Jeffrey Cummins, who is a clinical psychologist.  He has seen you on one occasion on 3 November 2015 for the purpose of obtaining a report for use at your plea hearing before me.  In his report he describes your background and circumstances.

13You are now 30 years of age.  As I have already said, you have a significant criminal history. 

14You have been in custody in Western Australia, which was the state in which you were born, between approximately 2008 and 2010.  At that time you were serving a sentence for alcohol-related offending, including charges of aggravated burglary, assault and assault occasioning bodily harm.  As I understand it, you commenced but did not complete a medium intensive violence program whilst in prison in Western Australia.  You were selected to complete this course because of your history of previous violence. 

15I was given a copy of your criminal record.  Although, as I have said, it is extensive, there is some positive aspects to it, as you have committed relatively few acts of violence in the recent past, and these offences appear to have been committed in somewhat mitigating circumstances.  I say this because of the description by your counsel on the plea in relation to those offences, and also because of the fact that you received suspended sentences of imprisonment for those offences, merciful sentences which I take to be an indication of the relatively minor nature of your offending despite the fact that you were charged with very serious offences.

16You came to Victoria shortly before the offending for which I am to sentence you today, as I have previously described.  At the time of this offending you were itinerant and you had no money.  You told police that you committed this offence to obtain money to go to prison to see your ex-partner and your son.  You also said to a witness at the scene of the offending "You don't understand, I'm really desperate.  You don't understand how desperate I am."  This, I understand, was not a reference to needing to take drugs or alcohol, but a reference to your desperation to link up with your family in Queensland.

17You have had a fractured early family life, with your parents separating when you were aged two.  It appears that you never got over your parents' separation, and you have had a significant amount of counselling and intervention as a result of your reaction to that separation.  I am told that you suffered some family violence from two of your mother's de facto partners. 

18You have a very poor academic history, and after you left school in about Year 9, you lived a very erratic lifestyle, intermittently working in various labouring occupations. 

19You have been smoking cannabis since the age of 12 and using amphetamines since the age of 16.  You were treated in a children's psychiatric hospital when you were about 11 years old with a provisional diagnosis of ADHD, but which appears to have been later recognised as parental detachment syndrome.  You were prescribed various drugs, including dexamphetamine, at that early age and have later been treated with antidepressant drugs for your condition.  This appears possibly to have been the trigger for your subsequent use of illegal drugs into your adult life.

20The matters were confirmed in a letter written by your mother, which was an exhibit on the plea.  They were also set out extensively by Mr Cummins.  There are other significant matters of your personal history set out in the report of Mr Cummins.  I do not feel the need to go into detail about those matters in these sentencing remarks, but I have taken them into account in sentencing you today.

21You, as I understand it, have viewed your history of taking drugs as being an attempt to self-medicate because of your despair about your early family life.  You have at times been suicidal and have been a binge drinker of alcohol from about the age of 12 to 13 years.  You have never undergone any drug detoxification program, but you have completed at least two alcohol education courses in the past.

22As well as this difficult family history that I have outlined, you have also been involved in two de facto relationships.  From those relationships you have fathered two children.  You have not had an ongoing relationship with those children because of the breakdown of the relationships, which appear to have happened because of your usage of drugs. 

23At the time of these offences, then, your life was in disarray.  The family which you were desperate to see in Queensland consisted of your younger son and your previous partner from your last relationship. 

24

Mr Whyte, you prepared a letter of apology to your victims.  You told

Mr Cummins that you did not intend to hurt anyone and there was not really any plan.  You also told him that you feel as if you are starting to mature, and you described yourself as a late maturer.  You said to Mr Cummins that you now just feel sad and lonely.  This may be the first real indication, Mr Whyte, of optimism that you may be coming to understand the need for radical change in your life.  But, as your barrister said, there is still a very long way to go.

25I take into account in sentencing you today that you have pleaded guilty at the earliest opportunity.  Not only have you saved the community and your victims the cost and emotional impact of a trial, but your plea of guilty is, I accept, an expression of remorse.  You also cooperated with the police prior to making your record of interview, and in that record of interview you made full admissions.

26Your counsel tells me that you recognise that it is inevitable that you will be sentenced to a significant period of imprisonment today.  Because of your personal circumstances it is clear that any sentence of imprisonment will be served without you having any visitors at all, and this will make your imprisonment significantly more onerous.  To add to that difficulty, you are serving your sentence in protection because you are concerned about retribution from bikie gangs.  As I understand it, this arises out of your association with your co-offender.

27Mr Cummins' view is that you have never come to terms with your parents' separation, and have been suffering from an adjustment disorder with mixed anxiety and depressed mood, and features of traumatisation over many years.  In his view, the symptoms of this condition have been compounded by the ending of your two relationships, and you have been self-medicating by using drugs over many years.

28In sentencing you today I need to make an assessment of your prospects for rehabilitation into the future.  In your mother's letter she describes you as loving and protective of your siblings and the elderly.  She describes you as a beautiful human being, with so much to offer the world when you are yourself, but also says that you have not been yourself for many years.  She expresses the hope that you may in the future have another chance at a beautiful life with the family support you need.

29Mr Cummins points out that you have never received any mental health treatment as an adult.  His view is that you could benefit from receiving psychotherapy.  He says that you present as someone who is relatively emotionally immature.  His opinion as to your prognosis for further offending is guarded, but he has indicated that it may improve if you do receive that appropriate mental health treatment with a focus on unresolved grief, including the grief relating to your parents' separation and to the ending of your most recent relationship.

30Mr Whyte, you are now a mature adult.  You are not a young man.  I accept that you do have some prospects of rehabilitation, provided you take the opportunity which will be given to you once you are released on parole.  If you do not, Mr Whyte, it seems inevitable that you will spend your adult years in and out of gaol.  Mr Whyte, can you stand up please?

31Peter Warren Whyte, on the charge of armed robbery you are convicted and sentenced to be imprisoned for four and a half years.  On the charge of theft you are convicted and sentenced to be imprisoned for six months. 

32As both charges arise effectively out of the same series of events, each charge will be served concurrently.  That makes an effective sentence of imprisonment, Mr Whyte, of four and a half years.

33I order that you serve a non-parole period of three years.

34I will make a forensic sample order, as has been requested by the prosecution.

35I state that if you had not pleaded guilty, Mr Whyte, the sentence I would have imposed would have been an effective total sentence of six and a half years, with a period of four years' imprisonment before being eligible for parole.

36Lastly, Mr Whyte, I note that you have served 117 days in custody for this offence, and I declare that that time be declared as time already served under the sentence passed today.  You can take a seat.

37Are there any other matters?

38MR MOORE:  No, Your Honour.

39HER HONOUR:  Thank you, Mr Whyte.  Mr Whyte can now be removed.  Subject to the order printing at some time in the future and going to its correct place, I will declare the circuit finished.  Thank you very much, Mr Moore, for your assistance for the whole.

40MR MOORE:  Thank you, Your Honour.

41HER HONOUR:  And thank you, Mr Kantor, for your assistance on this plea.

42MR KANTOR:  Thank you, Your Honour.

43HER HONOUR:  And I will adjourn the court sine die.

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