Director of Public Prosecutions v Wight
[2022] VCC 398
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00984
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL WIGHT |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 28 February 2022 | |
DATE OF SENTENCE: | 29 March 2022 | |
CASE MAY BE CITED AS: | DPP v Wight | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 398 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Theft; Burglary; Attempted Theft; Armed Robbery; Reckless Conduct Endangering Life
Legislation Cited: Sentencing Act 1991; Crimes Act 1958
Cases Cited:R v Verdins & Ors (2007) 16 VR 269; Worboyes v R [2021] VSCA 169; Piacentino v R [2019] VSCA 153
Sentence: Total effective sentence of 4 years’ and 6 months’ imprisonment, with a non-parole period of 3 years and 4 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Teo | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr T. Smurthwaite | Robert Davis |
HIS HONOUR:
1Michael John Wight, you have pleaded guilty to an Indictment containing eleven charges – five charges of theft which carries a maximum penalty of 10 years' imprisonment, three charges of burglary which carries a maximum penalty of 10 years' imprisonment, one charge of attempted theft which carries a maximum penalty of five years' imprisonment, one charge of armed robbery which carries a maximum penalty of 25 years' imprisonment and one charge of reckless conduct endangering life, which carries a maximum penalty of 10 years' imprisonment. You also pleaded guilty to a related summary offence of committing an indictable offence whilst on bail, which carries a maximum penalty of three months' imprisonment.
2You have also admitted your criminal record.
Circumstances of the Offending
3The circumstances of your offending were set out in the Summary of Prosecution Opening for Plea dated 26 April 2021 (Exhibit 1).
4Your offending was committed between 25 April 2019 and 29 April 2019, along with your co‑offender, Joshua Kenny. At the time of your offending you were aged 29, and resided in Morwell. During this period of time, you committed a series of burglaries, thefts, and an armed robbery. The targets of your offending were various pharmacies throughout the Eastern Melbourne and Gippsland areas.
5On 25 April 2019 at approximately 1.05 pm, you and Mr Kenny entered a pharmacy at the Mid Valley Shopping Centre in Morwell. You both walked to the rear of the store where the dispensary counter was located and stole two bottles of Ativan, valued at $100, off the shelves before leaving the store. At the time you were wearing a black-hooded jumper with the hood pulled over a black baseball cap, and dark coloured runners with orange laces. You were also wearing sunglasses. Ativan is a medication which is similar to Valium. Police were called immediately, however you could not be located. Your conduct in this regard forms the basis of Charge 1 on the Indictment, theft.
6Less than 12 hours later, at approximately 12.30 am on 26 April 2019, you and Mr Kenny attempted to gain entry into another pharmacy located in Rintoull Street, Morwell, using a jemmy bar or similar object on the lock of the store’s front door. When you were unable to lever the doors open, you and Mr Kenny used an unknown tool to smash the front glass panel to gain entry to the store. Witnesses observed the two of you and called Triple Zero. Shortly after, you both exited the store with three or four boxes of Valium valued at approximately $12 to $16 and eight boxes of Valpam, valued at $16. You both ran to an address owned by an individual who was the father of one of your friends, where you admitted to the burglary. The owner of the pharmacy was subsequently alerted, and later that day the owner identified both you and Mr Kenny when you attended the pharmacy, asking about the burglary. Your conduct in this regard forms the basis of Charges 2 and 3 on the Indictment, burglary and theft.
7Two days later, at 4.55 pm on 28 April 2019, you and Mr Kenny entered a chemist in Morwell. You both entered the store and walked directly to the dispensary counter, a staff-only area within the store, walking past staff members and the pharmacist. One staff member approached you both and asked you to leave. When the staff member said, 'If you don’t leave, I’m going to call the police', Mr Kenny then approached the staff member in an intimidating manner and said, 'Well I’ll snap your fucking neck'. The staff member then yelled at both of you to leave, at which point you both ran from the store without taking any property. Your conduct in this regard forms the basis of Charge 4 on the Indictment, attempted theft.
8A few hours later, at approximately 8.50 pm on 28 April 2019, you and Mr Kenny gained entry to another pharmacy in Drouin, with Mr Kenny using a tyre iron to smash the front glass doors. The incident was captured on CCTV and observed by a witness who observed you and Mr Kenny leaving the pharmacy with boxes of medication. You were observed with Mr Kenny getting into a dark-coloured SUV and then driving off. Police attended a short time later. The pharmacist confirmed that you and Mr Kenny stole an unknown amount of Sudafed, Codral tablets, Valium, Ativan, Temazepam and Antenex. Your conduct in this regard forms the basis of Charges 5 and 6 on the Indictment, burglary and theft.
9In the early hours of the following morning, at approximately 2.50 am on 29 April 2019, you and Mr Kenny smashed the front glass doors of a pharmacy in Rosedale, and spent approximately five minutes ransacking the store. You were both seen via CCTV footage exiting the store with an unknown amount of prescription medications. Your conduct in this regard forms the basis of Charges 7 and 8 on the Indictment, burglary and theft.
10Less than 30 minutes later, at approximately 3.15 am on 29 April 2019, you and Mr Kenny attended at the Shell service station in Traralgon in a black Holden Captiva. Fuel to the value of $45 was put into the vehicle. You both then entered the store. You took a bottle of drink from the fridge while Mr Kenny stood at the front door before you both returned to the car and drove away without paying for either the drink or the petrol. Your conduct in stealing the bottle of drink forms the basis of Charge 9 on the Indictment, theft.
11Later that day at approximately 1.40 pm on 29 April 2019, the same black Holden Captiva parked nearby to a pharmacy in Bunyip. After enquiring about an appointment at the doctor's surgery adjacent to the pharmacy, you and Mr Kenny entered the pharmacy, where you asked whether they stored the drug Nexium. You were informed that they did, however a prescription was required for this drug. Approximately 15 minutes later at 1.56 pm, after again attending at the doctor's surgery seeking an appointment, you both re‑entered the pharmacy holding large hunting knives. By this time, you and Mr Kenny had formed an agreement or understanding to commit an armed robbery on the pharmacy, with a third individual acting as a getaway driver. When you re-entered the store, you were observed to have a beanie pulled over your face, with two holes cut out of it for sight. Mr Kenny was observed to be wearing a dark grey jumper with a hoodie on his head, together with dark sunglasses. You both walked directly to the dispensary area of the store, which was blocked off. Mr Kenny approached the pharmacist while holding the knife and said, 'I’ll stab you mate. I’ll stab you mate. Where are the drugs?'. You then demanded the keys to the drug safe, and the pharmacist complied with this demand out of fear. You and Mr Kenny then went to the two large drug safes at the rear of the dispensary area, opened them and filled a yellow bag with an unknown quantity of prescription medication before running out of the store at approximately 1.57 pm. Amongst the medication stolen were Sudafed, Codral, Valium, Ativan, Aladore and Antex. You both ran into the waiting Holden Captiva being driven by the third individual. A witness observed this, and in an attempt to block the Holden Captiva from being driven away, drove his vehicle and collided with the driver's side door of the Holden Captiva. This did not disable the Holden Captiva, and it drove away at a fast rate of speed towards the Princes Highway. Your conduct in this regard forms the basis of Charge 10 on the Indictment, armed robbery.
12You were then seated in the front passenger seat of the vehicle. Police subsequently detected the Holden Captiva on Princes Highway travelling towards Morwell. When the vehicle stopped at a red traffic light, a police vehicle activated its lights, but the car accelerated away at a fast rate of speed until the police lost sight of the vehicle. The third individual was dropped off at an address in Morwell, and you drove the vehicle, with Mr Kenny then in the front passenger seat. Approximately one hour later at 2.50 pm, a witness observed you slumped over the wheel of the Holden Captiva, and saw the vehicle lose control and swerve to the left before colliding with a tree and catching fire. Police arrived and extracted both you and Mr Kenny before the car was fully engulfed in flames. You were both conveyed to hospital with serious injuries. A subsequent search of the vehicle revealed a large amount of prescription medication in the rear of the vehicle and a charred yellow bag. Other items used in connection with your offending were located in the vehicle. A subsequent search of your address in Morwell revealed other items in connection with the offending. You were subsequently interviewed on 8 May 2019, admitting to being in the stolen Holden Captiva on the day of the incident and being 'pilled' off your face on Xanax, but making a largely 'no comment' interview to many other questions regarding the alleged offending, before being charged and remanded in custody.
13At the time of these offences, you were on bail for unrelated offending, and your conduct in this regard forms the basis of related Summary Charge 25, committing an indictable offence whilst on bail.
Nature and Gravity of the Offending and your Level of Culpability
14As I indicated in sentencing your co‑offender Mr Kenny, I regard your overall conduct, engaging in a spree of criminality over an intense four-day period in company with another, as representing serious and concerning offending. Your offending was targeted, by virtue of each instance of dishonesty offending involving regional chemists. This was not random offending behaviour; rather, it seems clear that you and your co‑offender were motivated by a desire to obtain drugs. Your victims were soft targets – retail chemists where the various workers and pharmacists were entitled to feel safe. In that sense, general deterrence looms large as a sentencing purpose.
15Your offending escalated, in the sense that your first offence involved the commission of a theft by entering a chemist during its operating hours. You graduated to obtaining forced entry to various chemists after hours, thereby committing burglary and theft, and ultimately engaged in a serious armed robbery. Your conduct was both intense in terms of the timeframes, and it was sustained, in that it continued over a four-day period. It was, in my view, determined conduct. You used implements to obtain forced entry in relation to the burglaries. Due to the fact that your conduct extended over a period of four days, whilst I accept that you were likely drug-affected and clearly motivated by a desire to obtain drugs, in my view you nevertheless had opportunity to contemplate your wrongdoing and desist from further offending. Instead, your criminal behaviour continued to escalate.
16As I indicated when sentencing your co‑offender, the objective gravity of the armed robbery in particular is more serious than a low-level example of the crime of armed robbery, and overall represents a serious and concerning example of this particular crime. You committed the armed robbery in company with another, which would have increased the degree of fear and apprehension to others. You and your co‑offender had entered the pharmacy approximately 15 minutes prior to the armed robbery, asking if a particular drug was stored at the pharmacy, revealing a degree of planning and intent. You both entered the pharmacy holding large hunting knives. Your use of a bladed weapon no doubt increased the degree of fear and apprehension in others, and represented a greater potential for harm. When you re‑entered the store in order to commit the armed robbery, you had made efforts to conceal your identity, reflecting a degree of forethought, and no doubt this aspect increased the degree of fear and apprehension in others.
17The offence of armed robbery is inherently a violent offence. The actions of your co‑offender in approaching the pharmacist whilst holding his knife and articulating menacing sentiments to the pharmacist, in my view increases the violent aspect of this particular armed robbery. Whilst you are not to be punished for your co‑offender’s actions in this regard, overall in my view there was a menacing aspect to the armed robbery.
18As submitted by your counsel, I accept that the duration of the armed robbery was relatively short-lived, there was no actual violence, and overall there was an air of unsophistication to this criminal endeavour, given your repeated entries to the relevant locations. However, due to the reasons that I have articulated, I cannot accept that this represents a low-level example of armed robbery. As I indicated in sentencing your co‑offender, in all likelihood your conduct in relation to the armed robbery was ill-conceived, unsophisticated in both its planning and execution, and motivated by a desire to obtain drugs quickly.
19Further accentuating the overall objective gravity of your offending, whilst no victim impact statements were provided in this matter, your offending involved multiple victims at different locations on different dates, and it is to be expected that those who were unfortunate enough to encounter you during your offending would have been adversely impacted by the experience.
20As conceded by your counsel, your conduct in relation to the reckless endangerment charge, Charge 11 on the indictment, represents a serious example of this form of offending, given that the conduct resulted in significant injuries to your co‑offender and that it occurred in the context of substance abuse and speeding. As indicated through the very wording of the charge on the indictment, your conduct in driving a motor vehicle at high speed in a residential area, veering off the road and crashing, placed, or may have placed, persons in danger of death. The endangerment extends, therefore, beyond your co‑offender, to others in the vicinity. The photographs contained in the depositional material with regard to the aftermath of your driving, spectacularly highlight the inherent danger in your conduct, together with the significant consequences.
21In terms of your level of culpability for your offending, the fact that you were drug-affected at the time does not, in my view, in any way excuse your conduct. However, in light of the opinions expressed by neuropsychologist Laura Scott in her report dated 12 February 2022 (Exhibit 'C') with regard to your pre-existing ADHD and acquired brain injury likely being significant contributors to your offending behaviour, for reasons that I will shortly outline, whilst, as I have previously stated, it is difficult, to say the least, to distinguish your cognitive impairments from the effects of drug intoxication, I am satisfied that a degree of moderation is warranted with regard to your moral culpability, together with the application of specific and general deterrence, in accordance with the Verdins[1] principles.
[1]R v Verdins (2007) 16 VR 269.
22Finally, with regard to your moral culpability, whilst I would normally regard your criminal history, particularly in relation to your prior finding of guilt for the offence of armed robbery, to enhance your moral culpability with regard to the current armed robbery offence, in light of the opinions expressed by neuropsychologist Ms Scott, I do not make this finding in your case.
Personal Circumstances
23You are currently 32 years of age. You were born in Moe and raised in Traralgon. You have an older sister, Yolanda. Comprehensive information regarding your background was provided in the psychological report of Warren Simmons dated 7 April 2021, Exhibit B at your plea hearing, together with the neuropsychological report of Laura Scott, clinical neuropsychologist, dated 12 February 2022, Exhibit C.
24You have reported no significant exposure to trauma within the family home, however, it appears you were briefly placed into out-of-home care at approximately the age of 14 due to your offending, drug use, and failing to abide by family rules.
25You attended Traralgon Primary School before transitioning to Traralgon Secondary College, where you completed Year 9. Your school marks and engagement, it seems, deteriorated gradually over your high-school years. Following your education, you commenced an apprenticeship, though you have reported that you were fired after two years in the context of using drugs and deteriorating engagement. Since then you have not undergone any further education, and only brief periods of employment since. Save for one reported relationship in your mid‑20s, you have no other longstanding relationships.
26Neuropsychologist Ms Scott obtained further information from your mother, Donna, for the purposes of her assessment. According to your mother, you had significant difficulties concentrating at school, and were assessed by a paediatrician who diagnosed you with attention deficit hyperactivity disorder (‘ADHD’) and prescribed you medications. According to your mother, you were often in trouble at school because of your difficulty sitting still and concentrating. You left school at the age of 14 and then started really getting into trouble. This corresponds with the brief period of out-of-home care due to your deteriorating behaviour at home.
27You reported to Ms Scott using illicit substances from your early teenage years. You commenced cannabis use when you were 13, then first using ice when you were 17, followed by regular use of this substance on a daily basis, sometimes for up to a period of 12 months. Prior to this offending, you were reportedly smoking ice approximately twice per week. You first tried heroin when you were 17, using it regularly for two years, before stopping and then resuming use again from the age of 24, typically injecting one gram per day. You also used benzodiazepines from the age of 17, consuming up to 20 pills per day from the age of 20. This history of drug use is coupled with occasional use of speed, cocaine, ecstasy and GHB.[2]
[2] Neuropsychological Report of Laura Scott dated 12 February 2022 at pp. 2-3.
28Ms Scott refers to your criminal record dating back to 2005, and containing prior convictions for various matters including theft, drug trafficking, burglary, armed robbery, arson, recklessly cause injury, various driving offences and breaches of court orders.
29Indeed, an analysis of your criminal history is concerning. In 2008, you received a Youth Justice Centre Order of two years and six months from the Melbourne County Court for offending which included armed robbery. You subsequently received a sentence of imprisonment with a parole component in 2011 for the offence of robbery. In 2013, you received a sentence of imprisonment combined with a Community Correction Order for offending which included recklessly causing injury. That Community Correction Order was breached in 2014, and in 2015 at the County Court you received a sentence of imprisonment combined with a Community Correction Order for the offence of aggravated burglary. Your most recent prior conviction, pre‑dating the current offending, dates from 28 September 2017, where you received a Community Correction Order for offending which included assault with a weapon.
30According to psychologist Warren Simmons in his report dated 7 April 2021, you reported that from the time when you were in juvenile detention at the age of 17, you have been incarcerated on seven occasions, and you have estimated that in total you have spent about nine years in custody since 2005. You indicated to Mr Simmons that the majority of your prior offending occurred while drug-affected, and others have been committed in order to obtain drugs.
31In terms of the current offending, you informed Mr Simmons that you had been ingesting various benzodiazepines at the time, and therefore had limited recall of the offending conduct. You informed neuropsychologist Ms Scott that you were frequently using methamphetamine and benzodiazepines at the time of the offending, and that you cannot recall what you were thinking as you were carrying out each of the offences, save to say that much of the offending related to obtaining drugs or obtaining money to purchase drugs.
32According to Ms Scott, your neuropsychological profile is consistent with your childhood diagnosis of ADHD. You present with impairments in attentional and executive functions, along with behavioural patterns of inattention and impulsivity which are typical of this neurodevelopmental condition.[3] You have reported at least a decade of heavy daily benzodiazepine use, and the presence of memory impairments in this context indicates the presence of a drug-related acquired brain injury.[4] According to Ms Scott:
'Mr Wight’s cognitive and behavioural impairments have likely had a significant effect on his life trajectory. His school years were marred by poor academic achievement and behavioural problems which led him to ultimately disengage from education. This in turn limited his options for employment and reduced his earning capacity causing financial strain. His cognitive and behavioural impairments likely increased the risk of engaging in risky behaviours (such as drug use and offending). The combination of cognitive impairments and problematic behaviours has also seriously eroded the social relationships leaving Mr Wight with very few psychosocial supports.'[5]
[3]Ibid at pg. 10.
[4]Ibid.
[5]Ibid.
33According to Ms Scott, your cognitive and behavioural symptoms of ADHD and acquired brain injury cause you to be impulsive and restless. Your disorder of impulse control significantly increases the risk of disinhibited behaviours. You have a reduced ability to make well-reasoned decisions. Your cognitive and behavioural symptoms of ADHD and acquired brain injury were likely significant contributors to your offending behaviour, both directly and indirectly. In particular, your disorder of impulse control increases the likelihood that you will use drugs or engage in opportunistic criminal behaviour.
34Your current offending appears to have been fuelled, according to Ms Scott, largely by your desire to obtain drugs or to obtain money for drugs. The repetitive nature of the offending is consistent with your rigid inflexible thinking causing you to repeat a basic behavioural pattern. You would have difficulty thinking of alternative, socially acceptable ways to meet your health needs without external support and guidance. According to Ms Scott, with regards to the armed robbery and the reckless conduct charges, while your intoxication would have likely exacerbated any existing impairments, you were likely unaware of the extent to which your general impulsivity also played a part in your decision-making.[6]
[6]Ibid at pg. 11.
Sentencing Factors, Purposes and Principles
35The Sentencing Act 1991 requires me to take into account various matters in formulating an appropriate sentence in your case. I have already referred to the maximum penalties, the nature and gravity of your offending, your level of culpability for the offending, and your previous character.
36
You indicated a plea of guilty to these charges at a directions hearing in the County Court on 28 January 2021. I accept that your plea of guilty was entered at a relatively early stage in proceedings. Whilst initially a contested committal hearing was sought, that hearing never occurred, with the matter ultimately proceeding by way of straight hand‑up brief without any witnesses being
cross-examined. The matter subsequently resolved in the County Court upon negotiation between the parties and the withdrawal of at least one allegation. In these circumstances, particularly given the impacts of COVID‑19 and its unprecedented challenges to the administration of criminal justice in this state, where this court currently experiences considerable backlogs, the utilitarian value attaching to your plea of guilty is significant, and, in accordance with the principles articulated in the case of Worboyes,[7] a significant mitigatory allowance is warranted.
[7]Worboyes v R [2021] VSCA 169.
37Furthermore, I accept that a further mitigatory allowance is warranted to some degree with regard to the issue of remorse. In addition to your plea of guilty in the circumstances as I have described it, according to psychologist Warren Simmons,[8] you were able to express some remorse and empathy for your victims, and although this was not particularly detailed, this was consistent with your overall intellectual impairments.
[8]Psychological Report of Warren Simmons dated 7 April 2021 at [28].
38Likewise, neuropsychologist Ms Scott referred to your ability now to identify that your actions were wrong and that they could have caused harm to yourself and the victims, though there is some doubt that you fully appreciate the actual and potential harms caused, and you appear to have a fairly narrow view of your offending, showing little insight into the contributions of your various conditions to your offending. In the circumstances, given the impairments described by Ms Scott, I am prepared to make a modest mitigatory allowance on the issue of remorse.
39You have served all but 10 months of your considerable remand period during the COVID-19 pandemic. As is now well known, the custodial setting has been significantly impacted by the pandemic. To varying degrees, given the unpredictable nature of the pandemic, there have been significant restrictions in the custodial setting with regard to lockdowns, prison visits, and access to employment programs, services and therapies; and quarantining and isolation have become features of the custodial setting. Furthermore, all prisoners and their families have had to live with the ongoing stress and anxiety associated with the consequences of COVID‑19 entering the custodial environment, with its compromised demographic. I accept that about 300 days of your remand period have been affected by at least partial lockdown.
40You have also found that courses such as drug and alcohol rehabilitation programs have not been available, when ordinarily they would have been. By way of example, Alcoholics Anonymous has apparently not been running. Your parents, who are apparently generally supportive of you, have not been able to have face-to-face contact visits with you since March 2020. I accept overall that the consequences of COVID‑19 have made your time in prison more arduous, warranting a mitigatory allowance.
41Furthermore, I accept that the injuries sustained by you during the reckless conduct offending have no doubt added to your anxieties and overall burden in custody. You were hospitalised in relation to this matter, with serious injuries. Those injuries were detailed in the psychological report of Warren Simmons – you were taken to hospital with a fractured neck, fractured ribs, two punctured lungs, as well as a ruptured spleen. Whilst you did not require surgery, you wore a neck brace for three months to stabilise your neck.[9] I accept that this represents, to a degree, a measure of extra-curial punishment, which has made your time in custody more arduous.
[9]Ibid at [20].
42I also accept that there has been an unusual delay associated with the finalisation of your case. Firstly, the progress of your case through the Magistrates' Court committal procedure was delayed between April and August 2020 due to the impacts of COVID‑19. More recently, there have been considerable delays associated with the obtaining of a neuropsychological assessment, given the need for that assessment to take place face-to-face, and delays associated with COVID‑19 in the custodial setting. I accept that you have endured anxieties associated with this matter hanging over your head for some time, as reflected in the considerable amount of pre-sentence detention attributable in this case. A mitigatory allowance is warranted.
43In terms of your time in custody, your counsel submitted that a mitigatory allowance was warranted on the basis of Verdins Principle 6, that there was a serious risk of imprisonment having a significant adverse effect on your mental health. I do not agree. According to neuropsychologist Ms Scott, your symptoms of ADHD and acquired brain injury are not likely to deteriorate as a result of incarceration. Rather, imprisonment would delay your access to appropriate treatment, with ADHD medications not usually being prescribed in prison due to the potential for misuse.
44Overall, I accept that you have made the best of your difficult circumstances in custody. You have been housed at the Metropolitan Remand Centre, where I understand you have been working in the position of yard billet. You apparently retain good family support, which, as your counsel submitted, will no doubt be critical for your long-term rehabilitation and reintegration into the community. As accepted by your counsel, your prospects of rehabilitation are linked with whether you can overcome your problems with regard to substance abuse and the associated anti-social behaviour.
45You have now been in custody for a considerable period of time, longer than any previous pre-sentence or sentence period. It is hoped that this considerable period of time has enabled you to reflect upon your trajectory and the specialist interventions that will be critical for your ultimate rehabilitation. Overall, your prospects of rehabilitation must realistically be assessed as guarded.
46In formulating an appropriate sentence in your case, I have had regard to the issue of current sentencing practices, particularly with regard to the armed robbery offence and the reckless conduct endangering life offence. Clearly, previous courts have reflected the gravity of these offences in particular through the imposition of substantial terms of imprisonment. Of course, current sentencing practices are but one of the many sentencing factors relevant to the sentencing exercise.
Sentencing Principles
47In formulating an appropriate sentence in your case, I have had regard to the issue of parity. Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes.[10]
[10]Piacentino v R [2019] VSCA 153 at [43].
48There clearly are some differences between you and your co‑offender Mr Kenny. Unlike you, he faced a charge of common law assault with regard to a threat made to one of the victims. Unlike Mr Kenny, you fall to be sentenced in relation to the reckless conduct endangering life, a serious offence with a significant maximum penalty.
49I regard your criminal history as being more significant and more concerning than Mr Kenny’s. By way of example, you have received significant sentences of confinement and imprisonment with regard to offending including armed robbery, recklessly cause injury, and aggravated burglary. Mr Kenny proceeded in the Koori Court sentencing conversation process, with its mitigatory consequences applied. However, unlike Mr Kenny, I have found that your moral culpability and the application of general and specific deterrence is somewhat moderated due to your impairments, consistent with the relevant Verdins principles. Finally, in my view, your role in the armed robbery offence is slightly more passive than that of Mr Kenny, who held the knife up and articulated threatening sentiments to the victim in that matter.
50Acknowledging these differences, I have done my best in the formulation of an appropriate sentence in your case, having regard to the parity principle.
51As I have indicated, your offending overall was serious and concerning. With the qualifications to which I have referred, any penalty imposed must reflect the sentencing principles of denunciation; general deterrence; specific deterrence, given your criminal history; and the need for community protection, given the gravity of your offending conduct. Further, any sentence must also reflect the legitimate sentencing purpose of the facilitation of your rehabilitation. Indeed, I accept that meaningful rehabilitation is highly relevant to community protection.
52There is a need, in my view, for a degree of cumulation between the offences, to adequately reflect your criminal conduct and the people impacted by your crimes, subject as always to the overriding principle of totality.
53Having carefully considered all relevant matters, and bearing in mind the principle of parsimony, in my view the only appropriate sentence in this case is a sentence of imprisonment with a non-parole period, incorporating a meaningful parole-eligibility period.
Sentence to be Imposed
54Mr Wight, in relation to the charges you are sentenced as follows.
55On Charge 1, theft, you are convicted and sentenced to 4 months' imprisonment.
56On Charge 2, burglary, you are convicted and sentenced to 15 months' imprisonment.
57On Charge 3, theft, you are convicted and sentenced to four months' imprisonment.
58On Charge 4, attempted theft, you are convicted and sentenced to three months' imprisonment.
59On Charge 5, burglary, you are convicted and sentenced to 16 months' imprisonment.
60On Charge 6, theft, you are convicted and sentenced to five months' imprisonment.
61On Charge 7, burglary, you are convicted and sentenced to 18 months' imprisonment.
62On Charge 8, theft, you are convicted and sentenced to six months' imprisonment.
63On Charge 9, theft, you are convicted and sentenced to one month's imprisonment.
64On Charge 10, armed robbery, you are convicted and sentenced to three years' imprisonment. This is the base sentence.
65On Charge 11, reckless conduct endangering life, you are convicted and sentenced to two years' imprisonment.
66On the related summary offence of committing an indictable offence on bail, you are convicted and sentenced to one month's imprisonment.
67I direct that one month on Charge 1, three months on Charge 2, three months on Charge 5, three months on Charge 7, one month on Charge 8, and seven months on Charge 11 on the indictment, be served cumulatively upon each other and upon the base sentence imposed in relation to Charge 10, making a total effective sentence of four years and six months' imprisonment.
68I direct that you serve a period of three years and four months before becoming eligible for parole.
69Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 1,058 days has been served by way of pre-sentence detention, and this period is to be deducted administratively from your sentence.
70Pursuant to s6AAA of the Sentencing Act 1991, I declare that, had you pleaded not guilty, but been found guilty by a jury at trial, I would have imposed a total effective sentence of six years and six months' imprisonment, with a non-parole period of five years.
71I will make the Disposal Order sought by the Prosecution, the making of this Order not being opposed by you.
72Mr Teo, there is an issue with regards to an order being required to be made with regards to any driver's licence, correct?
73MR TEO: Yes, Your Honour. That is a matter that I neglected to raise on the plea.
74HIS HONOUR: I am just trying to digest the email correspondence quickly. You say that because it is a serious motor vehicle offence there is a mandatory driver's licence order?
75MR TEO: That is correct, Your Honour. So section 87P.
76HIS HONOUR: Yes.
77MR TEO: Sub-section (f)(iii).
78HIS HONOUR: Yes.
79MR TEO: Defines a serious motor vehicle offence as 'any of the following offences, if arising out of the driving of a motor vehicle while under the influence of alcohol or alcohol and a drug', (iii) is 'an offence under s22 or s23 of the Crimes Act 1958'.
80HIS HONOUR: Yes.
81MR TEO: And so we have an offence here under s22. In my submission it is under the influence of a drug or alcohol and a drug. There are certainly references in the reports to ingestion of benzodiazepines - - -
82HIS HONOUR: Yes.
83MR TEO: - - - and as well as in the record of interview being 'pilled off his face'.
84HIS HONOUR: Yes.
85MR TEO: Section 89(1) states that if a person is found guilty or convicted of a serious motor vehicle offence the Court must cancel and disqualify the licence for a period of time, and sub-section (2)(c), the court must not specify a period of disqualification that is less than 12 months, so it is a minimum of 12 months in relation to this offence.
86HIS HONOUR: Yes. Yes, Mr Smurthwaite, I am in agreement with Mr Teo. I am intending to make a driver's licence disqualification order for 12 months. Is there anything to say?
87MR SMURTHWAITE: No, Your Honour. Initially I was not sure whether it was a serious motor vehicle offence, but looking at it more closely, my learned friend is right, Your Honour, and Your Honour has the power to make an order of that kind, or is bound to make an order of that kind.
88HIS HONOUR: Yes. That being the case, the other order of the Court is an order cancelling any licence held by Mr Wight and disqualifying him from obtaining any driver's licence for a period of 12 months. Given that the s22 offence, in the circumstances of this case, falls within the definition in my view of a serious motor vehicle offence. Effective from today, thank you.
89Yes, Mr Teo, have I covered everything? Any ambiguities with regards to the sentence?
90MR TEO: No ambiguities, Your Honour.
91HIS HONOUR: Mr Smurthwaite?
92MR SMURTHWAITE: No, I think Your Honour's sentence is clear and the arithmetic seemed to be correct, Your Honour, in terms of cumulation.
93HIS HONOUR: Yes, thank you. Mr Wight, I am going to give you an opportunity when I leave the Bench to have a chat to Mr Smurthwaite on the link, just so that he can explain all of this to you. It is not a matter for me but you, on the maths that I have, may well be eligible for parole in a matter of months. I know there are emergency management days and the like, I will leave that with Mr Smurthwaite to talk to you about all of that. All right.
94HIS HONOUR: Yes, thank you. Thanks, Mr Smurthwaite, I will give you that time.
95MR SMURTHWAITE: Thank you, Your Honour.
96HIS HONOUR: Thank you.
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