Director of Public Prosecutions v Wild
[2021] VCC 413
•8 April 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-20-00257
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACK WILD |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 June 2020 | |
DATE OF SENTENCE: | 8 April 2021 | |
CASE MAY BE CITED AS: | DPP v Wild | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 413 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Sentence – Plea of Guilty—Theft – Armed Robbery – Attempt to Obtain Property by Deception – R v Verdins --
Legislation Cited: Sentencing Act1991 (Vic)
Cases Cited: R v Verdins [2007] VSCA 102
Sentence: Six years and seven months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Lee | Office of Public Prosecutions |
| For the Accused | Ms J. Willard |
HER HONOUR:
1 Jack Wild, you have pleaded guilty to three charges of theft, one charge of armed robbery and one charge of attempting to obtain property by deception.
2 These offences occurred in August 2019, in the main with two co-offenders, you and Paul Robinson, as well as a third co-offender who has not been identified. The offending is as follows.
3 At approximately 6 pm on 12 August 2019, Mr Scott Kirkwood parked his 2012 Lexus Sedan on the street, outside his East Malvern address. His vehicle was valued at $15,000. Between that time and 7.30 am on 13 August 2019, the Lexus was stolen by unknown means.[1] That is Charge 1, theft of a motor vehicle.
[1] Charge 1 - Theft
4 At approximately 3 pm on 13 August, you and Robinson were in that stolen vehicle as it entered the BP service station at 208 Waverley Road, Mount Waverley. The third co-offender was driving.
5 You filled the vehicle with $56 worth of petrol and drove off without paying for the it.[2]
[2] Charge 2 - Theft
6 At approximately 3.35 pm, you and your co-offenders parked directly outside the Relax Massage Business. I thought the name was different actually.
7 MR LEE: Merrilee.
8 HER HONOUR: Thank you very much, Merrilee Massage Business in Hampshire Road, Glen Waverley.
9 The victims, 56-year-old Ms Amy Lin and 19-year-old Ms Chingying Chianglin, were working inside.
10 It is unclear why that business was chosen, but chosen it was. You and your companions remained in the vehicle for a short time, before walking into the massage business through the front door. You all had hoodies on with hoods over your heads, and you were each wearing disposable gloves. Together you all stormed in.
11 The events inside those premises are detailed in the prosecution summary of opening, which you have accepted and are captured on CCTV footage. They lasted approximately six minutes, but that must have seemed like a lifetime to those two women.
12 The premises were searched, including you and your co-offenders variously going to the back of the premises and behind the reception area. You and your co-offenders repeatedly demanded money. You were armed with a meat cleaver while Robinson had knuckle dusters.
13 Fifty-six-year-old Ms Lin, who was the owner of the salon, was physically stood over. Repeated demands were made of her for money. It is apparent that there was a language barrier. Apparently frustrated by her responses, you and your co-offenders became increasingly agitated and violent.
14 Several times she made attempts to get to the front door but was variously stopped by one or other of you. At various stages, she was hit to the face or head by Robinson. During one attempt to get to the front door, you grabbed her and dragged her to the middle of the room, grabbing her by the neck and pushing her to the ground. Later, she was told to go the back of the premises, but having failed to respond, she was then dragged by you around the neck by you. She resisted, putting her feet against the wall and you stomped on her legs. The third offender at that point, threatened to smash a mirror over her head.
15 She again made her way to the front door, but was stopped from leaving. Your co-offender grabbed her around the neck, again pushing her to the couch.
16 Later, that unknown offender smashed the mirror over her head, covering her in glass and causing a laceration to her head and left hand. She felt pain and was trembling and screaming.
17 Ms Lin was pleading with you and your companions and told you she would give you the money she had. As she cowered in fear on the couch, having been assaulted in that way with the mirror, you produced the meat cleaver, holding it towards her in a most threatening manner.
18 Several times during these events, Robinson made vile threats to kill towards Ms Lin. Those statements formed the basis of a threat to kill against
Mr Robinson and to which he pleaded guilty. Before leaving, Robinson took two eggs from the small bar fridge and threw them at Ms Lin. Robinson pleaded guilty to a charge of unlawful assault against her for his behaviour towards her during the events.
19 Nineteen-year-old Ms Chianglin was made to get on the ground and knelt through most of the ordeal. At one stage, she was grabbed by the hair and pulled her to the middle of the room. At another point, she stood up in fear and was punched to the top of the head. Soon after, the third co-offender picked up a white wooden chair and smashed it directly onto Ms Chianglin's head as she knelt on the floor. You are fortunate not to have any separate assault charges. Robinson pleaded guilty to assault regarding Ms Chianglin.
20 The massage rooms, rear area of the business and reception area were all searched by you and your co-offenders. Ms Lin’s handbag was searched and you took cash, her driver's licence, Medicare card, ANZ, NAB, Commonwealth and Westpac bank cards. Her mobile phone and her house keys were also taken by you or your companions.
21 One of you searched through Ms Chianglin’s bags and took her Gucci wallet, and about $600 cash, bank cards and her iPhone 7.
22 All three of you left the massage business and drove off in the stolen Lexus.
23 The offending was captured on CCTV footage which was played during the course of this plea.
24 Ms Lin was taken by ambulance to the Monash Medical Centre where she was treated for lacerations. She later told police that she feared she would be killed.
25 Ms Chianglin told police she felt very scared because this was her first day working at the massage business.
26 Your offending continued. At 4 pm, you and Robinson entered The Wines on Poath store in Hughesdale, where you used Ms Lin’s stolen credit card in an attempt to purchase alcohol and cigarettes. That is the charge of attempting to obtain property by deception.
27 Sometime between 4.15 pm and 9.30 pm on that same day, Ms Lin’s home address in Reservoir was ransacked. There was no forced entry. Cash, designer bags and passports in her name and her housemates' names were taken. The meat cleaver used by you during the armed robbery was located in her home.
28 There is no evidence that you were involved in that burglary, however, you have admitted by your plea, the theft of four passports, various documents, jewellery and certain money belonging to her. That is Charge 5 on this indictment. Those items were later found in your possession.
29 You and Mr Robinson were intercepted by police on 14 August 2019.
Mr Robinson was arrested, but you decamped. On 11 September, you again attempted to flee from police, but fell from an embankment and sustained an injury. You were taken to hospital and later arrested and remanded. You have been in custody since that time.
30 You were interviewed on that day by police and denied the offending.
31 It is trite to say that this is serious offending. Parliament has seen fit to impose a maximum penalty for armed robbery of 25 years' imprisonment. Where, as here, it is committed in company, it must be met by a term of imprisonment, unless special circumstances exist pursuant to s.5(2H) of the Sentencing Act 1991. No argument was made to the effect that special circumstances exist here.
32 General deterrence, just punishment and community protection are at the forefront of sentencing for an offence such as this.
33 Ms Lin has provided a victim impact statement outlining the effects of your offending on her. I was pleased to hear that your Counsel has read that to you. It is an important part of the process that an offender has a victim impact statement read to them, so they can truly comprehend the impact of their behaviour on innocent people.
34 Ms Lin says, 'I always feel scared.' She is suspicious when a customer enters her shop. She has had to reduce her opening hours because she is too afraid to be there in the evening. She has lost some of her staff who do not want to work at the premises, and customers who do not want to go there because of your offending. She says she had to close the shop for three days afterwards 'to recover myself from the horror'. That has all caused her financial hardship. She is a divorced lady with no other financial support. It is apparent that she has stoically had to try to continue working in a place full of the memories of your offence against her and her young staff member.
35 She says she has trouble falling asleep, with the images of these events appearing in her mind. She suffers nightmares and anxiety. She is hypervigilant, and has trouble going out alone. She says simply, yet powerfully, 'I find myself delirious sometimes.'
36 In assessing the objective gravity of this offence, it is clearly serious, in particular the armed robbery. It was committed by three adult men, on a venue which was likely to, and did have female workers. There was a level of premeditation as demonstrated by the use of gloves. You wore your hoodie in a way, to act at least, as a partial disguise.
37 Two of you were armed with weapons likely to induce fear of harm. They were in fact used to threaten and intimidate those women. The brandishing of the meat cleaver by you in a very threatening way towards Ms Lin, must have been terrifying.
38 You have not pleaded guilty to any specific assault against either of the women. However, you are of course responsible for the overall level of terror inflicted on those ladies.
39 The two women were vulnerable. They had limited English and Ms Chianglin was a recent immigrant from Taiwan. Money and personal property was stolen.
40 The prosecution rely on the entirety of the events inside the premises, to found the armed robbery charge.
41 Your theft of belongings from the burglary, committed on the home of Ms Lin on the same day of the armed robbery is reprehensible. That woman, already traumatised by the events in her business, was then confronted by the fact that persons linked to those events, had entered her private home and looted it. The fact that her home had been identified and specifically targeted must have left her feeling extremely anxious and fearful. While there is no evidence that you were involved in that burglary, you have pleaded guilty to the theft of items from her home. You must have known, that those had come from the home of your armed robbery victim. That warrants its own distinct punishment, in other words, there must be some cumulation in those circumstances.
42 Theft of the car, while in the scheme of this offending, is more minor, is a discrete act. It is an invasion of that person's privacy and private property. It causes inconvenience and loss to the owner. It too warrants modest cumulation.
43 Your counsel sensibly conceded that this offending must be met by a term of imprisonment. Indeed it must. The courts on behalf of the community cannot tolerate this type of violence and must express the community's denunciation of this type of offending.
44 You had initially indicated you would run your matter to trial and a trial was listed in May of this year. You ran a committal in February 2020, though called only one witness, an expert in voice identification. Importantly, you did not seek to cross examine the two victims. You resolved the matter approximately three to four weeks ago. It is not an early plea, however, it is a factor which entitles you to a discount in sentence.
45 A plea of guilty has a utilitarian benefit, in that it saves the community the time and expense of a trial.
46 It is particularly important where there is offending such as this, in that it saves the victims the additional trauma of giving evidence and being cross-examined about such a difficult experience.
47 In the context of the COVID-19 pandemic, it also saves further delay in resolution of your matter.
48 You receive the full benefit of that plea.
49 While I could not equate your plea to a sign of significant remorse, I accept that you have made some expressions of remorse for your offending. Those are contained in the psychological report of Mr Warren Simmons tendered on the plea. It is some acceptance of responsibility for your actions and some remorse.
50 I also accept the submissions from the Bar table that your counsel says, you have expressed to her your shame and embarrassment for your offending. Again, I was pleased to hear that your counsel Ms Willard, has taken the steps to ensure you have watched the CCTV footage of the armed robbery. Again, that is critical, that a person then, in a sober light of imprisonment, is forced to look at themselves and watch what they did, when they committed serious offending under the influence of drugs. I hope it was a sobering viewing. You have acknowledged the fear that this caused the victims and you have expressed your regret over that fact.
51 The details of your personal history are outlined in the psychological report of Mr Simmons and in your counsel's written submissions.
52 You are now 27 years old, 25 at the time of the offending. Your father abandoned your mother prior to your birth and you have had no relationship with him.
53 You describe your mother in positive terms, describing your childhood as good. You travelled with your mother to see family around Victoria and as she is one of eight children, you had contact with your extended family growing up. Your mother would watch you play football or take you BMX riding.
54 Your mother did her best for you as a single mother. However, she had her own struggles with alcohol and at times, there were difficulties between you.
55 You attended Karoo Primary School in Rowville. You were diagnosed with ADHD at the very young age of four, after a kindergarten teacher suggested an assessment. You took medication until about Grade 5, but you did not like the effects of the medication, as it meant you lost your appetite and did not eat.
56 The side effects have been an ongoing struggle for you and as such, you are not medicated. The combination of your behavioural dysregulation and your mother’s drinking created issues between you. At one time, she put you on the streets and you slept on a park bench for a week.
57 You struggled with your schooling. You struggled academically and you struggled socially. You had behavioural issues at school and were told not to come if you had not taken your medication.
58 You left school half way through Year 7 at the young age of 12 or 13, after your mother obtained an exemption for you.
59 To your credit, you obtained a plastering apprenticeship at about age 14, then you later started two other trade apprenticeships. None of those were finished, but you have a good work record which I will come to.
60 Your work history has been hampered by drug use. I accept what Mr Simmons says which is that your early years, including your own behavioural and emotional dysregulation, along with your mother’s addiction, made you a young boy vulnerable to substance abuse. At the young age of 10, in what was probably an effort to fit in with a peer group, you started smoking cannabis.
61 You started using amphetamines at ages 14 to 16, and consumed alcohol on a daily basis. Alcohol consumption, up to a slab of beer a day, has an ongoing problem right up until your current remand.
62 You commenced using methamphetamine at age 16, smoking it on weekends initially, then having drug binges for periods of time. At one point, you were abstinent for six months from methamphetamines, but at that stage, were going to the gym and commenced injecting steroids.
63 You started associating with a group of peers who were antisocial in your teens and became involved in criminal behaviour, being dealt with in Children’s Court in 2011.
64 You have a limited, but somewhat concerning prior criminal history, concerning in that there are a number of violent offences therein. In 2013, you were placed on a community correction order for recklessly causing injury and wilfully damaging property. You breached that order. There is then, a significant gap in your history, with the next appearance being in 2017. I was told that reflects a period where you were largely abstinent from drugs and working full time.
65 At the Magistrates' Court in September 2017, you were sentenced to a combination of imprisonment and a CCO. The offending on that occasion included unlawful assault, false imprisonment, threat to kill, intentionally destroy property, assault police and committing an indictable offence on bail. I was told the substantive offences on that occasion related to your partner. You served 180 days imprisonment before commencing a CCO of 12 months, with therapeutic conditions aimed at your drug and alcohol rehabilitation and also including offending behaviour programs, likely to have been along the lines of anger management or Men's Behaviour Change.
66 While serving that sentence of imprisonment, you were also dealt with for possession of methylamphetamine and driving matters. Those matters were your last until these offences.
67 You describe a cascade of events which occurred after your release from custody in approximately February 2018. As I said, you had previously undertaken two trade apprenticeships. However, you started work as a concreter and you worked in that capacity ever since. After your release from custody in February 2018, you and a friend decided to start your own concreting business.
68 Your business was quite successful, for about seven or eight months. You were working fulltime. Unbeknown to you, however, your friend had a gambling problem and dipped into the company bank accounts, taking out loans in the name of the business. You were forced to freeze the bank account. You were trying to work seven days a week to re-establish the business, but it essentially failed approximately six months before this offending.
69 You soon returned to methamphetamines. At the time of these offences, you were using methamphetamines and alcohol daily. You had also become involved in cocaine use and gambling.
70 During that period, you were subject to the CCO having been released from custody, as I said in approximately February 2018. You did not complete that order, however, you did undergo approximately six months of it, including attending supervision and undertaking four sessions of drug and alcohol education. Unfortunately, your efforts to maintain paid employment resulted in you disengaging with the CCO. You have already been dealt with for breaching that order in March 2020, and despite the fact you were remanded on the matters before me, the magistrate confirmed the CCO, to commence on your release from imprisonment. That is a matter which should perhaps be given some consideration, namely whether it should be brought back to court now, that I will pass a lengthy sentence on you, so that you have the opportunity for concurrency if a term of imprisonment is imposed.
71 At the time of this offending, however, your life and behaviours were in a parlous state. Although there was no suggestion that the principles enunciated i Verdins[3] apply in your case, I do consider the confluence of events in terms of the failure of your business, your efforts to maintain work, your return to drug use and gambling, I do consider those events against the backdrop of your ADHD and the impact that that is likely to have had on your capacity to regulate your behaviour.
[3] R v Verdins [2007] VSCA 102
72 You have had one long relationship and you have a two year old son and a five year old son from that union. Your relationship has had its difficulties, with your partner also having addiction problems. However, she is standing by you and you are very positive about continuing that relationship with her and your children on your release.
73 This is your first significant period of incarceration. You have been in custody during the Covid pandemic, which has been difficult. That has created uncertainty and one of the biggest challenges for you has been not seeing your mother, your partner or your children for in person visits. Your mother and partner had been visiting you in person, prior to the restrictions. Those in person visits have only recently recommenced, after a year where your contact was forced to be by telephone or video call.
74 You have done your best to engage in programs during your time in custody. Those have included programs aimed at drug addiction, at preparing yourself for release, and at future employment. You are to be commended for engaging as those courses, as they will give you the best chance to stay drug free and crime free on your release. You have also kept busy by working in the waste management facility at Ravenhall.
75 The pandemic has at times meant suspension of programs in custody, which was an added difficulty.
76 All of those matters, along with the threat of the virus entering the prison system have created a more difficult prison environment. I take into account those circumstances, as they have existed for you to date.
77 In assessing both the need for specific deterrence and its relationship to your prospects of rehabilitation, I take into account your limited prior history. I take into account your ability in the past to maintain some abstinence at times and to continue with employment.
78 I take into account your comments to Mr Simmons to the effect that you intend to go straight on release. You have plans to move to the country, which could be a real positive for you.
79 Mr Simmons says you have some prospects of rehabilitation. I accept that. He recommends ongoing drug and alcohol treatment with a focus on increasing self-efficacy, harm minimisation and relapse prevention strategies. Those are matters which should be considered when you are granted parole, but ultimately they will be a matter for you. You can be sure Mr Wild that any further offending is likely to see you straight back into custody, so at age 27 you need to make resolutions for yourself and your family about what your future looks like.
80 You have an employment history.
81 You have other protective factors in the form of your mother, your relationship and your young sons.
82 I have been mindful of the issue of totality and not imposing a sentence which is crushing, but I repeat my earlier comments that some cumulation is warranted.
83 I have given consideration to parity. Parity is an aspect of equal justice. That is, there should be no unjustifiable difference in sentences imposed upon similar offenders, for similar offending.
84 The keywords are, 'unjustifiable difference'. That is because parity takes into account, consideration of the offending and your role in that offending, but must also take into account your personal circumstances at the time and since. In that sense, equal justice may result in different outcomes.
85 I have given a great deal of consideration to parity as it applies to your offending in this case and to your personal circumstances, alongside your co-offender
Mr Robinson.
86 As discussed with counsel and as conceded by counsel, your roles and responsibility for the armed robbery offending are indistinguishable. So too, your theft of the motor vehicle, the petrol and the items from Ms Lin’s home. Your co-offender Mr Robinson pleaded guilty to a series of additional charges related to the events at Ms Lin’s salon. That is, he pleaded guilty to a rolled up charge relating to his violent and gratuitous threats to kill Ms Lin, and also to assaulting both Ms Lin and MCs Chianglin. Although you were engaged in assaults on these women, the prosecution has accepted by the resolution, that those acts are part of executing the armed robbery. To that end, the head sentence for Mr Robinson must be more, given he pleaded guilty to a range of additional offences.
87 In terms of your personal circumstances, both of you have had your difficulties in your upbringing. Both have an ADHD diagnosis. Both have chronic substance addiction with periods of abstinence or attempting to rid yourself of that addiction. Both have supportive mothers, partners and both of you have young children. He is slightly older than you, but not significantly, being 31. You both have good work records. You have a similar prior history in terms of the number of prior court appearances and limited sanctions. Mr Robinson's prior history was related largely to dishonesty, you on the other hand have prior convictions as I have described for violence. Neither of you had any offending in the nature of the matters before me.
88 Mr Robinson pleaded guilty at the earliest opportunity, some two months after the offending. He expressed real remorse. Neither of you have been willing to name your third co-offender.
89 In all of those circumstances, I cannot see any real reason to impose a disparate sentence.
90 The additional factor which I have given consideration to has been the length of the non-parole period. As I indicated to Mr Robinson, in recognition of his prospects of rehabilitation and efforts towards that, I adjusted downward the non-parole term. In my view, it is appropriate to make your non-parole period slightly less than his, given your head sentence will be 12 months shorter than his. The adjustment will not be significant. What it means, however, is that you will be eligible for parole slightly earlier and you will then spend less time on parole.
91 Mr Wild, I intend to sentence you as follows. I will start with Charge 3 which is the armed robbery offence, that will be the base sentence. On that offence, you are convicted and sentenced to six years' imprisonment.
92 On Charge 1, theft of the motor vehicle, you are convicted and sentenced to six months' imprisonment. One month of that sentence will be cumulative upon the base sentence. On that charge, your driver’s licence is cancelled and you are disqualified for a period of 12 months starting today.
93 On Charge 2, theft of the petrol, you are convicted and sentenced to seven days' imprisonment.
94 On Charge 4, attempting to obtain property by deception, you are convicted and sentenced to three months' imprisonment.
95 On Charge 5, theft, you are convicted and sentenced to two years' imprisonment. Six months of that term will be cumulative upon the base sentence.
96 The total effective sentence therefore is six years and seven months' imprisonment. I direct that you are to serve a period of four years and eight months imprisonment, before becoming eligible for parole. I declare that you have already served 575 days of pre-sentence detention in relation to this sentence and that that should be reckoned against this sentence.
97 But for your plea of guilty, so if you had not pleaded guilty, the sentence I would have imposed would have been a sentence of nine years' imprisonment, with a non-parole period of seven years.
98 I propose to make the disposal and forfeiture orders in the terms sought, noting that you did not oppose those orders. Are there any issues to raise counsel?
99 MS WILLARD: No, Your Honour.
100 HER HONOUR: All right thank you very much. Thank you counsel for your assistance. Mr Wild, I will leave you on the line with Ms Willard, just so you can have a chat with her before we turn off the link, but that concludes your matter. Thank you very much counsel.
101 MS WILLARD: As Your Honour pleases.
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