Director of Public Prosecutions v Wild
[2021] VCC 195
•03 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01480
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAYNE WILD |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 January 2021 | |
DATE OF SENTENCE: | 03 March 2021 | |
CASE MAY BE CITED AS: | DPP v Wild | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 195 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL
Catchwords: Plea of guilty - one charge armed robbery – one charge burglary – related summary offence of committing an indictable offence whilst on bail – youthful offender – circumstances of COVID-19 pandemic – youth justice centre order
Legislation Cited: s75A & s76 Crimes Act 1958; s32(1) & (2) Sentencing Act 1991
Sentence: Total effective sentence of 12 ½ months detention in a Youth Justice Facility
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr C. Brydon | Office of Public Prosecutions |
| For the Accused | Ms H. Edwards | Chester Metcalfe & Co |
HER HONOUR:
Introduction
Pleas of guilty and maximum penalties
1 Dayne Wild, you have pleaded guilty to one charge of armed robbery and one charge of burglary. The maximum penalty for the charge of armed robbery is 25 years' imprisonment. The maximum penalty for the charge of burglary is 10 years' imprisonment.
2 You have also pleaded guilty to the related summary offence of committing an indictable offence (armed robbery) while on bail. That charge carries a maximum penalty of 30 penalty units or three months' imprisonment.
Circumstances of the offending
3 The Prosecution Opening sets out the circumstances of your offending; it was tendered on the plea and became Exhibit B. It is attached to and forms part of these reasons. I will summarise just some of the facts giving rise to your offending here.
4
Before dealing with the offences before this court I need to note that on
9 March 2020 and on 21 July 2020 you were charged and bailed by Victoria Police for unrelated matters. When you committed the offences I am dealing with those two bail undertakings were still in force.
5
On 14 August 2020 you were arrested for unrelated matters and kept in custody at Fawkner Police Station overnight. On the morning of
15 August 2020 the Police deemed you unfit for interview and released you from custody. You asked Police to take you to South Morang train station and they dropped you there at about 9.25 am.
6
Ms Huang walked past the train station with a shopping trolley shortly after you arrived. She saw you kicking a wire fence adjoining the train line. As she walked past you said something to her which she did not understand.
Ms Huang saw you bend down briefly and then run towards her.
7 You spoke to Ms Huang. She did not understand you (she does not speak any English) but thought you were asking her a question. You then tried to take Ms Huang's black handbag from her; she did not let go of the handbag and tried to run away. She then saw that you were holding an orange handled knife. You pointed it at her. Ms Huang was frightened and let go of her handbag, you took it from her and ran away. She went home and told her neighbour what had happened. The incident was reported to police.
8 While this was happening another witness saw you walking along a road near the station. At some point you discarded Ms Huang's handbag and some of the items that were in it.
9 After doing this, you went into a nearby construction site on Centenary Drive in Mill Park. There were portable office buildings on the site. You broke one of the padlocks on a door to one of these offices and went inside. There was a whiteboard in the portable and you wrote the words “fucking gronk” on it.
10 You also found a can of petrol and spilled it over the floor inside. You found a fire extinguisher and discharged it. You searched through the portable office building and put a number of things you found into two plastic bags. You left, leaving the two plastic bags behind.
11 You sat down, still inside the construction site, against the fence.
12 Police found you in this position around 12.18 pm. They arrested you; they formed the view you were alcohol affected because you were slurring your words. You told Police that you left something that belonged to you in one of the portable office buildings. They searched the portable and found a satchel belonging to you inside one of the plastic bags inside the building; inside the satchel was a set of keys belong to Ms Huang and an orange multitool.
Arrest and interview
13 You were arrested and taken to Preston Police Station where you were deemed unfit for interview. You were charged later that day.
Prior Criminal History
14
You do have a relevant prior criminal history. You have been previously sentenced for armed robbery at the Heidelberg Children's Court; on
12 December 2018 you were placed on a probation order for nine months. You breached that order and were resentenced.
15 A copy of that breach report was tendered on the plea. It is sufficient to say that your Youth Justice officer found your engagement with that order unsatisfactory.
16 Another matter, (and I note that this is not a prior conviction for the purposes of this sentence) was dealt with in February 2021 and resulted in you receiving a one-month adjourned undertaking.
Procedural History
17
You were taken to the Melbourne Magistrates' Court for a filing hearing on
16 August 2020 and remanded in custody. Your case resolved at committal mention on 9 November 2020. Your plea in the County Court was heard approximately five months after the date of your offending. This is a particularly accelerated resolution of your case. I will return to the significance of this later in these reasons.
Nature and gravity of the offending: culpability and degree of responsibility
18 Your counsel conceded that the charge of armed robbery is inherently grave. The maximum penalty of 25 years' imprisonment, attached to the charge of armed robbery, indicates the seriousness with which the legislature regards this offence. However, I accept that the objective gravity of your offending was reduced by its spontaneity, its disorganised nature, that there were no physical injuries to the victim, and the fact that the victim's property was recovered soon after your offending.
19 It is put on your behalf, and I accept, that the gravity of the burglary offence was reduced by the fact that no property was stolen, that the building was commercial rather than residential, and the fact that the offending was, again, spontaneous and not premeditated. The Prosecution generally accepted this characterisation of the armed robbery, but submitted that the gravity of your offending was increased by the fact that the offence was committed against a lone woman and that you used actual as opposed to threatened force. In relation to the burglary there was some minor damage caused to the building by the way you entered. You provided some assistance to Police in locating the stolen property.
20 It is certainly relevant that you were on bail for other offending when you committed these offences and I will take this into account.
21 The way you conducted yourself on the day of your offending was generally disorganised, chaotic, illogical and rather bizarre; your offending can be seen, in my view, towards the lower end of the range of offences of its type.
Personal circumstances
22 You are now 19 years old. You are the only child of your parents, although you have a half-brother with whom you share a mother. You grew up in a house where your father was physically abusive to your mother, they separated when you were four. You lived with your mother's parents for a time, before finding a rental home together. You and your mother were evicted from your home in 2016. You then moved into your mother's workplace, which was a factory warehouse. You were evicted from there too, after your mother lost her job. You can remember living in a car together, and in crisis accommodation. For short periods you lived with your father. You were persistently bullied at school and finally stopped attending in year eight; you did some more schooling when you went to a community school in Lilydale for six months last year.
23 You have completed one month of a pre-apprenticeship in carpentry when you were 18 and worked for a butcher for two months when you were 17.
24 You grew up in circumstances of violence and deprivation. You did not have secure housing during your teenage years. In her letter tendered on the plea, (Exhibit 4) your mother sets out that while raising you she was homeless for a period. You lived at a factory where she worked and in her car and in crisis accommodation. Your early life has certainly been unstable.
25 You began using cannabis at 15, methylamphetamine at 15 and again at age 17. You were abusing various pills, alcohol, ecstasy, Seroquel, and Xanax prior to committing these offences. In the opinion of Ms Cidoni, who assessed you prior to your plea hearing, your substance use primarily serves to moderate the deep ambivalence you feel toward yourself and others.
Impact on victims
26 I am obliged to take into account the impact of your offending on victims. There was no victim impact statement provided in this case, but I infer, I think safely, that what you did would have been most unpleasant and frightening for Ms Huang. It is encouraging to learn that you expressed some understanding of the effect of your offending on her to the Youth Justice Assessor.
Matters in mitigation
Plea of guilty
27 The Prosecution conceded that you indicated your intention to plead guilty at an early stage. The fact that you entered a plea of guilty is a very important matter to be taken into account in mitigation of your sentence. You have delivered a significant benefit to the community (and in particular to the witness Ms Huang, who did not need to attend any court cases) by entering this plea and that will be reflected in the overall sentence. Moreover, as I have already noted, your plea was heard five months after the offence was committed. Not only that, through your lawyers, you negotiated to resolve this case in circumstances where enormous delays in court processes were caused by the responses to the COVID-19 pandemic. Your plea is particularly valuable and fast in this context.
Remorse
28 The Prosecution submitted, and I accept, that your plea of guilty shows you are also remorseful for what you did.
Psychological material
29 A psychological report, authored by Ms Gina Cidoni, was tendered on the plea and became Exhibit 2. Ultimately, no particular 'Verdins' submission was advanced on the basis of that material, but it was provided as context for your offending. You grew up circumstances of deprivation; despite your various hardships you have only relatively recently appeared in the criminal justice system. In the opinion of Ms Cidoni, you have used substances to resolve your difficulties in this context.
Drug and alcohol use
30 You had taken seven or eight alprazolam just before you committed these offences. Your counsel did not rely on this to mitigate your moral culpability, but rather as context for what you did, and to support the proposition that this sentence should be tailored to addressing your drug problems.
Prospects of rehabilitation
31 A character reference authored by Alex Lackovic, dated 14 January 2021, was tendered on the plea. You met Alex Lackovic in the context of your time at the Lilydale 'Indie school' where you participated in the VCAL foundation program between October 2019 and March 2020. Alex Lackovic states that you were a capable student, loyal and a good contributor to class discussions. Your mother Stacey also wrote a heartfelt letter in support of you plea. She writes of her commitment to assisting you to deal with your drug problems. Importantly, your mother now has secure housing and she wants you to live with her and get back on track. Taking these matters into account I find that you have good potential to recover, to rehabilitate, and find your purpose.
Relevant sentencing principles
32 The Prosecution submitted, and I accept ,(subject to some important limitations) that general deterrence and denunciation are important factors for offending of this type. The Prosecutor also submitted that specific deterrence and community protection are also relevant sentencing principles in your circumstances.
33 Your prior offending, albeit in Children's Court jurisdiction, and the fact that you were on bail during this offending do bear on the question of specific deterrence in your case. I also note that through me, the community denounces your behaviour: it is completely unacceptable that people in the community such as Ms Huang are exposed to that kind of conduct. The sentence reflects that.
34 At this stage I regard the protection of the community as being best served by a sentence directed predominantly at your rehabilitation.
Youth
35 You fall to be sentenced as a young offender. You are only 19. The nature of your offending, although serious, does not displace the principle that rehabilitation should be the cornerstone of this sentence. The Prosecution accepts that general deterrence and denunciation may be moderated, in favour of your rehabilitation.
Totality
36 I am conscious of the obligation to sentence you to a sentence that properly reflects the principle of totality. The two main offences were committed close in time although are distinct. I have taken this into account when considering orders for cumulation and concurrency.
Regard to current sentencing practice
37 I am obliged to have regard to current sentencing practices for similar offences. I have looked at sentences in this category. None of those cases are quite like yours but I sentence you in that landscape.
Impact of COVID-19 Pandemic
38 You were remanded in custody in mid-August 2020. At that time, Melbourne was in under particularly stringent lockdown conditions.
39 It is now well-established that prison authorities took measures to address the risk of transmission in a prison environment that had a significant impact on people in custody. I note that you were in that system as a 19-year-old person, in your first time in custody. You were held in isolation for 14 days at the beginning of your remand and you have had no face-to-face visits for that entire period. This has made the term of your incarceration particularly onerous for you.
Pre-sentence detention
40 As at today, the date of sentence you have served 200 days in custody. You are 19 years old and you have served this time in adult custody. This is regrettable.
Youth Justice Sentence Order
41 On 20 January 2021 I referred you for a pre-sentence report for suitability for a Youth Justice Centre order in accordance with your counsel's submissions. I later received a report dated 25 February 2021. I take the contents of that report into account. This report became Exhibit 6 on the plea.
42 The writers of the pre-sentence report state that in your case, there are reasonable prospects for your rehabilitation and that you are particularly impressionable, immature or likely to be subject to undesirable influences in adult custody. Having taken into account all of the relevant material, I concur with the views of the report writers and conclude that both limbs of s.32(1) of the Sentencing Act 1991 are satisfied. That is, I find that you have relatively good prospects for rehabilitation, having regard to your youth, your mum's support and your limited prior history. Further, I am persuaded that you are particularly impressionable, immature and likely to be subject to undue influence if you were to serve further time in an adult prison.
43
I have also taken into account the other matters in s.32(2) of the
Sentencing Act,being the nature of the offence and your age, character and past history in the reasons I have already stated.
Disposition
44 Mr Wild, this is the normal point where you would stand up if you were in normal court. You are on screen, so that does not make sense but this is the part where you get to find out the numbers.
45 Dayne Wild, on Charge 1, armed robbery, you are convicted and sentenced to 10 months' detention in a Youth Justice Centre. This is the base sentence.
46 On Charge 2, burglary, you are convicted and sentenced to 5 months' detention in a Youth Justice Centre.
47 On the summary charge of committing an indictable offence while on bail you are convicted and sentenced to 1 month detention in a youth detention centre.
48 Two months of the sentence on Charge 2, and 14 days of the sentence on the summary charge are to be served cumulatively upon the sentence on Charge 1 and upon each other. This results in a total effective sentence of 12 ½ months' detention in a Youth Justice facility.
49 Pursuant to s.35(4) of the Sentencing Act 1991, I declare 200 days to be reckoned as the period of detention already served under the sentence I have imposed.
50 Now, I also make the disposal order and note that it was unopposed. I make the disposal order as sought. Ms Edwards, are you of the view that I am obliged to make a s.6AAA declaration in relation to a youth detention order?
51 MS EDWARDS: That was my initial inclination, Your Honour, given it is - - -
52 HER HONOUR: I am not sure if I am obliged to or not but - I suspect I am not but in any event, pursuant to s.6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, but had been found guilty after trial, I would have sentenced you to a period of 22 months in youth detention.
53 Counsel is there anything arising from the sentencing remarks?
54 MR BRYDON: No, Your Honour.
55 MS EDWARDS: No, Your Honour.
56 HER HONOUR: All right then. Mr Wild, that concludes your case today and your counsel will advise you further in relation to the sentence that I have just imposed. But just so that you are aware, it ends up being 12 and a half months but you will be part of the youth parole system and they will consider you for parole at some stage, hopefully soon.
57 All right, thank you counsel, both of you for your assistance and we will rise until 2 pm.
58 MR BRYDON: As the court pleases.
59 MS EDWARDS: As Your Honour pleases.
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