Director of Public Prosecutions v Willis
[2020] VCC 2072
•17 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-20-00859
Indictment No. L10546680
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RHYS WILLIS |
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JUDGE: | HIS HONOUR JUDGE C J RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 December 2020 | |
DATE OF SENTENCE: | 17 December 2020 | |
CASE MAY BE CITED AS: | DPP v Willis | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2072 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: robbery - obtaining financial advantage by deception - carjacking - theft - causing injury recklessly - dangerous driving whilst pursued by police - Category 2 offence - extensive history of drug abuse - COVID-19 pandemic - general deterrence – punishment - community protection - specific deterrence
Legislation Cited: Sentencing Act 1991; Road Safety Act 1986
Cases Cited: Bugmy v R (2013) 249 CLR 571
Sentence: 4 years and 3 months’ imprisonment and I fix the period of 2 years’ and 6 months’ imprisonment as the period that you must serve before you will become eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Hamill (For plea) Ms L. Anderson (For sentence) | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms A. Wong (For plea) Mr J. Fitzgerald (For sentence) | Victoria Legal Aid |
HIS HONOUR:
1 Rhys Willis, on 10 December 2020, you pleaded guilty to an indictment containing six charges, being robbery (Charge 1); obtaining financial advantage by deception ( Charge 2); carjacking (Charge 3); theft (Charge 4); causing injury recklessly (Charge 5) and dangerous driving whilst pursued by police (Charge 6).
2 You also pleaded guilty to two related summary offences, being state false name and unlicensed driving.
3 The maximum penalty for robbery and carjacking is 15 years’ imprisonment. The maximum penalty for theft and obtaining a financial advantage by deception is 10 years’ imprisonment. The maximum penalty for causing injury recklessly is 5 years’ imprisonment, while the maximum penalty for dangerous driving while pursued by police is 3 years’ imprisonment. In respect to the related summary offences, the maximum penalty for state a false name when requested is 5 penalty units while the maximum penalty for unlicensed driving is 60 penalty units or 6 months’ imprisonment.
4 Carjacking is a Category 2 offence under the Sentencing Act 1991. In such cases a court must make a custodial order (not in combination with a community correction order) unless one of the criteria set out under s5(2H)(a) to (e) applies. None of the criteria under s5(2H) apply to you.
5 Tendered as Exhibit “A” and read aloud in Court was the Amended Prosecution Opening on Plea. In summary you were released from custody on 27 February 2020 and at the time of your offending you were staying in emergency accommodation at the Parkside Inn Motel on Plenty Road, Kingsbury. In the early evening of 1 March 2020, you ordered a taxi. When the taxi arrived, you got into it and directed the driver, Mr Gill, to Greensborough, and once in that general area asked him to pull over into Poulter Avenue. When you started to get out of the taxi the driver asked you “Can you pay me?” You walked to the driver’s window and the taxi driver repeated the question concerning the fare, you responded by punching him to the face. You then reached into the window and took the driver’s iPhone (Charge 1, robbery and Charge 2, obtaining a financial advantage by deception). Your assault on the taxi driver was caught on CCTV that was played in court and formed part of Exhibit “C”.
6 A short time later you attended on your aunt’s house, where you used her computer and told her you were trying to find out “how to clear a phone” because you had to sell it. Your aunt later paid for an Uber for you to return to your motel.
7 At about 10.45am on 2 March 2020, your victim, Mr Sharma, was driving to university. Mr Sharma had his backpack with him that contained, amongst other things, his laptop computer and passport. While stopped at a red traffic light at the corner of Mount Cooper Drive and Plenty Road, you walked to Mr Sharma’s driver’s door. Thinking that you might need help, Mr Sharma wound down his window a little and asked you what you wanted. You reached into the car and started grabbing and punching Mr Sharma to the face. Mr Sharma held up his hands to defend himself, however you continued to punch him to the face. You reached into the car through the partially opened window and lowered it further. You turned off the ignition and while continuing to punch Mr Sharma, opened the driver’s door and dragged him out of the car. You got into the car and left on Plenty Road, driving against a red traffic light (Charge 3, carjacking). A portion of your offending was caught on another motorist’s dashcam and that clip of CCTV was also played in court (part of Exhibit C).
8 Later that day at about 1.00pm, you drove to the Woolworth’s store in Lower Heidelberg Road. You entered the store and selected some items and left the store without paying for them. While at the front of the store you walked straight up to a security guard, Mr Islam, and punched him in the face and then ran down a travelator to the carpark. Mr Islam followed you to the carpark, where he observed you to place a basket of goods into Mr Sharma’s car, you then left the car and returned with another basket of items stolen from the store, which you also placed in the car (Charge 4, theft). Mr Islam was joined by another Woolworth’s employee as you commenced to drive away. However, on seeing them you stopped the car and got out of it. They ran away from you and you chased them up the travelator to a café, where you caught up to Mr Islam and punched him in the face again. You only stopped punching Mr Islam when other staff members intervened. Mr Islam suffered a swollen lip and a small laceration to the inside of his lip (Charge 5, causing injury recklessly).
9 You left the shopping centre in the stolen car and when you reached the intersection of Chifley Drive and Bell Street, you made eye contact with police officers who were in an unmarked vehicle. You then made a shooting gesture at them with your hand. The police officers activated the car’s emergency lights and approached your vehicle on foot. One of the officers drew his firearm and yelled at you repeatedly to “exit the vehicle”. In response, you reversed the stolen car, drove over a concrete median strip and drove north up Chifley Drive towards Northland and your motel.
10 At your motel carpark, the police in the unmarked police car were joined by other officers who were in a divisional van. Once again, police approached your vehicle on foot and issued a challenge to you. You responded by reversing your vehicle and driving through the carpark, forcing Senior Constable Anderson to move quickly out of the way of your vehicle.
11 You were pursued by the police, but they lost sight of your car. A short time later you drove into the intersection of Main Drive and Plenty Road against a red light and collided with a vehicle driven by Ms Dempsey, who was travelling through the intersection on a green light (Charge 6, dangerous driving while pursued by police).
12 At the time of driving you did not hold a licence to drive a motor car (related summary offence, unlicensed driving).
13 When the police arrived at the intersection a short time after the collision, they removed you from the stolen car, you appeared to be dazed and had a cut to your forehead. You were asked your name and you said it was “Bruce” and gave your correct surname as “Willis”. You were asked “Are you sure that is your name, Bruce Willis? to which you replied “Yeah” (related summary offence, state false name).
14 At 7.15pm you were medically cleared by hospital staff and you were transported to the Heidelberg Police Station where you were interviewed under caution. In general terms, your interview is comprised of false denials and allegations that effectively you had been provoked into your conduct by Mr Sharma because he said to you, “Fuck you, you fuckin’ Aussie Dog”. You made not a dissimilar allegation against Mr Islam and denied hitting or chasing him.
15 At the time of your offending you were serving a community correction order imposed on 17 December 2019 and this is an aggravating feature of your offending.
16 Tendered as Exhibit “B” was a Victim Impact Statement from Mr Sharma, who not unexpectedly suffers anxiety as a result of your conduct towards him. Mr Sharma feels uncomfortable leaving his house. He experiences anxiety in large social gatherings. He experiences fear when travelling alone at night. He became socially isolated by ceasing to meet with close friends for a number of weeks. It is plain by your conduct that you have profoundly affected Mr Sharma.
17 Further, it was accepted by Ms Wong, public defender who appeared on your behalf, that your conduct adversely affected each of your victims.
18 Mr Willis, between July 2011 and December 2019, when you were aged between 15 and 23 years, you accumulated 180 convictions or findings of guilt from 11 court appearances, excluding appearances for contravention proceedings. You have findings of guilt or convictions with respect to two charges of robbery, three charges of theft of a motor vehicle and two attempted thefts of a motor vehicle, five charges of unlicensed driving or driving whilst disqualified or suspended, 12 charges of unlawful assault, one charge of causing injury intentionally, and three charges of causing injury recklessly. In addition, you have admitted a number of offences under the Bail Act.
19 Filed as Exhibit 1 on the plea were the Defence Outline of Plea Submissions prepared by Ms Wong. Exhibit 2 was the report of Dr Zimmerman, psychiatrist, dated 19 November 2020 and finally as Exhibit 3, a report from Dr McDowall, neuropsychologist, dated 13 July 2018.
20
Ms Wong on your behalf conceded that a term of imprisonment with a
non-parole period was the only appropriate sentence considering the seriousness of your offending and your relevant prior criminal history. Ms Wong in her written submissions described your offending as serious, violent offending, that was brazenly committed against multiple victims on two days. As I noted earlier, she conceded that each of your victims had been traumatised.
21 You are an only child and your parents separated when you were 2 years of age. Both your parents were drug users and you were exposed to illicit substances in utero. After your parents separated you had a very unstable upbringing living with your mother in the Preston and Greensborough areas. You frequently moved homes, and you attended no less than five primary schools. You and your mother often lived in the garage of your maternal grandparents’ house. You had a very close relationship with your mother, but this was problematic as she was a heavy drinker and drug user. Depressingly, you have fond memories of smoking marijuana with your mother as a teenager. Your mother died as a result of an overdose in 2012 when you were 16 years of age and living in residential care. At the time of your mother’s death you were estranged from her.
22 You did not see your father between the ages of 2 and 12 years. Records held by the Department of Health and Human Services reveal that Child Protection became involved with you in 2009, when you were 13 years of age, as they considered you did not have an effective guardian. Your life was marked by poor school attendance, repeat offending and absconding from home. In 2010 a Supervision Order was made in favour of your father, but you had a poor relationship with him and your placement with him was unsuccessful. Eventually you were placed in out-of-home care with Berry Street Victoria in March 2011, when you were 15 years of age, because your parents were incapable of caring for you.
23 The support from Berry Street ceased when you turned 18 years of age and thereafter you struggled to maintain stable housing and you frequently experienced homelessness. It is to be noted that when you were supported by Berry Street, when you were aged 17 years you had full-time work as a kitchenhand. Since turning 18 you have had sporadic employment as a labourer and from time to time you worked for Baker’s Delight. You last worked in 2018.
24 Not unexpectedly, you have an extensive history of drug abuse. You were a regular user of cannabis by the time you were 14 years of age. You commenced using methylamphetamine when you were 17 years of age and have used GHB, MDMA and heroin on a few occasions.
25 You have a long history of mental illness and I was informed by Ms Wong that your first contact with mental health professionals occurred when you were 18 years old when you suffered a drug-induced psychotic episode from the abuse of methylamphetamine. Dr Zimmerman diagnoses you as suffering from Schizophrenia and poly-substance misuse. In her report at paragraph 38, Dr Zimmerman describes that you have experienced episodes of psychosis which have typically been precipitated by using ice while being non-compliant with antipsychotic medication prescribed to you. Over the years you have been admitted as a voluntary and involuntary patient to various psychiatric institutions when you have exhibited psychotic symptoms, which in the main have been attributed to your abuse of ice.
26 Whilst on remand at Ravenhall Correctional Centre you were prescribed Olanzapine. However, Ms Wong informed me that you decided some months ago not to take your antipsychotic medication and you are presently unmedicated. Dr Zimmerman opines that the risk of you relapsing into a psychotic state is significant.
27 In October 2016, when you were 20 years of age, you were assaulted whilst on remand at the Port Phillip Prison. You spent a month at St Vincent’s Hospital, initially in the intensive-care unit, and later in the rehabilitation unit, to manage your post-traumatic amnesia. As a result of this assault you have been diagnosed as suffering from a traumatic brain injury. You present on interview with problems of word finding and sequencing words and events. Suffice it to say that your substance abuse and Schizophrenia compound the effects of your traumatic brain injury.
28 While on remand you have been abstinent from illicit drugs. You have worked in the prison kitchen and more recently you have worked as an induction billet. Despite the limited access to courses available to prisoners owing to the COVID-19 pandemic you have undertaken some courses, including studying maths, cleaning and information technology. I was informed that you are close to an aunt and your grandmother and that you maintain weekly phone contact with them.
29 Ms Wong acknowledged that the principles of general deterrence, punishment, community protection and specific deterrence all have application in sentencing you.
30 You entered your plea at the earliest opportunity, and you are entitled to the benefits that flow to you from that plea, being that it is some evidence of your remorse and that it has utilitarian value.
31 You are still a young offender however you have been offending since you were 15 years of age. You have been sentenced to community-based dispositions, detention in a Youth Justice Centre and short terms of imprisonment, as well as combination sentences of imprisonment and community correction orders. The offences on the Indictment are serious examples of offences of the kind.
32 Ms Wong submitted on your behalf that as a result of the neglect and dysfunction that you suffered in your formative years that this led to your substance abuse and personal circumstances that underly your offending. Accordingly, she relied on Bugmy v R (2013) 249 CLR 571 to submit that your moral culpability should be substantially reduced because of your upbringing. Ms Hamill of counsel who appeared on behalf of the Crown conceded that there is material before the Court to enliven Bugmy considerations. However, Ms Hamill submitted that your moral culpability was not substantially reduced and that the sentencing principles of specific and general deterrence still play an important role in sentencing you, even when sensibly moderated.
33 Ms Wong did not rely upon the principles enunciated in R v Verdins as Dr Zimmerman’s opinion was that your disinhibition and impaired judgement at the time of your offending flowed primarily from your use of methylamphetamine.
34 However, you are only 24 years of age. You do suffer from Schizophrenia and a traumatic brain injury. While you have not spent a lengthy time in detention or prison, the frequency of your offending when combined with the frequency of short custodial sentences, do raise the spectre of you becoming institutionalised. Accordingly, I will moderate the sentence that I will impose on you because of your upbringing and its effects on you, your mental health and traumatic brain injury and the risk of you becoming institutionalised.
35
At the time of conducting your plea you had spent 283 days by way of
pre-sentence detention and that pre-sentence detention was subject to the restrictive conditions placed on all prisoners as a result of the COVID-19 pandemic. Further, any period of imprisonment that you will serve pursuant to this sentence will likewise be served under restrictive conditions until the threat to public health posed by the COVID-19 pandemic diminishes.
36 The sentencing principles of general deterrence, specific deterrence, just punishment, public denunciation and totality must be reflected in any sentence imposed on you. I regard your prospects of rehabilitation, bearing in mind your criminal history and background, together with the state of your mental health and the fact that you suffer from a traumatic brain injury, as being guarded. I note in passing the kind of treatment that you require to reduce your risk of re-offending is set out at paragraph 86c. of Dr Zimmerman’s report.
37 Doing the best I can taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows.
On Charge 1, 18 months’ imprisonment;
On Charge 2, 3 months’ imprisonment;
On Charge 3, 36 months’ imprisonment;
On Charge 4, 3 months’ imprisonment;
On Charge 5, 18 months’ imprisonment; and
On Charge 6, 6 months’ imprisonment.
38 I order that 6 months of the sentence imposed on Charge 1, together with 1 month of the sentence imposed on Charge 4, together with 6 months of the sentence imposed on Charge 5, together with 2 months of the sentence imposed on Charge 6, be served cumulatively upon each other and upon the sentence imposed on Charge 3. This results in a total effective sentence of 4 years and 3 months’ imprisonment and I fix the period of 2 years’ and 6 months’ imprisonment as the period that you must serve before you will become eligible for parole.
39 In respect to the offence of carjacking, I cancel all licences and permits held by you under the Road Safety Act 1986 and disqualify you from obtaining any such licence or permit for a period of 2½ years.
40 In respect to the related summary offences you are convicted on each offence and fined an aggregate sum of $500.
41 I declare that you have spent 290 days’ pre-sentence detention not including today.
42 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to 7 years’ imprisonment with a
non-parole period of 5 years’ imprisonment.
43 Is there anything arising out of this sentence?
44 OFFENDER: No.
45 MR FITZGERALD: No, Your Honour.
46 MS ANDERSON: No, Your Honour.
47 HIS HONOUR: Thank you.
48 Then, Mr Fitzgerald, if you require some time to speak to Mr Willis, I can make that available to you now.
49 MR FITZGERALD: I will. Thank you, Your Honour. I am standing in obviously for Ms Wong.
50 HIS HONOUR: Yes.
51 MR FITZGERALD: But I might have a quick word with him if I can take that indulgence after Your Honour. Thank you.
52 HIS HONOUR: All right. All right. Then Mr Davie will supervise that. Your learned friend will absent herself and you can have a short conversation with Mr Willis.
53 Would you adjourn the court sine die please?
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