Director of Public Prosecutions v Wilson

[2021] VCC 1622

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-19-02348

DIRECTOR OF PUBLIC PROSECUTIONS

v

RHETT WILSON

‑‑‑

JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	7 October 2021
DATE OF SENTENCE:	19 October 2021
CASE MAY BE CITED AS:	DPP v Wilson
MEDIUM NEUTRAL CITATION:	[2021] VCC 1622

REASONS FOR SENTENCE
‑‑‑

Subject:Criminal law – sentence

Catchwords:              Plea guilty – Robbery – Assault and resist an emergency officer on duty – Prior criminal history – time in custody onerous – parity – totality

Legislation Cited:      Crimes Act 1958, Sentencing Act 1991

Cases Cited:Worboyes v. The Queen [2021] VSCA 169; Lowe v. The Queen (1984) 154 CLR 606

Sentence:                  Total effective sentence of 22 months’ imprisonment, non-parole period of 15 months

‑‑‑

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. O’Toole (plea and sentence)	Solicitor for the Office of Public Prosecutions
For the Accused	Mr W. Barker (plea and sentence)	Haines and Polites

HER HONOUR:

Introduction

1Rhett Wilson, you have pleaded guilty on indictment to three charges arising from two separate incidents. In relation to the events that occurred on 2 April 2019, you have pleaded guilty to one charge of robbery contrary to s 75 of the Crimes Act 1958 (‘the Act’), which carries a maximum penalty of 15 years’ imprisonment (Charge 1).

2You also pleaded guilty to two offences arising from the circumstances of your arrest on 2 May 2019, being one charge of assaulting an emergency worker on duty contrary to s 31(1)(b) of the Act (Charge 2) and one charge of resisting an emergency worker on duty contrary to s 31(1)(b) of the Act (Charge 3), both of which carry a maximum penalty of 5 years’ imprisonment.

3You have also pleaded guilty to a related summary charge of unlawful assault contrary to s 23 of the Summary Offences Act 1966 (summary offence Charge 5), which carries a maximum penalty of 3 months’ imprisonment.

4You were born on 2 September 1980 and are now 41 years old. You were 38 at the time of the offending.

Summary of Offending

5A Summary of Prosecution Opening dated 13 May 2021[1] was tendered on the plea which represents the agreed basis on which you are to be sentenced. I will briefly summarise the circumstances of your offending.

[1]Prosecution Exhibit A

6The victim in this matter is Michael Merigan who lived in a flat on Hoddle Street, Collingwood. On 2 April 2019, Mr Merigan returned to his flat at approximately 3.30 pm. He entered the main entrance. While he waited for a lift he was greeted by you and the co-accused, Jasmin Young, aged 45. You both knew Mr Merigan. You were holding a document folder in your hand.

7When Mr Merigan got out of the lift on the 8th floor, you and Ms Young followed him to his flat. He unlocked the door and you pushed him into the flat. The two of you then entered. A woman by the name of Sabina Tonks was also present in the flat.

8One of you pushed Mr Merigan into the lounge room area of the flat and Ms Young demanded cash from him. Mr Merigan said he had no money. You replied, ‘Bullshit, you had a win on the pokies a few weeks ago’. You then grabbed Mr Merigan’s wallet from the back right hand pocket of his pants and took $200 cash and the driver’s licence out of the wallet. Ms Young began searching through the flat.

9Mr Merigan sat down in the lounge room. You took a VicRoads Transfer of Registration document from the folder you were carrying and told Mr Merigan to sign the paperwork. When Mr Merigan asked ‘What for?’, you replied, ‘You’ve got no money, then we’ll take your car’. Mr Merigan was the registered owner of a 2008 Omega sedan.

10In fear of being assaulted, Mr Merigan signed the paperwork with a pen provided by you. You then compared the signature to the one on his driver’s licence. You were not content with the signature he produced and handed Mr Merigan another blank form for him to sign. You then demanded to know where the car was parked and Mr Merigan told you.

11Having been told where the car was parked, you used some cable ties to restrain Mr Merigan’s hands behind his back. You had found the cable ties on the coffee table. You then pushed Mr Merigan’s face down on the couch, and told him not to move.

12Ms Young continued to search the flat. You took a Dell laptop computer from a chair in the lounge room and a Samsung mobile phone from the coffee table. You and Ms Young left the flat with these items, and a Dyson vacuum cleaner, using a trolley to remove them. Ms Tonks felt compelled to assist you remove these items from the flat. Mr Merigan was too scared to move for fear of being assaulted, and remained in the flat. This is the conduct giving rise to Charge 1 – robbery.

13Before leaving the flat, either you or Ms Young told Mr Merigan, ‘If you go to the police, we know where you live. We will go and hurt your boy. We know he lives in Drouin’. You then approached Mr Merigan and punched him to the right-hand side of his face. This is the conduct giving rise to the related summary offence Charge 5 – unlawful assault.

14After you and Ms Young had left his flat, Mr Merigan located a pair of scissors and cut the cable ties. He noticed that his belongings and the key to the vehicle were gone. He briefly went to level 2, then checked to see whether his car was where he had parked it. His car was missing. This also forms the basis of Charge 1 – robbery.

15Mr Merigan then travelled to Drouin to stay with his family.

16On 4 April 2019, Ms Young attended the VicRoads Customer Service Centre and transferred the vehicle into her name.

17On the 10 April 2019, Mr Merigan reported the incident to the Warragul Police Station and made a formal statement. The police recovered his vehicle on 23 April 2019.

18On 2 May 2019 you were arrested by police at an address in Werribee. Detective Senior Constable Andrew Griffin located you in a manhole in the roof of the property. While he was attempting to restrain you, you kicked Detective Senior Constable Griffin to the head. This conduct gives rise to Charge 2 – assault emergency worker on duty.

19You and Detective Senior Constable Griffin then fell to the ground. You continued to resist, giving rise to Charge 3 – resist emergency worker on duty.

20The police located the Samsung mobile phone owned by Mr Merigan in the manhole.

21On 2 May 2019, you participated in a record of interview, providing ‘no comment’ in relation to the allegations, as is your right.

Nature and gravity of offending

22I now turn to discuss the objective gravity of the offending and your moral culpability for the offending.

23The robbery, in company, occurred at Mr Merigan’s home, where he was entitled to feel safe. It was a terrifying ordeal for the victim. Not only were demands made for cash, but when those demands did not yield results, you demanded he sign over the registration to his car. That you brought those documents with you demonstrates a degree of planning and pre-meditation. Mr Merigan was pushed face down on the couch, his hands tied, while the search of his flat continued.

24The entire incident occurred over a not inconsiderable period of time. CCTV footage captures you entering the foyer at 3.31 pm and then leaving the flats at 4.21 pm. That you assaulted Mr Merigan by punching him to the face, whilst his hands were still tied behind his back, was no more than gratuitous violence. He did nothing to provoke that assault. The assault undoubtedly heightened Mr Merigan’s sense of fear, particularly as it immediately followed the threat where he was told ‘If you go to police, we know where you live. We will go and hurt your boy. We know he lives in Drouin’. This is a particularly aggravating feature of the offending on 2 April 2019.

25Mr Merigan’s victim impact statement dated 13 April 2021 clearly demonstrates how terrified he was by these events, and illustrates the profound impact your offending has had on his sense of safety. After living in his unit in Collingwood for ten years, Mr Merigan says he no longer felt safe, and had to leave his home. As a consequence, he had to leave the friends and the life he had created in Collingwood over those past 10 years. He says he had to ‘start all over again’. He felt he could not return home due to the threats you made to harm him if he went to police. Mr Merigan says he now feels isolated and suffers from anxiety and poor sleeps.

26I consider this to be a serious example of the offence of robbery. Mr Barker, appearing on your behalf, submitted that the offending was not very sophisticated, for instance, you were not disguised and could easily be identified. I accept that it was not very sophisticated offending. You were known to the victim. However, by the threats and the assault, you and Ms Young sought to deter him from complaining to police. I consider your moral culpability for the offending to be significant.

27I also consider the assault by kicking Detective Senior Constable Griffin to the head to be a more serious example of the offence of assaulting an emergency worker on duty, given the risks inherent in kicking someone to the head. I accept that the assault was a spontaneous act and occurred in the heat of the moment of your arrest. Fortunately, Detective Senior Constable Griffin suffered no injury as a result.

28Although it does not aggravate the offending, it is relevant to the sentence I impose that at the time of this offending you were subject to a Drug Treatment Order (‘DTO’) imposed by the Melbourne Magistrates’ Court on 16 May 2018. On that date, you were sentenced to an aggregate sentence of 2 years’ imprisonment to be served by way of a Drug Treatment Order, for offences that included theft of a motor vehicle, seven charges of burglary, two charges of attempted burglary, theft of a trailer, possessing heroin and methylamphetamine, and other dishonesty offences.

Personal circumstances

29I turn now to your personal circumstances.

30As a child you were diagnosed with cancer, and underwent chemotherapy at the age of 8. As a result, you missed a lot of early schooling and soon fell behind. You were suspended a number of times for poor behaviour, and then expelled in Year 10, when you were aged 15. You have poor literacy and have struggled to maintain gainful employment as an adult. Your only employment was as a landscaper for a period of 18 months when you were 23 years old. Following your release, your cousin is prepared to offer you employment in a sheet metal yard in Euroa, which would assist you in moving away from negative influences in Melbourne.

31You report that you were diagnosed with depression at the age of 15 and have struggled with your mental health as an adult. Unfortunately, no psychological material was filed in your plea hearing that may have been assistance on this aspect of your history.

32You have had a long-standing drug abuse problem. You were a heavy cannabis user until you turned 18, at which time you began to use methamphetamine and ecstasy, usually in social settings. You first used heroin at the age of 22, and regularly used heroin ever since, although drug urine screens during your time in custody in 2017 demonstrate a period of abstinence. For quite some time, you ceased all methamphetamine use but remained addicted to heroin. Then, at the age of 32 you returned to using both heroin and methamphetamine in large quantities.

33You have a 20 year old daughter to an ex-partner, and consider yourself to be a good father. You state that your daughter was the motivation for you seeking to participate in the Drug Treatment Order. You remain close to your mother, who now suffers from severe emphysema. When you are able to, you assist her in her daily activities.

34Corresponding with your history of drug use, you have a lengthy criminal history dating back to May 2000, including numerous prior convictions for violent offending. These include a charge of recklessly causing serious injury in 2002 and charges of recklessly causing injury in 2009 and twice in 2017, and priors for assaulting emergency workers in 2000 and again in 2017. In 2010 you were sentenced to 12 months’ imprisonment for offending that included burglary, intentionally causing injury and false imprisonment. You have completed eleven community based dispositions but have contravened a suspended sentence on three occasions, a community based order and a community correction order, and you were sentenced for contravening the Drug Treatment Order in August 2018.

35Despite the many opportunities afforded to you to engage in community dispositions over the years, including the intensive drug treatment support provided whilst completing a Drug Treatment Order, your lengthy criminal history means that I remain guarded about your overall prospects of rehabilitation.

36I accept that this period in custody, being your most substantial period in prison, will operate to specifically deter you from future offending to some extent. However, your long term prospects of rehabilitation will very much depend on your ability to remain drug free in the community upon your release. You will obviously benefit from ongoing drug treatment and counselling, particularly for your long-standing heroin addiction, in order to turn your life around.

Other sentencing considerations

37In cases such as this, general deterrence, just punishment, and protection of the community are significant sentencing considerations. In sentencing you, I must deter others from offending that involve breaching the sanctity of the home of others in order to rob them. As stated, the gravity of this offending, particularly in light of your prior history, means specifically deterring you from future offending is also relevant to my sentence.

38Mr Barker, who appeared on your behalf, also highlighted other matters in mitigation of your sentence.

39First and foremost is your plea of guilty. Whilst your plea was not entered at the earliest opportunity, the prosecution accepts it is still an early plea. It has significant utilitarian benefit. In pleading guilty at this stage, you spared the victims the ordeal of giving evidence again in Court, having already given evidence at committal. You also saved community the time and expense associated with running a trial. The value of your plea is heightened against a COVID-19 background where an early plea carries even greater weight in mitigation than a similar plea entered in other times[2]. The plea is also indicative of remorse.

[2]Worboyes v The Queen [2021] VSCA 169, [35]-[39]

40Secondly, you have now been on remand for close to 2 years, 6 months[3] since your arrest on these matters. Your time in custody has run parallel to the COVID-19 pandemic, and the restrictions imposed in custody to respond to the pandemic. In person family visits have been suspended, and lockdowns have been necessary to act as a form of quarantine against the pandemic. These have all added to the stress and difficulty of your time in custody. The conditions in custody to respond to COVID-19 considerably add to the burden of custody, and I have taken this matter into account in moderating the sentence I impose.

[3]        889 days as at the date of your plea.

41There are other reasons your time in custody has been difficult for you. You were assaulted by others when on remand at Port Phillip prison and were transferred to the Alfred Hospital for treatment for bleeding on the brain. On your return to Port Phillip, you were again required to isolate for 7 days before being transferred to Ravenhall. Mr Barker submits that since being remanded at Ravenhall, you have engaged in some drug education courses, Koori painting (as you explore your Koori heritage) and undertaken work, including kitchen and cleaning duties.

42Additionally, Mr Barker submitted that any sentence of imprisonment should be moderated as a result of the period of 374 days already served following the cancellation of your Drug Treatment Order. Mr Barker emphasised this sentence had been completed and accordingly, the opportunity for any concurrency had been lost. Mr Barker submits that this time should be taken into account under the sentencing principle of totality. In other words, that the sentence I impose should take this time in custody into account, and that the total sentence imposed on you should reflect your overall criminality and should not be crushing. I accept that these sentencing principles apply in the circumstances relevant to your case.

43Finally, Mr Barker submits that the sentencing principle of parity should apply, whilst acknowledging there are features of the co-accused’s circumstances which justify a lesser sentence. Mr Barker submits that you and Ms Young still share many aspects of the offending, and that whilst it appears you were more involved in the offending, it was Ms Young who searched through the apartment looking for items to steal, and who attended at VicRoads to register Mr Merigan’s car in her name. Moreover, that Ms Young was sentenced prior to the authority of Worboyes which made it clear that an additional benefit attaches to a plea of guilty in the context of the COVID-19 pandemic.

44Ms Young pleaded guilty to one charge of robbery and a summary offence of failing to answer bail and was sentenced by me to 14 months’ imprisonment followed by a community correction order of 2 years’ duration for the offence of robbery and was fined on the summary offence.

45The role you played in the offending is relevant to the sentence to be imposed. As Gibbs CJ stated in Lowe v The Queen[4]:

It is obviously desirable that persons who have been parties to the commission of the same offence should, if all other things are equal, receive the same sentence, but other things are not always equal, and such matters as … the part which he or she played in the commission of the offence, have to be taken into account.

[4](1984) 154 CLR 606 at 609

46Here, whilst you were co-offenders, you did play a more significant role in the offending. This was accepted by your counsel. It was you who restrained, and then assaulted Mr Merigan, considerably adding to the trauma of the incident. You also face the additional charges relating to the circumstances of your arrest.

47Further, as emphasised by the prosecution, your prior criminal history is far more extensive than Ms Young’s, and as such, the sentencing considerations of specific deterrence and community protection carry greater weight in your sentence. I accept however that the totality considerations I have referred to, played no role in the sentence I imposed on Ms Young.

48You were remanded on 2 May 2019 and since that date have been sentenced to 3 months’ imprisonment on driving offences, and 374 days for contravening the Drug Treatment Order, with both sentences imposed on 7 August 2019 and to be served concurrently.

49You have served a further 527 days on remand on these matters alone.

50Having regard to the nature and gravity of your offence, Mr Barker did not submit you should receive any sentence other than one of imprisonment, but urged the court to impose a term less than that which is available as pre-sentence detention.

51In contrast, Mr O’Toole, appearing for the prosecution, submits that the offending warrants a term of imprisonment, with a non-parole period fixed.

52Having regard to the seriousness of the offence, particularly in light of your prior criminal history, I consider the sentencing considerations of general and specific deterrence and community protection warrant a head sentence exceeding that available by way of pre-sentence detention. However, I have moderated all components of the sentence having regard to your plea, the burden of your imprisonment and applying the sentencing principle of totality. I have also had regard to the sentence I imposed on Ms Young. I acknowledge that the sentence I have imposed means that unusually, the non-parole period I have fixed is less than the period you have served on remand. However, that fact alone could not justify the fixing of a non-parole period or the imposition of a head sentence that is higher than is warranted.

53Balancing these considerations, and having regard to the maximum penalty imposed for each offence, I sentence you as follows:

54On Charge 1 – robbery – you are convicted and sentenced to 19 months’ imprisonment;

55On Charge 2 – assault emergency worker on duty – you are convicted and sentenced to 8 months’ imprisonment;

56On Charge 3 – resist emergency worker on duty – you are convicted and sentenced to 5 months’ imprisonment;

57On summary Charge 5 – unlawful assault – you are convicted and sentenced to 2 months’ imprisonment.

58I order that the sentenced imposed on Charge 1 – robbery be the base sentence. I order that 2 months of the sentence imposed on Charge 2 and 1 month of the sentence imposed on summary Charge 5 be served cumulatively upon the sentence imposed on Charge 1 and upon each other. I order that the sentence I have imposed on Charge 3 be served concurrently with all other sentences.

59That gives a total effective sentence of 22 months’ imprisonment. I fix a non-parole period of 15 months’ imprisonment before you are eligible for release.

60Pursuant to s 18 of the Sentencing Act 1991, I order that 527 days be reckoned as a period of imprisonment already served.

61Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not entered a plea of guilty but had been found guilty following a trial, the sentence I would otherwise have imposed would have been a sentence of 3 years, 6 months’ imprisonment with a non-parole period of 2 years.

62HER HONOUR:  Can I just ask, Mr Barker, if there are any other custody management issues you want me to note?

63MR BARKER:  No, Your Honour.

64HER HONOUR:  Thank you. Do either counsel have any questions in relation to the sentence?

65MR BARKER:  No, Your Honour.

66MR O’TOOLE:  No I do not, Your Honour.

67HER HONOUR:  All right. I thank counsel for their submissions in the matter. We will now adjourn the court.

68MR O’TOOLE:  As the court pleases.

69MR BARKER:  Your Honour, can I just ask – I do not know – I do not meant to interrupt Your Honour’s standing up, but my client has just put his hands up. Could I borrow the link after Your Honour has left the court room to quickly make sure that Mr Wilson does not have any questions?

70HER HONOUR:  Absolutely. I will stand down and ensure that you can have a conversation that is confidential with your client.

71MR BARLER:  Thank you, Your Honour.

- - -