Director of Public Prosecutions v Wilson
[2017] VCC 982
•21 July 2017
| COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00840
Indictment No. G10133593.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GREGORY JAMES WILSON |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 10 July 2017 | |
DATE OF SENTENCE: | 21 July 2017 | |
CASE MAY BE CITED AS: | DPP v Wilson | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 982 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Criminal law – sentence – attempted armed robbery – guilty plea – offender attended at 7‑Eleven store armed with a Swiss army knife and attempted to rob the attendant of a packet of cigarettes worth $25 – police attended and arrested offender at the scene – relatively late plea – extensive relevant prior convictions – offender aged 44 years at time of offence – offender affected by alcohol at time of committing offence – significant rehabilitative steps taken whilst in custody – prospects of rehabilitation “guarded”
Legislation Cited: Crimes Act 1958 Sentencing Act 1991
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Moran | Mr J Cain, Solicitor for the Public Prosecutions |
| For the Offender | Ms J Munster | Victoria Legal Aid |
HIS HONOUR:
1 Gregory James Wilson, you have pleaded guilty to one charge of attempted armed robbery.[1] The maximum penalty for this offence is 20 years’ imprisonment.[2]
[1]Contrary to ss 75A and 321M Crimes Act 1958
[2]Pursuant to s321P of the Crimes Act 1958
The Facts
2 The prosecution has filed a Summary of Prosecution Opening upon Plea dated 3 July 2017, which I am told by your counsel I may treat as a statement of agreed facts.[3]
[3]Exhibit P1
3 The offence occurred on 14 January 2016 at about 2.45 am at the 7‑Eleven store in Manchester Road, Mooroolbark.
4 The victim was the store attendant, Samara Kothakapu, who was alone in the 7‑Eleven store when you entered at about 2.45 am. The door to the 7‑Eleven store was normally locked at this time. Upon you knocking on the door, the victim let you inside.
5 You said you wanted something but did not have enough money. The victim, who was behind the counter, asked how much money you had. You replied you were in a bad mood and not to speak to you like that. The victim apologised. You continued to argue with the victim for some time. The victim realised that you were intoxicated. You took out of your pocket a folded red Swiss army pocket knife. The victim understandably felt scared and as a result stepped away from you. You said to the victim that you were in a bad mood and not to mess with you and not make you hurt the victim. You held the knife out for a few seconds and then put it back into your pocket.
6 Another customer came in to store whilst you were present and was served by the attendant. This customer then left.
7 As a result of an earlier incident in the area, police were patrolling the area looking for a person matching your description. Police saw you in the 7‑Eleven store through the glass door and decided to drive into the store’s car park to investigate.
8 Inside the store you said to the victim, “You were rude to me, that customer got smokes, now, you give me smokes as compensation otherwise I am going to hurt you.” Naturally the victim was scared by what you had said. However, he did not press the duress button at this time because he felt that it would escalate matters and make the situation more dangerous for him to do so. He was worried because he knew you had a knife with you. The victim moved towards the telephone to call the police but then saw that they were arriving outside in the car park. You looked in the direction of the police car and walked out of the store. This incident was captured on CCTV footage.
9 Senior Constable Tucknott got out of the police vehicle and said: “G’day fella, how are you?” You ignored the police officer and kept walking. Consequently, Senior Constable Tucknott walked alongside you for about
3 metres to attract your attention. You continued to ignore the police officer. The victim went outside and yelled that you had a knife. Senior Constable Tucknott moved two steps away and directed you to put your hands up. He asked you several times to put your hands up. You did not follow his directions, but at some point you placed your hand on your pocket and then also near your waist area. When it was considered safe to do so, Senior Constable Tucknott forced you to the ground and arrested you.
10 Police then conducted a search of you without incident. A folded Swiss army pocket knife was located in your right pocket, along with a wallet which contained your identification. Another police officer attended at the scene and you were conveyed to the Ringwood police station.
11 At the Ringwood Police Station you were spoken to by police. However, because of your agitated state, a decision was made not to interview you at that time. It appears from the depositions that no record of interview was ever conducted with you. This is hardly surprising, because I was told by your counsel that you were “heavily intoxicated” at the time of committing the offence, having consumed on the night in question, one and a half bottles of whisky.
12 I was told by your counsel regarding this offence, that on the night of its commission you were living with your partner, Kim Bounds, and your daughter, Chloe, in a “tight family unit”. You were effectively a stay-at-home dad as a result of a serious back injury you had sustained at work in 2009, while working as a gardener. You felt guilt at your inability to work and the fact that this had placed a financial burden on your family. Your partner,
Ms Bounds, was working long hours, including at night.
13 On the night of the offence you were at home in Millgrove with Ms Bounds and Chloe. It was a hot summer’s night. You had invited a friend home and you and your friend drank to excess. Ms Bounds was annoyed at your drinking session. An argument ensued, as a result of which you left the home in the middle of the night. You took with you $50 and some coins and intended to make your way to the city. You were dressed in shorts and a T‑shirt. You hitchhiked for a period and then you were dropped off in Mooroolbark, which was an unfamiliar area for you.
14 After walking along the Maroondah Highway you saw a 7‑Eleven store and entered it, apparently intending to ask the store attendant for directions to the city and to buy food. You were heavily intoxicated at the time.
15 You accept that you were belligerent and that you took a knife out of your pocket, albeit with the blade unfolded. You do not recall making any threats directed at the store attendant, but you do not challenge the fact that you did make such threats, and your counsel ultimately accepted that I should act on the version of events given by the victim in preference to your version of events where they differ.
16 No Victim Impact Statement has been filed by the victim, Samara Kothakapu. However, I am entitled to take into account the likely effect on a sole attendant operating in the early hours of the morning in a 7‑Eleven store of an offence of this nature.[4]
[4]See Darcie v R [2012] VSCA 11 [27] (Williams AJA, Buchanan JA agreeing); R v Kittson [2008] VSCA 77 [22] (Forrest AJA, Redlich JA agreeing)
Chronology of These Proceedings
17 The chronology in relation to these proceedings is relevant to an assessment of the point in time at which you first indicated an intention to plead guilty to the offence before this Court. A filing hearing was held in the Magistrates’ Court on 14 January 2016. You made an application for bail which was granted on 18 January 2016. A contested committal hearing was conducted on 13 May 2016, at which the victim was extensively cross-examined by your legal representative. The informant was also cross-examined. At the conclusion of the committal hearing you pleaded not guilty to all charges, as was your right.
18 An initial directions hearing was conducted in this Court on 16 May 2016, at which a timetable was set with the final directions hearing listed for
23 January 2017 and a trial, estimated to last four to five days, was listed to commence on 6 March 2017. On 23 January 2017, the final directions hearing and trial dates were vacated and the matter proceeded as a sentence indication hearing in relation to the charge which is before me. An application for revocation of bail was made on 15 March 2017, at which time your bail was revoked by consent and you have remained in custody since that date. On 22 March 2017, the sentence indication was vacated and the matter was listed for plea on 10 July 2017.
19 I find that your plea of guilty was made at a relatively late stage in the proceedings, some six weeks prior to a four to five day trial date, and some eight months after the committal proceeding, at which the victim of your crime was extensively cross-examined. Nonetheless, I accept that your plea of guilty has utilitarian benefit. I also accept that you now have insight into the causes of your offending conduct and have accepted responsibility for it. Ultimately, your counsel accepted that there was no proper evidence before me on which I could draw the inference in your favour that you have demonstrated true contrition and remorse and victim empathy. Nonetheless, I treat your plea of guilty as a mitigating factor and you will receive a lower sentence as a result.
Prior Criminal History
20 You have a significant prior criminal history comprising 22 appearances over a period from 4 March 1996 to 13 November 2015, a period of nearly 20 years. This includes a large number of dishonesty offences including 12 prior convictions for theft and three prior convictions for dishonestly dealing with property suspected of being the proceeds of crime.
21 Most concerning is your prior conviction for armed robbery, which was heard in this Court on 11 June 2008, for which you received a sentence of two years’ imprisonment with a non-parole period of 14 months. I was provided with the reasons for sentence of her Honour Judge Millane, dated 11 June 2008.[5] That offence arose out of an armed robbery of the sole attendant in a service station food store at about 5.30 am. You stole $600 in cash. You were armed with a black-handled hunting knife. In your record of interview you told police that you committed the crime because you were adversely affected by alcohol and needed the money to pay debts and buy food.
[5]Exhibit P4
22 You also have a prior conviction for attempted armed robbery, which was heard in this court on 13 June 2003, for which you received a 12‑month intensive correction order, which you breached. You were dealt with for that breach on 8 March 2005, when you were ordered to serve the unexpired portion of the original sentence. However, as by then you had completed the sentence, you served no time in custody.[6]
[6]See R v Wilson (unreported, County Court of Victoria, Judge Millane, 11 June 2008) [4]
23 I was provided by the prosecutor with a LEAP summary of what was alleged in relation to that matter.[7] At 1.15 am on 26 December 2002, you and two other offenders attempted to rob an Oz Fuel service station in Dandenong. One of your co‑offenders was armed with a knife with a 30cm blade, and another was armed with a car jack handle. You were apparently unarmed but you were wearing a stocking mask and latex gloves in order to avoid detection. You all approached the door of the service station. However, police arrived before you could effect entry and you were arrested prior to carrying out the planned armed robbery.
[7]Exhibit P5
24 You also have some concerning prior convictions for offences against the person including: one count of intentionally or recklessly causing injury; one count of assault with a weapon; one count of threat to kill; and one count of threat to inflict serious injury. The remainder of your reasonably extensive prior criminal history comprises a number of offences of damaging property, some relatively minor drug offences and a number of offences against public order.
Personal Circumstances
25 You were born on 12 December 1971 and are now aged 45. You were aged 44 at the time of the offending. You were raised in a happy, intact and secure home. Your father owned small businesses and your mother cared for the family in the home. You have an older sister who is married with three sons, all of whom are successful students. You have a strong relationship with your parents and sister.
26 You were raised in Mount Martha until the age of 13, when the family moved to Hervey Bay in Queensland. You and the family returned to Victoria after you completed high school. You have lived in Victoria since that time, apart from a short period in Tasmania in 1999 to 2000.
27 You have had two significant romantic relationships in your lifetime. The first was in the early mid-1990s, unfortunately with a woman who was a heroin user. Before long you too were addicted and committed your first offence. This relationship ended after several years, but your use of heroin did not.
28 Your most enduring and significant relationship was with Ms Kim Bounds, with whom you have a daughter, Chloe. You met in 2003 and were in an on-off relationship for 13 years until February 2017, when you committed further subsequent offences, which I will detail presently. Previous separations primarily related to your consumption of drugs and alcohol. Reconciliations occurred after you “sobered up” and Ms Bounds took you back into the home.
29 I was told that despite your final separation from Ms Bounds and the imposition of a Family Violence Intervention Order in her favour, which was consented to by you without admissions, you are motivated to continue your relationship with Chloe and act in her best interests. Chloe is presently in Grade 1 at school and she has struggled to understand and adjust to your absence from her life.
30 So far as your education and employment are concerned, you completed your Higher School Certificate in Hervey Bay, Queensland. You began university studies, initially studying teaching at Victoria University, and subsequently a Bachelor of Arts degree at Swinburne University, in which you majored in media studies and sociology. You ultimately completed 19 of the 20 subjects required to qualify for that degree, but did not complete the final subject because of your drug use.
31 I was told by your counsel that you have a strong work history as a hospitality worker, gardener, landscaper, trade assistant, and general labourer, albeit that this has been interrupted by drug and alcohol abuse and by your periods in custody.
32 More recently, you have suffered a work-related injury to your back as a result of your job as a landscape gardener. You have been unable to work for the last seven years due to this back injury, which you sustained in 2009. This injury has progressively deteriorated and you have been on a disability support pension since 2011.
Mitigating Circumstances
33 Turning to mitigating circumstances, I note that you have your parents’ support. They were in court during the plea hearing and provided a letter to the court[8] in which they indicated their intention to provide you with accommodation at their home in Monbulk and to provide you with transport as required to comply with any court-ordered rehabilitative measures. They also want to help you remain abstinent from alcohol and generally support you in your rehabilitative efforts. They say that whilst in jail you have reflected on the causes of your offending behaviour and you have apparently realised that without rehabilitation you will not lead a useful life, and will be forever cut off from your daughter, Chloe.
[8]Exhibit D7
34 Your relationship with your daughter, Chloe, is very important to you and you have been in weekly telephone contact with her whilst you have been in jail. I accept that the importance of continuing your relationship with Chloe after your release from custody is a significant motivating factor in you rehabilitating yourself from excessive use of alcohol and drugs.
35 You have in the past managed to remain reasonably law-abiding for periods of up to a little over nine years. Your last serious offence before the present one was in December 2006.[9] You do have some relatively minor offences in 2012 and 2015 of being drunk in a public place and being drunk and disorderly which is indicative, unfortunately, of your ongoing inability to be responsible in your consumption of alcohol.
[9]See [19] above
36 As I noted earlier, I accept that you are now demonstrating that you show insight into the causes of your offending conduct, that you recognise its wrongfulness, and you accept responsibility for your offending conduct.
Offence Seriousness
37 Your counsel initially sought to characterise your offence as being at the lowest end of the range of offending of this kind. Ultimately, she accepted that it was lower range offending, but not at the lowest level. In my view it is at the upper end of low range offending.
38 The offence was committed in the middle of the night upon a sole, vulnerable victim. The target was a soft target. Offending of this nature is prevalent in the community. At the time you were heavily affected by alcohol. You threatened the sole man in the shop at that hour of the night after he had seen you in possession of the Swiss army pocket knife, which you had produced, albeit with the blade folded. The threat you made was a nasty threat, to the effect, “You were rude to me. That customer got smokes. Now, you give me smokes as compensation otherwise I’m going to hurt you.” The victim was too scared to press the duress button, because he was concerned that this would escalate the situation and place him in personal danger.
39 As I indicated earlier, this is objectively a serious offence as recognised by your counsel. Attempted armed robbery is a serious criminal offence, as indicated by the maximum penalty of 20 years’ imprisonment. It is a prevalent offence, often committed by substance affected armed offenders at night against soft targets, such as the 7‑Eleven store in this case, usually manned by a lone attendant, as was this case.
40 You were clearly in an alcohol affected state and in that state produced a Swiss army pocket knife, albeit with the blade unfolded, and threatened the sole and vulnerable attendant, that if he did not do as you required you would, “hurt him”. This would clearly have been a terrifying ordeal for the attendant.
41 General deterrence and denunciation are, accordingly, required to be given significant weight. Specific deterrence and protection of the community are also significant factors in your case, given your appalling criminal history and your subsequent offending, which I will detail shortly.
42 Clearly, the abuse of alcohol and illicit drugs has been a scourge on your life and you have failed to take advantage of rehabilitative dispositions in the past, intended to address the causes of your offending behaviour. You have received counselling and treatment for alcohol abuse without success. Despite what her Honour Judge Millane described as Ms Bound’s “moderating influence”, you have continued to abuse alcohol and commit serious crimes while under its influence.
43 I regard your prospects of rehabilitation as being highly problematic. Your counsel accepted that your prospects of rehabilitation can only be viewed by me as “guarded”. However, I accept that there is some hope that at last you have realised that continued substance abuse will continue to lead you into committing further crimes, which will inevitably lead to longer and longer prison sentences. Unless you are determined to break this spiral, there is no hope for your ultimate reclamation.
Efforts at Rehabilitation
44 Your counsel submitted that you have made significant attempts to deal with drug and alcohol issues that have plagued you for most of your adult life. You had a dependency to heroin and other drugs in your early twenties which lasted for a significant period of time, and you had periods when you were able to overcome this addiction, for example, when you moved to Tasmania in the late 1990s to get away from drug related associates and the accompanying lifestyle. When you returned to Victoria you were prescribed methadone and stopped using heroin. I was told by your counsel that you were finally able to stop using methadone in 2016.
45 Unfortunately, alcohol abuse has been more problematic for you. The pattern of your life has been periods of very heavy drinking interspersed with periods of complete abstinence. During 2016, you were prescribed Naltrexone to help deal with cravings for alcohol, but you experienced side-effects, including migraines and moodiness, and as a result you stopped taking the Naltrexone. You accept the need to be abstinent from alcohol, but you have found this very challenging. I was told you are anxious regarding your ability to remain permanently sober upon your release, but you do intend to resume drug and alcohol counselling and other counselling for offence-related issues.
46 I was told by your counsel that while on bail for a year before your subsequent offending resulted in your being remanded in custody, you undertook a number of positive steps towards your rehabilitation. You attended drug and alcohol services and apparently made significant progress.
47 I have received in evidence a letter dated 20 June 2017 from Mr John Rickard, who is a social worker employed as team coordinator community mental health with the EACH program in Bayswater.[10] He had been working with you for 12 months. He has been impressed with your honesty and determination to get the support you need to, “address key life domains that have continually brought [you] undone”. You have received, “targeted psycho-therapy,” from Mr Miguel Barreiro, a psychologist, over four one hour sessions during January and February of this year.
[10]Exhibit D2
48 Mr Rickard opines:[11]
I sincerely believe Greg has very real prospects for rehabilitation if he continues to engage with his community supports, actively demonstrates a desire to develop healthy lifestyle choices that complement and enhance therapy.
Greg has motivation to continue this work.
[11]See Exhibit D1
49 Mr Rickard expressed the “professional view” that:
[A] mandated order for extended residential drug and alcohol rehabilitation would provide containment in a safe and therapeutic environment. Pending vacancies to residential rehab I would recommend continued engagement with clinical psychology, AOD counselling and USD screens for compliance. A plan for increased access to his Daughter [sic] in my opinion would provide much needed hope and motivation.
50 I have also received in evidence a letter dated 3 March 2016 from Ms Katrin Oliver, a social worker and alcohol and other drug counselling clinician, with SURe (Substance Use Recovery) in Ringwood. You first made contact with Ms Oliver on 19 January 2016, five days after committing this offence.[12]
[12]Exhibit D3
51 She attests to you attending ten sessions focused on:
[E]xploring the context of his substance use, how this may have impacted on his current legal situation and how he is managing his bail conditions. Mr Wilson has explored issues such as emotional regulation and undertaken experimental exercises to help alleviate negative emotional symptoms associated with current life stressors.
Mr Wilson continues to be focused on the wellbeing of his family and shows insight into his behaviours and how they might affect others. Mr Wilson is exploring his options for meaningful work where he can uphold his family responsibilities. Mr Wilson engages in our sessions with attention and authenticity.
52 Your counsel told me that you have instructed her that whilst in custody you have not consumed any illicit drugs or alcohol, and you have had negative urine drug screens, one of which was tendered before me.[13] You also instruct your counsel that you have attended AA meetings whilst in custody. This has been a new experience for you. You have attended one hour meetings every Saturday. You have found these to be useful, and intend to continue attending AA meetings upon your ultimate release from custody.
[13]Exhibit D4
Subsequent Offending
53 It is likely your rehabilitation would have proceeded along the path mapped out above, but for your committing subsequent offences on 11 February 2017. As a result, your bail in relation to the charge before me was revoked and you subsequently appeared before the Ringwood Magistrates’ Court on 16 March 2017 on charges of:
·reckless conduct endangering serious injury;
·fail to stop motor vehicle on request;
·commit an indictable offence whilst on bail;
·contravene a conduct condition of bail;
·consume intoxicating liquor while driving motor vehicle;
·drive under the influence of intoxicating liquor;
·possess cannabis.
54 You were sentenced to an aggregate sentence of four months’ imprisonment with a 12 month community correction order to follow. Under this community correction order you were required to attend the Lilydale Community Correction Centre by 13 June 2017. The order commenced on 11 June 2017 and had conditions including supervision for 12 months, treatment and rehabilitative programs, including assessment and treatment for drug abuse or dependency as directed, assessment and treatment for alcohol abuse or dependency as directed, mental health assessment and treatment as directed, and offending behaviour programs as directed. There was also a condition for judicial monitoring and the matter was to return back to the Ringwood Magistrates’ Court on 27 July 2017 for a judicial monitoring hearing. Your licence to drive a motor vehicle was cancelled and you were disqualified for a period of 24 months, effective from 11 February 2017. The possess cannabis charge was dismissed under s.76 of the Sentencing Act 1991.
55 Events regarding the current proceedings in this Court before me have prevented your compliance with that CCO. However, I note that you have served the whole of the four months whilst on remand for the present matters. Pre-sentence detention of 33 days was declared in the Magistrates’ Court, being the period from your arrest on 11 February 2017 to your appearance in that court on 16 March 2017. I have taken that sentence into account in applying the totality principle to the sentencing task I am to perform in this present case.
56 With your counsel’s consent, I was provided by the prosecution with a police summary regarding the offences for which you were before the Ringwood Magistrates’ Court on 16 March 2017.[14] The offending conduct is very concerning and does not augur well for your prospects of rehabilitation. It is also relevant to my assessment of your previous character under s.5(2)(f) of the Sentencing Act 1991.[15]
[14]Exhibit P2
[15]See Alexandros v Birchell (2000) 31 MVR 307, 311–315 [18]–[20] (Smith J); DPP v Rongonui (2007) 17 VR 571, 579–582 [31]–[43] (Maxwell P, Ashley and Kellam JJA agreeing); Bellizia v R [2016] VSCA 21 [54] (Santamaria JA, Whelan JA agreeing)
57 According to the police summary provided to me, at about 1.45 am on the morning of Saturday, 11 February 2017, police were called to the Olinda Creek Hotel in Main Street, Lilydale in response to a male that was causing trouble and refusing to leave the premises. When police arrived, they saw a dark blue Mitsubishi sedan drive from the car park behind the hotel at high speed and turn right into Main Street, Lilydale. Police observed sparks coming from under the vehicle as it bounced off the roadway when leaving the hotel driveway. The vehicle was being driven by you. Police considered the speed at which you were travelling was reckless with regard to the risk of serious injury to any person walking along the footpath or standing in front of the hotel.
58 The vehicle you were driving continued west along Main Street, tripping the speed camera at the entrance to the Lilydale Railway Station. You continued west along Maroondah Highway, being pursued by police. You were driving in an erratic manner, swerving randomly across the road, changing and straddling lanes. You were travelling at a speed of about 130 kilometres per hour in an 80 kilometre per hour speed zone. A police pursuit ensued.
59
You continued driving with police in pursuit, reaching a speed of
110 kilometres per hour in a 60 kilometre per hour speed zone. You continually refused to stop your vehicle when required to do so by police. You attempted to evade police by turning down multiple side roads and performing U‑turns. At one point you drove onto the wrong side of the road to avoid a parked police vehicle. Police attempted to box your vehicle in on the corner of Dorset Road and Mount Dandenong Road but you continued to refuse to stop. You then performed a U-turn and headed north on Dorset Road, where police observed you drinking from a stubby of beer while driving.
60 You were eventually boxed in by police vehicles on the corner of Taylor Road, and you were forcibly removed from your vehicle. You were found to be in possession of a small quantity of cannabis. There was an empty stubby of Carlton Draught beer on the rear floor of the vehicle and a full unopened stubby on the front passenger floor.
61 You were conveyed to the Lilydale Police Station and underwent a breath analysis test which returned a result of 0.139, nearly three times the legal limit. In committing these offences you contravened the conditions of your bail, which included a curfew condition, a condition that you not attend licensed premises and a condition that you not consume alcohol. You also breached your bail conditions by committing further offences whilst on bail.
62 So far as the background to this subsequent offending is concerned, I was told by your counsel that in February this year, on the day before this offending, your then partner, Ms Bounds, told you that your behaviour was too much for her to withstand and she wanted to end the relationship. Apparently you then went on what your counsel described as a “bender”. You and Ms Bounds had been together for since 2003, about 13 years, and, although there had been previous separations related to your consumption of illicit drugs and alcohol, you had always remained friends and had reconciled and recommenced cohabitation. The offences you committed on 11 February of this year was the final straw for Ms Bounds, and it is now apparent that your relationship with her has finally and permanently ended.
63 This has meant that you are now estranged from your daughter, Chloe, but as I mentioned earlier, if you are able to rehabilitate yourself there is the potential in the future for you to have a fulfilling relationship with your daughter. In this context, your counsel ultimately disavowed any reliance on custodial hardship arising out of your separation from Chloe while you are in custody and arising from your concern for how she is coping without you. Nonetheless, I do take into account as a matter relevant to your personal circumstances, that by reason of your offending you were separated from your daughter, and this is causing her anxiety, and you have natural parental concern for her plight.
64 As I observed earlier, this is very concerning behaviour and demonstrates that even when on bail for serious offences you are unable to control your ingestion of alcohol, which inevitably leads to you committing further criminal offences. This does not augur well for your prospects of rehabilitation and is highly relevant to the need for me to give significant weight to specific deterrence and protection of the community in sentencing you for this offence.
65 However, it is significant that since committing these subsequent offences you have attempted to further your prospects of rehabilitation whilst in custody. I was provided with a clear urine screen taken in Middleton Prison on 6 June 2017[16] and a certificate attesting to your completing a “24-hour (closed) Drug and Alcohol Treatment Program (Level III)” on 17 May 2017.
[16]Exhibit D4
66 I have also considered a letter dated 4 July 2017 from your now former partner, Ms Bounds,[17] in which she indicates that your daughter, Chloe, is suffering from the loss of her relationship with you. Ms Bounds indicates she is hopeful that upon your release from prison you and Chloe can reconnect, but this will depend upon you making significant changes in your life and abiding by what Ms Bounds describes as strict rules “regarding your behaviour and conduct”. According to Ms Bounds, it will also depend upon your willingness to participate in “family mediation” upon your release.
[17]Exhibit D6
Disposition
67 Your counsel submitted that a “carefully structured CCO with punitive and therapeutic components” was sufficient to satisfy all necessary sentencing principles in your case. The prosecutor submitted that it was open to me to accept defence counsel’s submission to this effect.
68 I have given anxious consideration in this case to the principle of parsimony, and I have concluded that the purposes for which this sentence is to be imposed cannot be achieved by a sentence that does not involve your further confinement in immediate custody. This was serious offending committed by a person with a long-term and serious prior criminal history. You have failed to take advantage of rehabilitative dispositions which have been extended to you in the past. In my opinion, the principles of general deterrence, denunciation and just punishment would not be given sufficient weight if I were to impose a community correction order that did not combine with it a period of custody to be immediately served.
69 Whilst your prospects of rehabilitation are highly problematic, I accept that there is some hope that at last you have realised that continued substance abuse will lead you into committing further crimes, which will inevitably lead to the imposition of longer and longer prison sentences. Unless you are determined to break this downward spiral, there is no hope for your ultimate reclamation.
70 Balancing all relevant sentencing considerations and principles, I have come to the conclusion that there is a case to extend leniency to you and give you one last chance to rehabilitate yourself and lead a law abiding life, and I emphasise that one last chance to rehabilitate yourself and lead a law abiding life. But, as I said earlier, the seriousness of your crime does mean that you will need to spend some further time in immediate custody. Accordingly, with your consent, I am prepared to impose a combined sentence of six months’ imprisonment coupled with a community correction order with stringent conditions.
71 The community correction order would be for a period of two years and would include:
· a condition under s.48D(3)(a) that you undergo treatment and rehabilitation for drug abuse or dependency;
· a condition under s.48D(3)(b) that you undergo assessment and treatment for alcohol abuse or dependency;
· a condition under s.48D(3)(d) that you undergo medical assessment and treatment in relation to your back injury in particular, and any other medical conditions that you are suffering from. That is a condition which the Community Corrections officer did not recommend but is one which I intend to impose if you consent to it;
· a condition under s.48D(3)(e) that you undergo a mental health assessment and treatment as required;
· a condition under s.48D(3)(f) that you partake in any programs that are considered necessary to address factors related to your offending behaviour.
72 The Community Corrections officer has put a question mark against that. It as a condition of the CCO that, as I understand it, you were given in the Magistrates' Court and, in my opinion, it is a condition that ought to be imposed upon you. What that might look like is a matter for the Community Corrections officers considering the programs they think are applicable to your situation.
73 I will also impose under s.48(1) a condition that you refrain from consuming alcohol for a period of two years from the date on which the order takes effect. So the order would take effect upon your release from custody, so effectively from the moment you walk out the door of the prison you are not to consume any alcohol for two years.
74 I will also require a supervision condition under s.48E, and that condition will apply for the period of the order, that is for two years.
75 I will also impose an alcohol exclusion condition under s.48J, once again, that was an order that the Community Corrections officer did not recommend, however, I will impose that condition only for a period of three months following your release on this community correction order. That is because that order applies to any licensed premises which would include restaurants and some cafes, for example. So you are not able to attend any licensed premises, that is any place that serves alcohol, for a period of three months from your release from prison, but I make it only three months because it is my view that it would be too onerous to make it for the whole two years, but it is to give you the opportunity to remain abstinent from alcohol abuse, from alcohol altogether because you cannot afford to drink at all once you are released from prison.
76 Now, stand up, Mr Wilson.
77 Are prepared to consent to the community corrections order in the terms in which I have explained it to you?
78 ACCUSED: Yes, Your Honour.
79 HIS HONOUR: You understand it is my intention to combine that community correction order with a sentence of six months' imprisonment from today.
80 ACCUSED: Yes, Your Honour.
81 HIS HONOUR: Yes. All right. The sentence of the court is that on the charge of attempted armed robbery you are convicted and sentenced to six months’ imprisonment, combined with a community correction order, with the conditions I have already explained to you, for a period of two years commencing from the date of your release from custody.
82 I declare, pursuant to s.18 of the Sentencing Act 1991, that the period you have already served in custody in relation to this offence is 44 days, not including this day, which is to be reckoned as a period of imprisonment already served under the sentence I have just imposed, and I direct that that declaration be entered in the records of the court.
83 I declare, pursuant to s.6AAA of the Sentencing Act 1991, that but for your plea of guilty, I would have sentenced you to total effective sentence of two and a half years' imprisonment with a non-parole period of 18 months.
84 HIS HONOUR: Yes, you may remove the prisoner. I am sorry, no. We have got to have the - - -
85 MS NGUYEN: To sign it.
86 HIS HONOUR: The CCO signed. Now, the residential address, I think, was going to be with your parents in Monbulk; is that correct?
87 ACCUSED: Yes.
88 HIS HONOUR: Yes.
89 MS NGUYEN: Yes, Your Honour.
90 HIS HONOUR: All right. Do we know the Community Corrections Centre that he needs to attend? Lilydale. All right, it will be Lilydale Community Corrections Centre that you will need to attend within two days of your release from custody. So that order is being prepared.
91 ASSOCIATE: (Indistinct words)
92 HIS HONOUR: The actual address of where he will be living? Yes, I will need your parents' address, Mr Wilson.
93 ACCUSED: No.4 Glenview Road, Monbulk.
94 HIS HONOUR: Glenview Road, Monbulk. Do you know the postcode?
95 ACCUSED: 3972 - 3793.
96 HIS HONOUR: Sorry, what was it?
97 ACCUSED: 3793.
98 HIS HONOUR: 3793, all right. Thank you. Is that everything you need?
99 ASSOCIATE: (Indistinct words).
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