Director of Public Prosecutions v Wilson
[2016] VCC 1238
•18 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00920
CR-14-00992
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICKY WILSON |
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JUDGE: | HER HONOUR JUDGEHAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | CR-14-00992 CCO contravention: 26 May 2016 and 18 August 2016; | |
DATE OF SENTENCE: | 18 August 2016 | |
CASE MAY BE CITED AS: | DPP v Wilson | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1238 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Locke | OPP |
| For the Accused | Mr A. Purcell | Theo Magazis & Associates |
HER HONOUR:
1 Ricky Wilson, on 6 August 2014, I sentenced you to a community correction order for 3 years on charges of armed robbery, criminal damage and traffick in a drug of dependence.
2 You now come before me to be dealt with for breaching that community correction order by non-compliance and further offending. You are also before me today to be sentenced for some of that further offending. The rest of it has already been dealt with, as I understand it, in the Magistrates' Court.
3 Having regard to the widespread nature of the non-compliance and to the nature and gravity of the subsequent offences for which you come to be sentenced today before me, it was acknowledged that the only course open to me in respect of the CCO was to cancel it and to re-sentence you for the original offences. Of course, when doing so, I must take into account the extent of compliance to date with the CCO.
4 The original offences for which I sentenced you in August 2014 began with the selling of two lots of 1.7 g each of methamphetamine over the course of the day to a young woman you knew and had been friendly with. The total cost of that methamphetamine to her was $1300. She paid you a total of $900, promising to pay the balance of $400 later that evening. She did not pay at the agreed time and told you she did not have the money and would not have it until she had sold some the drug that you had supplied to her. You procured a friend of yours to set up a meeting with her, ostensibly for the purchase of some drugs from her. When she came to the meeting place, you were lying in wait, armed with a wooden bat. You smashed her car window with the bat, pulled her out of her car, struck her with the bat and then drove off in her car. It is that conduct that gave rise to the charge of criminal damage (striking the car with the bat) and armed robbery (threatening then striking the young woman before driving off in her car, stealing, therefore, the car and its contents).
5 At the time of sentencing you in 2014, you had what I then described as a limited criminal history. You had been dealt with in 2009 for driving offences and in 2010, you had been dealt with in the Magistrates' Court for charges of criminal damage, assault with a weapon and possession of a dangerous article in public. As I said, when sentencing you in 2014, there was a link between the 2010 offences and the ones then before me in the sense that the 2010 offences of criminal damage and assault with a weapon, involved retaliatory anger and were committed when under the influence of alcohol. In respect of the 2010 offences, you had been sentenced to a community based order. You breached that by non-compliance, then by the commission of further offences. By the time you came before me in 2014, you had also amassed and been dealt with for a series of breach of bail charges by reason of your failure to appear at court on a number of occasions in relation to charges that had been brought against you.
6 In my August 2014 sentencing reasons, at paragraph 15, I said this:
You report a considerable history of abuse of cannabis, alcohol and amphetamines. Your childhood was disrupted. Your parents had a volatile relationship and you left school young, not having completed Year 8. You are, however literate, have your forklift licence and you have worked for periods since leaving school, mainly as a warehouseman. Your employment, consistently with your early school leaving and lack of formal qualifications, has generally been casual and short term and I suspect, at times, it has been interrupted by your substance use or a general sense of aimlessness.
7 By the time I came to sentence you in 2014, I was satisfied that you had a serious and sustained commitment to addressing your drug and alcohol abuse. You had been on CISP bail and had been placed on a CCO by the Magistrates' Court. That CCO replicated some of the strict CISP bail conditions. In respect of that I said this in 2014 in paragraph 17 of my reasons:
Since your release on CISP bail, your compliance with it, your demonstrated commitment over the time between your release on CISP bail and your being dealt with by the Magistrates' Court in May 2014 for those old offences, demonstrated a commitment over that period to addressing your substance abuse and behavioural issues. Those matters, combined with your guilty plea and your family support persuaded the magistrate to place you on a nine month CCO, with conditions of drug and alcohol counselling and treatment and psychological assessment and treatment. In effect, those CCO conditions were similar to the treatment conditions of your CISP bail and your compliance with the Community Correction Order conditions has also been very good. The referral, initially on CISP bail, to a doctor which led to your being referred to a psychologist and your being prescribed Seroquel, a mood-stabilising drug, has obviously had a significant effect on you in controlling your mood and in making you prepared to engage with continued counselling, both on a psychological level in respect of drug and alcohol abuse as well as modifying your behaviour, in particular, your anger responses.
8 I also took into account, in your favour, in assessing your prospects for rehabilitation your then family circumstances and support. You were then living with your partner of some years. She had two children under ten from a previous relationship. The two of you had a child together who was nine months old at the time of sentencing and your partner was then 15 weeks pregnant with twins. You reported a good relationship with your father with whom you and your partner were then living.
9 Your life has unravelled since then. The twins were born prematurely at only 24 weeks and the male twin died in your arms within two hours his birth. The surviving twin required months of special care before her release. Concerns about her low weight thereafter led, at one stage, to DHS intervention until they were satisfied that the parenting you and your partner were providing was appropriate.
10 It is against this background that the offending behaviour for which I must sentence you comes to be considered. However, the contravention of your community correction order by non-compliance began well before the unravelling of your life in the manner I have just described. You incurred your first failure to attend for unpaid community work only three weeks after you had been placed on the CCO by me. In total, you attended for only six sessions of unpaid community work, failing to attend when required on 19 occasions between 22 August 2014 and 23 September 2015. You failed to attend supervision on 3 occasions between 22 October 2014 and 23 September 2015.
11 After I imposed the community correction order, you spiralled back into drug abuse. Before you did so, you had satisfactorily completed the drug and alcohol assessment and treatment condition of your order. In fact, that had been well underway under the previous CCO, the one ordered by the Magistrates' Court by the time I came to sentence you. You had also engaged with a psychologist as directed under the psychological treatment condition of your order, had all ten sessions with that psychologist that had been allowed under the Medicare rules but, as you had indicated, you wished to engage in grief counselling, you had been encouraged by Corrections to obtain a further Medicare referral so as to do so. Although you obtained the referral, you failed to follow up by making or attending any appointments.
12 The further offences for which I now sentence you, occurred in these circumstances: shortly after midnight on 21 February this year, while driving a stolen car, you forced a car driven by Abanob Saad to pull over and stop. You parked in front of it in such a way as to prevent him from driving away. You threatened him with a hammer and forced him out of his vehicle, then drove his vehicle away. Before you produced the hammer to threaten him, you told him that you were a police officer and that was your authorisation for getting him out of his car. This then constitutes a second armed robbery resulting from the theft of a motor vehicle or a carjacking. That is, because when I first sentenced you in 2014, that was the main charge and here, again, it is the main charge in respect of the 2016 offending. It is the carjacking or armed robbery that gives rise to Charge 1 on the new indictment - I am sorry, when you pulled Mr Saad over, you were a stolen car. It is the driving of that stolen car that gives rise to Charge 1 of theft. Charge 2, then, is the armed robbery committed by stealing Mr Saad’s car after you had, in effect, blocked him in and threatened him with a hammer. You then used a credit card of Mr Saad's which had been in his car on two occasions to buy soft drinks and cigarettes; that gives rise to Charges 3 and 4 of obtaining financial advantage by deception. You put $40 worth of petrol to Mr Saad's car and drove off without paying; that gives rise to Charge 5, the charge of theft of petrol.
13
You were arrested on 1 March 2016 in what was described in the prosecution summary as a high-risk arrest operation by the SIG. You were driving
Mr Saad’s car at the time. Found inside his car was a small quantity of cannabis; that gives rise to Charge 6, and a small quantity of methamphetamine; that gives rise to Charge 7.
14 After your arrest, you were searched and a flick knife was found in your pocket. A search of the car revealed a double-edged knife; that gives rise to uplifted summary Charge 15, possession of controlled weapons. A hundred and ninety-five dollars was found on you. That was the amount that was in Mr Saad's wallet, which was left in his car at the time of the armed robbery. Possession of that $195 gives rise to summary Charge 18, possession of property suspected of being the proceeds of crime. At the time of your arrest you were, as I said, driving Mr Saad's car. You did not hold a valid driver’s license; that gives rise to summary Charge 11 of unlicensed driving.
15
You had been on bail between 19 November 2015 and your arrest on
1 March 2016. It was a condition of that bail that you report to Sunshine police station three days a week. You did not report on a single occasion during that period; that gives rise to summary Charge 14, fail to comply with the conditions of bail. It follows that you were on bail at the time of the commission of the armed robbery and other offences and that gives rise to summary Charge 12, committing an indictable offence, namely armed robbery whilst on bail.
16 It is clear from this bare recitation of the circumstances of the offences that subject to considerations personal to you, deterrence, both general and specific, denunciation and just punishment all must be given weight. The optimistic assessment of your prospects for rehabilitation at the time you were placed on the CCO in 2014 must be tempered by your subsequent behaviour. However, I agree as your counsel said that you are not without hope.
17 A psychological report prepared by the psychologist, Mr Ian McKinnon, was provided. He assessed you in May 2016 about two and a half months after you had been remanded in custody. That time had enabled you to reflect on your circumstances and to have a period of enforced abstinence from illicit substances.
18 Mr McKinnon said:
Despite having grown up in a social milieu characterised by serious career criminals, Mr Wilson’s own criminal history whilst serious is not as extensive as one might expect it to be. In my opinion, despite some antisocial and criminal tendencies, the tendencies are not permanently entrenched and Mr Wilson has the potential to rehabilitate himself, particularly in favourable personal circumstances. In person, Mr Wilson did not present with any underworld bravado or arrogance, rather, he lamented having grown up with so many faulty role models in his family circle. Mr Wilson appeared genuine in his expressed desire to resume warehousing work and not to return to prison.
Unfortunately, and threatening his positive goals is the fact that the many unresolved challenges in Mr Wilson’s current life, including his partner’s abandonment of him, his forced separation from his children and his current legal predicament and imprisonment are unsettling and destabilising issues for him. Mr Wilson is likely to require professional assistance to help work his way through the practical and emotional impact of these issues.
19 I should note that I do not accept the characterisation of your partner’s behaviour as abandonment of you or what appears to be a tone of blaming other people for what was described as a forced separation from your children. On the accounts that you have provided, you had recommenced and rapidly re-developed a heavy ice habit after your release upon the CCO. The separation occurred in circumstances where the your partner applied for and was granted a family violence intervention order. It appears it was a combination of your drug use and the behaviour that led to the granting of an order to protect her and the children which lead to your removal from the children.
20 Having said that, I accept and endorse Mr McKinnon’s recommendation that you will require professional assistance to help you work your way through the practical and emotional impact of the coming to an end of your relationship, the need to prove that you can be in the presence of your children without posing a threat to their safety and well-being or that of their mother, whether by your behaviour, your involvement in criminal activities or your substance abuse. I also accept his recommendation that you will require professional help to help you continue to address your substance abuse, your unresolved grief and the development of prosocial attitudes and views. Mr McKinnon said that you would be well served to commence long-term psychological therapy and engage with a drug and alcohol outpatient service when you are returned to the wider community. I not only endorse that view but recommend that engagement in long-term psychological therapy and with drug and alcohol services commenced before the expiration of your term of imprisonment and continue upon your release. Mr McKinnon concluded his report with the expression of his willingness to take you on as a client under an MHCP Medicare referral and to provide you with ongoing psychological therapy if you chose to seek his professional assistance and I recommend that you do so.
21 Not surprisingly, given your long history of substance abuse which apparently started from the age of 12, Mr McKinnon diagnosed you as suffering polysubstance abuse disorder.
22 He also diagnosed you as suffering post-traumatic stress disorder resulting from a complex set of causes, your upbringing, in particular, your exposure to domestic violence with your mother’s partner, a career criminal, your general exposure to the underworld milieu by reason of your mother's relationship with people closely connected with, what was described as the "underworld wars", and the circles in which she moved, which involved many other people involved apart from your aunt, who appeared to be involved in the underworld activities. In addition, Mr McKinnon relied upon, as factors giving rise to your post-traumatic stress disorder, the death, in 2009, of your sister who was then aged 17, from a drug overdose and ultimately, also, the death of your baby boy following his premature birth in 2015 - late 2014, I think, or early 2015.
23 Mr McKinnon expressed the view that your chronic polysubstance abuse disorder and chronic post-traumatic stress disorder probably made a significant contribution to your offending. He said this was because the combination of these conditions degraded your ability to reason and make sound judgement, elevated your impulsivity, lowered your powers of consequential thinking, lowered your frustration tolerance levels and made you vulnerable to angry and violent acting out.
24 I accept that the circumstances of this most recent offending revealed some impulsivity and little evidence of consequential thinking, if, by that, the consequences of being caught, charged and punished is meant rather than the consequences of obtaining something by force. However, there is nothing in the circumstances of this more recent offending that points to or indicates that it was caused or exacerbated by poor frustration tolerance levels or angry and violent acting out.
25 The opinions expressed by Mr McKinnon, which were relied on in order to invoke Verdins seemed, therefore, to relate to reduction in the weight to be given to moral culpability and to deterrence. I consider, on the materials before me, and having regard to the circumstances of the offending that there is little, if any, scope for the application of the Verdins principles so as to reduce your moral culpability by reason of the consequences of post-traumatic stress disorder. Of course, substance abuse disorder is not a mitigating factor or one which brings the Verdins principles into play.
26 You have pleaded guilty and at an early stage and are clearly entitled to have that taken into account in reducing the sentence otherwise appropriate. You have facilitated the course of justice and your pleas have significant utilitarian value. You have expressed some remorse and some victim empathy although, as I said to Mr Purcell, there was also a somewhat disingenuous statement that you wished it had not happened, given that you were responsible for your conduct. Wishing it did not happen means wishing you had not acted the way you did rather than suggesting that it was by a force outside your control.
27
You still have the support of your father, who was present at court again today. You hope to be able to re-establish a sufficiently respectful, civilised and non-threatening relationship with your former partner so as to be able to resume regular contact with your children. You expressed a very keen desire to return to work as a forklift driver upon your release, to remain drug-free, to resume being the loving father that you saw yourself to be to your children, to address your unresolved grief and to develop, generally, more prosocial views and attitudes so as to maximise your prospects of remaining offence free. These are all positive factors which count towards your prospect for rehabilitation, although having regard to the nature of the offending itself and the circumstances in which you breached the community correction order, your breach of bail conditions and your resumption of drug use, those positive factors must be weighed with these other matters and, therefore, your prospects of rehabilitation must be seen as more guarded than they were when I sentenced you in
August 2014.
28 Nonetheless, I consider it important to structure the sentence so as to give you the opportunity to demonstrate that you do wish to continue to rehabilitate yourself and to provide you with the appropriate supports to assist you to do so upon your release, from what was conceded to be the inevitable term of imprisonment that flows from this.
29 In his considered and helpful submissions, Mr Purcell submitted that the appropriate sentence was a combination of term of imprisonment and a community correction order, rather than a term of imprisonment with the fixing of a non-parole period. Having regard to the nature and seriousness of the 2016 offending and the need to resentence you for the 2014 offences and having regard to the persistent and widespread breaches of the 2014 CCO, both by failure to comply with conditions and by the commission of further offences, I do not consider that an appropriate sentence.
30 In my view, the only appropriate sentence is one which involves the fixing of a term of imprisonment with a non-parole period. I do not consider, in the circumstances, that the maximum sentence of two years available before the imposition of a CCO is sufficient to reflect the seriousness of both sets of offending. Your failure to adhere to the punitive elements of the CCO, almost from the time it was granted, mean that quite apart from my concerns about your ability to comply with a CCO, you were not prepared to take that punitive element sufficiently seriously for it to be regarded as a real punishment for you or a real deterrent for you in the future.
31 I have, in resentencing you for the original offences, taken into account, not only the almost complete non-compliance with the unpaid community work component but the fact that you did complete the requirements of the CCO in relation to counselling and to drug and alcohol treatment and that you missed only three supervision appointments. The sentences I impose, therefore, for the original offences, when I re-sentenced you for them, are lower than the sentences that I would have imposed had there been no compliance at all with the CCO or non-compliance of the same order in relation to the counselling and drug and alcohol and supervision conditions as they had been in relation to the unpaid community work.
32 I am also mindful of the need to comply with the principle of totality. You are still a relatively young man, 27 years of age. Although I am sentencing for two quite separate sets of offending, separated in time by over two years, all sentences are imposed today and I must consider totality from that perspective of today. The sentences, therefore, and the degree of concurrency between them or the degree of cumulation between them has been moderated accordingly.
33
Could you now please stand? Ricky Wilson, in relation to CR-14-00992, I find the breach of community correction order proven. I cancel the order and re-sentence you in respect of the original offences as follows: on Charge 1 of trafficking of a drug of dependence, you are sentenced to be imprisoned for a period of six months and I direct that three months of that be served cumulatively upon the sentence of Charge 2 of armed robbery, which is the base sentence and in the partial cumulation order in respect of Charge 3. On Charge 2 of armed robbery, you are sentenced to be imprisoned for a period of two years and on Charge 3 of criminal damage, you are sentenced to be imprisoned for a period of three months and one month of that is to be served cumulatively upon the base and the partial cumulation order in respect of
Charge 1. Therefore, on CR-14-00992, you are sentenced to a total effective sentence of two years and four months.
34 On CR-16-00920, on all charges you are convicted. On Charge 1, theft of the car, you are sentenced to be imprisoned for a period of 12 months, with four months of that to be cumulative. On Charge 2 of armed robbery, you are sentenced to be imprisoned for a period of three years and that is the base sentence. On Charge 3 of obtaining by deception, four, of obtaining by deception and five, of theft of the petrol, you are sentenced to an aggregate sentence of one month and that is to be served cumulatively upon the base sentence and the other partial cumulation orders. On Charge 6 of possess cannabis, you are convicted and discharged. On Charge 7 of possession of methamphetamine, you are convicted and discharged.
35 So far as the uplifted summary offences are concerned, on Charge 11 of unlicensed driving, you are sentenced to be imprisoned for a period of one month, that to be served cumulatively upon the base sentence and the other partial cumulation orders. On Charge 12 of commit an indictable offence on bail and Charge 14, a fail to report on bail, you are sentenced to be imprisoned for an aggregate term of one month and that is to be served cumulatively. On Charge 15 of possession of the weapons, you are sentenced to be imprisoned for a period of six months, and one month of that to be served cumulatively. And on Charge 18 of possession or proceeds of crime, you are sentenced to be imprisoned for a period of one month.
36 That makes a total effective sentence on CR-16-00920 and the uplifted summary charges of three years and eight months. I direct that one year and four months of the sentence on CR-14-00992 be served cumulatively upon the sentence on CR-16-00920. That makes a total effective sentence on those two matters of five years. I fix the period of three years as the time that you must serve before being eligible for parole.
37 Pursuant to s.6AAA of the Sentencing Act, I declare that but for your pleas of guilty, I would have sentenced you in respect of the total effective sentence on both indictments to a term of imprisonment of eight years and I would have fixed the period of five years and nine months as the time that you would have had to have served before being eligible for parole.
38 I declare that you have spent a total of 190 days in pre-sentence detention, that is 170 days in respect of CR-16-00920 and 20 days in respect of CR-14-00992 and I direct that that 190 days be counted and reckoned as part of the sentence already served.
39 I make the disposal, restitution and compensation orders sought. Pursuant to s.89(4) of the Sentencing Act, all licences held by you are cancelled and you are disqualified for applying for licence for a period of three months. That period of disqualification applies from today, so it will expire - it will run and expire whilst you are serving your term of imprisonment. Were they all of the ancillary orders that were required?
40 MS LOCKE: Yes, Your Honour.
41 HER HONOUR: Have you checked the arithmetic?
42 MS LOCKE: I have not - shall I?
43 HER HONOUR: Could you do so? Take a seat, Mr Wilson, we will just make sure the mechanics of that are correct.
44 MS LOCKE: I get the same result as Your Honour.
45 HER HONOUR: Mr Purcell?
46 MR PURCELL: Yes, Your Honour.
47 HER HONOUR: And the form in which I made the declarations reflect what I said I intended to do?
48 MS LOCKE: Yes, Your Honour.
49 HIS HONOUR: All right, thank you.
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