Director of Public Prosecutions v Wilson

[2015] VCC 1711

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01242

DIRECTOR OF PUBLIC PROSECUTIONS

v

TREVOR WILSON

---

JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 November 2015
CASE MAY BE CITED AS:	DPP v Wilson
MEDIUM NEUTRAL CITATION:	[2015] VCC 1711

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. G. Walton
For the Accused	Ms. C. Morris

HER HONOUR:

1Trevor James Wilson, you have pleaded guilty to one count of armed robbery and you have agreed that I deal with the summary matter of committing an indictable offence whilst on bail.  The maximum penalty for armed robbery is 25 years imprisonment and for the summary matter, is three months.

2The circumstance of your offending is set out in the summary of prosecution opening, Exhibit A.  On 26 April 2015, you went to Shell Coles Express in Doncaster at about 5.30 pm.  Ms Lien Son was working by herself at the store and was the only person in there.  You were disguised with a black hoodie over your head, a cap and sunglasses.  You went in the store and approached the counter.  You took out of your backpack, a black knife with a 13 centimetre blade and held it over the counter.  You told Son to give you all the money.  She gave you money from the till and when questioned by you, she said she did not have access to any other tills in the shop.  You then quickly walked out of the store with the money. 

3Son contacted police who arrived shortly thereafter.  About 20 minutes later, you were observed in the vicinity of the store in Doncaster, by police.  Your backpack was located a short distance away in the bushes, containing the knife, cap and sunglasses and your driver's licence.  You were arrested and refused to be interviewed. 

4A victim impact statement was prepared by Lien Son.  She indicates that after the offence she has had trouble sleeping and has lost confidence in her job.  She is scared when other customers with hoodies and/or sunglasses come into the store.  It was a terrifying experience for her, alone in the shop. 

5I received a report from Dr Aaron Cunningham, Forensic Psychologist, dated 28 September 2015, which outlines your personal circumstances.  You are currently aged 36.  You had a troubled childhood with you and your siblings being raised by your mother and step-father, both of whom had significant issues.  Your step-father was violent and separated from your mother a number of times, some of which he spent in psychiatric care.  He committed suicide when you were aged 11. 

6Your mother did not cope very well with his death, and you were responsible for caring for your younger siblings.  From the age of 14, you lived in and out of the family home.  You were incarcerated in Youth Detention and also had placements with different families up until you were 18 years.

7You completed Year 10 whilst in Youth Detention and have had various labouring jobs throughout your life including working in the mines in Queensland.  You were unemployed for nearly three years prior to your incarceration.  The results of recent testing reveal you are of average intelligence. 

8You have been in a number of relationships throughout your life, one of which involved mutual heroin use.  You have resided in Queensland for a period of time where you were able to maintain employment and live drug-free, though you returned to Melbourne as your then-partner was homesick.  You have had another relationship which produced two sons, currently aged 10 and six.  They are in the care of their mother, and I understand that you have contact with them, though not when you are incarcerated.

9You were released from custody on 2 February 2015, after serving a sentence of 18 months.  I was informed you had not expected to be released at that time, and you had made no arrangements for your accommodation.  You stayed in a motel, then a boarding house, before going back to your partner, Bianca's house, who you were in a relationship with, and who is the mother of your young daughter.  You went and stayed with her, even though your mother was offering you accommodation near Castlemaine.  Bianca was soon thereafter incarcerated for property related matters.  You quickly reverted back to a drug lifestyle in Melbourne.  Your relapse was very quick.  You were motivated to offend in these matters to obtain funds for heroin and you felt alone with Bianca incarcerated.  You discovered information suggesting she may have been unfaithful to you and were seeking sufficient drugs so you could overdose.  You have a significant history of drug use, both cannabis and heroin. 

10You have indicated an addiction to heroin since you were 15 years old with various attempts at detox.  You ceased a methadone program in September 2014.

11Dr Cunningham is of the view that you meet the DSM 5 criteria for post-traumatic stress disorder, having been exposed to physical abuse in childhood and then abandoned at a young age.  Additionally, you meet the criteria for borderline personality disorder.  It is noted “you presented with distressing recollections of past trauma, negative alteration in cognitions and mood in the form of feelings of worthlessness, guilt, shame and perceptions the world is an unsafe and cruel place; efforts to avoid real and imagined abandonment, a pattern of unstable and intense interpersonal relationships, identity disturbance, impulsivity, affective instability, self-harm and suicidal ideation, chronic feelings of emptiness and transient stress related paranoid ideation.” 

12In October 2012, you were admitted to the Bendigo Psychiatric Unit following a suicide attempt, though you have not received any long-term psychiatric treatment.  Dr Cunningham attributes your offending, in part, to the symptoms of these disorders.  Additionally, he is of the view that imprisonment will weigh more heavily on you because of your condition. 

13The prosecution conceded the application of Verdins in your circumstances, that custody will be harder for you and aggravate your condition and that to a limited extent, because of your condition, your moral culpability for the offending is reduced.  I take those matters into account. 

14You have pleaded guilty to this offence and obtain the full benefit of that.  This is because of the utilitarian value of the plea and also, as the witness was not required to recount this frightening incident, and be further traumatised by giving evidence.  Your plea of guilty was at an early stage in proceedings.  Your plea is also indicative of remorse. 

15You have expressed remorse for your offending to Dr Cunningham but also in a letter written by you tendered on your behalf, Exhibit 4.  I accept that you are remorseful for your offending and I give full weight also to your plea of guilty.

16You have a significant prior history.  Thirty two court appearances, breach proceedings in respect of 12 court orders made; violence, dishonesty, drug and driving offences dating back to 1996 and committed regularly over the next 20 years.  Most recently, you were before the court in February last year on approximately 20 burglary and theft charges as well as other violent offences.  I understand many of the matters in your criminal history are as a consequence of your troubled upbringing and related drug issues. 

17I was provided with the sentencing remarks of Judge Morrow, dated 1 December 2000, when you were before this court for an armed robbery charge.  That offending was very similar as that before me.  His Honour accepted that at that time; that is, when you were 21 years of age, that you had then decided to do something seriously about your heroin addiction and placed you on a combined custody and treatment order. 

18You were unsuccessful in completing that order, and you have had numerous convictions since, spending various times in custody as a consequence, either of the sentence imposed, or because of a breach of an order by further offending.  You have a very poor record of compliance with court orders.

19There are some aggravating features in respect of this offending.  It was a soft target.  You used a disguise, though it is conceded that this offending was not sophisticated, given that you were located along with the incriminating material in close proximity to the store.  The effect on the victim was significant. 

20Your counsel accepted the opinion of Dr Cunningham that your prospects of rehabilitation are contingent upon you engaging effectively with Mental Health professionals.  That, in turn, is contingent upon you dealing effectively with your substance abuse issues.  I note that you have completed a number of courses in custody, and the relevant certificates have been tendered on your behalf, Exhibit 5.  The risk of you offending would, it was submitted, be reduced if you were properly engaged with services to deal with these issues. 

21The prosecution submitted that your rehabilitation prospects were very guarded.  I accept that submission, given your extensive criminal history and your inability to address your drug issues, particularly given the opportunities that you have had over the years, under different court orders.  Your successful reintegration into the community must be planned and closely monitored and designed to address your mental health and drug issues. 

22It was submitted on your behalf, that your personal circumstances, plea of guilty, remorse, your drug abuse and your mental health issues were such that all sentencing considerations could be adequately met by the imposition of a term of imprisonment with a Community Correction Order to commence upon your release.  Reliance was placed on the recent Court of Appeal decision in Boulton. 

23The prosecution submitted that given your history and the seriousness of this offence, a term of imprisonment was the only appropriate disposition.  This was particularly so, it was submitted, as there was no realistic prospect of you complying with a Community Correction Order.

24I have given careful consideration to the defence submission that you be released on a Community Correction Order after serving a term of imprisonment, and ordered an assessment for that purpose.  The assessment deemed you unsuitable for a Community Correction Order.  The basis of that recommendation appears to be: (1) Your failure to recognise the negative impact or influence of the environment that led to this offending, and presumably the more recent prior matters, indicating a desire to return to it upon release, (2) Your failure to demonstrate how you would comply with the conditions of a Community Correction Order and (3) Your significant history of poor compliance with other court orders. 

25I have similar reservations about the appropriateness of a Community Correction Order given the information in the report and your history. I have considered s.5(4)(C) of the Sentencing Act in determining to impose a sentence of imprisonment upon you.  The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence - both specific and general - rehabilitation, denunciation of your conduct and protection of the community.

26In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it, your personal circumstances and your prior history.  I am required to balance those interests with the interests of the community in seeking to ensure as far as possible, you, an offender, are rehabilitated and reintegrated into society.

27If you could stand up please, Mr Wilson:

28In respect of the charge of armed robbery, you are convicted and sentenced to a term of imprisonment of three years;

29In respect of the summary matter, you are convicted and sentenced to a period of imprisonment of 14 days. 

30That leaves a total effective sentence of three years, and I set a non-parole period of 20 months. 

31Could you please confirm the PSD?

32MS WALTON:  215 days not including today's date.

33HER HONOUR:  I declare pre-sentence detention of 215 days.  Mr Wilson, if you had not pleaded guilty to this matter, I would have imposed a sentence of imprisonment of four years with the non-parole period of two years and six months. 

34Are there any other orders that are required?

35MS WALTON:  No, no, the forfeiture orders were handed up, and also disposal, on the last occasion. 

36HER HONOUR:  Didn't I hand them back?

37MS WALTON:  However, in any event, Your Honour, it has only just occurred to me that it says that that was prepared on behalf of the applicant being Ms (indistinct) Anscombe, but obviously it's Mr John Cain.  Would Your Honour allow my instructor to send through fresh orders with today's date to your associate?

38HER HONOUR:  Yes, that's fine.

39MS WALTON:  I can hand up the old order.

40HER HONOUR:  No, no, no.  It's fine.  That's fine.  I don't think the order would be - look, I think it's not going to make any difference if Ms Anscombe's name is there as opposed to Mr Cain's, so just hand up those ones and I'll sign those. 

41MS WALTON:  Yes, Your Honour.

42HER HONOUR:  If there's any difficulty in the validity of the orders, I will do them again but I don't think there's going to be.

43MS WALTON:  Your Honour, I only have one copy of each and I do apologise.  My instructor has not attended court with them.

44HER HONOUR:  That's okay.  Yes.  I'll just get my associate to copy them.

45MS WALTON:  Thank Your Honour.

46HER HONOUR:  I'll just change the name. 

47MS WALTON:  And perhaps also the date, Your Honour, because the date of the order being made was previously 1 October, but sentence is today.

48HER HONOUR:  You can sit down, Mr Wilson, thank you.  Thank you.

49MS WALTON:  Thank Your Honour.

50HER HONOUR:  11 o'clock.

- - -