Director of Public Prosecutions v Wilson

[2015] VCC 1291

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01392

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL WILSON

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2015
DATE OF SENTENCE:	14 September 2015
CASE MAY BE CITED AS:	DPP v Wilson
MEDIUM NEUTRAL CITATION:	[2015] VCC 1291

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C Foot	Office of Public Prosecutions
For the Offender	Mr D Dann	James Dowsley and Associates

HIS HONOUR:

1Michael Wilson, on 22 July 2013 you went to your local pharmacy in Portland.  You were disguised and carrying a knife.  You approached the pharmacist wielding your knife and asked him, "Where are your S8's?"  This term "S8's" was a term you well knew as it referred to Schedule 8 drugs.  You were abusing or addicted to OxyContin, a Schedule 8 drug.  The pharmacist took five packets of OxyContin from the safe and gave them to you.  You then left. 

2You were someone known to the pharmacist and his staff.  You were recognised by your appearance and voice, notwithstanding your face was covered.  You were arrested the next day and denied your involvement.  You were remanded in custody. 

3You were on bail for other offences at the time, indeed on a community corrections order as well, which makes these crimes more serious.  But in relation to the matters to which you were on bail, it seems on 23 August you were sentenced to a term of imprisonment by a magistrate.  Subsequently that sentence, perhaps another one, was served by you but you remained on remand. 

4You went to trial in late March 2014.  You were convicted and sentenced to three years and two months for the armed robbery.  Another charge now not before me saw an additional two months added, so your sentence was three years and four months with a minimum of two years and three months was set as the minimum non-parole period. 

5On 11 August 2015 the Court of Appeal set aside your conviction in relation to the armed robbery and ordered a retrial.  Within a very short time thereafter, you decided to plead guilty to the sole charge of armed robbery. 

6Your counsel on the plea submitted that the time that you have served of now 503 days was sufficient punishment if combined with a short community corrections order aimed at therapeutic or rehabilitative programs.  The prosecution did not argue to the contrary. 

7I had you assessed and you were found suitable by the Office of Corrections in a comprehensive report.  They had the benefit of a Forensicare report that had been prepared by Dr Remy Glowinski dated 29 July 2014.  I will return to the sorts of programs recommended shortly. 

8The crime you committed was a serious one.  Those who work with drugs and medication are entitled to do so without armed offenders terrorising them to get the drugs that the offenders crave.  The courts will endeavour to protect the community and pharmacy staff in particular and to deter offenders who may think to hold up these soft targets.  The courts will do so by stern punishment. 

9Your crimes are to be denounced.  The victims were adversely affected, as set out in their victim impact statements, which I have read.  That said, the armed robbery was not a sophisticated well-thought out criminal endeavour. 

10Your past involves significant criminal conduct and many Magistrates' Court appearances where you have been given chances with community orders, suspended sentences, but also you have been imprisoned.  This armed robbery was, though, an escalation in your offending. 

11The sentencing remarks of Judge Grant of 8 August 2014 following the trial set out relevant aspects of your background.  I can do no better than he and I adopt what he said in the following terms. 

12He said that you are 30 years old.  You come from a caring and loving family.  He then at the time noted your father attended court to support you and I note that your mother is here to support you and you will live with her in Sunbury once released. 

13You have had significant difficulties with your health and psychological functioning from an early age.  These difficulties resulted in multiple medical interventions, with a diagnosis of ADHD being the "fairly consistent theme".  That condition was treated with medication through your adolescence. 

14You experienced considerable difficulty at school.  You describe being friendless and stigmatised.  You left school during Year 10 and began living away from home.  You stopped taking your ADHD medication.  Given your young age and your psychological problems, it is not surprising that you started to get into trouble. 

15Your offending escalated in 2007.  In July 2007 you were sentenced to a 15 month gaol term for a large number of dishonesty offences.  I suspect that those offences were explained by your heroin addiction at the time. 

16You told Dr Glowinski that you commenced using drugs after suffering a serious back injury in 2006.  You were apparently prescribed morphine for pain relief.  At some stage you moved from that to heroin. 

17You also told Dr Glowinski you had multiple admissions to psychiatric hospitals in 2006 and 2007.  This would, as Judge Grant said and I agree with him, seemed to have been a particularly chaotic time in your life.  You offended further in 2009 and 2010 and received a gaol term in 2010. 

18Dr Glowinski said this,

"Mr Wilson has failed in past attempts to live independently, manage his own finances and employment and his own emotions and behaviours.  Mr Wilson appears to be functioning significantly below expectations in these demands.  My impression is that Mr Wilson has some form of personality disorder with prominent and borderline traits". 

19Dr Glowinski went on,

"Mr Wilson reports a number of substance abuse issues, which amount to polysubstance abuse and dependence disorders, predominately with opiates". 

20I will just pause there, Mr Wilson, and say it is a matter for you but if you - well, it is a matter that is entirely up to you.  If you take the help that will be provided by the Office of Corrections, endeavour to deal with your drug problems then you most likely will stay out of trouble.  But as sure as you sit there, if you get back onto opiates, OxyContin or even ice, you will go back to gaol and just do a life sentence in instalments, ever-longer sentences of imprisonment until you realise - and you would have seen these people in the gaol - that you have completely wasted your life.  So put drugs - it is not going to be easy - but put them behind you. 

21Dr Glowinski went on to say that there were concerns with your depressive symptoms and flashbacks and nightmares and that this would make your time in prison a little harder than it might have been for the average prisoner. 

22I take into account in your favour your plea of guilty.  It is a matter of significant weight.  Your sentence will be less than it otherwise would have been, the upper limit being the three years and two months with two years and three months that were imposed by Judge Grant. 

23In addition, the sentencing landscape and the sentencing legislation in this state have changed since mid-2014 when you were sentenced by Judge Grant. 

24I can also factor in in your favour remorse now, as evidenced by your plea of guilty. 

25You will, I am told, live in Sunbury with your mother and try to settle.  As I have said, it will not be easy on a number of fronts.  I am not ordering any more punishment by way of prison or unpaid community work.  There will be supervision, as that will assist as well as monitor you. 

26I will order treatment for drug abuse and psychological assessment and treatment and assessment and treatment for medical problems and also order that you do what programs you are directed to do to deal with your offending behaviour.  So there are many programs that you will be directed to do.  It will not be easy, but they are not meant to be soft options, these community corrections orders. 

27I am not going to make it a lengthy community corrections order, as you have done a significant time in prison, however, you must do what you are asked to do within that short period of time and get the benefit from it. 

28I am doing the best I can in taking into account all the matters in the reports that have been provided, as well as what was put forward by your counsel and by the Crown.  I impose the following punishment, can you please stand, Mr Wilson. 

29Committing the crime of armed robbery, you are sentenced to a period of imprisonment of 503 days.  I declare that you have served 503 days of the sentence that I have just imposed.  I ensure that this is entered into the records of the court.  I will do that so that the prison authorities are left in no doubt that you have done each and every day of the sentence of imprisonment that I have imposed. 

30In addition, you will be placed on a community corrections order that will go for nine months.  On that order there will be supervision.  You will have to undergo treatment and rehabilitation assessment for drug abuse, also medical assessments and treatments and mental health assessments and treatment, together with offending behaviour programs, that is, you do the offending behaviour programs that you are directed to do. 

31Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed the sentence that Judge Grant imposed of three years and two months with a minimum term of two years. 

32Is there any other orders required? 

33MS FOOT:  There was a disposal order, Your Honour, and a forensic sample, which I handed up on the last occasion. 

34HIS HONOUR:  Right, thank you.  There is an application for disposal of things that were connected with the crime which you committed and I intend to make that order. 

35There is an order here that is sought that you provide a forensic sample, a scraping from your mouth, in accordance with the law and I am proposing to grant that order.  It currently says that you will have to go to the officer-in-charge at the Warrnambool Police Station. 

36MS FOOT:  Yes, I've just realised that's going to need to ‑ ‑ ‑

37HIS HONOUR:  Where should it be? 

38MS FOOT:  Broadmeadows Police Station, if that's the closest. 

39HIS HONOUR:  All right.  Well that order will be amended to Broadmeadows. 

40MS FOOT:  Thank you, Your Honour. 

41HIS HONOUR:  Where is it?  Camp Street or something, is it?  Wherever it is.  What I need to tell you about that order, Ms Wilson, is that within a period starting now, so within - four weeks have to go by, just in case you want to appeal this sentence, but after that four weeks you have then got 28 days in which to get to the police station and report to them for the taking of your sample.  Do you follow that?  If you do not comply with that, there are consequences.  Of course at the time that they ask you to consent to the taking of the scraping from your mouth, if you do not cooperate they are authorised to use reasonable force to get the sample.  So just cooperate.  Do you follow? 

42OFFENDER:  Yep. 

43HIS HONOUR:  All right. 

44MS FOOT:  Fifteen Dimboola Road. 

45HIS HONOUR:  Dimboola.  Something used to be in Camp Street.  Dimboola Road.  Same street as the Community Corrections.  Take a seat, Mr Wilson. 

46Mr Wilson, the community corrections order goes for nine months, starts today and ends on 13 June 2016.  The conditions, there are certain conditions that apply to everyone in a community corrections order and then there are some conditions that apply just to you.  So the mandatory conditions apply to everyone. 

47You must not commit an offence punishable by imprisonment during that nine months, well Mr Wilson, if you commit another offence, you will breach this order, you will come back, unlikely to forget this case in that period of time and what mercy as it were that has been shown to you will not be repeated, you will simply go back to gaol. 

48You must comply with any obligation requirement by the regulations of the Sentencing Act, that will be a photograph will be taken of you to identify you and so they know who you are.  You must report to and receive visits from the Office of Corrections.  You must report to the Community Corrections Centre within two clear working days, that is at Broadmeadows, Community Corrections there on Dimboola Road, Broadmeadows. 

49You have to let the Community Corrections folk know within two clear working days if you change your address or a job.  You cannot leave Victoria without getting permission to do so.  You must obey all lawful instructions from them. 

50All right, that applies to everyone.  What applies to you, you have to be under the supervision of the Community Corrections officer for the nine months.  So they will supervise you, expect you to come in and see you so they can check how you are going. 

51You must undergo assessment and treatment for drug abuse, must undergo medical assessment and treatment as directed by the regional manager.  You must undergo mental health assessment and treatment as directed by the regional manager.  You must participate in programs and courses that address factors relating to your offending as directed by the general manager.  It may well be they say for your mental assessment get to a GP, which you will set up in Sunbury and get a mental health plan.  That probably would be sufficient in your circumstances but do not delay on it.  Do you follow? 

52OFFENDER:  Yep. 

53HIS HONOUR:  You sign that saying you understand it, consent to it and that will bring the matter to an end.  I do not know, I would expect you will be taken downstairs.  They will check with central records that you have no other matters outstanding.  They will have my order that says you have done every day of the sentence that I have imposed and there is nothing holding you in the present, but that is up to them.  Do you follow? 

54OFFENDER:  Yep. 

55HIS HONOUR:  All right.  Do you want to take that down to him, Mr Dann? 

56MR DANN:  Thank you. 

57HIS HONOUR:  You have signed that and I have too, Mr Wilson.  You will get a copy of that and the other orders in due course and that, as far as the County Court is concerned, brings the matter to an end.  Is there anything else? 

58MS FOOT:  No, Your Honour. 

59MR DANN:  No. 

60HIS HONOUR:  I thank counsel for their very significant assistance in this regard and tolerance in putting up with delays because of my program.  In any event, it is done.  As I say, Mr Wilson, you will have to go with prison authorities so if you would not mind doing that now. 

61OFFENDER:  Yep. 

62HIS HONOUR:  And they can set that in train and your mother can wait around somewhere else. 

63OFFENDER:  Yes, Your Honour. 

64HIS HONOUR:  Thank you. 

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