Director of Public Prosecutions v Wilson
[2014] VCC 1298
•8 August 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-02338
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL DAVID WILSON |
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JUDGE: | His Honour Judge Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 May 2014, 20 June 2014 | |
DATE OF SENTENCE: | 8 August 2014 | |
CASE MAY BE CITED AS: | DPP v Wilson | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1298 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. O’Doherty (Trial) Ms S. Flynn (Plea and Sentence) | Office of Public Prosecutions |
| For the Accused | Mr D. McKenzie (Plea) Mr T. Marsh (Further Plea and Sentence) | Victoria Legal Aid |
HIS HONOUR:
1 Michael Wilson, you have been found guilty by jury verdict of one charge of Armed Robbery. You have also entered a plea of guilty to one charge of Possess Drug of Dependence. The maximum penalty for armed robbery is 25 years' imprisonment. The maximum penalty for possess drug of dependence is 400 penalty units and/or five years' imprisonment.
2 You have also entered pleas of guilty to two related summary offences, namely, using a drug of dependence and knowingly possess items that jeopardised the security or good order of a police gaol. The maximum penalty for use drug is 30 penalty units or 1 year’s imprisonment and the maximum penalty for the other offence is 10 penalty units.
3 The armed robbery occurred in the following circumstances. At about 6pm on 20 April 2013, you entered the Amcal pharmacy at 87 Percy Street, Portland by the rear public entrance.
4 You approached the pharmacist whilst he was standing in the dispensary area behind the counter. You had covered your face with your jumper and you were armed with a knife. You produced the knife and said “Where are your S8s.” The pharmacist asked you to put the knife down and you replied “just show me where they are”.
5 The pharmacist pointed to the safe and you told him to get them out. You told the pharmacist that you wanted “Oxycontin.” The pharmacist took five packets of Oxycontin 30 tablets from the safe and gave them to you. You left via the rear door.
6 The pharmacist recognised you as a regular client of the pharmacy. He recognised your build, your height and your voice. A pharmacy assistant recognised you by your build and your walk.
7 You were arrested on 23 July 2013. You were searched at the Portland Police Station and found to be in possession of six Oxycontin 30 tablets.
8 Armed robbery is a very serious offence. General deterrence, punishment and denunciation are all highly relevant sentencing considerations. You chose a soft target and you endeavoured to disguise yourself. You have shown no remorse for the offending. The offending is aggravated by the fact that it occurred whilst you were on bail for other matters, during the operational period of a suspended sentence and whilst you were on a Community Corrections Order.
9 I have had the opportunity to read the three victim impact statements. Fortunately, the victims suffered relatively low-level emotional reactions. The pharmacist suffered sleep disturbance for which he was required to seek assistance and one of his assistants suffered anxiety and sleep disturbance.
10 In assessing the seriousness of this armed robbery, I acknowledge that it was not well planned or sensibly thought through. This was, after all, the pharmacy that you regularly attended.
11 You have admitted a lengthy criminal history dating back to 2002. This means that specific deterrence and protection of the community are also relevant sentencing considerations.
12 You do not have any prior offences for armed robbery or possessing a drug of dependence. However, you do have a significant history for dishonesty matters. All your previous court appearances have been in the Magistrates’ Court. You have been fined, received Community-based dispositions, been placed on suspended sentence orders and served terms of imprisonment. These orders have not stopped your offending. The armed robbery is a concerning escalation in your offending.
13 Before I discuss matters relevant to your background, I will briefly describe the history of the plea hearings. After the jury verdict on 1 April 2014, the matter was adjourned at your counsel’s request to 21 May to enable a psychological report to be obtained. On that date, I was advised that the psychologist had not seen you and the matter had to be further adjourned. On 23 June, a psychological report was tendered. The report had a number of deficiencies. Your counsel also tendered some historical medical reports and a statement from your father. After discussion with your counsel, I adjourned the plea to enable Forensicare to conduct an assessment and provide a report.
14 I now move to matters that are relevant to your background.
15 You are 30 years old. You come from a caring and loving family. Your father attended court to support you.
16 You have had significant difficulties with your health and psychological functioning from a young age. These difficulties resulted in multiple medical interventions with a diagnosis of ADHD as “a fairly consistent theme”. [1] This condition was treated with medication.
[1] See Forensicare Report by Dr Remy Glowinski at paragraph 45, page 7.
17 You experienced considerable difficulty at school. You describe being friendless and stigmatised. You left school during Year 9 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 getting into trouble.
18 Your 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 are explained by your heroin addiction. You 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 drug to heroin. You also told Dr Glowinski that you had multiple admissions to psychiatric hospitals in 2006 and 2007. This would seem to be a particularly chaotic time in your life.
19 There is further offending in 2009 and in 2010. In July 2010, you were sentenced to another relatively lengthy gaol term for a large number of dishonesty offences.
20 In his report, Dr Glowinski says this - “Mr Wilson has failed in past attempts to live independently, to manage his own finances, employment and his own emotions and behaviours. Mr Wilson appears to be functioning significantly below expectation in these domains. My impression is that Mr Wilson has some form of personality disorder with prominent and borderline traits.”
21 Dr Glowinski also says this - "Mr Wilson reports a number of substance abuse issues which amount to polysubstance abuse and dependence disorders, predominantly with opiates."
22 Dr Glowinski expresses an opinion, in paragraph 46 of his report, that your concerns with depressive symptoms, flashbacks and nightmares are secondary to your personality disorder and substance use, rather than being representative of a major psychiatric disorder.
23 However, he also expresses an opinion that your ADHD may have some relevance in understanding aspects of your problems with judgement, problem solving and other high level cognitive functioning.
24 He also notes that you have been in protection for the last seven months due to persecution in prison and that you are a likely target for such behaviour due to your physical and medical concerns and your personality style. Given these factors, he expresses the opinion that you would likely suffer more in prison than the average prisoner.
25 Mr Wilson, there is very little that can be said in mitigation. You are no longer a young man and you have shown no remorse for your offending.
26 Dr Glowinski does recognise that your ADHD may have some connection to the offending. It is not a strong expression of opinion. However, given your long history of medical intervention for ADHD, I am satisfied, on balance, that the disorder is likely to have impaired, to some extent, your ability to exercise appropriate judgement. I accept that there should be some slight amelioration of the principle of general deterrence. On the other hand, based on the evidence of your past behaviours and current mental disorders, I have concluded that you have poor prospects of rehabilitation. This finding requires me to give appropriate weight to the principle of protection of the community.
27 I do accept the need to moderate the sentence because of your ADHD and your physical ailments. These conditions mean that you will suffer more in prison than the average prisoner.
28 The fact that you have served many months in protection – and may continue to serve your sentence in protection – is also a relevant matter in mitigation.
29 I am satisfied that you are a person who has had a long-standing addiction to opiates and pain killers. As a young man, you spent your life under medication. In 2006 you were prescribed morphine and you moved from that drug to heroin. You have a more recent history involving the significant use of pain killing medications. The armed robbery offence was committed to obtain Oxycontin. Dr Glowinski recognises your abuse and dependence disorders. In these circumstances, it is appropriate to mitigate punishment because of the link between your addiction and the commission of these offences.
30 I now will make some remarks about the time you have spent in custody since 23 July 2013. That was the date upon which you were remanded in custody on these offences.
31 It appears that a warrant for outstanding charges from the Magistrate’s Court was also executed on 23 July 2013. Briefly, you were required to appear at the Magistrates’ Court on 22 July 2013 on two charges of theft. One theft was alleged to have been committed on 25 May 2013. You were charged and bailed on that day. The second theft was alleged to have occurred on 10 June 2013. You were charged and bailed on 18 July for that offence. You failed to appear at the Magistrates’ Court on 22 July and a warrant issued for your apprehension. It seems the warrant was executed on 23 July. The two thefts, together with charges of fail to answer bail, drive whilst suspended, use unregistered vehicle and breach suspended sentence order were determined at the Warrnambool Magistrates’ Court on 23 August 2013. The suspended sentence was restored and you were ordered to serve six months' imprisonment. This term was ordered to be served cumulatively upon a three months term imposed for the other charges. You thus received a nine month term of imprisonment. The magistrate declared 32 days as pre-sentence detention.
32 For completeness, I note that on 16 June 2014, you were sentenced in the Magistrates’ Court to seven days' imprisonment for a shop theft.
33 This means that since 23 July 2013 you have served nine months and seven days by way of sentences from the Magistrates’ Court and 102 days by way of pre-sentence detention for these matters.
34 The law requires me to declare whether the sentence I impose today should be reduced in acknowledgment of all, some or none of the nine months and seven days. In exercising my discretion, I am ultimately guided by the need to apply the principle of totality. I also take account of the fact that had the Magistrates’ Court matters been dealt with after the matters currently before me, it is likely that the Magistrate would have ordered some concurrency.
35 However, I must also acknowledge that the current offences were committed whilst on bail and during the operational period of a suspended sentence. It is usual in such circumstances for sentences to be served cumulatively.
36 Taking all these matters into account, I declare the head sentence and the non- parole period (both of which I will shortly announce), have both been reduced by four months. .
37 On the charge of armed robbery you will be convicted and sentenced to three years and two months imprisonment. On the second charge on the indictment, you will be convicted and sentenced to four months imprisonment. I order two months of that sentence be served cumulatively on the sentence on Charge 1.
38 On the charge of use drug you will be convicted and sentenced to two months imprisonment and on the remaining charge, convicted and fined $400.
39 This makes an effective term of imprisonment of three years and four months. I fix a minimum term before you will be eligible for release on parole of 27 months.
40 I make a declaration that you have served 102 days by way of pre-sentence detention.
41 I also make an order pursuant to s.464ZF(2) of the Crimes Act 1958 that you undergo a forensic procedure for the taking of a scraping from your mouth. Mr Wilson, if you do not co-operate with the authorities in the taking of the sample, then the sample to be taken will be a blood sample and police my use reasonable force to obtain that sample. The seriousness of the offending, your prior criminal history and the public interest all justify the making of this order.
42 Are there any other matters?
43 MS FLYNN: No thank you, Your Honour.
44 HIS HONOUR: Very well. Mr Wilson can be removed, thank you.
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