Director of Public Prosecutions v Wilson

[2014] VCC 870

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-02171

DEPARTMENT OF PUBLIC PROSECUTIONS

v

JUSTIN WILSON

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JUDGE:	His Honour Judge McInerney
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2014 and 11 June 2014
DATE OF SENTENCE:	11 June 2014
CASE MAY BE CITED AS:	DPP v. Wilson
MEDIUM NEUTRAL CITATION:	[2019] VCC 870

REASONS FOR SENTENCE

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Catchwords:             Co-offender – criminality of high order – serious crime – armed robbery of a retail store – no prior offences – intellectual disability – limitations in regard to cognitive abilities – rehabilitation – Verdins – interests of the community

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Hore
For the Accused	Mr C. Watson

HIS HONOUR:

1       

I have to detail a number of things for the purposes, firstly so you know why and what is involved in the sentence. Your family knows, but more importantly the community knows and should any other court wish to know at any other time, it is all detailed. So in this matter, which we first began in Ballarat on

19 March 2014 when you pleaded guilty to one charge on the indictment, a charge of attempted armed robbery, Indictment No. C1309236. On that occasion, Mr Hoare appeared on behalf of the Director and Mr Watson appeared on your behalf, and they appear today.

2       

This attempted armed robbery took place on 24 June 2013. It was committed jointly with Mr Downes, who has also pleaded guilty before the Court and comes up to be sentenced tomorrow. The offence was committed on the

Club X adult store in Armstrong Street in North Ballarat. The background seems to be from what you have said in your record of interview a somewhat lengthy discussion with Mr Downes about his health difficulties, financial difficulties and difficulties in coping with his looking after his family.  Unfortunately then a determination by the both of you, for what precise reason or how you came to that one will probably never know, that the solution was to be an armed robbery. No one and certainly you, seemed to have any comprehension of how you came to come upon that solution.

3       

The driving force to getting money at that time of course was the addiction of Mr Downes, which was being utilised by him to overcome, his addictive personality, but also a specific medical condition. Mr Downes supplied a false plate, a disguise and most importantly unfortunately, a

sawn-off rifle. There is no evidence at all that that rifle was loaded, however that does not make much difference to the victim. At approximately 10.25 at night, you enter these premises demanding money. The employee, Thomas Collins, somewhat bravely stood up to you and refused your demands, thereafter you fled. I was able to see Exhibit C which was the CCTV of these circumstances. To say you were not persistent probably underestimates the matter.

4 Clearly when the victim grabbed a weapon and refused to give you any money, you did not persist. However, such does not take away from the seriousness of this behaviour. The community abhors this type of behaviour. Albeit the short duration, and the fact that is was an attempt, the serious nature of this crime is demonstrated by the fact that parliament prescribes a maximum penalty of 20 years' gaol, that is by way of a combination of s.75A of the Crimes Act and 321M of the Crimes Act. The particular circumstances which are agreed to by counsel were detailed in more focus by the learned prosecutor and tendered at the last hearing as Exhibit A which contains the summary of all the relevant facts of this crime.

5       Also tendered was Exhibit B which is the victim impact statement of the victim in this matter. Almost in the entirety of his statement he speaks of the stress of having gone through such an experience and dealing with it. Indeed, some eight or nine months down the track he is still affected by that issue. It seems to me given the circumstances of this matter, that one should not consider, and I do not think, such reaction is exaggerated, especially when one understands that he was going about his normal duties as part of his employment when he is confronted at 10.25 at night with a person with what appears to be a sawn-off rifle and in disguise. Despite his comments as to the subsequent impact, having seen the video clearly he bravely stood up to you and offered strong resistance. Clearly he handled himself pretty well, at least on that night.

6       The first thing that a sentencing Court has to do is make an objective assessment of the criminality involved in this matter. Clearly the objective assessment must be that this is criminality of a high order. Armed robbery of a retail store committed at night with a firearm is abhorred, as I said, by this community and rightly, the community expects appropriate punishment and condign punishment for people who perpetrate such crimes. In your record of interview as I have said, there does not seem to be any clear details apart from what I have said, some discussion about needing money for heroin. As you say “it just happened”, as incomprehensible as that sounds.

7       In your answer to Question 47, you say you would never have hurt anyone. However just by being in that position, albeit that you may not have had a loaded gun, but clearly you have hurt someone in the sense of the emotional impact that has been suffered as a result of what you did that night.

8       The prosecution in the circumstances sought a forensic sample order which I have signed. It seems to me that despite the fact that I am convinced that you will be able to be rehabilitated, this crime is of such seriousness that I should sign such an order in the interest of the community. What that means, Mr Wilson, is that you will be required to give a forensic sample. You will be given a notice which means you have to attend the local police station to give that sample. Can I ask that you do that because if you do not, you can be brought back here.

9       What is somewhat incomprehensible was the circumstances put to me at the last hearing by your counsel, one of the only matters put to me at that stage by him, was that a person with no actual priors for violence could be involved in a crime of this severity seemed remarkable. What we now know in regard to your issues, your intellectual problems and your issues in growing up and coping with life, it would appear that you have coped very well, despite your issues, to the age of 22 when this offence happened and that is demonstrated by the fact that you really have certainly no priors, and certainly no priors for crimes of this significance.

10      At the last hearing the learned prosecutor was able to see Exhibit 1 and 2 which were the reports from the psychologist and the neuropsychologist and given those assessments, without of course being bound at this stage, but it was quite professionally indicated on behalf of the Director of Public Prosecutions that if indeed the matter was adjourned off for reports concerning a justice plan and there was confirmation that you were in fact a disabled person as indicated, that in these very unusual circumstances a possible sentence could be a Community Correction Order with an appropriate justice plan.

11      Mr Watson provided the Court with a written submission which has been tendered for the purposes of identification and also provided with that your chronology. In addition he provided the reports that I have spoken of, being the psychologist's report of Carla Lechner dated 6 December 2003 and the neuropsychologist report of Dr Vowels.

12      It is noted in particular and referred to a number of times in the submission on your behalf by Mr Watson the comments of Ms Lechner that she did not consider that you possessed the requisite skills to cope with prison environment. It was indeed as a result of her assessment of you that you were referred off upon her recommendation, for further neuropsychological assessment and it was indeed Ms Lechner’s recommendation that consideration be given to having an assessment for the purposes of a Justice Plan. The neuropsychological assessment of Dr Vowels is dated 6 February 2004 and is tendered as Exhibit 2. It notes your longstanding intellectual issues, and low IQ. You have what the doctor terms, "Concerning limitations in regard to cognitive abilities": and she noted that her assessment as to this offending was similar to a comment you made in your own record of interview that your compliance with the other offender was impulsive, and that comes about in circumstances where your ability to plan and organise is limited, your problem solving capacity is limited and your ability to analyse is particularly limited.

13      The principal cognitive issue you have is developmental, and that is a mild intellectual disability of unknown cause, but possibly related to some acquired brain injury. The intellectual disability diagnosis made by the doctor was of a dysexecutive syndrome with problems overall in regard to abnormal problem solving and decision making, although it is noted you do not have any psychotic disorder. If I can say, your decision making on this night demonstrated such diagnosis.

14      It was as a result of both of those reports that the Court referred this matter off for consideration of a Justice Plan. I have received firstly Exhibit 3 which states that you are, pursuant to the Act, intellectually disabled. That statement is more particularly detailed in the statement of intellectual disability signed by Ms Carline Anderson which notes with you as so diagnosed, as part of your intellectual disability a significant sub average general intellectual functioning, significant deficits in adaptive behaviour and each of those have been manifest before the age of 18 years.

15      Attached to that was a Client Overview Report and I am not going to go through that. The details there referred to are and have been, referred by me, in reference to both the psychologist's report and the psychiatrist's report. In addition was a, pursuant to s.80(3)(a), a pre-sentence report from the Department of Justice and that report deemed you suitable for a Community Correction Order, with appropriate conditions. The conditions recommended are unpaid community work, treatment and rehabilitation in particular in regard to alcohol dependency and mental health assessment. In particular it was noted in your assessment that you had with you, as you have had throughout these Court proceedings, your father, that you had acknowledged the seriousness of what you had done and expressed remorse and shame for your behaviour. Again, the particular details, social history and background, I will not go in to but those matters are contained in Exhibit 4.

16      Also provided as part of this assessment for the Court, was a COATS assessment report dated 22 April 2014, which again confirmed the history as reported by the professionals that I have spoken about.

17      

Coming then to the matters put to me, in particular by Mr Watson there could be and was no resiling from the fact of the seriousness of this offending, which I have already indicated. There was reference to some explanation of how you came to be so involved and again I have referred to that and a reference to the rifle, cars, the plates and the coat and wig, all being supplied by

Mr Downes. There is not much that can be said about the crime itself, except the confirmation of your early flight once you were resisted. Certainly I think one could say the planning was not sophisticated, however there clearly was planning and certainly you carried out such intent, as shown in the CCTV.

18      The first of the two major issues that come up in this sentencing consideration is your intellectual condition as detailed, and clearly the reference to Verdins (2007) 16 VR 269. The impact upon sentencing caused by that intellectual ability is significant. It is clear that despite the serious nature of these crimes, the normal considerations which require condign punishment and deterrence must be moderated. They are moderated simply because of the fact that you are a person who is intellectually disabled and there is no doubt, I find, given the opinions as to your ability in regard to decision making, that there is a direct link between that intellectual disability and your amazing decision to be part of this serious crime. As I say, starkly against that is your background, where despite your problems, you have never got yourself in to any trouble, and certainly not trouble of this degree.

19      As was submitted to me by Mr Watson both Dr Vowels and Ms Lechner are of the opinion that your limitations and restrictions were directly relevant to the circumstances whereby you became involved in this offence. Insofar as the latter limbs of Verdins are concerned, equally there is a concern for the Court. I have no doubt that you would do very badly in gaol and indeed, Ms Lechner states in her report that given your emotional and cognitive immaturity you would be unlikely to cope with the rigours of a custodial sentence. However, despite the determination that the Court is going to make today I do not want you to misunderstand this. You have committed a very serious crime. From the letters tendered by your family, Exhibit 7, it would appear that you have expressed to your father your remorse for this crime, and that you understand the seriousness of what you committed.

20      

However, you only get one chance when you commit offences of this type. A Community Correction Order is meant in part, not only to assist you in your rehabilitation, but to impose punishment, and that will be community work. Part of the order will be that you are subject to supervision and that you do what you are told. A breach of such an order, which will be for a term of three years, can occur in many ways. The first way of course

Mr Wilson, is if you commit another criminal offence. Now, I have got some confidence, from what I have read, that this will not occur, but should you breach, you will come back to be sentenced on this. Do you understand?

21      ACCUSED:  Yes.

22      HIS HONOUR:  Equally you have to do what you are told because they can bring you back here for failing to comply with the provisions of the Community Correction Order so it means you have to do the work involved and it means you have to attend the counselling. As I say, given the serious nature of this crime the community expects appropriate sentences to be imposed. Given the totality of your circumstances, the sentence to be imposed is unusual for these types of offences. However that would not help you if you came back again.

23      Apart from the Verdins principles, the other major consideration relied upon by Mr Watson is a matter that is fundamental to all sentencing in this Court and that is the issue of rehabilitation, especially when one is dealing with a young person who has no prior offences. Mr Watson today spoke of the cases of Mills [1998] 4 VR 225 and Tokava [2006] VSCA 156 which details such principles. In Tokava the current President was at pains to point out to the community, despite what we often read unfortunately, and by way of references to calls for punishment, that rehabilitation of a person is a very, very important thing and is of the interests of the community. As the President said at [21]: "A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the community’s interest will be best served by that course.”

24      The principles in particular of Mills are normally applied to persons of this young age, but it is also important to remember given Mr Wilson's intellectual disability his actual age is likely to be less than his temporal age. It is in my view, an appropriate consideration that if a step taken by the Court at this stage, despite the serious nature of the offence, can affect permanent rehabilitation that such as in the interests of the community.

25      The other matters relied on are all also very important. (1) The remorse of which I accept as genuine and I see the letters of his family which are set out in Exhibit 7, affirming such remorse, such has been confirmed in each of the medical reports, and of the reports provided to the court pursuant to provisions of s.80. Such has been consistent and recognised. Mr Wilson has had a strong work ethic, and now for the first time will be able to get support from the disability support pension, but I note the comments of Mr George from the Department of Human Services, that Mr Wilson is a person who likes to work if he can, and that is obviously to be encouraged.

26      As I say, Mr Wilson is also a person who has facilitated justice by a very early plea in this matter and there has been no attempt to resile from the fact that he committed a very serious crime. I stress again, that he has no priors whatsoever and one would hope that he never has any further offences in the future.

27      Given the totality of all of those circumstances, I do think that this is one of those rare cases where a sentence of imprisonment is not called for. However as put by Mr Watson, what is called for is an appropriate Community Correction Order with orders involving community work, the order in my view should be for a period of three years. The attached condition of a Justice Plan pursuant to the provisions of s.80, cannot be for more than two years of that order.

28      Yes, if you would stand please Mr Wilson. You will be convicted of the crime of attempted armed robbery. For such offence you will be placed on a Community Correction Order for a period of three years, subject to the major condition that you do not commit another offence in that period, that is a period of three years and I stress again, how important it is that you comply with the appropriate conditions detailed in the pre-sentence report. Those conditions being that you be subject to supervision, that you be subject to counselling in regard to drugs and alcohol and that you perform community work of a period of 250 hours.

29 I attach, pursuant to the provision of s.80 the Justice Plan to such Community Correction Order and you will also be subject to the requirements of that Justice Plan as detailed. You will have to consent to the matter and I will have Mr Watson again explain to you very clearly what is involved. I think in the circumstances insofar as the requirements of s.6AAA of the Sentencing Act 1991 all I can say is that clearly if I did not impose a Community Correction Order, I would be imposing imprisonment.

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30      MR WATSON:  Yes Your Honour.

31      MR HOARE:  Yes Your Honour.

32      HIS HONOUR:  I might also thank the DPP in this matter for their professional submissions given the totality of the circumstances in this matter.

33      MR HOARE:  Thank you Your Honour.

34      HIS HONOUR:  Mr Watson do you want me to stand down while you do that? I think given - - -

35      MR WATSON:  I don't want to waste the court's time but it's probably better Your Honour.

36      HIS HONOUR:  Yes, we want to make sure that he understands fully.

37      MR WATSON:  Yes Your Honour.

38      HIS HONOUR:  Yes.

(Short adjournment.)

39      MR WATSON:  Thank you for that time Your Honour.  He's signed the order.

40      HIS HONOUR:  Yes thank you Mr Watson.  Now Mr Wilson I've got a positive attitude about you, all right?

41      ACCUSED:  Yes.

42      HIS HONOUR:  And I'm sure that you will do the right thing.  One of the reasons of keeping these notes as well is they stay on the file and if you do come back I'll be able to say, well you haven't done what you told me you're going to do.  All right?  All you've got to do is live the life like you did before.

43      ACCUSED:  Yep.

44      HIS HONOUR:  Don't be involved in these type of silly schemes, for Heaven's sake, especially one of such seriousness.  I can't emphasise how close you went to going to gaol.  Do you understand?

45      ACCUSED:  Yes absolutely, yep.

46      

HIS HONOUR:  Yes.  I thank both counsel for their assistance in this

matter - - -

47      MR WATSON:  Thank you Your Honour.

48      MR HOARE:  Thanks Your Honour.

49      HIS HONOUR:  - - - which is never an easy matter, when considering such serious offences.,  Yes.

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