Director of Public Prosecutions v Wilson

[2014] VCC 579

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 12-02346

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALLAN WILSON

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	24-27 February 3-7 and 11 March 2014
DATE OF SENTENCE:	29 April 2014
CASE MAY BE CITED AS:	DPP v Wilson
MEDIUM NEUTRAL CITATION:	[2014] VCC 579

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Y Hardjadabrata
For the Accused	Mr C Farrington

HIS HONOUR:

1You have been found guilty by a jury of four charges of armed robbery.  Charges 1 and 2 arose out of the same incident which occurred on 18 January of 2012, and each of Charges 3 and 4, arose out of separate incidents, at separate premises.  The armed robberies were all of a type committed upon persons who were shop assistants, often referred to as soft targets.

2You have admitted a number of prior convictions and court appearances going back to 1980 when you were 18 years of age.  The facts of the armed robberies do not require lengthy examination.  In each case, you were armed with an imitation firearm and I am satisfied, beyond reasonable doubt, that it was the firearm that you were found in possession of at the time of your arrest, and was essentially a toy cap gun often purchased by young children for the purpose of engaging in games of cowboys and Indians.  I am surprised that only one of the victims of your armed robberies spotted that it was a fake, although it seems that others were not entirely convinced that it was a genuine firearm.

3In any event, on one of the armed robberies, that on Cellobrations, the subject of Charge 4, when the shop assistant told you that he had spotted that it was a fake or imitation firearm, you produced a knife and continued with the armed robbery.  Obviously, armed robberies upon shop assistants are likely to cause a good deal of fear, and are likely to produce long term emotional and psychological effects that go way beyond the event itself.   There is always a risk that the incident might escalate, that injuries might be caused, even though the imitation firearm itself is obviously quite incapable of causing any serious harm of itself.

4These offences are of a kind that are prevalent in the community and often committed by persons like yourself, who are seeking money for a drug habit.  In your case, it seems you had been indulging in a Methamphetamine habit, and were seeking monies to finance that habit.   But as I say these offences, and offences that are fuelled by an ice habit attract the principle of general deterrence.  That is, the need to deter others from committing offences of this kind.

5In conjunction with that of course, I have to pay due regard to your criminal record which includes offences of a similar kind.   Indeed in 2004, you were sentenced to a total of ten years imprisonment with a non-parole period of eight years, for offences which included offences of armed robbery for which you received terms of imprisonment of seven years for each offence.

6These offences were committed whilst you were on parole for the term of imprisonment  which you received for those offences in 2004.  And I accept that there is a need to protect the public, as well as to deter others from committing offences of a similar nature.

7Clearly, there is still a need to deter you from committing further offences.  It is surprising, as I mentioned to your counsel, that you should have embarked on another spree of a similar nature in circumstances where you had been released on parole for offences of this type, which you must have known would result in losing your parole ‑ ‑ ‑

8OFFENDER:  I should never have ‑ ‑ ‑

9HIS HONOUR:  And a further term of imprisonment.

10OFFENDER:  I should never have went back to um, to the girl's place, me ex-girl's.

11HIS HONOUR:  Yes, bear with me Mr Wilson.

12OFFENDER:  Sorry, sorry.

13HIS HONOUR:  That is all right.  It is clear I think, that you have become institutionalised and it is not surprising that when released, you should fall in with people who introduced you back into the drug scene.   It is not surprising that you did have a spree on ice upon your release and one can readily understand the spiral that that would have caused, and the jettisoning of any dreams you may have had of leading a productive life once you had got back onto illicit drugs, in particular ice.

14Typically, for a person who has not got the capacity to earn money, honestly, resorting to crime for the purpose of supporting an ice habit is unfortunately seen all too frequently in this correct.

15Turning to matters personal to you, your counsel has very helpfully provided me with an outline of submissions, which is Exhibit 1 in which he sets out, I think very fairly and realistically, everything that could reasonably be said on your behalf and which in the end, urges me to pay proper regard to the fact that you served the extra two years of your sentence that you would otherwise have been on parole, because you were arrested for these offences, and therefore were in breach of parole.  That has to be taken into account when determining the overall sentence, in the application of the totality principle and I accept entirely, that that is an appropriate way of approaching things.

16OFFENDER:  I've got a letter here which I'll be passing to me solicitor so he can read um, later on or ‑ ‑ ‑

17HIS HONOUR:  Yes, do you want me to have a look at that?

18OFFENDER:  If you wouldn't mind.

19MR FARRINGTON:  If I could briefly approach Your Honour?

20HIS HONOUR:  Yes. 

21OFFENDER:  I've never done this before, but I thought I'd better.

22HIS HONOUR:  Yes Mr Wilson, that is fine.  I will let your counsel read it first before I have a look at it.  Do you want me to see that Mr Farrington?

23MR FARRINGTON:  I'm happy for Your Honour to see it.  What it seems to me to be is set out quite simply in Mr Wilson's own words, the matters which I've put before Your Honour.

24HIS HONOUR:  Yes.  Well we'll mark that Exhibit 3.

#EXHIBIT 3 -    Letter written by Offender.

25MR FARRINGTON:  As Your Honour pleases.

26HIS HONOUR:  I take it you've got no objection to my receiving that?

27MR HARDIJADABRATA:  No, Your Honour.

28HIS HONOUR:  It's a little unusual in the middle of passing sentence, but nevertheless, I think I will read it.

29OFFENDER:  I've never done it before you know, and I talked to me self well if I'm going to do it, this is my life on the line.

30HIS HONOUR:  Yes.

31OFFENDER:  I better do it now.

32HIS HONOUR:  Mr Wilson, that's all right, and I will read it.  Just give me a moment, thank you.

33OFFENDER:  Yes.

34HIS HONOUR:  Yes, thank you Mr Wilson.  I appreciate you providing me with that.  I think as Mr Farrington says, that it really reflects in your own words, much of what he has said on your behalf, and much of that which is contained in Mr Cummins report dated 22 April 2014, which is Exhibit 2. 

35Conveniently, he sets out a good deal about your background which you know unfortunately is a picture of a quite deprived and rather sad life where all your siblings, save one have now died.  One in particular you were particularly close to, a brother and you have now it seems reached a point in your life, having spent a greater part of your adult life in prison where you found it difficult to maintain a trouble free life.

36OFFENDER:  I just don't know what went wrong.

37HIS HONOUR:  Yes, and you clearly feel somewhat let down by the Parole Board and the support systems that are made available to persons like yourself, upon your release and it would seem that you made the unfortunate decision of going to live with the girlfriend with whom you had established a relationship, whilst you were serving your last term of imprisonment, and that probably it was that ‑ ‑ ‑

38OFFENDER:  I know, definitely.

39HIS HONOUR:  Steered you in the wrong direction.  It may be that you have underlying psychiatric, or psychological disorders.  It would be surprising if you did not, having had the background that you have had.  It is not suggested that those can be applied to reduce your moral culpability for this offending, but the information does form part of the picture that I have to take into account.

40It seems that because, perhaps of your long period of incarceration up to date, and your knowledge of the prison system, you have been entrusted with a degree of responsibility, and it would seem that you are a good citizen in prison, and are making a contribution to the lives of others whilst you are in there.

41I have no doubt that you do have much good in you, but it is unfortunately the case that these are serious offences, and I have to impose an appropriate sentence for you at this stage.  I accept entirely what is put on your behalf, that you are at the age of 51 years of age and facing another decent stretch should not be faced with a crushing sentence.   I have got to try and find a balance which draws together all the various matters that have been put before me, and imposes a sentence that adequately punishes you, adequately deters others and yourself, adequately protects the community, but at the same gives you some hope for the future and pays sufficient regard to your rehabilitation as those other sentencing considerations will allow.

42OFFENDER:  I've already tried, I've already got me name for housing and everything at this moment, you know.

43HIS HONOUR:  Yes, yes, well look there are avenues.  I hope that next time round, you will be properly supported into suitable housing and will allow yourself a better opportunity of settling into a quiet life which is the life that you have chosen for yourself whilst you are serving your time.

44OFFENDER:  That's all I want.

45HIS HONOUR:  No doubt that's what you feel now, and I hope that that is what happens in the future.  Doing the best I can to meet all these sentencing considerations, and to give you the least sentence and the best hope I can for the future, I am ready to impose sentence.  So would you stand please.

46On Charge 1 of armed robbery, I sentence you to imprisonment for a period of eight years.  On Charge 2 of armed robbery, I sentence you to imprisonment for eight years.  On Charge 3 of armed robbery, I sentence you to imprisonment for eight years.  On Charge 4 of armed robbery, I sentence you to imprisonment for eight years and I convict you on each of those offences.

47I treat the sentence of eight years on Charge 1 as the base sentence, and I order that six months of the sentence on Charge 3 and six months of the sentence on Charge 4 be served cumulatively upon one another and upon the sentence on Charge 1.

48That makes a total effective sentence of nine years imprisonment and I order that you serve a period of six years before you become eligible for parole.  Now, that gives you a three year period on parole when, assuming you are able to persuade the parole authorities that you should be granted parole,  you will have that extra three years hanging over your head.

49OFFENDER:  Yeah.

50HIS HONOUR:  Like you did on the last occasion.  So that will be an added reminder to you and hopefully incentive to you to stay out of trouble once you do get out.  I declare 81 days of pre-sentence detention as time served on the sentence that I have imposed, and I order that that matter be noted in the records of the court, and of course that will be deducted from your sentence.

51I cannot order that the two years be deducted, but I have taken that into account in imposing what might seem, on the face of it, to be a somewhat lenient sentence, having regard to the prior record, okay. 

52I should have mentioned that the prosecution also relied upon victim impact statements.  I have taken those statements into account and I note that each of them shows that there is in each case, an overlying emotional impact which of course is typical for offences of this kind.  I make the orders for disposal and forfeiture of property in accordance with the drafts that I have been provided by the prosecution.  There were also applications for compensation orders. 

53I accept the submission of your counsel that having regard to the sentence that I have imposed, and the prospects of you getting a job immediately upon your release that there is little point in those orders being made and in those circumstances, I decline to make those orders.

54MR HARDIJADABRATA:  As Your Honour pleases.

55MR FARRINGTON:  As Your Honour pleases.

56HIS HONOUR:  Okay.  You can sit down, I have got a few orders to sign.  Yes, all right, no other orders gentlemen?

57MR HARDJADABRATA:  No Your Honour.

58HIS HONOUR:  All right Mr Wilson, good luck.

59OFFENDER:  Thank you very much.

60HIS HONOUR:  All right, yes gentlemen if you want to come forward, you are excused, thank you.

61MR FARRINGTON:  Thank you.

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