Director of Public Prosecutions v Winder

[2018] VCC 1573

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-18-00588
Indictment No. H13502990

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOEL PHILIP WINDER

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JUDGE:	HIS HONOUR JUDGE TRAPNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2018
DATE OF SENTENCE:	7 September 2018
CASE MAY BE CITED AS:	DPP v Winder
MEDIUM NEUTRAL CITATION:	[2018] VCC 1573

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Criminal law – Sentence – Armed robbery – Little planning or sophistication – Low to mid-range seriousness – Cannabis and methylamphetamine addiction – Suicidal ideation due to death of close friend – Youthful offender – No prior criminal history – Early plea of guilty

Legislation Cited:     Crimes Act 1958 s 75A

Cases Cited:Barbaro v The Queen (2012) 226 A Crim R 354 – DPP v Dalgliesh (a Pseudonym) (2017) 91 ALJR 1063

Sentence:                  260 days’ imprisonment combined with two year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S Clancy	Mr J Cain, Solicitor for Public Prosecutions
For the Accused	Mr W May	Peter Monagle Lawyers

HIS HONOUR:

1       Joel Philip Winder, you have pleaded guilty to an indictment containing one charge of armed robbery.[1] The maximum penalty for this offence is 25 years’ imprisonment.

[1]     Contrary to Crimes Act 1958 s 75A.

2       The Crown tendered a summary of prosecution opening upon plea dated 4 June 2018,[2] which I am told by your counsel I can treat as a statement of agreed facts.

[2]     Exhibit P1.

The facts

3       On the morning of 18 December 2017 the victim, Gina Scott, began her shift as a shop assistant at Woolworths supermarket at the Featherbrook Shopping Centre in Point Cook.

4       You arrived at the shopping centre and began loitering in the complex. Ms Scott was working behind the service desk at the front of the supermarket and saw you standing outside the shopping centre wearing a hoodie and long pants.

5       You entered the store and approached Ms Scott at the service desk. You asked for a packet of cigarettes. As Ms Scott was scanning them at the register, you reached into your hooded top and removed a black-handled kitchen knife. You placed the knife on the counter as you were holding it in your right hand, pointing it towards Ms Scott. You said, ‘I don’t want to use this but give me the money out of the drawer’.

6       Ms Scott asked her manager to assist her. Ms Scott whispered to her manager that you had a knife and that you wanted cash out of the register. Ms Scott was unable to open the register and her manager was also unsuccessful as she was having difficulties with the new system. The manager asked you to wait a moment and she asked another employee, a cashier, to open the till, which was successfully.

7       You told the manager, ‘50s and 20s only’. She removed $180 in cash and handed it to you. You took the cash and the packet of cigarettes and left the store. The offending was captured on CCTV.

8       On 22 December 2017, a few days after your offending, you returned to the Featherbrook Shopping Centre. You were recognised by a Woolworths staff member who had seen the CCTV footage of the armed robbery. Police were summoned and you were arrested. You told police that the knife and clothing used in the armed robbery were located at your house.

9       A search warrant was executed at your home in Murphy Street, Point Cook. You cooperated with police by taking them to the items that you had worn and the knife used in the armed robbery.

10      You participated in a record of interview with police and made full admissions in relation to the offending. You told police:

(a)On the morning of the offence you had no drugs left and your brain was aching, your body was sweating and your mouth was dry.

(b)You put a hoodie on to cover some of your face, put a small knife in your hoodie and thought ‘this is the only way to get on right now’.

(c)You took an Uber to the shopping centre.

(d)When you arrived, you walked around wondering what to do with the knife.

(e)You finally worked up enough ‘hatred’.

(f)You went up to the lady and asked for cigarettes. When she brought them back to the register, you told her ‘also everything in the register’ and pulled out the knife and placed it on the table.

(g)You told the woman that you were not going to hurt her and told her not to ask for assistance.

(h)You decided to rob the Woolworths because it had the most money ‘and more money, more drugs’.

(i)You were very drug affected at the time.

(j)When you left the store, you took a taxi home.

(k)You used the cash to buy methylamphetamines, returned the knife to the cutlery drawer and threw your hoodie on the couch.

Victim impact

11      No victim impact statement was made in this case. However, where no victim impact statement has been tendered, a sentencer may draw reasonable inferences regarding the impact of an offence upon the victim. In this case there was not only the primary victim, Ms Scott, but also her manager and the cashier who became involved in the commission of the offence.

Offence seriousness

12      Armed robbery is a very serious criminal offence carrying a maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This indicates the seriousness with which the legislature on behalf of the Victorian community views this offence. Your counsel conceded this is an inherently serious offence. It was committed in daylight against a soft target in a shopping centre where it could be expected that a number of members of the public, including children, would be present.

13 Nonetheless, I accept your counsel’s characterisation of your offending conduct as being ‘low to mid-range’ for offences of this type. The offence involved little planning or sophistication. You used very limited means to conceal your identity. The amount of cash and goods stolen was relatively small, and although it was conceded by your counsel that an implied threat of force was used, no actual force or physical violence was used on the primary victim or her co-workers. However, the weapon you used was a kitchen knife with a 20 cm blade,[3] and this is a concerning aspect of the offence.

[3]See record of interview Q&A 46–49.

14      Your offences were motivated by your need to obtain money to buy drugs to feed your addiction to cannabis and methylamphetamines. While this provides an explanation for why you committed the offence, it is not a mitigating circumstance.

Personal circumstances

15      You are currently 23 years old and you were 22 years old at the time of the offence. You were born in Victoria and raised in Werribee with your older sister by your mother and father. You enjoyed a stable and loving family upbringing and your parents remain together. However, you did not have a close relationship with your sister whilst growing up and it is strained at present. Your mother and father were supporting you in court during the plea hearing.

16      Your time at school was marred by bullying and you turned to drug use which began in your late teens. You were expelled in year 10 for using illicit drugs on campus but you ultimately completed year 12 VCAL at Sunshine Technical College. You later obtained a Certificate III in Sports Management at Victoria University, but you have never worked in this area. You have since worked in the demolition and packing industries, however your recent employment has been impacted by your ongoing drug use.

17      You have had two significant relationships in your life. The first was with Katie which lasted eight months. This relationship was marred by verbal conflict due to your mutual drug use. Your second relationship was with Shanae and lasted eight months. Your drug use also caused arguments in this relationship and its eventual demise. You are currently single and have no children.

Substance abuse and mental health

18      You began using cannabis and methylamphetamine when you were 16 years old following the suicide of a close friend. You experienced significant grief and feelings of guilt, and you were introduced to cannabis after your friend’s funeral. You then began seeing a new group of friends who introduced you to amphetamines. At that time you were using two to three grams on a daily basis over a six-month period. You have used heroin twice; one of those occasions was a suicide attempt by overdosing. You have reported that you use alcohol excessively when unable to obtain illicit substances.

19      You continue to experience addiction to these substances. You have sought treatment for your addiction prior to your contact with the criminal justice system, including an admission to a 28-day inpatient drug rehabilitation program at Wyndham Clinic Private Hospital in 2016 and a six month drug rehabilitation program. However, you relapsed just prior to the commission of the present offence despite those admissions.

20      Although your counsel did not seek to rely on any Verdins principles, issues relating to your mental health have emerged since your friend’s suicide and have been exacerbated by your polysubstance abuse. You have a history of intermittent suicidality and you have presented to hospital voluntarily on at least one occasion due to significant suicidal ideation.

21      Dr Scally opined that:

During the current interview Mr Winder impressed as someone who has good insight into his mental health issues and substance use disorder although he admitted having difficulty distinguishing between contribution of his mental health versus substance abuse on his behaviour.[4]

[4]Dr Karen Scally, Psychological Report dated 29 June 2018 (Ex A2) [21].

Mitigating circumstances

22      There are a number of mitigating circumstances present in your case. You are a youthful first offender who has pleaded guilty at the earliest reasonable opportunity. Your pleas have utilitarian benefit in saving the time and cost of a trial. They also indicate an acceptance by you of responsibility for your offending conduct and your willingness to facilitate the course of justice. However, whilst I accept you are regretful for the situation in which you find yourself, I find there is no sufficient evidence of remorse beyond what is reflected in your pleas.

23      Your counsel submitted that you expressed remorse to Dr Scally and in your record of interview. In her report Dr Scally said: ‘Mr Winder expressed regret for his actions but appeared to distance himself somewhat from the offence by virtue of his being in a drug-affected state’.[5] In your record of interview you told police that you wanted to make a written statement ‘just something like, really heartfelt’.[6] Importantly, during the extended pre-sentence assessment which I ordered following the plea hearing you are reported to have ‘failed to demonstrate any remorse for the victims of the offending and rather focused on the impacts it has had on himself’.[7] In these circumstances I am of the opinion that there is insufficient evidence before me to make a finding in your favour that you demonstrate true contrition and remorse.[8]

[5]Dr Karen Scally, Psychological Report dated 29 June 2018 (Ex A2) [35].

[6]Q&A 292.

[7]Extended Pre-Sentence Assessment – Outcome Report dated 17 August 2018 (Ex C2) p 1.

[8]See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).

24      Nonetheless, you made full and frank admissions in your record of interview. You were very cooperative with police, and during a break in the record of interview you went with investigators to your house and showed them the clothes you wore at the time of committing the offence and the knife you used in the armed robbery.

25      Testing conducted by Dr Scally placed you in the medium risk category for reoffending. She opined that: ‘Intervention is required targeting these risk/needs areas in order to reduce his risk of reoffending, the most salient of which is his alcohol and drug use’.[9] While observing that your time in custody has afforded you ‘the opportunity for a prolonged period of abstinence’,[10] Dr Scally opined that you will require ongoing monitoring and psychological and drug abuse treatment if you are to remain offence free in the community. Fortunately, you have a number of positive support factors, in particular your supportive parents, which should assist you to remain drug free on release. Dr Scally concluded: ‘with careful planning and placement of sufficient structure and supports in the community, he may be able to fulfil the requirements of a community based disposition’.[11]

[9]Dr Karen Scally, Psychological Report dated 29 June 2018 (Ex A2) [38].

[10]Dr Karen Scally, Psychological Report dated 29 June 2018 (Ex A2) [47].

[11]Ibid.

26      At the plea hearing your mother gave evidence on your behalf. She outlined your background and development as a child into an adult. You had a learning disorder in year 6 and were subject to constant bullying at school. She spoke about the effects the suicide of your friend in year 9 had on you. And your subsequent descent into drug abuse and addiction. She gave evidence of psychiatric treatment and in-patient admissions and your efforts at detoxification at home and through various in-house programs.

27      According to your mother, you have made nine or ten attempts at rehabilitation from drug addiction and you have had several psychiatric admissions. You have attended Sober Living Housing, the Malvern Clinic, back to Sober Living and then Recoveroz, all without success. Your mother very frankly conceded that ‘you have a little way to go’ and that a further period in custody was necessary for you to maximise your prospects of ultimately remaining drug free. She felt you were ‘relatively safe’ in the controlled environment of prison. She was of the view that your mental health has never been properly diagnosed.

28      Because of your mother’s evidence and your significant multi-faceted risk factors, and being mindful of the need to impose a sentence which maximises your prospects of rehabilitation, following the plea I sought a Psychiatric Court Report from Forensicare and an Extended Pre-Sentence Assessment – Outcome Report from Community Correctional Services.

29      In the psychiatric report Dr Grant Lester described your past attempts at drug rehabilitation as follows:

Mr Winder describes a period over the last 3 years of rehabilitation experiences. The first year he was doing this for his parents and tended to fail more often than succeed with periods of abstinence however he said that over the last 1-2 years he has succeeded more than failed overall. However, in the lead up to the offence he has had a period of abstinence (1-2 months) in the community which led to a residential rehabilitation stint in Sober Living Rehab service. He lasted 2-3 months before relapsing and being exited from the program. He was transferred to the Recoveroz Rehab service but lasted only 1 week before relapsing and being exited. Then over the next 4-6 weeks he used Ice and cannabis consistently over a period of 4-6 weeks and then committed the offence.[12]

[12]Dr Grant Lester, Psychiatric Report dated 31 August 2018 (Exhibit C1) [19].

30      You told Dr Lester that ‘the penny has dropped’ as to how dangerous you can be when drug seeking and you now feel you are ‘at rock bottom’ of your life.[13] Dr Lester opined: ‘His insight into his past psychotic experiences is intact and he now states he is again intent on achieving abstinence in the community’.[14] Apparently, your plan on release from custody is to recommence residential rehabilitation with abstinence from illicit substances.[15]

[13]Ibid [27].

[14]Ibid [33].

[15]Ibid [35].

31      There is no diagnosis in Dr Lester’s report that gives rise to the application of Verdins principles.

32      In the Extended Pre-Sentence Assessment – Outcome Report you are assessed as being ‘high risk of general re-offending’ using the LS-RNR assessment tool. You identify your problematic ice abuse as being the main cause of your offending behaviour. Ultimately, you were assessed as being suitable for a Community Correction Order.

33      Whilst on remand you have been in Karreenga Prison, which is a programs based prison. You have been employed in the bakery there. Since the plea hearing, I have been provided with a certificate of completion dated 3 July 2018 acknowledging your completion of a 6 hour AOD and ice effects program.[16] As a result of the subpoena issued by your solicitors to the Proper Officer of Corrections Victoria, I have received urinalysis test reports for the period 28 January 2018 to 15 June 2018. They are all negative.[17]

[16]Ex D4.

[17]Ex D5.

34      I have been provided with a letter from Mr George Thompson, Clinical Director of Recoveroz, dated 24 August 2018. Mr Thompson recommends that upon release from custody you undertake a six month recovery from addiction program with his organisation. This is a residential program which requires participants to undergo a rigorous program directed towards their rehabilitation from drug addiction.

Application of sentencing principles

35      I have had regard to current sentencing practices in relation to armed robbery in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym).[18] It is difficult to gauge more than a very general yardstick from so called ‘comparable cases’, given the wide range of offending conduct which can constitute the offence of armed robbery, and the myriad of personal circumstances pertaining to individual offenders. For the reasons given earlier, I am of the view that your offending is a serious enough example of this offence. To the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.

[18] (2017) 91 ALJR 1063.

36      The basic purposes for which a court may impose a sentence are just punishment, deterrence - both specific and general - rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, and your personal circumstances.

37      I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated.

38      Given the serious nature of your offence, general deterrence, denunciation and just punishment must be accorded significant weight in sentencing you, however, this must be tempered by the fact that you are a youthful first offender and I must impose a sentence that is designed to maximise your prospects of rehabilitation. In your case, I consider that in light of your high risk of reoffending, specific deterrence and protection of the community need to be given some weight. I must adopt a cautious approach to your prospects of rehabilitation in light of your past history of relapsing into illicit drug abuse following undergoing rehabilitative programs.

39      Ultimately, I am of the opinion that a combination sentence of imprisonment coupled with a lengthy community correction order is the appropriate disposition to achieve the purposes for which this sentence is imposed.

Stand up Mr Winder

On the charge of armed robbery you are convicted and sentenced to 260 days’ imprisonment with a community correction order for two years to follow your release from custody.

The terms and conditions of the community correction order will be:

That it is to last for two years.

You are to attend the Box Hill Community Correctional Services within two clear working days after the commencement of this order.

The mandatory terms that apply to all Community Corrections order are:

(a)  You must not commit another offence for which you could be imprisoned during the time that the order is in force.

(b)  You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations.

(c)  You must report to and receive visits from the Secretary's delegate.

(d)  You must report to the Community Corrections Centre within two clear working days of the order starting.

(e)  You must let a Community Corrections officer know within two clear working days of you changing your address or job.

(f)    You must not leave Victoria without first getting permission to do so from the Secretary or his delegate.

(g)  You must obey all lawful instructions from, and directions of the Secretary, or his delegate.

In addition to the core conditions there will be the following conditions imposed upon you:

(a) You must perform 200 hours of unpaid community work over the two years, as directed by the regional manager. If you fail to comply with this order the Secretary of the Department of Justice, or his delegate, may give you a direction to perform additional hours of unpaid community work in accordance with s.83AU of the Sentencing Act.

(b)  You must be under the supervision of a Community Corrections officer for a period of two years.

(c)  You must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the regional manager.

(d)  You must undergo any mental health assessment and treatment. That may include psychological, neuropsychological, psychiatric, or treatment in a hospital or residential facility, as directed by the regional manager.

(e)  You must participate in programs and/or courses that address factors relating to the offending, as directed by the regional manager.

(f)    There will also be judicial monitoring of this order. You must reappear at this court for a review of your compliance with the order on 7 December 2018 at 9:30 am.

(g) There will also be a residual condition of the order pursuant to Sentencing Act 1991 s 48 that you must attend and complete the six month residential drug rehabilitation program with Recoveroz, as detailed in the letter from Mr George Thompson dated 24 August 2018, and I will attach a copy of that letter to this order.

I declare that 259 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct that the fact that declaration was made and its details be noted in the records of the court.

Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your plea of guilty would have been a sentence of 3 years’ imprisonment with a non-parole period of 2 years’ imprisonment.