Director of Public Prosecutions v Wittekind

[2021] VCC 1805

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-01940

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAYDEN WITTEKIND

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2021
DATE OF SENTENCE:	11 November 2021
CASE MAY BE CITED AS:	DPP v Wittekind
MEDIUM NEUTRAL CITATION:	[2021] VCC 1805

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence

Catchwords:  Armed robbery – driving whilst disqualified - significant   criminal history

Legislation Cited:       Criminal Procedure Act 2009; s145

Cases Cited:  Worboyes v The Queen [2021] VSCA 169, R v Verdins; R   v Buckley; R v Vo [2007] VSCA 102

Sentence:  Convicted and sentenced to two years and four months   imprisonment with a non-parole period of 18 months   imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Connelly	The Director of the Office of Public Prosecutions
For the Accused	Ms H. Fink	Bayside Solicitors

HIS HONOUR:

1On 9 November 2021, Hayden Wittekind at the County Court of Victoria at Melbourne, you pleaded guilty to a single charge on indictment No.M11236088.  The charge was armed robbery.  The maximum sentence for this offence is 25 years' imprisonment.

2You have admitted an extensive criminal history commencing in August of 2011 in Melbourne Children's Court on charges of theft and unlawful assault, and finishing on 3 July 2020 for your 16th court appearance.  You have been in custody for this charge for a total of 149 days not including the day of your plea hearing.

3A related summary charge of driving whilst disqualified was transferred to this court pursuant to s145 of the Criminal Procedure Act.  You consented to this charge being heard at the same time as your plea to Charge 1 on the indictment.  You pleaded guilty to driving whilst disqualified.  You have nine priors convictions for driving whilst disqualified.

The circumstances of your offending

4The prosecutor filed and read from a Prosecution Opening Upon Plea dated 22 October 2021, that was Exhibit “A”.  At the time of the offence you were 26 years of age. 

5On 18 April 2021 Michael Davies advertised on Gumtree a set of Astro A50 gaming headphones for sale at the price of $400. 

6On 8 June 2021 at approximately 5 pm you contacted Mr Davies and asked him whether the headphones were still available for sale.  You identified yourself as Marcus and stated that you would like to collect the headphones that night.  Mr Davies agreed and gave you his home address in Northcote.  At approximately 6.45 pm on 8 June 2021 you drove into and parked your car in an undercover carpark on High Street in Northcote.  You rang Mr Davies to say you were running late.  Footage from CCTV at the carpark shows you leaving the carpark at 7 pm.

7You were met by Mr Davies outside his premises.  You were dressed in a hooded jacket and also wearing a grey mask.  Just so it is clear in the future, this is during COVID-19 times.  Mr Davies handed you the headphones and you inspected them.  You handed the headphones back to Mr Davies and told him you were going back to your car to collect your wallet. 

8You were observed again on the CCTV at the carpark returning to your car and retrieving an item from the driver's door. You returned to inspect the headphones for a second time.  You then produced a knife and held it close to your body saying to Mr Davies, 'You've got a choice, you follow me or you don't.'  You then left the address with the headphones.  They are the agreed facts for the charge of armed robbery.

9You returned to the underground carpark in High Street, entered a red Mazda and drove it north along Eastment Street in Northcote. On 3 July 2020 you were disqualified from driving a motor vehicle for a period of four years.  That is the basis for the related summary charge of driving whilst disqualified.

10On 15 June 2021 you were arrested at a premises in Dandenong.  You were interviewed by police.  You admitted to stealing the headphones but stated the knife remained in your pocket and was not produced by you to Mr Davies.  You were remanded in custody on 15 June 2021. A total of 149 days are reckoned as pre-sentence detention not including this day. 

Victim Impact Statement

11Mr Davies filed a victim impact statement that was sworn on 26 September 2021.  It was not read in open court, consistent with the request by Mr Davies.  It was Exhibit “C”. 

12Mr Davies set out the emotional impact on him initially was that he only felt safe outside when there were lots of people around.  He was extremely cautious when going to and from his home.  He stated he was able to return to normal after a couple of months and was grateful the incident did not go further than a brief glimpse of a knife and the threat.  He stated he was more fearful and cautious around strangers, particularly when he was near his home.

Personal circumstances

13You are now 26 years old.  Both of your parents died of a drug overdose in 2013 when you were approximately 18 years of age.  By that time you had had six separate appearances at the Children's Court.  You have no contact with other members of your family.  You have five children with two different partners.  You have no contact with any of your children. 

14You have spent the majority of your childhood in state care.  You have suffered a prolonged and significant history of mental, physical, and sexual abuse whilst in state care.  You have several proceedings on foot in respect of those matters.  You were able to complete a formal education to Year 10 at Swinburne Technical School in 2011.  After school you obtained work initially as an auto mechanic and then air conditioning installer and, more recently, worked in demolition work. Your adult life has been plagued by mental health problems combined with drug addiction. 

15You have a significant and relevant criminal history.  The effect of your prison history is that you have spent eight of the last nine years in custody.  You stated the longest period in the community in that time was two months.  Your criminal history includes dishonesty, violence, drug, and serious driving offences.  You have 10 court appearances in the adult jurisdiction.  Your past sentencing dispositions have included Drug Court and community correction orders with rehabilitation conditions.  You have breached every opportunity to address your drug addiction in the past.

16Your counsel in this case urged a combination sentence and it is due to the previous failure of CCOs and Drug Court dispositions that it is not appropriate even to consider it in your case at this time.

17Mr Aaron Cunningham, a forensic psychologist, had assessed you for the purposes of this plea proceeding.  His report was dated 18 October 2021 and is Exhibit 2 on the plea.  He noted that you were released from prison on 16 April 2021.  Your offending was on 8 June 2021.  Your longest period in the community was when you were in a relationship with a person described as Natasha in that report, who is a non-drug user with no criminal history and worked as a personal trainer.  That is the longest period you have been out of gaol in the last nine years. Mr Cunningham diagnosed you as suffering from complex PTSD.  You are currently medicated with Seroquel 1200 milligrams a day and Sertraline 50 milligrams a day to deal with your mental health symptoms. 

18Mr Cunningham also opines that you are also displaying symptoms of institutionalisation.  You have had a deprived and disruptive upbringing that has resulted in criminal behaviour and drug addiction.

Sentencing considerations

19The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions and the protection of the community. 

20In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.  I am also required to balance the interests of the community in denouncing your criminal conduct with the interest of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society.

21I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases and the statistics for those sentences at that time. 

22I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and few of the cases would be, and are, distinguishable from your case, indeed as they are from one another.  Of course, current sentencing practices are just one of the considerations that I am required to take into account in this sentencing process.

23The only appropriate sentence for this offending is a term of imprisonment is a term of imprisonment with a non-parole period to encourage you to control your rehabilitation after you have completed your time in custody.  You probably have no expectation of gaining parole given your criminal history but I hope that you do.

24You have pleaded guilty to these charges.  Whilst the plea was finalised after some negotiations and cannot be properly be described as an early plea, it has obviated the need for your victim to give evidence in this case.  Further, your plea does have the utilitarian value of allowing for the orderly and effective administration of justice and there is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of the court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community. 

25Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community, and I accept that your plea to this charge, or these charges, indicates and demonstrates remorse on your behalf. 

26Your plea of guilty also has further utilitarian value because of pleas given in times when, due to the COVID-19 pandemic, you have not sought to delay the finalisation of these charges by conducting a trial at some indetermined date in the future. 

27This is sometimes referred to by counsel and others as the Worboyes discount.  The Court of Appeal in the case of Worboyes v The Queen [2021] VSCA 169 set out a number of considerations that were particular to a plea of guilty in the course of the COVID-19 pandemic and even more so in the sentencing process. Most recently these considerations were reinforced by the Court of Appeal in the case of Rossi v The Queen [2021] VSCA 296 which recited paragraphs 35 to 39 from Worboyes case and the highlighted paragraphs are as follows and I will read them:

'We therefore consider whilst the courts in this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice.  Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead.  Such encouragement must come from an actual and palpable amelioration of the sentence.'

28The Court of Appeal further stated:

'For these reasons we consider that - all other things being equal - a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than in a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects.  A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of the sentence than at another time.  Although a sentencing judge need not quantify the extent of any 'discount', he or she must ensure that the plea of guilty results in a perceptible amelioration of the sentence.'

29In addition, the lockdown restrictions on prisoners and the limited visits and courses available to prisoners during the COVID-19 pandemic conditions in gaol, have made your time, initially on remand and ongoing in sentence, more onerous than it would be in normal times.  I have taken these matters into account when fixing your final sentence for these offences.

30I also take into account your deprived upbringing resulting in you being in state care from a very young age.  Further, I note that you have civil proceedings arising from the allegations of mental, physical, and sexual abuse of you whilst you were in state care.  The details of the alleged abuse were absent, but clearly Dr Cunningham accepts it is the basis for your PTSD diagnosis. 

31The diagnosis of complex PTSD enlivens limbs 5 and 6 of Verdins case considerations. I accept that custody will be more onerous for you due to your mental state and as a consequence, a sentence of imprisonment will weigh more heavily upon you than a person of normal mental health.

32The charge of armed robbery is a serious offence with a maximum penalty of 25 years' imprisonment.  I assess your offences at the low range of that offending for the charge of armed robbery.  The objective seriousness of your offending is indicated by the following matters:

1) you had planned this offence and continued with it after you had an opportunity to pull out of it.  That is, when you returned to your car in the carpark you could have just got in your car and driven away;

2) you committed the offence immediately outside your victim's home;

3) you produced a knife but never held it in such a manner that would or could have harmed your victim;

4) the offending was over in a very short period of time;

5) the impact on your victim, whilst significant at the time and for a short period thereafter, has not been ongoing for Mr Davies and;

6) that property taken from Mr Davies was of small value.

33Your offence in respect of driving whilst disqualified is the 10th time you have committed this offence.  I have cumulated some of the sentence for that offence.  There is no complaint of bad driving with this offending, it is a case of you flouting court orders.  The cumulation reflects additional punishment without breaching the sentencing principle of totality.

34I assess your prospects of rehabilitation as guarded.  You have a long criminal history over your short life.  You have mental health challenges that will not improve whilst in custody.  You have a long history of drug addiction that has not been successfully treated.  However, at the close of your counsel's submissions you expressed the view that you realise you have reached a point in your life where you have decided to take the right path and associate with non-drug users who are not of a criminal background. 

35You stated you could blame all of your problems on the abuse in the past, which you have endured, but you have decided to put that behind you so you can have a better future.  If you are genuine about those comments to me, then you will be able to turn your life around and live a drug free law abiding life in the future, upon your release from prison, and I hope that is the case for you.

36Your offending calls for a sentence of imprisonment with a non-parole period to satisfy the sentencing principles of general and specific deterrence, just punishment, denunciation of your criminal behaviour and protection of the community. 

37I sentence you as follows:

38On the charge of armed robbery, Charge 1, you are convicted and sentenced to two years and three months' imprisonment.

39On the charge of summary charge of driving whilst disqualified you are convicted and sentenced to three months' imprisonment.

40I order that one month of the sentence in the Summary Charge 5 be served cumulatively on the sentence in Charge 1 on the indictment.  That means the total effective sentence for you is two years and four months imprisonment and I fix a non-parole period of 18 months' imprisonment.

41But for your plea of guilty the s6AAA declaration is I would have sentenced you to five years and three months with three years and six months non-parole period.

42I declare that you have served - and I want to check, it is 149 days, is that correct?  Yes. 

43MR CONNELLY:  Yes, Your Honour.

44HIS HONOUR:  Thank you.

45HIS HONOUR:  I declare 149 days as pre-sentence detention, not including this day.  I sign the disposal order.  Is there anything, Ms Fink, arising out of any of that?

46MS FINK:  No, Your Honour.

47HIS HONOUR:  Thanks.  Mr Prosecutor, is everything covered?

48MR CONNELLY:  No, Your Honour.  Yes, Your Honour.  As Your Honour pleases.

49HIS HONOUR:  Thank you.  Mr Wittekind, I have completed the - Mr Wittekind, if you just tap the table so you come back on screen for me. 

50OFFENDER:  Yep.

51HIS HONOUR:  Thanks.  I have finished the sentencing process and you do not have to listen to any of this, but I just want to say this to you as the sentencing judge, the comments you made to me at the end of the plea the other day are - showed to me some great insight by you, if you are fair dinkum about it, and what I am asking you and suggesting to you is this, that you hold onto that insight. 

52Even though you have got time in front of you in gaol, hold that insight and stick to it when you are released because unfortunately, as you know from your own experience, the system is not going to work for you, you are going to have to work it for yourself and I am not saying for one minute that beating drug addiction is easy, it is not, but that is one thing you have got to face as a challenge and deal with.  The other one is to seek out the help for your mental health.

53OFFENDER:  Yep.

54HIS HONOUR:  ‑ ‑ ‑ and stick to it, stick to it every day.  Now that is easy for me to say sitting up here but for you, you know, you are a young man, you are only 26, you have got many years in front of you that you can enjoy life.  So all the best.

55OFFENDER:  Thank you.

56HIS HONOUR:  I will leave the link open Ms Fink so you can speak to your client about what the sentence means.

57MS FINK:  Thank you, Your Honour.

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