Director of Public Prosecutions v Wittenberg

[2020] VCC 1287

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00582

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEAN WITTENBERG

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 August 2020
CASE MAY BE CITED AS:	DPP v Wittenberg
MEDIUM NEUTRAL CITATION:	[2020] VCC 1287

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Maguire
For the Accused	Mr J. Cunningham

HIS HONOUR:

1Dean Wittenberg, you are to be sentenced for one charge of attempted armed robbery.  The maximum sentence is 20 years' imprisonment.

2You pleaded guilty before me on 3 August.  When arrested by police on the date of offending, 27 January 2020, you were found unfit for police interview after medical examination by a police doctor.  However, on 21 April, committal went by hand-up brief in the Magistrates' Court, after which you entered a plea of guilty.  The matter was then listed for plea hearing in this court, only six months after your offence. 

3You receive the benefit of your plea of guilty and that cooperation in the proceeding, both from an early time.  Your plea has facilitated the interests of justice, accepts responsibility and expresses remorse.

4At your plea hearing, which also ran on 3 August, Ms McGuire for the Crown tendered a written summary of prosecution opening and a short chronology of the proceeding.  Mr Cunningham for you tendered the forensic psychiatric report of Dr Hemlata Ranga dated 17 July 2020, letters and certificates related to rehabilitation programs undertaken in remand custody and the depositional copy of the Box Hill Hospital discharge summary dated 27 January 2020.

5The circumstances of your offence are set out in the tendered Crown opening, which is Exhibit A.  My own summary may therefore be shorter.  It is also informed by matters put on your behalf not challenged by the Crown; and by evidence tendered.

6Your offending occurred on 27 January 2020.  You were aged 37 years and your victim, Geoffrey Hill, 73.  At about 4.50 am he was at his employment, loading newspapers into his car outside a Mount Waverley newsagency.  You suffer alcoholism and I find that you were intoxicated.  The evidence also establishes that you were discharged from what seems the emergency department of the Box Hill Hospital at about 1 am after being treated for a head injury.  It is described in the tendered discharge summary as 'haematoma and laceration to posterior right side ellipse without active bleeding'.  CT scanning revealed no fracture or internal injury. 

7At 4.50 am you appeared at the other side of Geoffrey Hills' vehicle, behaving strangely.  You produced and brandished a tomahawk-style axe and demanded money.  You held the weapon toward him in a threatening manner.  At one point you entered his vehicle and revved the engine.  Mr Hill refused your demand and in short fellow employees came to his aid.  You got out of the car and left. 

8Police were called and you were arrested not long after in the backyard of a Mount Waverley premises.  You appeared to be drunk and police noticed the head laceration for which you had been earlier treated.  You could not recall how you suffered that.  You were taken to hospital, again Box Hill Hospital, and released soon before 1 pm.  As stated, you were medically assessed after that as unfit for interview because of, I quote from the Crown opening, 'acute medical and mental health issues'.

9Geoffrey Hill was offered the opportunity to make a victim impact statement but declined.   However, there is no doubt that your offence impacted upon him.  This is reflected in his police statement, which states feeling traumatised, angry and shaken up. 

10You are a 38-year-old man presently placed in remand custody awaiting this sentence.  You are an only child raised by your mother, aunt and uncle in the Doncaster area.  Your father left the family when you were two.  You were exposed young to alcohol.  It seems that your mother is still a heavy drinker.  You completed VCE and have since obtained TAFE certificates:  one in Psychology, one in a psychology-based course and another in Information Technology.  You worked from 14 in the curtain and window manufacturing business of another uncle.  Your mother worked there also.   That business ceased trading in 2005.  You have worked in other skilled and semi-skilled occupations since but that has been affected by alcohol abuse.  You were a teachers aid in a Bundoora specialist school for about seven years, assisting disabled children. 

11You continued to live with your mother, aunt and uncle.  However, your uncle died of brain cancer when you were 20, which impacted heavily upon you.  Your aunt has died in more recent years.  You were close to both.  It fell to you to make the decision to turn off your aunt's life support.

12During your 20s you were in a long-term relationship.  That partner had three young children from an earlier relationship.  The end of your relationship marked a deterioration in your mental health and continuing alcohol consumption.  You moved back to live with your mother and aunt in the family home.  It was shortly after that that your aunt fell ill.  There has been another relationship with a woman, which ended in 2017.  Your drinking increased.  There have been attempts by you at rehabilitation from alcohol abuse, including relatively short periods at drug and alcohol facilities in 2012 and 2019.  At times you have drunk very heavily, up to a slab of beer or a cask of wine per day. 

13You are able to live with your mother in Warburton when you leave prison.  An uncle also lives there.

14Dr Ranga diagnoses major depression and alcohol dependence, that being in remission given remand custody.  You are said to be genetically susceptible to both.  You have a history of self-harming and attempts at suicide.  You are presently treated by medication for depression.  There are also physical health problems, pancreatitis and a form of diabetes  associated with alcohol abuse. 

15Given a history of head injuries, that alcohol abuse and a past suicide attempt by carbon monoxide poisoning, Dr Ranga raises the possibility of acquired brain injury, which can be related to impulsivity and poor judgment in offending.  There is not clear evidence of this and the primary principles of Verdins are not put on your behalf. 

16Your criminal history states a number of court appearances between January 2011 and August 2019.  I bear in mind the criminal history record filed contained some duplication;  for example, breach proceedings on earlier community corrections orders.  You were subject to a Community Corrections order at the time of offending.  This was confirmed upon breach by the Magistrates' Court on 1 August 2019 and ran until July 2020.  As I understand, it is subject to further breach proceedings because of this offending.   I accept, and it is not challenged, that your criminal history largely reflects your alcohol abuse over time.  A number of offences are family violence-related and breaches of such orders, sometimes by drinking at home and conflict with your mother.  There are some offences of driving, dishonesty and against property.  There are appearances for assault; however, it is not clear whether these are multiple occasions.  It cannot be said that violence in the nature of this offending is a dominant or frequent feature of the past.  There are a number of short sentences of imprisonment, shorter, for example, than the period of remand you have served. 

17This offence is the most serious you have committed. 

18It is clear that alcohol has been the major factor in your antisocial and criminal behaviour. 

19Attempted armed robbery is a very serious offence with a high maximum sentence.  You chose a frightening weapon and a vulnerable victim.  You have a significant criminal history, albeit not significantly featuring this type of offence.  Intoxication is not a mitigating factor particularly in a man seasoned to drink and who has offended before when affected by it.   It is an adverse factor that you had been placed on a community corrections order at the time of offending. 

20Such circumstances make relevant sentencing considerations and  purposes of your moral culpability, deterrence, condemnation of the offending and proportionate punishment of it.  The usual sentence is that of imprisonment, one of considerable length.

21Here there are also relevant moderating factors, mainly personal to you, which should go to reduce the length of your sentence and the structure or way in which it is served.  They include the following 

22(1) Your plea of guilty and cooperation.

23(2) your personal history and circumstances.  This includes your diagnosed mental health condition of depression, which I find was present and active at the time of offending.  The evidence falls short of showing such connection that the Verdins principles related, for example, to reduced moral culpability become relevant.  And, as I have said, this was not put on your behalf.  However, I see your psychiatric problems to be a significant part of your life and the personal context for this sentence.  I also accept that prison is thereby more difficult for you than others.  The COVID-19 health situation will also contribute to this.  Higher court statement has made clear the relevance of such matters as added anxiety, greater restriction and reduced access to programs and supports affecting persons in custody.  You are vulnerable to these because of both physical and mental health conditions.

24(3) I also take into account aspects of the offending circumstances.  Your attempt at an albeit very serious crime was ill planned, ill-judged and poorly executed.  Your action in getting into the car and revving the engine is consistent with this.    Given the circumstances leading to the offence it is hard to see that not just drink but also other factors, including your psychiatric condition, did not play a part in your state of mind.

25(4) I agree with the submission that I should be cautious about your prospects of rehabilitation, bearing in mind your criminal history, long-term alcoholism and also past failures at community-based orders.  Rehabilitation will be dependent upon your capacity to address your drinking problems.  Dr Ranga states that continuing abstinence is necessary, supported by suitable medication. 

26I have some misgivings, for example, given your past failures and the drink-related environment in which you will live upon release.  However, on balance I have decided that you should be specifically assisted by the order I impose.  That is in the interests of your rehabilitation and in the community interest.  I have decided that I should impose imprisonment beyond but not very much beyond what you have served and then a community correction order upon release.  This is within the range of submissions by defence and Crown.  The community corrections order should contain both punitive conditions and also conditions assisting you in the way I have stated. 

27I will now formally sentence.  Having considered what I see to be the relevant matters I sentence you as follows.  On one count of attempted armed robbery, you are sentenced to eight months' imprisonment.  I declare under s.18 pre-sentence detention of 197 days.  I also convict you and impose a community corrections order of two years' duration.  The usual terms apply.  There are conditions that you perform 300 hours of unpaid work over the period, that there be a condition in relation to mental health assistance and a condition in relation to alcohol assessment, also that there be supervision of you.

28All hours completed in respect of the therapeutic program can be set off against the community work hours. 

29Had you not pleaded guilty I would have imposed a sentence of imprisonment of two years with a minimum term of 16 months.

30What else do I need to say other than take Mr Wittenberg through the community corrections order?  Are there other orders sought?

31MS MAGUIRE:  There was a forfeiture order, Your Honour.

32HIS HONOUR:  There was a tomahawk and a pair of scissors.  The pair of scissors weren't shown to be relevant, but I take it you don't object to forfeiture of both, Mr Cunningham?  All right, well, I'll make that order.  If it's sent to me, that is if it hasn't already been sent, I will sign it in chambers.

33MS MAGUIRE:  Yes, Your Honour.

34HIS HONOUR:  I'm going to tell you now, as I must, Mr Wittenberg, what the order means for you.  It is not available for me at the moment, but I will do the best I can by memory as to what these orders require of you.  It runs for two years from the time of the release.  You must attend and you will be advised of this the relevant community corrections office within two days of your release.  You must not commit another offence punishable by imprisonment.  You must not attend any work program or appointment or other program affected by alcohol or drugs or in possession of illegal drugs.

35You must report to and receive visits from a community corrections officer.  You must inform Community Corrections of a change of address or a change of work within two days of that.  You must not travel out of the state of Victoria without permission of Community Corrections.  You must, in short, obey all lawful directions of Community Corrections.

36The additional or special conditions are that you perform 300 hours of unpaid community work, that there be a condition for treatment and rehabilitation for alcohol abuse, that there be a condition for treatment and rehabilitation for mental health and that you be under supervision of a particular community corrections officer.  I think it was suggested to me during the plea that I consider a judicial monitoring order.  You are a mature man and you either abide by this or you run the risk, a high risk to the point of almost inevitability, that you would be returned to prison.

37Do you understand what I have said to you?

38OFFENDER:  I do, Your Honour.

39HIS HONOUR:  And do you agree to it?

40OFFENDER:  Yes, I do.

41HIS HONOUR:  All right.  Well, the document will be sent perhaps best via you, Mr Cunningham, or your instructor?

42MR CUNNINGHAM:  Apologies, Your Honour.  Yes, Your Honour, I'm happy to ‑ ‑ ‑

43HIS HONOUR:  Well, the order will be signed by me, sent to you and then forwarded to Mr Wittenberg for him to sign and he should take that to relevant community corrections officer when he attends there, relevant community correction office I meant to say, when he attends there after release from prison.  Warburton is where he will be living; Ringwood I suppose would be the relevant office.

44MR CUNNINGHAM:  My understanding is it's Glen Waverley's the address, Your Honour, that he'd be residing at.  And in the assessment report I noted Dandenong would be the most suitable.

45HIS HONOUR:  All right.  Well, that is what will happen.  There will be communication with Mr Wittenberg before he is released.  The family has moved from Warburton back to Mount Waverley obviously.  Yes, I follow. 

46Right.  Well, if there's nothing else for me to say or do I'll stand down, that is turn everybody off.  There's nothing else I need to say or do?  Anybody want to raise anything?

47MS MAGUIRE:  No, Your Honour.

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