Director of Public Prosecutions v Woods
[2022] VCC 133
•15 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-01958
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TROY ADAM WOODS |
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JUDGE: | Her Honour Judge Blair | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 February 2022 | |
DATE OF SENTENCE: | 15 February 2022 | |
CASE MAY BE CITED AS: | DPP v Woods | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 133 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence; Aggravated Burglary; Robbery; Armed Robbery; Moral culpability; Causal link; General deterrence; Plea of Guilty in the currency of the COVID-19 pandemic; Aggregate sentence; Verdins; Bugmy; Childhood deprivation; Criminal history; Psychological report
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:DPP v Meyers [2014] VSCA 314; Worboyes v The Queen [2021] VSCA 169; R v Verdins [2007] 16 VR 269; Bugmy v The Queen [2013] 249 CLR 571; Avan v The Queen [2019] VSCA 257; DPP v Frewstal Pty Ltd [2015] VSCA 266; Sinclair v The Queen [2021] VSCA 144
Sentence: 4 years and 2 months Imprisonment, 21-month non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Picone | Office of Public Prosecutions |
| For the Accused | Mr G. Tait | Tait Lawyers |
HER HONOUR:
1Troy Woods, you have now been in custody for the past 276 days, since 15 May 2021. On this day you were arrested and charged with the various offences to which you have pleaded guilty. On 29 November 2021 you were arraigned on indictment M11041463 which contained three charges of aggravated burglary pursuant to s77 of the Crimes Act,[1] one charge of robbery pursuant to s75 of the Crimes Act[2] and one charge of armed robbery contrary to s75A of the Crimes Act.[3] Upon the request of your counsel, I ordered a Forensicare psychological report.
[1]Crimes Act 1958 (Vic) s 77.
[2]Ibid s 75.
[3]Ibid s 75A.
2Dr Melissa Wood, who is the Principal Psychologist of Court Reports at Forensicare, interviewed you at Marngoneet Correctional Centre on 16 December 2021. Dr Wood has provided a very thorough and helpful report which is of a very high quality.[4] As will be apparent from my reasons to follow, Dr Wood's opinions have greatly assisted me in the formulation of your sentence.
[4]Psychological Report of Dr Wood dated 16 December 2021.
Circumstances of offending
3On Saturday 15 May 2021 you entered an apartment building complex at 70 Batesford Road, Chadstone at 1.11 pm. You were able to gain entry after a resident exited the building and the glass sliding doors had opened. The first apartment you entered was Apartment 130, the residents were both asleep inside. They woke as you were rummaging through their belongings. You had a conversation with one of the residents and told him that you just wanted cash. You said that you had a knife and that you did not want to hurt anyone. He negotiated with you to keep $50 and he gave you $120. You shook his hand before leaving the apartment. The other resident who had remained in the bedroom of the apartment called Triple 0. So those are Charges 1 and 2.
4The next apartment you entered was 111. Again, the resident was inside and sleeping. You entered and started to take items including the victim's PlayStation. Your victim heard a noise and woke up. You entered the victim's bedroom and at this time you had one of his kitchen knives with you. You pointed the knife towards him and told him not to make a noise. You were holding various goods belonging to the victim and asked him for a bag to put them in, which you were given. That was a yellow garbage bag. You also took sunglasses and a bottle of perfume. The garbage bag broke and you asked the victim for another bag, which he gave you from the kitchen. After you left the victim noticed that PlayStation games were missing, and his roommate noticed a shaver was missing from his room. And those are Charges 3 and 4.
5Next, you entered Apartment 108. The resident of this apartment was at home cooking in his kitchen when he heard the front door open and saw you put your head through the door. The victim stated, 'What the fuck', and you replied 'Sorry, wrong key' and left.
6Police promptly responded to several Triple 0 calls and attended at the apartment complex at 70 Batesford Road. At this time, you were in a store at the bottom of the complex and had been seen by the attendant to be carrying a knife. The attendant took the knife from you and escorted you out of the shop. He noticed you had left a yellow garbage bag in one of the aisles. Once outside the store, you were stopped by police. The shop attendant gave the police the knife you had been carrying and directed police to the yellow plastic bag. Various items that had been taken from residents at the apartment complex were located in the bag.
Arrest and procedural history
7You were arrested by police at the scene and later participated in a record of interview. Essentially, you told the police that you had no real memory of offending because your memory was not working properly and was jumbled. You made some admissions, however, and claimed you had no plan or preconceived conceptions of what you were going to do when you attended the Batesford Road apartment complex. In other parts of your interview, you were remorseful.
8The complete prosecution opening was tendered on the plea and marked as Exhibit 1. The above is a brief summary of this document.
Victim Impact
9Although I have not received any victim impact statements, it is clear that the people whose homes you entered would have been scared by your presence. In particular, the victim of Charges 3 and 4, which was the aggravated burglary and armed robbery where you had the knife, would have been very frightened as you demanded the property from him whilst pointing one of his kitchen knives at him. I take the victim impact into account to the extent that I am able.
Nature and gravity of offending
10Aggravated burglary and armed robbery are inherently serious offences as evidenced by the maximum penalty of 25 years' imprisonment that apply to each of those charges. Robbery is also a serious offence and is punishable by a maximum of 15 years. I must have regard to the applicable maximum penalties as an important yardstick prescribed by Parliament. Aggravated burglary and armed robbery offences can be committed in a wide variety of circumstances. In sentencing you, I must consider the particular circumstances of your case.
11In DPP v Meyers,[5] the Court of Appeal set out a non-exhaustive list of factors that will ordinarily be relevant to an assessment of the objective gravity of an offence of aggravated burglary. Having regard to those factors I note the following:
· Your intent at the point of entry was to steal as opposed to assault anyone. So, you went there to take stuff, not to hurt anyone.
· You did not force entry to any of the premises. Rather, you gained entry to the apartment block by taking the opportunity to enter when someone else exited. Each of the apartments you entered appeared to have been unlocked, there was no forced entry as such and your entry to the last of the three apartments was momentary. That is where you just stuck your head in and just left pretty much.
· You did not have a weapon at the time you entered any of the premises, however, during the course of the second aggravated burglary you armed yourself with a knife and used that to affect the armed robbery whilst you were inside that particular apartment.
· You were alone at the time of the offending.
· Your offending occurred at approximately 1.30pm in the afternoon and not late at night or in the early hours of the morning.
· It would appear that you were reckless as to whether anyone was home at the time. However, as noted, your offending occurred at or approximately 1.30pm on a Saturday afternoon.
· All of the victims were unknown to you and in that sense you were not someone of whom the victims would be particularly frightened. In fact, when speaking to your victim of Charges 1 and 2, there is no suggestion that you were aggressive or threatening but rather you shook his hand after negotiating the amount of money you would steal from him.
[5]DPP v Meyers [2014] VSCA 314, 48.
12In the circumstances, I do not consider your crimes of aggravated burglary to be the most serious examples of the offence. As mentioned above, Charge 5 was momentary and really amounted to you sticking your head in the door and then leaving when you saw someone in the kitchen. The prosecution conceded that it was difficult to imagine a lower level aggravated burglary.
13What, however, makes your offending more serious in relation to the first two incidents, is what you did once you entered the premises. In relation to the first incident, this was the charge of robbery and in relation to the second incident this was the charge of armed robbery. These offences occurred in each of the victims’ own homes, a place where they are entitled to feel safe and secure.
14Generally, your offending was not well planned. You did not have a disguise and you just appeared to wander in hoping to get a PlayStation or some cash. Consistent with the offending being unplanned or spontaneous, the knife you used in the armed robbery was one you picked up whilst you were in the apartment. Although you pointed the knife at the victim you barely made a threat or demand, rather you asked him for a bag to put his PlayStation in that you already had under your arm. When that bag broke, you asked for another. You then selected one of a number of bottles of perfume from his wardrobe and asked for his sunglasses. You were pointing the knife at the victim at all relevant times. The property you stole was recovered when you were apprehended in the store below.
Plea of guilty
15I accept that your plea of guilty was entered at a very early stage at committal mention. There is a significant utilitarian benefit in your plea of guilty as you have spared several witnesses, in particular the victims of these crimes the need to give evidence. You have also spared the Court from what would have been a time-consuming trial.
16In addition, I note what the Court of Appeal recently said in the case of Worboyes v The Queen 2021 VSCA 169 at paragraph 39:[6]
'A plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than 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 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 sentence.'
[6]Worboyes v The Queen [2021] VSCA 169, 39.
17I also accept that your plea of guilty and admissions in your record of interview demonstrate your genuine remorse.
18In these circumstances I propose to allow a significant discount for your plea of guilty.
Personal circumstances
19It is appropriate at this point to describe your personal history. You have recently had your 40th birthday whilst in custody. Sadly, much of your life has been spent in prison or youth training centres. You are currently single and the father to one child, a daughter Mackenzie.
20Your mother was a heroin addict who abandoned the family when you were aged two. You were raised by your father and stepmother until age seven. You have one sister who is two years younger than you and a stepbrother who is four years younger. Your stepmother did not want either you or your sister and your father was violent towards you. At the age of seven, you were removed from the family home by Child Protection Services and made a ward of the State. You were placed in foster care placements and report being sexually and physically abused. As a result of such abuse, you were then moved to group residential care where workers came and fed you, but you were otherwise left to yourselves. At the age of 17, you were forced to leave State care.
21Apart from some limited contact with your sister - I understand that that is greater now that you are in custody, you have been speaking with her most days - you have had very little contact with, or support from, your family since childhood. That said, after your accident in 2020 you lived with your brother for some time. Unfortunately, your brother had his own issues and whilst he was trying to assist you with your recovery, he was far from a good support.
22Given your family history, it is not surprising that you struggled at school. You were expelled at the start of Year 9 for stealing and fighting. Academically, I understand that you had problems reading and concentrating and that you repeated Grade 2. Socially, you had few friends and at times stole other children's food because your parents or foster placements did not provide your lunch. You were picked on and ridiculed because of your poverty and for your lack of family. It was your retaliation with violence that resulted in your expulsion from school.
23You reported to Dr Wood that you began using illicit substances at the tender age of nine to cope with disrupted foster placements and abuse.[7] You have used heroin since you were 12 years of age. This history of drug use and abuse accords with and largely explains your prior history, which has seen you in and out of both youth and adult custody frequently throughout your life. Of most relevance are your prior convictions for armed robbery in both 2004 and 2012.
[7]Psychological report of Dr Wood dated 16 December 2021.
24Dr Wood describes your background as one marked by significantly impoverished social and emotional attachments in childhood resulting from repeated physical sexual and emotional abuse and neglect in multiple settings. In her view, it is as a result of this background of developmental trauma and neglect that you have developed a profound sense of worthlessness and internalised shame and self-blame, perceiving yourself to be not only rejected by your family and society but to be unlovable and unworthy of the attention and support of others. In Dr Wood's view, you have had longstanding problems with depression, anxiety, and other distressing symptoms consistent with a long-term diagnosis of complex PTSD.[8]
[8]Ibid.
25You have had one significant relationship in your life that lasted several years. I note that this relationship commenced after your release on parole in approximately May 2017 and ended around the time of your accident in March 2020. It was as a result of this accident that you suffered a traumatic brain injury.
26This relationship I am speaking of was with a woman named Sarah, who you met on a dating website. You described Sarah as a beautiful person, she was not a drug user and she did not judge you. When you met her, she had three children and you took on the role of stepfather. You and Sarah have one child, Mackenzie who is now over two years of age. For a period of time, it appears that you were able to live a stable and law-abiding life. No doubt, this was as a result of the nurturing and loving environment you experienced with Sarah. You successfully completed your parole without breach in October 2018.
27On your account, you unfortunately sabotaged this relationship as you considered yourself to be not good enough and felt you did not deserve her. Although this is something that you regret, you believe that she is better off without you. Yesterday at your Plea Hearing, you told me that you keep in contact with Sarah and Mackenzie via your sister. Your sister has contact with them from time to time and you speak with your sister every day and get updates. Hopefully Mackenzie and Sarah will be part of your motivation to rehabilitate.
28It appears from your prior history that after release in 2017 you did not come to the attention of the courts, save for two driving matters. In March 2020, you experienced a devastating accident where it is believed you were hit by a car. You were found on the side of a road by a passer-by. You had a Glasgow Coma Score of three and required resuscitation. This accident has had a life-changing impact on you. Not only has it affected your memory and functioning, but you have a hole in your skull that leaves you extremely vulnerable, particularly in the prison setting.
29I note that you were admitted to the Royal Melbourne Hospital on 9 March 2020 until 27 March 2020. You were at the Royal Talbot Rehabilitation Centre from 27 March 2020 until 23 April 2020. Although your health records indicate that Sarah remained somewhat supportive of you whilst you were in hospital and at Royal Talbot for rehabilitation, you were not able to stay with her upon your discharge. Instead, you went to live with your brother and sister-in-law. Unfortunately, they had their own issues with drug addiction and were using heroin heavily and committing crime to support such use. In this setting, not surprisingly you relapsed. You told Dr Wood that you 'had nothing, nobody. No one cares. [You] just felt like shit' and so you gave in to temptation[9]. I note on the day of the offences you report having used Xanax which was in part why you could not recall the offending in detail.
[9]Psychological report of Dr Wood dated 16 December 2021.
30It is in this context that the current offending occurred. I consider that rather than being just a continuation of your previous offending it would appear that it occurred after a considerable period where you had been able to have a somewhat productive and happy period in your life. At the time of the offending, you had lost a relationship and stability and you had sustained the traumatic brain injury. This accident had a dramatic impact on your already compromised and fragile psychological state.
Mental health and the application of Verdins
31As mentioned previously, a psychological report from Forensicare was requested by the Court and a very comprehensive report from Dr Melissa Wood was received as a result.[10] Given the opinion provided by Dr Wood, your counsel argued that the principles of Verdins[11] should apply in your case.
[10]Ibid.
[11]R v Verdins (2007) 16 VR 269.
32Mr Crouch, on behalf of the prosecution readily conceded that limbs 5 and 6 of Verdins[12] were clearly made out on the basis of the opinion from Dr Wood. However, he argued that because the causal link between the offending and the mental illness described by Dr Wood was 'indirect' by virtue of your ingestion of drugs, this was insufficient to engage limb 1 of Verdins.[13] Accordingly, he submitted that your moral culpability should not be reduced and general deterrence should not be moderated in reliance on the Verdins principles. Mr Crouch did concede that the principles of Bugmy[14] applied and made out a more direct route to a reduction in moral culpability and a moderation in the weight to be given to general deterrence.
[12]Ibid 32.
[13]Ibid.
[14]Bugmy v The Queen [2013] 249 CLR 571.
33In support of his argument, Mr Crouch referred to a case of Avan v The Queen [2019] VSCA 257.[15] In this case, the appellant offended in the context of a drug‑induced psychosis. This psychosis was brought on as a result of his ingestion of cannabis and the appellant had not been put on notice by previous cannabis use that the drug could induce him into a psychotic state likely to precipitate criminal offending. The Court of Appeal allowed the defence appeal on the ground of manifest excess and considered it likely that the sentencing judge gave too little weight to the appellant's reduced moral culpability and to the 'low level' of his offending – which was influenced by deranged and altruistic and humanitarian motives – and too much weight to general and specific deterrence and denunciation. I do not consider this case to be entirely on point to the fact scenario here.
[15]Avan v The Queen [2019] VSCA 257.
34As the Court of Appeal has also recently said, a sentencing court must scrutinise claims that an impairment of mental functioning contributed to offending in such a way as to enliven the first principle in Verdins. In such circumstances, a court will ordinarily require clear expert evidence before accepting that a pre-existing mental or cognitive impairment also made a material contribution to the offending. [16]
[16]Daniel Thomas v The Queen [2021] VSCA 97
35In the case currently before me, so in your case, the uncontested opinion from Dr Wood in this regard is as follows:
'From a diagnostic perspective, Mr Woods has suffered longstanding complex post-traumatic stress disorder and major depressive disorder over many years, likely since at least adolescence, as indicated by his past referrals to psychological counselling. These conditions in turn have contributed to his long-term poly substance use disorder, predominantly heroin as a means to suppress or cope with these painful experiences. Following the accident, this further single-incident trauma and its consequences appear to have triggered an acute exacerbation of his PTSD and depression, including intrusive memories of both the accident and his historical abuse, and acute sense of shame, loss of self-worth, and misdirected self-blame for the accident and his resulting loss of cognitive functioning. These conditions were likely to be present and acute at the time of his offending, contributing directly to his relapse into substance abuse, which in turn drove his disorganised acquisitive crimes. In my view, therefore the casual nexus between his mental health symptoms and his offending behaviour is indirect (via his substance abuse) but clear. His acute shame, self-hatred, and distress arising from his symptoms would have impaired his ability to make calm and rational choices (believing himself to be bad/evil, sense of giving up, “needing” to use drugs or otherwise unable to cope), and his resulting use of substances to alleviate this distress would have disinhibited his actions at the time of the offending.”[17]
[17]Psychological report of Dr Wood dated 16 December 2021, at [26].
36On the basis of Dr Wood's opinion, I accept that your longstanding psychological conditions, particularly complex PTSD, were exacerbated by your accident in March 2020 which triggered acute PTSD and depression. Further, I accept that at the time of your offending these conditions were likely to be present and acute, contributing directly to your relapse into substance use. Although the nexus is indirect in the words of Dr Wood, she describes it as a 'clear' nexus. Your compromised mental health and relapse into drug use are inextricably linked. Dr Wood is of the view that the distress arising from your symptoms would have impaired your ability to make calm and rational choices and your resulting drug use, to alleviate that distress, would have disinhibited your actions as the time of the offending. In these circumstances, I find that the first limb in Verdins is enlivened in your case and as such I find that your moral culpability for the offending should be somewhat reduced and that there should be some sensible moderation in the application of specific and general deterrence.[18]
[18]Ibid.
37In arriving at this view, I have taken into account a range of matters, including the following:
(a) Your longstanding mental health issues which were exacerbated by the traumatic brain injury you suffered in 2020.
(b) You had enjoyed a relatively stable and largely offence-free period in your life in the lead-up to the offending. In this context, the offending could not be seen as merely a repetition of your previous criminality.
(c) Your offending, although serious, did not have the hallmarks of a well-planned and well-executed crime. Rather, your offending was disorganised, spontaneous, and quite bizarre, thereby lending support to the view that your judgement was impaired as a result of your poor mental state such that you should be viewed as less blameworthy.
(d) Your drug use and your mental illness are inextricably linked and at the time of your offending both were operating to cause your mental state to become compromised.
Limbs 5 and 6 of Verdins
38In regard to your current experience in custody, Dr Wood gave a number of opinions;[19]
(a) First, you continue to experience acute symptoms and meet full criteria for both single incident and complex PTSD. Your depression is partially managed by medication and as such you did not meet the criteria for a full depressive episode at the time she interviewed you. Your poly substance use disorder was in early remission in a contained environment. Dr Wood recognised that as such the prison setting may be beneficial for you in some respects.
(b) Second, you are highly vulnerable in custody on account of your ABI and ongoing mental health symptoms. The prison environment was likely to be more onerous upon you than for the average prisoner because of your hypervigilance, your reported potential risk of head injury causing death, and your interpersonal vulnerability (to stand over tactics for your medications, and to victimisation for appearing 'retarded' and your reliance on others).
(c) Third, given the overlay of your mental health and cognitive issues you are likely more vulnerable to being targeted by other peers and subjected to intimidation and violence. This in turn might affect your placement within the prison including potential periods in management either for self-protection or because of your own impulsive actions in retaliation. This type of potentially cyclical and prolonged seclusion would likely worsen your PTSD symptoms as would other forms of isolation as a result of prison lockdowns due to COVID-19.
(d) Conversely, your hypervigilance and anxiety symptoms would also be prone to worsening in other custodial conditions such as chaotic, noisy and unpredictable surrounds.
(e) Lastly, in the prison setting you are likely to have reduced access to sufficiently intensive psychological interventions, the most efficacious and the most appropriate medications for your physical symptoms, and the requisite formal supports for your cognitive difficulties as compared to the community setting.
[19]Psychological report of Dr Wood dated 16 December 2021.
39Having regard to these factors, I am of the view that limbs 5 and 6 of Verdins are enlivened in your case and as such your sentence should be suitably moderated.
40In addition, I take into account that incarceration during the pandemic has been made more difficult because of the numerous lockdowns, the need for periods of quarantine, the limited rehabilitation programs available and the lack of visits. You would have found it very difficult to self-isolate and control your surroundings and it would have been extremely worrying to you that you may contract COVID-19.
Application of Bugmy principles
41Mr Tait on your behalf, also submitted that the principles of Bugmy[20] applied in your case and should also reduce your moral culpability. The case of Bugmy stands for the proposition that profound childhood deprivation is directly relevant to sentencing in and of itself.[21] This is so because it is likely that moral culpability will be reduced for someone whose early years have been marked by such disadvantage. The effects of such hardships do not diminish over time and full weight must be given to those matters in sentencing. Bugmy principles are relevant to the court's assessment of moral culpability for the offence itself and also for the Court's consideration of the weight to be given to your prior criminal history. This is quite separate and in addition to the application of Verdins.
[20]Bugmy v The Queen [2013] 249 CLR 571.
[21]Ibid 46.
42In your case, I accept that your childhood involved extreme deprivation. As I have already referred to, your mother was a heroin addict who abandoned you at age two, you were abandoned by your father and stepmother at age seven, you were physically, emotionally and sexually abused in state care, then subjected to a lack of supervision and support in youth group homes and then outcast when you attained the age of 17 years. These experiences have had a substantial impact upon you and have been directly responsible for your ongoing and profound mental health issues, as I have mentioned above when recounting your personal history.
43As a result, I find your moral culpability should be somewhat reduced. I also consider that these same factors would have been in operation at the time of the majority of your prior offending, and therefore assist in putting your prior convictions in context. It is still my view that there is a place for general and specific deterrence in your case, although it is reduced as a result of my findings pursuant to the Bugmy principles.
Prior history
44Mr Woods, you have a significant prior history that now extends to some 18 pages. As mentioned previously, the most relevant prior convictions for my purposes are those for armed robbery from 2004 and 2012.
45You are not to be sentenced again for your prior criminal history, nor should you automatically receive a more severe penalty each time you reoffend and come to court. The principle of proportionality dictates that upper limits of a proportionate sentence are set by the objective circumstances of the offence which do not include prior convictions.
46Of course, extreme recidivism, as evidenced by a considerable prior history, can elevate considerations of specific and general deterrence and community protection and can impact negatively upon a person's prospects for rehabilitation.
Rehabilitation
47In assessing your prospects for rehabilitation, I have taken into account the following factors;
(a) Your prior history.
(b) The risk assessment conducted by Dr Wood that indicates you are a high risk of reoffending.
(c) Your successful completion of parole in 2017 and 2018 and that gives the Court some comfort that you are capable of reformation given the right supports and in the right environment.
48Mr Tait has referred you to the Restart program and there has been some contact with this service already. I really encourage you to get involved with all those services because they are there to help you. It would be really good if they can start that groundwork while you are there in custody so you get to know those people and you can build up a relationship with them.
49OFFENDER: I will do that.
50HER HONOUR: Yes, great.
51Dr Wood makes a number of recommendations in her report that should be implemented if at all possible.[22] In particular, she refers to a Prisoner Disability Support Initiative for which you may be suitable. I said yesterday that I might ask for some more information about that. My staff made contact with Forensicare and they were able to forward through information about this initiative and a referral form has been forwarded to Mr Tait who I understand has completed that or is in the process of completing that and lodging that on your behalf. So again, I really strongly encourage you to get involved with that program because it is really designed to help you and you can only benefit from it.
[22]Psychological report of Dr Wood dated 16 December 2021.
52Clearly, your prospects for rehabilitation are closely linked to the supports and programs that you can undertake both in gaol and in the community.
53In all of these circumstances, I assess your prospects for rehabilitation as guarded. However, I am hopeful that given you have been able to enjoy a period of relative stability in the past with support, you will be able to achieve your goal of living an offence-free life if you do have some support. And if that is the case then you will be able to have meaningful contact with your daughter.
Sentencing
54I consider that the relevant sentencing principles that must be applied in your case are specific and general deterrence albeit both moderated to a degree as a result of the application of Verdins and Bugmy, denunciation, protection of the community and just punishment. I also consider the principles of parsimony and proportionality as part of the sentencing exercise. I am of the view that community protection in your case would be best achieved by your rehabilitation.
55I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 (Vic),[23] where relevant to your case and I have also taken into account as far as possible the current sentencing practices for the offences now before the court.
[23]Sentencing Act 1991 (Vic) s 5.
Totality and aggregate sentences
56In your case, the offences of armed robbery and robbery are aggravated by the fact that they occurred in the home of each of the victims. I am, however, mindful of the fact that you have been charged with an aggravated burglary for each of these offences and in these circumstances I should be careful to avoid double punishment.
57In the Director of Public Prosecutions v Frewstal Pty Ltd, Maxwell P described the kind of case for which an aggregate sentence is appropriate as: [24]
'One where the number, similarity and proximity in time of the offences is such that it would be an artificial exercise to impose individual sentences and then, by means of modest orders for cumulation, to arrive at a total effective sentence proportionate to the total criminality. The archetypical example is the case of multiple offences of burglary and theft, committed over a relatively short period where an aggregate sentence is a "more flexible and pragmatic" way of "reflecting all of the offender's conduct".
[24]DPP v Frewstal Pty Ltd [2015] VSCA 266, 44.
58This was recently affirmed as the correct approach by the Court of Appeal in the case of Sinclair v The Queen [2021] VSCA 144.[25]
[25]Sinclair v The Queen [2021] VSCA 144.
59The offending before the Court could fairly be described as being part of a series of offences of the same or similar character, which is a prerequisite for imposing an aggregate sentence pursuant to s9 of the Sentencing Act.[26] There are however perceptible differences in the seriousness of the offending that mitigates against one aggregate sentence. To avoid double punishment and to deal with the offending in a pragmatic way, I have determined that I should impose an aggregate sentence for the offending subject of Charges 1 and 2, a separate aggregate sentence for the offending subject of Charges 3 and 4, and Charge 5 will be dealt with by way of a straight sentence.
[26]Sentencing Act 1991 (Vic) s 9.
60In terms of totality, I have had regard to the fact that all five charges took place on the one day, in the one episode, at the one location over a period of approximately 40 minutes and involved three separate victims.
Disposition
61Mr Woods, could you please stand.
62In relation to Charges 1 and 2, I sentence you to an aggregate term of imprisonment of 18 months.
63In relation to Charges 3 and 4, I sentence you to an aggregate term of imprisonment of four years, this is the base sentence.
64In relation to Charge 5, I sentence you to a term of imprisonment of six months. I order that two months of the sentence on Charges 1 and 2 be cumulative on the base sentence.
65The total effective sentence imposed is therefore four years and two months and I order that you serve a period of 21 months before being eligible for parole. I reckon 276 days have already been served by you by way of pre-sentence detention.
66I have provided a shorter than usual non-parole period to reflect the special circumstances of your case, in particular, the fact that you have limited ability to get the programs you require in custody, your successful past performance on parole and the need for you to be supervised and supported upon your release and return to the community. I note the prosecution was not opposed to the imposition of a shorter than usual non-parole period that provided an increased period of supervision in the community.
67Pursuant to 6AAA of the Sentencing Act, I indicate the total effective sentence I would have imposed in your case had you not pleaded guilty would be one of six years with a non-parole period of four years.
68And that is it. Is there anything that I have missed?
69MS PICONE: Nothing further, Your Honour.
70HER HONOUR: All right. Mr Tait?
71MR TAIT: Nothing from me either, Your Honour.
72HER HONOUR: All right. So there you have it, Troy. All right? You have got another 12 months.
73OFFENDER: Thank you very much to all of you for helping me. I really appreciate it.
74HER HONOUR: All right. I really hope that you can make a go of things and that you know, you can stay out of trouble and live a normal life in the community.
75OFFENDER: I will do that. I am not coming back, never again.
76HER HONOUR: I bet it has not been very pleasant this time round.
77OFFENDER: No, it has been very scary at some points.
78HER HONOUR: Yes.
79OFFENDER: But I understand. This is where I need to be to get the help that I need at the start otherwise I could be doing a lot longer like you said.
80HER HONOUR: Yes. So yes, good opportunity to keep the drugs out of your system and you know, get out with a clean start like you did before and who knows. So good luck.
81OFFENDER: Thank you very much.
82HER HONOUR: No worries. All right. Thanks Mr Tait and thanks Ms Picone. And also thank you to Mr Crouch for his submissions as well. And we will adjourn the court.
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