Director of Public Prosecutions v Wos

[2020] VCC 1854

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00820

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAUN WOS

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2020
DATE OF SENTENCE:	24 November 2020
CASE MAY BE CITED AS:	DPP v Wos
MEDIUM NEUTRAL CITATION:	[2020] VCC 1854

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	Mr M. Roper (Plea) Ms E. Brownstein (legal trainee, supervised by Ms E. Finnigan) (Sentence)	Office of Public Prosecutions
For the Accused	Mr P. Skehan	Gallant Law

HIS HONOUR:

Introduction

1Shaun Wos, you have pleaded guilty to these charges:

(a)  first, on 27 November 2018 you robbed a person of money and had with you a knife;

(b)  second, on 29 May 2019, you entered a hotel as a trespasser with intent to steal and had with you a knife;

(c)  third, on 29 May 2019, you stole money from the hotel;

(d)  fourth, on 8 January 2020, you robbed another person of money and had with you a knife.

2The maximum penalties for the first and fourth charges are 25 years’ imprisonment.  The same maximum penalty applies to the second charge.  The maximum penalty for the charge of theft is 10 years’ imprisonment.  For each of these offences there is an ability to impose fines.  However, no one submitted I should consider fining you and, in any event, it would be inappropriate.

Circumstances

3What happened on each of the occasions is described in the document entitled “Amended summary of prosecution opening on plea”, which is Exhibit A in this proceeding.

Charge 1

4On 27 November 2018, Giuseppe Furnari was the TAB and gaming manager at the Golden Fleece Hotel in High Street, Melton.  Just before 3 pm that day, you entered the hotel, carrying a large kitchen knife and were disguised.  You approached the TAB counter. There were six patrons in the gaming venue then.  You approached Mr Furnari.  He said: “Hey buddy how are ya?”, to which you said: “I’m taking the till”.  Since Mr Furnari saw the knife, he did not stop you.  You jumped over the counter and stole $1,100 from the cash register.  You jumped over the counter again, fled the hotel and ran back to your motor vehicle and drove away.

Charges 2 and 3

5At about 12.58 pm on Wednesday, 29 May 2019, you parked your car in Palmerston Street, Melton.  About 12 minutes later, you entered the same hotel.  You were again disguised.  You again possessed a large kitchen knife.  You ran to the TAB counter.  There were nine patrons present.  You entered the counter through an open door, opened the cash drawer, took $1,500 from it and ran from the building, ran to your motor vehicle, discarding part of your disguise along the way.

Charge 4

6On Wednesday, 8 January 2020, you parked your car near the intersection of Smith and Henry Streets, Melton.  You walked to the same hotel, entering it at about 11.30 am.  You walked to the TAB counter.  This time you were brandishing a large kitchen knife.  You spoke to Aaron Theuma, who was the hotel’s manager.  He saw the knife and was afraid.  He handed you a wrist band which allowed access to the cash drawer.  You stole $620 from it.  You fled, returned to your car and drove away.

7I have seen the CCTV footage of each occasion.  Each occasion is short, a matter of moments.  You knew what you were after and moved quickly.

8On 22 January 2020, you were arrested at your employer’s premises in Yarraville.  You were interviewed and made full admissions.  You attributed these offences to your gambling addiction, the financial strain of starting a family and using methylamphetamine.  The stress was such you had contemplated suicide three times.  The stolen monies were used to buy day-to-day items and for gambling.

9You remained in custody until granted bail on 21 February 2020.  Your bail was revoked on 19 August 2020 and you have remained in custody since.

Victim impact statements

10Mr Furnari and Mr Theuma were asked if they wished to submit victim impact statements and they said they did not.

Criminal history

11You have no previous convictions or findings of guilt.

Guilty plea

12You were arrested on 22 January.  You appeared in court the next day for a filing hearing.  I daresay directions were given for the service of the brief of evidence and adjourned for a committal case conference.  There were two further adjournments for negotiations until 1 July when you were committed at another committal case conference.  In terms of court events and their significance, these pleas of guilty were made at an early opportunity.

13They are also evidence of your remorse.  Coupled with the expressions of remorse you have made to others, I am satisfied you are remorseful.

14They assist in the administration of justice in permitting the prompt finalisation of this matter and the relieving the witnesses from the need to give evidence.  To prosecute these offences, the prosecution listed 33 potential witnesses.  I imagine the evidence of many of those witnesses would be short, nevertheless, a trial would have occupied many days.

15Overall, your guilty pleas deserve a significant discount on the sentence that would be imposed in their absence.

Sentencing statistics

16The prosecutor referred me to a publication of the Sentencing Advisory Council entitled “Armed robbery”.  It examines the sentences imposed in this Court and the Supreme Court for the 5 years between 2014-5 and 2018-9 where armed robbery was the principal offence.

17Over the period, 83.1% of offenders received an immediate custodial sentence.  Excluding those who received aggregate sentences, the median length of imprisonment was 3 years with the most common range between 3 and less than 4 years.  The average length of imprisonment was 2 years and 8 months.  The least sentence was 1 month (combined with a community correction order) and the most 8 and 1/2 years.

18The median figure is where half of the sentences were above it and half below.  The average is where the sum of the sentences is divided by the number of sentences.

19Where the charge of armed robbery was heard with other charges at the same time, the average number of additional charges was 3.16.

20Where a person was sentenced to imprisonment and a non-parole period set, the average length of the total effective sentence increased from 3 years and 11 months in 2014-2015 to 4 years and 5 months in 2018-2019.  For the same years, the non-parole period increased from 2 years and 4 months to 2 years and 8 months.

Personal

21You are now 33.  You are the middle of three children.  You grew up in the Deer Park area and were educated to Year 10 level.  Since leaving school, you have been in continuous employment as a storeman and truck driver until February this year.  You were good at sport.  In fact, you met your wife, Chloe, in April 2011 at a football match; you were 23 and she was 20.  You married in September 2015 and have a child, Hailey, who is now 13 months old.

22You left home at 21 and bought a house in Caroline Springs.  This was in 2010 and before you met Chloe.  Initially, you lived in it and rented a room to help with the mortgage payments.  Later, you and Chloe lived in that home.  You and she separated briefly in 2016.  However, your drug debts led to you falling behind in your mortgage payments.  Despite working, your drug and gambling debts saw you borrowing from your mother and from lenders.  The latter extended short term loans at high interest rates.  Ultimately, it became unmanageable and you were forced to sell your home.  You and your family moved to Melton where a home was rented.  Your wife and daughter still live in Melton.

23You started using cannabis at about 25 and then went to synthetic cannabis.  This continued until you were 27 when you completed a residential drug rehabilitation programme.  You had used cannabis and synthetic cannabis to manage the symptoms of your depression.  However, at about that age, you were introduced to methylamphetamine by a friend.  You also used this drug to deal with the symptoms of your depression.  Until your arrest, you used this drug two or three times a week and half a gram to a gram each time.

24The gambling started in your early 20s.  It started as a recreational outlet but escalated out of control to spending thousands of dollars a week.  You borrowed from your mother and from expensive lenders.

25Following your bail in February, you returned to live with your wife and daughter until 7 May when you left and went to live your sister.  This arose out of arguments with your wife or as you put it, “constant bickering”.  While living with your sister, there was an outbreak of COVID-19 at her workplace.  She needed to self-isolate as did you.  You retreated to your bedroom.  You resumed gambling and using methylamphetamine.  When she found out, your sister reported these matters to the police.  You were charged with possession of methylamphetamine and committing an indictable offence while on bail and fined.  More significantly, your bail was revoked on 19 August 2020 and, as I have said, you have remained in custody since.

26As I said earlier, you were bailed on 21 February.  A condition of that bail involved the Court Integrated Services Program.  Your involvement lasted between 21 February and early July.  I was shown the final progress report.  Having seen many of these reports as a magistrate, it is an excellent report.  You attended all case management appointments.  You abstained from drug use.  You completed a standard episode of drug and alcohol counselling, engaging appropriately.  You were referred for mental health assistance. You were prescribed an anti-depressant medicine, Mirtazapine.  This medicine improved your sleep.  You underwent counselling over your gambling.  You did not gamble.  You resolved your indebtedness by becoming bankrupt.  This improved the state of your mental health.

Psychological assessment

27Lisa Jackson is a psychologist.  At the request of your solicitors, she interviewed you on 12 February 2020 and wrote two reports.  The first report was prepared to support your bail application on 21 February.  It did assist for you were granted bail.

28In that report, Ms Jackson took a detailed history.  Using two tests, she concluded you were in severe psychological distress and in the severe clinical range for depression.  For stress and anxiety, your symptoms were in the moderate range.

29If I am reading Ms Jackson’s report correctly, she sees your underlying problem as depression.  According to the history you gave her, she traced the emergence of your mental health problems to when you stopped playing football.  You were then in your 20s.  You stopped because you felt overwhelmed by the pressures of work, training schedules and the responsibilities of marriage.  But stopping adversely affected you.  It led to you losing fitness, social inclusion and the escape from the daily stresses of your life which sport gave you.  She then sees your drug use and gambling as a means of escaping, leading to indebtedness.  They failed in that you have thought seriously about suicide but drew back after considering the effect upon Chloe and your mother, in particular.

30She diagnosed a recognised disorder, Gambling Disorder, characterised by “persistent and recurrent problematic gambling behaviour leading to clinically significant distress and impairment.”

31Using another test, Ms Jackson considered you were a 31.1% chance of
re-offending within a year of sentencing.  Apparently, she assumed you would be released at the time of sentencing.  Nevertheless, she felt it likely that this level of risk could be reduced with appropriate treatment.

32Ms Jackson did not re-interview you.  However, your solicitors asked her to comment on further matters, which she did on 21 September 2020.  She was aware of the events following being bailed and its revocation.

33Your description to her of the path leading to the revocation shows how vulnerable you are. After the grant of bail, you lived with your wife for 2 months.  However, problems arose, following arguments and then separation.  You then lived with your sister.  Because COVID-19 was suspected at her workplace, you were forced to self-isolate in her home.  You became depressed and isolated, leading to further gambling and drug use.  The police intervened over the latter.  Your bail was revoked and you were fined for offences.

34This setback reinforced the need to address your depression for it is the link to your drug use and gambling.  She felt you should be psychiatrically examined for the medicine you take may need reviewing.

35Ms Jackson remained hopeful, saying[1]:

“With support and monitoring, his risk of re-offending will be reduced.  He does not have any prior legal history, he expressed remorse in relation to the charges, he had some protective factors in his life such as family support, treatment compliance, motivation to make changes and a good employment record with the possibility of returning to work on his release.”

[1] Report dated 21 September 2020 at p 4.  

Letters

36I have read your letter and the letters of your wife and your mother.

37Following your separation in May 2020, your wife has remained your friend and has kept in constant contact since the revocation of your bail.  She does not say she will have you back upon your release.  What she does say is that she still holds great hope for you and believes you can overcome your addictions and mental health issues with the right treatment and support.  As she says at the start of her letter, she could not believe you were involved in armed robberies.  She remains optimistic but cautious.

38Your mother expresses the same qualified optimism[2]:

“Shaun’s actions have caused me and the rest of the family a lot of pain but we still have great hopes for him and believe with treatment he can overcome his addictions and become a contributing member of society again.”

[2] Letter dated 24 October 2020.

Discussion

39In her letter, your wife expresses astonishment at you committing these offences.  When first contacted by the police, she queried them as to whether they had the right person.  She could not believe you were capable of committing serious offences.  However, I am.  At the times of the offences, you were using methylamphetamine regularly and at significant levels. You were addicted to the drug.  Under the influence of this drug, previously peaceful persons are capable of committing violent offences.  Your need for money was the motive.  The influence of the drug gave rise to the method.

Rehabilitation

40Assessing your prospects of rehabilitation is not easy.  You may want to resume living with your wife and daughter upon release, but she is unlikely to agree until there is satisfactory evidence of you ceasing drug taking and gambling and undergoing treatment.  Her reluctance is understandable.

41Following your arrest, you remained in custody for 31 days.  This was your first experience of custody.  You were granted bail on 21 February 2020.  The conditions of your bail included what is colloquially known as a “CISP” condition.  That is, you were required to participate in the Court Integrated Services Program.  As part of that condition, you completed a standard episode of drug and alcohol counselling.  According to your drug counsellor, you engaged appropriately and worked on identifying the triggers of your drug use and how to manage these.  You also attended a medical clinic under a mental health care plan.  You were prescribed an anti-depressant medicine.  It improved your sleep.  You ceased attending because you felt you no longer needed help.  With your gambling, you were given counselling and a relapse prevention plan was developed.  Finally, after contacting a counselling service, the burden of your debts, totalling $34,000, was removed through your bankruptcy.  Presumably, the CISP condition was removed from your bail in early July.  However, the optimism arising from your excellent performance was misplaced.  By August, you had returned to using methylamphetamine and gambling.  The strain of being confined to your sister’s house and your room was too much even though so much was at stake.

42You have a long and consistent work history, especially in truck driving.  I would expect you would be able to find satisfactory work on release.

43You have retained the strong support of your mother and, presumably, your sisters.

44Your prospects of rehabilitation are reasonable.  They would be better if your underlying weaknesses are overcome or, at least, lessened significantly.

Sentence

45On Charge 1, I will sentence you to 30 months’ imprisonment.  This is the base sentence.

46For each of Charges 2, 3 and 4, I will sentence you to 30 months’ imprisonment.

47Ten months of Charge 2 and charge 4 are cumulative upon themselves and Charge 1.  The total effective sentence is 50 months.  I will set a non-parole period of 30 months.

Pre-sentence detention

48I declare the period of 129 days of pre-sentence detention, excluding today, reckoned as already served.

S 6AAA

49Absent your pleas of guilty, I would have sentenced you to a total effective sentence of 70 months' imprisonment with a non-parole period of 42 months' imprisonment.

Confiscation

50Under s.32 of the Confiscation Act 1997 (the Act) , the Director of Public Prosecutions initially sought an order forfeiting your Holden Commodore motor vehicle.  However, I understand that order is no longer sought.

51I am correct in that understanding, am I not?

52MS BROWNSTEIN:  Yes, Your Honour.  We are no longer seeking to pursue that order.

53HIS HONOUR:  All right.

54MS BROWNSTEIN:  Thank you.

55HIS HONOUR:  Are there any other matters that either of you wish me to address?

56MS BROWNSTEIN:  Right.  Your Honour, we are still pursuing the disposal order of the accused's property - Mr Wos' property.

57HIS HONOUR:  Mr Skehan, you have no objection to me making that order, have you?

58MR SKEHAN:  No, Your Honour.  Just for the benefit of Mr Wos, that is the knife and the other accoutrements, so the other things used in the armed robbery.

59HIS HONOUR:  Yes.  All right.  Well, I will make that order.  Apart from that, is there any other matter?

60COUNSEL:  No, Your Honour.

61HIS HONOUR:  Mr Skehan, do you want to, after I have adjourned, do you want to continue to use this audio-visual link to speak to your client?

62MR SKEHAN:  I would be indebted if you would allow for that to happen, Your Honour.

63HIS HONOUR:  All right.  You can arrange that, Mr Associate, can you?

64All right.  Well, I will adjourn this courtroom until 10.30 - I will have my tipstaff adjourn the court for me until 10.30.

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