Director of Public Prosecutions v Wraith, Jarred

[2013] VCC 439

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

AT MELBOURNE

CRIMINAL DIVISION

Case No.  CR-12-02248

DIRECTOR OF PUBLIC PROSECUTIONS

v

JARRED WRAITH

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2013
DATE OF SENTENCE:	6 March 2013
CASE MAY BE CITED AS:	DPP v Wraith, Jarred
MEDIUM NEUTRAL CITATION:	[2013] VCC 439

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Ayers	OPP
For the Accused	Mr P Purcell

HIS HONOUR:

1       You are now aged 32 and at the time of the offending you were aged 31.  You were arrested and charged on 12 September 2012 and at the committal mention on 5 December 2012 the matter proceeded by way of straight hand up brief and you indicated your intention to plead guilty at that time. 

2       With respect to the particular offending, at 6 September the victim, a Japanese tourist aged 28, was at the Middle Footscray Railway Station on her own waiting to catch a train, late in the evening at 10.20 pm.  You and an unknown male accomplice were present at the train station, both wearing tops which covered your heads but not your faces.  You walked up to where the victim was sitting alone on a bench and you produced a syringe, indicating you wanted her bag.  You then moved closer towards her when she refused and you continued to point the syringe at her. 

3       The unknown accomplice then approached her and snatched her bag and took her belongings including her purse with $25 cash, an electronic multilingual dictionary, an Apple iPod, cosmetics and other matters, including her Commonwealth Bank debit Mastercard, and those matters give rise to Charge 1 of armed robbery.

4       Over the next 90 minutes you and your co-offender attended seven different 7-11 convenient stores in the surrounding areas where the victim's Commonwealth Bank debit Mastercard was used to purchase, or attempt to purchase, mostly cigarettes, and Charge 2 concerns the goods to the value of $58, Charge 3 concerns goods to the value of $67, Charge 4 goods to the value of $83, Charge 5 goods to the value of $83, Charge 6 goods to the value of $83, Charge 6 goods to the value of $91, Charge 7 goods to the value of $83, Charge 8 is an attempt, where you have attempted to buy food and cigarettes but you were unsuccessful, Charge 9 is another attempt where you tried to get food and cigarettes and it was unsuccessful, and the final Charge 10 concerns goods to the value of $34, or thereabouts.  The total amount of the deceptions amounted to about $500.

5       You were arrested and conveyed to Footscray and you made explanation of various events in your recorded interview in which you make an explanation which is substantially consistent with the events as the victim recorded it., although there are denials by you with respect to committing the armed robbery or using a weapon.

6       There is also no victim impact statement tendered in this matter.  I do not know in the circumstances whether she was offered the opportunity of making such a statement but I have no doubt that that hour in those circumstances she would have been very fearful of you and your co-offender, appearing as you did and threatening her as you did with a syringe.

7       Of course it was pointed out by your counsel there are a number of mitigating factors.  You have pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so.  The community has, by your plea, been spared the time and cost of a trial and witnesses have been spared the ordeal of giving evidence upon your trial.  And I can tell you the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.

8       Further, I take it into account in your favour that you indicated early your intention to plead guilty to these charges.  You were apprehended in the circumstances described a few days later, and as I say, admitted substantially your part in the crime, and in the circumstances I accept that your plea does indicate remorse for your actions.

9       I have been told something of your personal history and circumstances, and indeed, these matters are set out in a report produced and tendered on your behalf authored by Mr Billick, a psychologist, and indeed submissions were made as to these matters as well.  It is clear you have had a turbulent childhood and I think it appropriate to briefly summarise it.

10      You were orphaned at approximately ten years of age following your mother's suicide.  Your mother had earlier served an approximately three year term imprisonment for the killing of her husband, your father.  Your father was a violent man and he had been involved in the trafficking of drugs.  You described your childhood as characterised by exposure to criminal elements, drug taking, police raids and violence, and of course, sadly you reported you also witnessed your mother being sexually assaulted.

11      You did reside with your maternal aunt and uncle while your mother was in custody, having been imprisoned as a consequence of her killing of your father.  You were soon placed in state care and your behaviour deteriorated subsequently.  You reported numerous foster care and residential unit placements throughout your adolescence and, of course, that was linked to the commencement of negative peer associations and substance abuse. 

12      There were periods of transience and homelessness during the time and of course, as was commented on by Mr Billick, during that time there was minimal support by way of behavioural boundaries, emotional support, guidance and nurturing. 

13      Your school was highly problematic.  You attended 20 different primary schools and you left school in Year 9.  You had various unskilled labouring roles after your school, mostly short term given your ongoing substance abuse.  There was apparently a three year period of stability when you were employed full time in a role packing and securing containers under quarantine, although your employment ceased when you began using substances again because you damaged the tendons in one of your arms as a result of an injury that apparently followed the funeral of an associate.

14      You have also previously been deemed unfit or of reduced capacity to work in various conditions and circumstances, relying on disability support pensions for income.  You disclosed an extensive poly substance abuse history.  You commenced alcohol, cannabis and nicotine use from adolescence.  You then began frequent use of amphetamines and heroin and that has remained essentially unresolved.  You have been able to achieve some stability in reduced substance use in the context of regular employment, although this is prone to relapse during periods of emotional distress.

15      

You have also admitted before me to prior convictions and there are many such convictions sadly involving 14 court appearances between 1998 and 2012.  The nature of some of those prior convictions, in particular the convictions for theft related or violence related matters, are clearly of high relevance to my task of sentencing you today.  As I say, a report from

Mr Billick has been tendered by consent and I have read it and take its contents very much into account. 

16      I have already reflected on matters of personal history which Mr Billick has set out.  He also undertook various tests and noted, with respect to the results of those tests, that you are in the high risk range of re-offending.  As to you primarily to you observing a criminal history, employment and associated financial difficulties, early school departure, criminal associations, parental abandonment, grief and neglect, you also maintain a generalised anxious state including symptoms of panic and low mood which taken together seemingly influence chronic substance abuse and dependence and criminal activity to support that.

17      Clinically, at the time of your offending, you would have likely met the diagnostic criteria for substance abuse and dependence and your failure to arrest substance use, combined with minimal behavioural boundaries and diminished parental support as a child and adolescence, has done little to prevent the emergence of a criminal lifestyle.  It's Mr Billick's view that a diagnosis of bipolar mood disorder remains vague and should ideally gain further clarification. 

18      Although one can never give up hope, of course, with respect to your circumstances, as dire as they are, and as longstanding as they are, there seems sadly little before me at this stage to suggest that there is any great likelihood of that.  However, in fixing an appropriate sentence, of course, I must seek to maximise such chances of your rehabilitation as there may be.  And indeed, some positive matters have emerged in your incarceration and I will return to those in a moment.  But certainly, in the recent past, you evinced an attitude and a determination whilst you are in custody to, in particular in the kitchen where you have taken up employment and I understand you have also taken up regular exercise, and of course these are most important and if you are to ultimately rehabilitate yourself and change your course of behaviour then it will very much depend on a successful outcome and you continuing to do what you have begun whilst in prison. 

19      Of course, as well as those matters personal to you to which I have referred, including the question of rehabilitation, I must take into account such matters as deterrence, and especially general deterrence, which is of considerable importance in a case such as this involving the threatened use of violence on a single woman late at night on a railway station.  Clearly, specific deterrence is also of significance given your range of prior convictions which I have reflected upon.  I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of you re-offending, which I find to be entirely dependent on the successful outcome of your current early steps towards your rehabilitation which you are taking whilst in gaol.  If you are able to continue that then there is some prospect that you may cease your offending in the future.

20      

Given the matters highlighted in the opening regarding your current incarceration, I sought from counsel a chronology of relevant matters with respect to your recent past and your incarceration and this has been done in it is now marked as Exhibit B.  You committed these offences whilst on parole and you were remanded in custody on 12 September 2012, and you have been in custody ever since.  The other matters of relevance are all set out in the chronology and have been further expanded upon this morning by

Mr Ayers in a helpful way.  In sentencing you, of course I will bear in mind as I said, issues of totality and also the provisions of the relevant legislation which we have discussed this morning.

21      Application has been made by the prosecution for a retention of an intimate forensic sample previously taken from you and you have not opposed that application and so I have made that order. 

22      These are without doubt serious offences and in all the circumstances I have no alternative to the imposition of custodial sentences, bearing in mind the principles of totality as they apply in your case.  Count 1, the offence of armed robbery, is three years' imprisonment; Count 2, three months' imprisonment; Count 3, three months' imprisonment; Count 4, three months' imprisonment; Count 5, three months' imprisonment; Count 6, three months' imprisonment; Count 7, three months' imprisonment; Count 8, two months' imprisonment; Count 9, two months' imprisonment; Count 10, three months' imprisonment.

23      Count 1; I direct that Count 1 will be the head sentence and that one month on each of Counts 2 to 10 inclusive will be served cumulatively on the sentence imposed on Count 1 and on each other  That results in a total effective sentence of three years and nine months' and I direct that you serve a minimum terms of two years before becoming eligible for parole. 

24      That is a long non-parole period which I have purposely set, bearing in mind the fact that you have been attempting to do positive things whilst you are currently in prison and this recognises that if you continue to do that then on your release you will have the benefits of the parole system to hopefully assist you in continuing that course of behaviour. 

25      Is there time in pre-sentence detention?

26      MR AYERS:  Just the ten days, Your Honour.

27      HIS HONOUR:  As prescribed by s.18(4) of The Sentencing Act I declare that the period of time you already spent in custody is ten days and I direct that such be noted in the records of the court.  And for the provisions of s.AAA, had you not pleaded guilty I would have sentenced you to a total effective sentence of five years' imprisonment with a non-parole period of three years.  Thank you Mr Wraith, if you could be seated.

28      Anything further?

29      MR AYERS:  I am just not sure whether, for full completeness sake and I know this occurs often in the lower jurisdictions, Your Honour, and maybe it is not required here but certainly where there is existing sentences, just to occasionally make it absolutely certain, there is a pronouncement that the current sentence is to be either served cumulatively or concurrently with existing state sentences.

30      HIS HONOUR:  I am happy to say that is my understanding of the relevant legislation that this sentence will commence at the end of the sentence he is undergoing, pursuant to the provisions of the section, that is, it is cumulative on his current sentence.

31      MR AYERS:  That is true.  That is the current sentence involving a parole period but for the current sentence involving a straight sentence, it is concurrent. 

32      HIS HONOUR:  Say again?

33      MR AYERS:  Because there is currently two sentences that are still active, in the sense that there is a straight sentence of six months that was imposed last week.

34      HIS HONOUR:  But that sentence will operate and nothing I do will change that.

35      MR AYERS:  I think Your Honour is right about that.

36      HIS HONOUR:  I mean, I am happy to be guided by you but I assume that that sentence simply will operate and as it was ordered to operate, whether it was ordered to operate concurrently with or - how was the previous sentence operating with respect to - or how were those two sentences operating?

37      MR AYERS:  The straight six months was operating immediately and therefore the remaining - - -

38      HIS HONOUR:  Concurrently with?

39      MR AYERS:  No,. the remaining parole period is held in abeyance until that six months expires.  As you will see at the bottom of the chronology, Your Honour, the straight sentence expires on 26 August.

40      HIS HONOUR:  Yes.

41      MR AYERS:  He may or may not get parole on that date but - - -

42      HIS HONOUR:  I cannot operate on the basis of whether he will or he will not.

43      MR AYERS:  You cannot, that is right.  Your Honour must operate on the basis that his parole will be completed.

44      HIS HONOUR:  January 2014.

45      MR AYERS:  That is right.  So the parole is cumulative upon the straight sentence.  It is a bit of an unusual situation; you have got two sentences and this is the third sentence effectively to be woven into that matrix, if you like.

46      HIS HONOUR:  Indeed Mr Ayers, I thought that with respect to my sentence that it was going to be cumulative on the sentence which completes on January 2014.

47      MR AYERS:  Entirely.  And I think Your Honour has made that clear, it is just that I am sure my learned friend would want to avoid the situation where the non-parole period does not commence until after the expiration of the straight six months.  My learned friend would certainly like the non-parole period to commence today in terms of the straight six months.  Therefore, I think it may need to be directed that the sentence is to be served concurrently with the existing six months terms, however, cumulatively upon the non-parole period, the parole period yet to be reclaimed.

48      HIS HONOUR:  You see, the difficulty that I have is I am happy to do that.  I have looked at the relevant provision, I think it is s.16.  Perhaps what I will do, in order to make sure, I certainly do not want to have Mr Wraith doing another six months if he does not need to do.

49      MR AYERS:  Precisely.

50      HIS HONOUR:  I will tell you what, gentlemen.  What we will do is I will stand this down while you work out - and we might have to come back tomorrow.  I think we can correct these matters, whatever the - how long have we got?  A week or so. 

51      MR AYERS:  Yes.

52      HIS HONOUR:  Yes. 

53      

MR AYERS:  My friend, hopefully he may be in agreement.  I will just see if

he - - -

54      HIS HONOUR:  Yes.

55      MR PURCELL:  Yes, my understanding certainly Your Honour is via s.15, that straight six months must be served first because no non-parole period has been fixed.

56      HIS HONOUR:  Yes.

57      MR PURCELL:  Then the non-parole period is served.

58      HIS HONOUR:  Yes.  And so, whatever is the order between the two sentences that is currently happening, what is of materiality from my point of view, I understand, is the January 2014 date because my sentence starts then.

59      MR AYERS:  That is true.

60      MR PURCELL:  Yes.

61      HIS HONOUR:  Now, that is it is cumulative on the - pursuant to that s.16(3)(b).  There is no exceptional circumstances so this sentence is cumulative  because it is - - -

62      MR PURCELL:  Yes, that is correct Your Honour. 

63      HIS HONOUR:  So again gentlemen, if that is wrong then obviously come back before me.  As I say, that is my understanding of how things operate, that is, that his two sentences will have completed by then and that my sentence will operate from that date.  And that is what I intend to happen.  I certainly do not want him to do that extra six months in addition to that so that will be clear and on the transcript.

64      MR PURCELL:  Yes.

65      HIS HONOUR:  If the sentence I have pronounced is not effective in doing that, then certainly come back before me in five or six days, or whatever the legislation allows, and we will put in place the actual wording to ensure that happens.

66      MR PURCELL:  As Your Honour pleases.  If clarification of the minimum term is required, Your Honour, then we can sort that out between ourselves.

67      HIS HONOUR:  Yes, all right.  As I say come back before me if the words are effective to do what I seek to do.

68      MR PURCELL:  As Your Honour pleases.

69      HIS HONOUR:  Thank you gentlemen.  Thank you Mr Wraith.  As I say, it is recognition of the fact that you have been making a positive fist of things whilst you are in custody that the term has been reduced and certainly there is a much longer than normal non-parole period, to give you the advantage of continuing what you have begun. 

70      MR AYERS:  I think Your Honour made the disposal order as well and the forensic - - -

71      HIS HONOUR:  Yes and I have made the disposal order as well.

72      MR AYERS:  And the forensic sample.

73      HIS HONOUR:  It has been sought by the prosecution and not opposed by the defence.  Thank you.  I will stand down whilst the next matter is called.

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