Director of Public Prosecutions v Wright

[2019] VCC 141

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01351

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEFFREY WRIGHT

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 February 2019
CASE MAY BE CITED AS:	DPP v Wright
MEDIUM NEUTRAL CITATION:	[2019] VCC 141

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Dunham
For the Accused	Mr Shocker

HIS HONOUR:

1Jeffrey Myles Wright, you have pleaded guilty to one count of attempted robbery.  The maximum penalty for this offence is 10 years' imprisonment.

2You have also admitted an extensive prior criminal history.  I shall return to that later in these sentencing remarks.

3The Crown tendered a prosecution opening on plea as exhibit A.  A summary of your offending is as follows.

4On 28 January 2018, you had spent much of the afternoon in the company of Troy van den Bemt and Michael Laskowski.  These two men had been under police surveillance for some time as both were suspected of having committed a series of armed robberies in the far eastern suburbs.  I emphasise that you were not suspected of having committed these earlier offences.  Further, although the circumstances of this offending reveals that an armed robbery was attempted, you were only charged with attempted robbery.  Although I set out the full circumstances of the offence, I assure you that you will be sentenced only for the crime to which you have pleaded guilty and not to the more serious circumstances.

5Surveillance conducted by police on that day noted your car parked at Mr Laskowski’s address from about 2 o’clock that afternoon.  You were noted to come and go from that address during the course of the afternoon.

6Your two co-offenders (and I use the term loosely as Laskowski was charged with armed robbery) left the house separately to fill a jerry can with petrol at a local service station.

7At about 8:30 PM the three of you left the house and got into your car.  You drove the offenders to a stolen Toyota four-wheel-drive parked in Ringwood East.  The four-wheel-drive was filled with petrol.  The co-offenders at some stage were both seen travelling in that car as you drove your car separately from them.

8Both cars travelled to a bottle shop in Park Orchards.  You were seen to look intently at the bottle shop as you drove past slowly.  You were seen to reconnoitre the bottle shop for the purpose of a robbery whilst your co-offenders reconnoitred the shop for the purpose of an armed robbery.

9The bottle shop was owned and attended by Xueqing Wang.  At 8:48 PM, whilst under police surveillance, van den Bemt entered the bottle shop with a loaded sawn-off double-barrelled shotgun whilst he was disguised wearing a balaclava.  As he commenced to menace the owner and his son and yell instructions to them, police entered the bottle shop and van den Bemt was shot dead.

10After this, both you and Laskowski separately drove your cars away from the crime scene.  You were both intercepted by police.  Police found a walkie-talkie in the front passenger door pocket of your car, a CB radio transmitter under the front passenger seat and a Samsung mobile phone on the front passenger seat.  A walkie-talkie was found in the driver's foot well of the stolen Toyota four-wheel drive. At Laskowski’s address were found further walkie-talkies and a CB transmitter. You were interviewed by police after your arrest. You told a series of lies designed to minimise your involvement with your co-offenders. Police told you that you had been under surveillance. Without knowing the extent of the surveillance, you continued to tell lies.

11You were remanded in custody on 28 January 2018 and you have remained in custody ever since. You have now served 383 days pre-sentence detention, excluding today.

12I turn now to the objective gravity and your moral culpability.  The circumstances in which you committed this offence make it a very serious instance of this type of offending for the following reasons:

·    First, the offence was committed with two other offenders;

·    Second, it involved considerable planning and coordination between the two cars;

·    Third, police surveillance showed that you reconnoitred the place before the robbery;

·    Fourth, there was communication equipment in your car and in the other car; and

·    Fifth, you were acting as a lookout, whilst Laskowski stayed in the second car as a getaway car and van den Bemt entered the store.

13Notwithstanding you were not a party to the armed robbery offence that Laskowski faces and that van den Bemt clearly committed, you were complicit in the offending, in that you were aware that van den Bemt would enter the bottle shop to steal, and would use force or fear of force in order to do so.

14The attempt is also made serious by the fact that you attempted to rob a classic soft target, a shop offering a night-time service with only one staff member.  The owners, operators and staff of such services must be protected from those who prey on them for quick cash or goods and who enter with a view to taking those goods or cash by fear or force.

15Moreover, the community must be protected.  I therefore denounce your criminal conduct.

16It was put on your behalf that notwithstanding your long criminal record, you have previously never committed such an act of violence. The fact that you have now done so in the face of so many prior convictions for dishonesty, cannot be seen as a mark that your previous conduct was relatively benign. On the contrary, it compels me to incorporate an element of specific deterrence in the sentence I impose.

17Overall the objective seriousness of your offending must be marked by the dominant sentencing principle of general deterrence. The community will not tolerate attempts to rob soft targets. The punishment you face must reflect that.

18I turn now to your personal circumstances.

19You are 43 years of age and were born in January 1976.  You grew up with your older sister in the Box Hill area.  Your parents separated when you were about four.  You have had very little contact with your father since then.  You spent much of your childhood with your maternal grandparents and enjoyed a normal childhood.

20You attended Box Hill primary school and then Camberwell Grammar for a period, before moving to Kingswood College.

21After school you worked in various jobs for a period of time.

22The main positive focus of your life was from the age of 21, when you entered a relationship with the mother of your two children, Natasha Bishop.  Although your relationship with Ms Bishop was initially marked by your mutual drug use, Ms Bishop clearly moved on with her life.

23The main negative focus of your adult life has been your persistent use of drugs; especially heroin and cannabis.  I was told that you have held no consistent employment apart from a bit of gardening and a few odd jobs for the last 15 years.  Along with your drug use, you have suffered from long-term depression which has been marked by feelings of life being meaningless and without purpose.

24In evidence before me, Ms Bishop stated that about 4 to 5 years ago you reached what she thought was a nadir in your drug use.  She prevented you from seeing your children until you dealt with your drug problem and undertook a parenting course.  Ms Bishop stated that up to the time of your arrest for these offences, she had considered that you were making positive steps towards getting your life back on track.  You had gone through a mediation process in relation to seeing your children and you were at the point of signing consent orders in relation to access.

25Ms Bishop expressed surprise at your arrest for this offence.  Her surprise emanated from the fact that this was different to your previous offending and for the fact that she thought you had been making positive progress before 28 January 2018.

26Ms Bishop pointed out that you had lost a great deal in the last 12 months being removed from your children.  Your son Daniel is 18 and completing his VCAL Year 12.  Your daughter Isabel is eight and has commenced in the third grade this year.  They are aware of your imprisonment and you speak to them by phone on a regular basis.  Ms Bishop considers that your children are still a focal point in your life.

27At the time of your offending, it appears you were living with your mother, Jillian Wright.  Your mother was present in court to support you.  Your solicitor, Mr Norton told me that your mother will provide you with accommodation and support upon your release from prison.

28You have previously been placed on two community orders.  The last order with treatment conditions was back in 2002.  You were sentenced for contravening that order.  Likewise, in 2013 you were placed on a community corrections order with a work component.  You did not comply with that order.  In addition, you have got prior convictions for failing to answer bail and for breaching a suspended sentence.

29As I have already remarked, you have a number of prior matters for dishonesty and drug use.  Although you have previously received periods of imprisonment, this is by far the longest period of imprisonment that you have been required to serve.

30I was provided with a report from Patrick Newton, forensic psychologist.  Mr Newton also reported that you had told him of your long-standing history of low level depressive mood disturbance.  Mr Newton considers that you meet the DSM 5 criteria for moderate to severe substance use disorder in regards to methamphetamine and cannabis (in early remission in a controlled environment); that you meet the criteria for heroin use disorder (in sustained remission in a controlled environment on therapy); and also suffer from a persistent depressive disorder.  Mr Norton raised these issues – not in order to make a Verdins submission, but to point to the fact that upon your release from custody, you will need continued treatment for your mental health issues and to continue your rehabilitation from drug use.

31Since you have been in prison, you have worked as a billet and you have worked on your drug rehabilitation.  I was not provided with any certificates of courses or the like that you have undertaken, but I understand and accept that you have been working towards remaining drug free for when you are released from prison

32In a most able plea on your behalf, Mr Norton submitted that I should take account of the following:

·    First, your early plea of guilty;

·    Second, the ongoing support that you have from your mother and the accommodation she will provide to you;

·    Third, Mr Newton’s recommendation that you receive ongoing mental health and treatment for drug rehabilitation;

·    Fourth, the ongoing support that you have from Ms Bishop and from her current partner, Boyd Fletcher, who has offered you two days' a week work in his carpentry business; and

·    Fifth, your desire to continue a positive relationship with your children

33Taking these factors in combination, Mr Norton urged me to have you assessed for a further community corrections order with immediate or near immediate release from prison as part of a combination sentence.  The rationale for this submission was that you will require considerable support and structure upon your release from prison.

34Ms Coombs on behalf of the prosecution submitted that when I take into account the objective seriousness of your offending, your moral culpability and sentencing principles, together with your sustained lack of compliance with previous court orders, the appropriate sentencing disposition requires setting a non-parole period rather than release on a combination sentence.

35I was provided with a number of cases by Mr Norton and also one by the prosecution.  Although I have considered those cases, I do not consider them to be of much assistance in determining the appropriate sentence in your case.

36I have taken into account the five factors that I have just outlined as raised by Mr Norton. In my view, they should be used to mitigate the sentence that I am about to impose upon you and also to ensure that when you are released you have the opportunity for release into the structured environment of parole.

37I am fully aware that it may not be easy for you to obtain parole.  Nevertheless, I am not satisfied, given your sustained history of non-compliance with other community and court orders, that it is appropriate to simply release you on a combination order.

38If you are granted parole, you must work hard in the community to remain drug free, to work on your feelings of depression and to take up the vocational offer from Mr Fletcher.  Mr Newton considers that you are at considerable risk of relapsing into cannabis use.  Although I consider that you do have some prospects for your rehabilitation, they remain guarded.

39On the charge of attempted robbery, you are convicted and sentenced to 23 months' imprisonment.  I order that you serve a minimum of 15 months before you are eligible for parole.  I declare the period of 383 days pre-sentence detention reckoned as already served.  But for your plea of guilty, I would have sentenced you to a period of 34 months' imprisonment with a non-parole period of 22 months to serve. 

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