DPP v Williams & Anor

[2020] VCC 739

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01516
CR 19-01517

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT WILLIAMS
ADELE YOUNG

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	18 May 2020
DATE OF SENTENCE:	27 May 2020
CASE MAY BE CITED AS:	DPP v Williams & Anor
MEDIUM NEUTRAL CITATION:	[2020] VCC 739

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence, guilty plea, co-offenders, armed robbery, attempted armed robbery, assist offender, general deterrence, specific deterrence, totality, prospects of rehabilitation, COVID-19

Legislation Cited: s6AAA of the Sentencing Act; s.18 of the Sentencing Act

Cases Cited:R v Verdins - [2007] VSCA 102; Dargan v The Queen; Walker v The Queen [2019] VSCA 13; Lyddy v The Queen [2019] VSCA 35; Bugmy [2013] HCA 37

Sentence:Williams: 8 years imprisonment with a minimum non-parole period of 5 years and 8 months imprisonment

Young: 3 years and 4 months with a minimum non-parole period of 20 months imprisonment          

S6AAA declaration: Williams: 10 years and 6 months imprisonment with a minimum non-parole period of 8 years imprisonment.

Young: four years and six months with a minimum of three years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Lee	Office of Public Prosecutions
For Accused Williams	Ms M. Casey	Greg Thomas Barrister & Solicitor
For Accused Young	Mr C. Terry	Stary Norton Halphen Lawyers

HIS HONOUR:

1Robert Williams, you have pleaded guilty to three charges of armed robbery and one charge of attempted armed robbery.  Adele Young, you have pleaded guilty to two charges of assist offender, one charge of attempted armed robbery and one charge of armed robbery.  The maximum penalties are as follows: assist offender, five years' imprisonment; armed robbery, 25 years' imprisonment; attempted armed robbery, 20 years' imprisonment.

2Mr Williams, you were 31 years old at the time of the offending and, Ms Young, you were 33 years old.  The two of you were in a relationship and were living at Ms Young's mother's place at Melton West.

Circumstances of the offences

3The first incident relates to the Ararat RSL.  Mr Williams, for you this is an armed robbery; for you, Ms Young, an assist offender charge.

4On Sunday, 21 October 2018, the two of you travelled together from Melton in Ararat in Ms Young's mother's silver Toyota Kluger.  In Ararat, you, Ms Young, drove the Kluger along Grano Street and parked the vehicle near the Pyrenees Highway close to a subway underpass which leads through to Queen Street.

5At around 12.35 am, you, Mr Williams got out of the car and ran through the subway underpass.  You entered the Ararat RSL at about 12.36 am by the Queen Street entrance, wearing blue surgical gloves over your hands, a black hooded jacket over your body, sunglasses on your eyes and a blue and white bandana around your face to conceal your identity.  You were armed with a Task Force 15-inch jemmy bar and you had a Tupperware representative's bag in your hand.  You approached the gaming counter and you confronted gaming staff, Collin Driscoll and Josh Robinson. You threatened them with the jemmy bar, and you said, 'Put the fucking money in the bag, do you want to go home safely tonight?'.

6Mr Driscoll offered you a till from the gaming area which was full of cash.  You took it and you emptied the cash into the black Tupperware bag.  You said to Mr Driscoll, 'I want the money in the draw, the bundles at the back', and you directed his attention to a second till which contained bundles of notes stored in the back of the second till.  Mr Driscoll and Mr Robinson handed bundles of notes to you as you placed them into the Tupperware bag.

7Thereafter, you fled the Ararat RSL with about $7,549 in cash.  You went out the Queen Street entrance and ran towards the subway underpass.  You returned to the Kluger; Ms Young drove you north on the Pyrenees Highway before ending up where Nott Road intersects with Warrak Road.  There you, Mr Williams, discarded a blue and white bandana and the black and blue surgical gloves that you wore during the armed robbery.

8After discarding the blue surgical gloves that you, Mr Williams, wore during the armed robbery, you, Ms Young, then drove to the Western Highway.  Police came to the scene and they found what had been left on Warrak Road by you, Mr Williams.  You were linked forensically to the blue and white bandana.

9I turn to the second incident, the Sebastopol Bowling Club.  This is another armed robbery for you, Mr Williams, and for you, Ms Young, another charge of being an assist offender.

10On 29 October 2018, which was a Monday, the two of you travelled from Melton West towards the Ballarat area in the Toyota Kluger.  You, Ms Young, drove.  At about 10.06 pm, you arrived at the Sebastopol Bowling Club car park.  You entered through the main entrance and signed in at the reception area.  You, Ms Young, used your correct name and you, Mr Williams, signed in as well but in illegible writing.  You both entered the club and you played the pokies.

11At 10.18 pm, you left.  At 11.35 pm, you, Ms Young, drove to 81 Albert Street, Sebastopol, where you collected the third accused from his home address.  You were present at this time, Mr Williams.

12At approximately 11.45 pm, the two of you and the third accused drove to a street near the Sebastopol Bowling Club.  You were driving, Ms Young.  You, Mr Williams, and the third accused ran towards the bowling club approaching the venue from the main entrance doors on Albert Street.

13At about 11.50 pm, you, Mr Williams, entered the bowling club wearing black tracksuit pants, grey running shoes with white soles, black gloves, a grey hooded jumper with the hood pulled over your head along with cloth wrapped around your face to conceal your identity.  You were armed with a Craftright 380 mm wrecking bar.

14The third accused followed behind you and he was wearing blue tracksuit pants, grey running shoes, black and grey gloves, a blue hooded jumper with the hood pulled over his head and he had a dark coloured cloth wrapped around his face to conceal his identity.  He had a small hatchet with him.

15You, Mr Williams, and the third accused rushed towards security guard, Adam Nicholson, who was standing in the internal foyer.  You, Mr Williams, said to Mr Nicholson, 'Don't do anything stupid'.  The third accused approached Mr Nicholson and also told him not to do anything stupid.  He told Mr Nicholson to turn away from him and placed his left hand on Mr Nicholson's shoulder.  The third accused walked in behind Mr Nicholson into the pokies area and then marched him to the cashier where he told him to stop.

16You, Mr Williams, ran up towards the gaming counter looking for a way into the area to access the cash drawers.  You entered a locked door and attempted to open it using the bar.  Gaming attendant, Amanda Coustley, was standing at the cashier counter.  You, Mr Williams, ran towards her and said, 'I'm going to fucking kill you'.

17Mr Williams, Ms Casey, on your behalf, has indicated that you dispute this fact.  However, she indicated that the defence do not seek to cross-examine the witness about the issue.  Ms Casey filed further written submissions pointing out that the security guard, Mr Nicholson, did not refer to this in his statement and that when Ms Coustley first spoke to the police after the armed robbery some six minutes later, there is no record of her mentioning the threat.

18In the circumstances where the witness has clearly indicated she was threatened in those terms and the defence have not sought to challenge that evidence, I am satisfied beyond reasonable doubt that the threat was issued as alleged.

19Ms Coustley ran towards the strongroom.  Once inside the strongroom, she slammed the door shut.  Also, inside the strongroom was supervisor, Matthew Warner.  Ms Coustley said to him, 'We are being robbed'.  He phoned 000 and he and Ms Coustley watched what was happening via the CCTV cameras inside the strongroom.

20You, Mr Williams, entered the gaming counter and proceeded to open a number of drawers using the wrecking bar in your hands.  You removed all the cash from the two cash drawers and put it in a grey backpack.  You and the third accused fled the store with $5,300.

21Ms Young drove you and the third co-offender drove away from the address.

22In relation to these first two incidents, Ms Young, your participation is as an assist offender, which means the prosecution concede you had no foreknowledge that what was about to occur was an armed robbery and you were an assist offender to a robbery.  So, it is accepted by the prosecution that you did not have knowledge that what had taken place was an armed robbery in relation to these first two charges.

23That is not the case in respect of the third incident which took place at the Victoria Tavern, Gisborne.  In relation to this matter, this is attempted armed robbery for both you, Mr Williams, and you, Ms Young.

24On Sunday, 11 November 2018, you, Ms Young, drove Mr Williams from Melton West to Gisborne in the Toyota Kluger and you parked outside of the Victoria Tavern in Gisborne.

25At about 2.19 am, you Mr Williams, got out of the car wearing blue tracksuit pants, a blue jumper, gloves with yellow tape around the wrists, running shoes and a balaclava on your head to conceal your identity.  You were armed with a large crowbar and you approached the side entrance to the Victoria Tavern on Robertson Street.

26The doors to the venue had been locked early by staff which stopped you from gaining entry to the premises.  Security staff member, Mr Taite Ineine, observed you attempting to smash the automatic sliding glass doors with the crowbar but failing to gain entry.  You fled the scene in the silver Toyota Kluger with Ms Young.

27On Hobbs Road, you, Mr Williams, got out and removed the items of clothing you were wearing at the time of the attempted armed robbery.  You set fire to these items.  You, Ms Young, then drove back to Melton West.

28Police soon after located a smouldering fire on Hobbs Road which contained a burned balaclava, burned running shoe, yellow electrical tape and disposable rubber gloves that you wore, Mr Williams, during this offence.

29I turn to the final incident which relates to an armed robbery at the RSL for a second time.  You are both charged with armed robbery.

30On Sunday, 18 November 2018, the two of you travelled to Sebastopol to collect the third accused.  You, Ms Young, were again driving the Toyota Kluger.  You arrived in Sebastopol at about 9 pm.  You, Mr Williams, Google searched the opening times of the Ararat RSL on your iPhone.  The three of you then proceeded to Ararat where you, Ms Young, parked the car near the subway underpass.  You, Mr Williams, and the third accused walked through the subway underpass and approached the Ararat RSL from the Queen Street entrance.

31At approximately 10.32 pm, you, Mr Williams, and the third accused entered the RSL.  You were wearing black tracksuit pants, white and grey running shoes, blue surgical gloves over your hand, a black hooded jumper with the hood pulled over your head and a black cloth around your face to conceal your identity.  You were armed with a metal pole wrapped in a grey cloth made to look like a firearm and you also had a blue bag.  The third accused was wearing tracksuit pants, grey running shoes, blue surgical gloves, a blue hooded jumper with the hood pulled over his head and a black cloth around his face to conceal his identity.

32Mr Williams, you approached the bar and gaming area pointing the imitation firearm at bar and gaming staff member, Mr Peter Harris, and yelled, 'Empty the drawers, all of it'.

33The third accused stood guard outside the bar area as you, Mr Williams, approached the cash drawer and proceeded to hold the imitation firearm to the neck of Peter Harris as you made the demands for cash.  I should add I have been provided with CCTV in relation to these incidents and it can clearly be seen on the CCTV that the firearm is touching the neck of Mr Harris.  The imitation firearm remained pointed at Mr Harris as he unloaded the cash drawer into the blue backpack being held by you.  Mr Harris described you, Mr Williams, as having a Kiwi accent.

34You and the third accused fled the RSL via the Queen Street entrance.  You discarded a black T-shirt in the subway underpass.  You, Mr Williams, and the third accused returned to the silver Toyota Kluger where you, Ms Young, drove Mr Williams and the third accused away from the scene.

35Mr Williams, you and the third accused discarded a number of items worn by the two of you during the commission of this armed robbery again along Warrak Road.  The items discarded were blue and grey running shoes, black tracksuit pants, a Run DMC T-shirt, men's black top, a box of disposable gloves and the black cloth.  Ms Young, you then drove to the Western Highway.  A blue orange backpack was discarded on the Western Highway at Buangor.

36At 11.42, the third accused sent a text message to his partner saying he would be home in five minutes.  You arrived in Sebastopol to drop him home at 11.53 pm.  You, Ms Young, and you, Mr Williams, then continued on towards Melton West stopping off at the Bacchus Marsh McDonald's on the way at 1.01 am.

37I should indicate that the facts of these armed robberies are detailed in the prosecution opening which was tendered as an Exhibit P1 and read in open court by the prosecutor, Mr Lee.  That document forms part of my reasons in this matter and also that I was provided with CCTV footage of a number of the armed robberies and stills from the CCTV footage.

38Mr Williams and Ms Young, on Monday, 19 November 2018, so not long after this last armed robbery, detectives from Melton Crime Investigation Unit had your address at 3 Biscay Court in Melton under observation.  At 2.28 am, one of those detectives, a Senior Constable Eagan, saw the Toyota Kluger arrive at Biscay Court and then turn into the court.  At this point, the Special Operations Group was deployed.  They arrived at about 7 am at 3 Biscay Court to effect an arrest.

39In the rear yard of the property, they saw you, Mr Williams, running from left to right and attempting to jump the rear fence of the property.  You were told by officers to get onto the ground.  You then threw a black satchel bag onto the ground and you were then arrested by members of the Special Operations Group.

40They conducted a pat-down search and a small coloured bag was located tied to the drawstring of your pants.  This small coloured bag contained a large bundle of cash tied up in an elastic band.

41A search warrant was executed by armed crime detectives and they found the 15-inch jemmy bar used in the 21 October Ararat armed robbery, the first one; the Craftright wrecking bar used in the Sebastopol Bowling Club armed robbery; a receipt for an engagement ring from Michael Hill Jewellers in the name you, Ms Young, dated 21 October 2018, the date of the first incident; and a grey running shoe said to be worn by you, Mr Williams, during the Sebastopol Bowling Club incident.  Ms Young, you were also arrested at that time.  You were wearing the Michael Hill Jewellers engagement ring to which I just referred, and police seized this ring.

42Mr Williams, you were interviewed not long after.  You were questioned about the armed robbery on 18 November and you denied involvement in relation to the Sebastopol Bowling Club.  On 29 October 2018, you also denied committing that armed robbery.  In relation to the Gisborne attempted armed robbery, you said first, 'I've heard about it', and in relation to the other matter, you said you are just making up stories.

43Ms Young, you were interviewed, and you exercised your legal rights and gave a no-comment interview.

44None of the victims of this offending, and there were numerous employees and members of the public who were present, have made victim impact statements; however, I have no doubt that the people present at the time of the offences and particularly those who had direct interaction with you, Mr Williams, and the other male offender would have been in fear during the offences.

Gravity of offences

45I turn to the gravity of the offences.  This was self-evidently very serious offending.  Any armed robbery involving the sort of planning evident here inevitably results in a substantial custodial sentence.

46You, Mr Williams, have pleaded guilty to three planned armed robberies and then another attempt in which, in my view, you were the major offender.  The aggravating features of these armed robberies and the attempted armed robbery include:

·the targeting of gaming venues to maximise the amount of money that might be available to be stolen;

·soft target country locations selected;

·relatively significant amounts of money stolen;

·members of the public being present in charges 1, 2 and 4;

·the level of planning involved included set roles for all offenders in pre-planned use of disguises and weapons, the use of the subway underpass, for instance, as an entry and an escape route in charges 1 and 4 and the designation of Ms Young as a getaway driver;

·involvement of two offenders actively participating in charges 2 and 4;

·the production of weapons to instil fear;

·the presentation of the metal pole as an imitation firearm in charge 4;

·the threat to Ms Coustley in charge 2 and threatening behaviour generally during the offences;

·physical contact made with people inside including in particular, in charge 4, the imitation firearm being pressed up against the neck of Mr Harris.

47These offences do lack some of the features that mark the most serious examples of armed robbery such as gratuitous violence, the use of real firearms sometimes loaded, incidents of greater duration, victims being falsely imprisoned by restraint or the causing of injury to victims during such an offence.

48On the plea, the case of Walker & Dargan [2019] VSCA 137 and Lyddy v The Queen [2019] VSCA 35 were both discussed. Dargan & Walker involved an armed robbery said to be of the utmost seriousness.  In my judgment, these offences do not fall into that category but, as conceded by both counsel in this matter, there are a number of serious features of these offences.  Both the defence and the prosecution in the end submitted these armed robberies fall in the middle of the spectrum of seriousness and I accept that characterisation.

49In regard to the attempted armed robbery, as submitted by Mr Terry, of course this is a significantly less serious offence because all the features of aggravation and impact associated with carrying out the crime never eventuated.  This was an attempt that never really got off the ground because the doors could not be opened, unlike some instances of attempt where the threatening behaviour has occurred, but the offenders have, for instance, failed to succeed in the ultimate theft.

50Ms Young, in relation to the first two incidents, you have pleaded guilty to assist offender in respect of robbery.  This is a far less serious charge carrying a maximum of five years.  The prosecution concedes by bringing these charges for these incidents that you had no foreknowledge of what was about to happen and that insofar as you assisted after the offending, your understanding of the criminality was limited to robbery rather than the armed robbery.

51Mr Terry has pointed out that assist offender is most commonly associated with homicide offences and that this should be regarded as an offence that if dealt with on its own would not necessarily result in immediate custodial sentence.

52I agree with all of this, but I would observe that you were very close to the actus reus of these crimes both in time and in circumstance.  I accept that you were brought into this offending in charge 1 and charge 2 without foreknowledge of what was taking place.  Thereafter, it is accepted by your plea that you understood that what was about to take place in both instances were armed robberies and that your role was to act as a getaway driver.  You must also have been aware of most of the surrounding aggravating circumstances to the offences in charges 3 and 4 even if you were not to know precisely what was to unfold inside.

53In my view, Mr Williams, you are the major offender in these charges.  You took the major role in the incidents themselves, more so than the third offender and well above Ms Young.  You, Mr Williams, started this spree of offences before you, Ms Young, had full knowledge of what Mr Williams was doing.  This underlines, Mr Williams, that you were the controlling offender.

54None of this is meant to indicate to you, Ms Young, that your offending was not extremely serious.  As regards charges 3 and 4, you accept by your plea that you were aware that Mr Williams and in the other man in charge 4 were there to commit an armed robbery.  Your role as the driver was integral to the offending.

55On the plea, both counsel dealt with current sentencing practice including the decisions that I have mentioned of Dargan & Walker [2019] VSCA 137 and Lyddy v The Queen [2019] VSCA 35 and a number of others that Mr Terry took me to.

56I have had regard to all those matters and to current sentencing practices which are a guide but not a controlling factor.

Ms Young

57I now will turn to, Ms Young, your situation and then when that is concluded, if the link shuts down, I will deal with Mr Williams.

58Tendered on your behalf on the plea were a psychological report of Dr Laura Anderson, a medical report of Dr Danny Nguyen, a CISP bail report and a letter in support from your mother, Janice Young.  I have had regard to the matters contained within all of those documents which were tendered as exhibits.

59You pleaded guilty once this matter had been through a committal and after the matter was subject to case management in this court.  As I follow it, significant charges being armed robberies were withdrawn in relation to the first two incidents, so I regard your plea as reasonably early in the circumstances.  I give you credit for the utilitarian value of your plea and I accept it is indicative of remorse for your offending.

60Mr Terry indicated you were remanded in custody after making the decision in February 2020 to plead guilty.  You had your bail revoked.  I am told that you were advised that a term of imprisonment was inevitable.  It was at this time that your mother took over care of your son.  In my view, your decision to go into custody pending sentence in this matter demonstrates your insight into the gravity of the offending and a realistic attitude to the sentencing outcome in this case.

61I turn to your personal circumstances.  You are currently 35 years old.  You were 33 at the time of the offences.  You grew up in Melton in a loving family with your parents and your younger brother.  You were living with your mother in Melton at the time of these offences.  Your father passed away in 2011 after a battle with cancer.  You remained very close to your mother.  You intend to live with her when you are eventually released from prison.  You have a
seven-year old son, Tainan, from a previous relationship.  He was living with you when you were arrested in this matter.

62During the course of your relationship with Mr Williams which goes back a number of years, you lived together at your mother's house and Tainan became close to Mr Williams in this period.  Tainan had been diagnosed with autism spectrum disorder and ADHD when he was aged four.  Since you went into custody, your mother has been looking after your son.

63The material indicates you were an average student at school but did complete your VCE.  Your most significant employment as an adult has been at an abattoir where you worked until your son was born.  You had one previous long-term relationship with an ex-partner.  You have no ongoing relationship with your son's father, and he has no involvement in your son's life.

64Apparently that relationship was characterised by drug use by both you and your partner and you used heroin across many years in your 20s after being introduced to it by your partner.  Your use of drugs again became problematic during your relationship with Mr Williams.  You used methylamphetamine on and off during that relationship.

65You apparently made a number of attempts to cease using methylamphetamine before you got involved in these offences.  These efforts included engaging with Narcotics Anonymous which apparently you did until about two months before the first offence here.  You became pregnant to Mr Williams in 2018 and you suffered a miscarriage which was a catalyst to your relapsing into drug use, a period which culminated in the current offending.

66After being charged with these offences, you engaged with the Court Integrated Services Program (known as CISP)  on bail who referred you to a psychological counselling service.  You thereafter completed a period of counselling with a counsellor, Krista Patti, at the Empowering Psychology Clinic.

67It was submitted by Mr Terry that the report of Dr Laura Anderson dated 15 May is relevant to understanding how and why you became addicted to drugs during the two significant relationships in your adult life.

68In her report, Dr Anderson says you have a poor sense of self and limited emotional literacy.  She says this:

'Ms Young presents as a 35-year old woman whose psychological profile is characterised by limited emotional literacy and significant difficulty identifying and managing emotional distress.  She has developed a maladaptive coping mechanism of utilising illicit substances to block out her experience of negative emotions rather than processing and managing her emotions internally.'

69She also said this about you at p.7 of the report,

'Ms Young also presents as an individual who finds it quite difficult to assert herself and tends to rely heavily on others for support which can lead her to being easily influenced by her peer groups.  For example, her previous romantic partners introduced substance use to Ms Young and she quickly became enmeshed in drug use and other antisocial behaviours demonstrated by her previous romantic partners.

'Ms Young herself does not present as an individual with deeply entrenched antisocial attitudes.  This dependent attachment style is likely to relate to Ms Young's poor sense of self and a poorly developed capacity to identify and manage her emotions.'

70Mr Terry submitted your psychological profile helps explain how you became involved in these offences and why you made the decision to assist Mr Williams in this serious criminal offending.  I accept that it does go some way to explaining your involvement in these matters.

71Mr Terry outlined a number of matters in mitigation in this matter.

72He referred to your efforts at rehabilitation since the offending including the lengthy period on bail without further offences and the positive engagement with CISP that is set out in the CISP report, including the counselling that I have referred to.

73Mr Terry also referred to the hardship of your time in custody.  Firstly, you face separation from your mother, Janice, and your son, Tainan.  This, as I follow it, is really your first period in custody and, in my view, because of the separation from your mother and your son who suffers from the conditions that I have outlined, this period of imprisonment will weigh heavily upon you.

74Second, in the current environment in response to the COVID-19 virus, lockdowns have been prevalent within the prison and visits have been suspended.  The only option has been video conferencing.  This, in my view, accentuates the effect of the separation issues for you and increases the burden of your imprisonment quite significantly.

75In relation to issues of your prospects of rehabilitation, it is my view that you would not have ever offended in the way that you did here alone.  I note in Dr Anderson's report she indicates at p.9:

'In my clinical opinion, Ms Young presents with strong prospects of rehabilitation.'

76She goes on to deal with what is important to assist your rehabilitation, which is maintaining your strong connection with your family and your mother and son which is your primary motivation for rehabilitation, addressing your alcohol and drug use and indicates you are motivated to remain abstinent and indicates then that you do not seem to have any real difficulty in engaging in employment so that is something that you think you could easily return to once you are released from the sentence that I will impose.

77Ms Anderson indicates that poor mental health for you is not of and in itself identified as a risk factor for recidivist behaviour but that you do need to work through some of your psychological issues and you do need to stay away from antisocial peers.

78Ms Young, I do note that it is intended that the two of you resume your relationship when Mr Williams is released but he will be receiving a significant sentence.  So, it seems to me you should be able to establish stability in your life before that takes place. In all of the circumstances and in particular having regard to your prior convictions, I do take the view that your prospects of rehabilitation are extremely good.

79In relation to your prior convictions, there are some minor dishonesty offences but the primary offence you have been in trouble for over the years is driving whilst suspended, a matter that I regard as having no relevance to sentencing in this case.  There is a prior conviction for using and possessing methylamphetamine and that has some significance in the sense that it indicates your history of drug use but does not add really anything at all to the sentencing in this matter.

80So, all in all, in my estimation, your prospects of rehabilitation are extremely good.

81Dealing with considerations of parity between the two of you, apart from the differences in roles and indeed the very significant differences in charges, the other important distinguishing feature is the differences in the criminal records, which is a matter I have just gone through.  I am able to take a much more optimistic view of your prospects of rehabilitation, Ms Young, relative to Mr Williams and I find that specific deterrence is of far less weight in your case.

82In all the circumstances, Ms Young, balancing as best I can the various competing sentencing considerations, I sentence you as follows.

83On charge 1, I sentence you to a period of six months' imprisonment.

84On charge 2, I sentence you to a period of eight months' imprisonment.

85On charge 3 of attempted armed robbery, I sentence you to a period of 18 months' imprisonment.

86On charge 4 of armed robbery, I sentence you to a period of two years and eight months' imprisonment.

87I make the following orders for cumulation.  The base sentence is charge 4.  I order that one month of charge 1, one month on charge 2 and six months of charge 3 be cumulative on the base sentence and on each other.

88Now, that should make a total effective sentence of three years and four months or 40 months and I fix a minimum non-parole period of 20 months.  So that is a 50 per cent difference between the minimum and the head sentence and I have had regard to the absence of any relevant prior convictions and my view of your positive prospects of rehabilitation.

89But for your plea of guilty pursuant to s.6AAA, I would have sentenced you to four years and six months with a minimum of three years.

90In relation to pre-sentence detention, can I just check it is 104 days, Mr Terry?

91MR TERRY:  Sorry.

92HIS HONOUR:  One hundred and four days?

93MR TERRY:  Yes, that is correct, Your Honour.

94HIS HONOUR:  All right.

95MR TERRY:  Yes, Your Honour.

96HIS HONOUR: Pursuant to s.18 of the Sentencing Act, I declare that you have served 104 days pre-sentence detention which is to be deducted from the sentence I have imposed, and this will be entered into the records of the court.

97So, I have given you three years and four months with a minimum of 20 months, Ms Young.

98Do those figures add up, Mr Terry?

99MR TERRY:  Just doing that now, Your Honour.

100Yes, Your Honour, they do.

101HIS HONOUR:  All right.  So, Ms Young, that is the sentence I impose in relation to your matter.

102Mr Lee, anything further in relation to Ms Young?

103MR LEE:  No, no.  No orders, Your Honour.

104HIS HONOUR:  Now, look, I think what we will do, we could turn off the link now I think in relation - Ms Young, you can stay on the link.  It will disconnect at 10 and then I apparently will have to reconnect for Mr Williams.

105MR TERRY:  Your Honour, if I could be excused.

Mr Williams

106HIS HONOUR:  Mr Williams, I will go to matters that are personal to you.

107You are now 32.  You were born in Christchurch, New Zealand.  You grew up on the North Island of New Zealand in a place called Huntly, a town with a population of about 10,000 people.

108Your mother is now 60 and she is suffering from cancer.  She has a limited life expectancy.  Your parents separated when your mother was pregnant with you.  You are an only child.  You had virtually nothing to do with your father growing up and you met him for the first time when you were aged 14.  You have only met him three times in your life.

109Your mother repartnered with a man named Tony Williams.  They are still together.  Your stepfather worked as a coal miner.  Your family struggled financially but you do not believe that you were poor, and you say there were a number of other families that were worse off.  Your stepfather had two sons and a daughter, and you remain in contact with your stepsister.

110You were brought up believing that Tony Williams was your father.  You were aged nine when you found out that he was not.  This changed your attitude to him, and you felt that he had no right to discipline you in any way.  Apparently, your stepfather was a violent man towards you and your mother when he was drunk which was a regular occurrence.

111You left home at the age of 14 and you obtained work on a farm.  After some months, you found that the longer hours were not worth the low wages you were paid and you left that job, later, however, you went back to farm work milking cows.  You also had employment working in a precast yard until you migrated to Australia at the age of 17.

112Apparently, you spent some time in welfare settings during your childhood years as a respite from the problems at home.  You went to Huntly primary school which you did not like.  It was hard for you.  You struggled academically which caused you frustration.  Apparently, you are barely literate.

113You got into trouble at school and you acknowledge you have problems with authority.  You do not like being told what to do.  You went to secondary school up until Year 9 leaving towards the end of the year.  You did not cope in secondary school; the work was too hard for you and you were bullied.  Your behaviour was poor and there was truancy.

114You have had drug problems from an early age.  You say that you were introduced to cannabis by your older half-brother when you were around the age of 11.  You quickly became a daily user.  You say that at the age of 14, you took mushrooms and acid and you had done this from time-to-time over the years.  You say that you also used methamphetamine from around 2002 until you left for Australia by which time you were using it every day.  You have been taking methamphetamine ever since although you have had some periods of abstinence only to relapse.

115Your drug use has been a constant problem throughout your life.  When you came to Australia, you initially settled in Bundaberg in Queensland.  You obtained employment and you formed a relationship with a woman named Kylie.  Your elder son was born in May 2008.  His name is Nathan.

116You have prior convictions in Queensland in 2009 for assaults, breaching domestic violence orders, assaulting or obstructing police and possessions of items connected with drug use.  You were placed on probation during 2009 which was ultimately breached the following year and you were sentenced to 65 days that it appears you had already served on remand in March 2009.

117Apparently, you felt you needed a change and you came to Victoria.  You handed over custody of your son to his grandparents and you have not seen him in the years.

118You settled in Mildura and you obtained work there until 2011.  At that stage, you were missing your son and you returned to Queensland; however, your drug use again got the better of you and you came back to Victoria, this time to Melbourne.

119In 2012, you started a relationship with a woman named Brittany which lasted until sometime in 2016.  You have a son together, Jacob, who is now seven.  You have prior convictions in Victoria commencing in 2013 for unlawful assault where you were ordered to undergo a men's behaviour change program.  Then in 2014 and 2015, you have further prior convictions which, as I understand it, relate to domestic violence incidents against Brittany.  You served time in prison in that period because of these incidents.  Jacob was taken into the care of DHHS at the end of 2015.

120I am told that after you were released from the 2015 prison sentence, you returned to Ararat and you obtained work there but eventually you were made redundant and returned to your drug use.

121You were gaoled again in May 2016 for offences of car theft, conduct endangering life and other offences.

122As I understand it, you, Mr Williams, met Ms Young in 2016 and started a relationship very shortly after.  You moved in together in February 2017, living at Ms Young's mother's house.  Ms Young, as indicated, has a seven-year old son, Tainan, and you became close to him.  In this period, the two of you lived independently as a family unit within the shared house, that being Ms Young's mother's house.

123In January 2017, you were sentenced to a period of two months' imprisonment combined with a community correction order for offences of car theft, driving in a manner dangerous, negligently dealing with proceeds of crime and others.

124You appealed this sentence and in March 2017, you were given time served of 18 days with a community correction order of 12 months.  You complied with this order.  You engaged in some cognitive behavioural therapy around this period which you found useful.  You had employment for a time, and you were working towards regaining the custody of your son.  Jacob had been taken back into care in 2018.

125In the leadup to this offending, you were told by the Department that they would not support Jacob moving into your custody.  Around the same time, Ms Young, who was pregnant to you, had a miscarriage.

126These events, I am told, led to a downturn in your psychological state and another relapse into drug use.  You were also unemployed by this time.  This is the context in which the offending took place.

127In her thorough written and oral submissions, Ms Casey has outlined a number of matters in mitigation.  Firstly, you offered to plead guilty to the three-armed robberies prior to the committal mention but not initially to the attempted armed robbery.  At the committal hearing, which proceeded by way of hand-up brief, you pleaded guilty to all charges which are on this indictment.

128There is significant utilitarian benefit from your plea.  You have saved the community the cost and inconvenience of a trial, you have spared the witnesses the ordeal of giving evidence and, for some of them, reliving these events.

129I also accept that your plea is an indication of your acceptance of responsibility, your willingness to facilitate the course of justice and of some remorse for your actions.  In coming to this view that you are remorseful, I have also had regard to the letters of remorse that you wrote which were tendered as exhibits on the plea.

130I do note, however, that the remorse you have has developed during the time you have been in custody on remand and was not apparent when the police interviewed you about these matters.

131Mr Williams, you are not a citizen of Australia.  A sentence of 12 months or more which is inevitable for this offending will bring into play the cancellation provisions of the Commonwealth Migration Act.

132If your visa is cancelled, you have rights of review and an appeal and it is impossible to know what the ultimate result would be if you exercised those rights but I accept that a sentence of 12 months or more will lead to visa cancellation and will create unease and uncertainty in your mind as to your future.  It will make it harder for you to serve the sentence that I must impose.

133If your visa is cancelled, you will be facing a period in immigration detention with the spectre of deportation at the end of that process.  You would face the prospect of deportation from this country where you have lived since 2006 and which you have made your home.  You would be leaving behind the significant relationships in your life.  As I would understand it now in New Zealand, there is probably not a lot left for you over the - sorry.

134We seem to have linked in with another court.

135All right.  Is Ms Casey still online?  Are you online, Ms Casey?

136MS CASEY:  I am, Your Honour.

137HIS HONOUR:  All right.  Look, I will just repeat the last part of that.

138What I was saying, Mr Williams, was that you would be faced with leaving the significant relationships in your life behind on deportation and that there is probably not a lot left for you now in terms of relationships in New Zealand.  So, I take into account the issue of deportation and the risks of deportation in the way submitted by Ms Casey and consistent with the authorities on the point.

139Ms Casey raised the relevance or the application of the decision of Bugmy [2013] HCA 37 in the High Court.  The High Court described the way factors of disadvantage are relevant to an assessment of an offender's culpability by saying this:

'The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life.  Amongst other things, a background of that kind may compromise the person's capacity to mature and to learn from experience.  It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.'

140In this case, I form the view that your childhood and teenage years are relevant as a mitigating factor, Mr Williams.  You did not have proper guidance from your parents, and you were brought up with a violent stepfather.  Your personality traits and psychological make-up are necessarily a product of your formative years.  These matters are relevant in assessing your moral culpability.  They help to explain the downward trajectory of your adult life and your inability to break away from substance abuse and criminal behaviour.

141Further, in the psychological report tendered on your behalf from Mr Simmons, he indicates that your background has contributed to your antisocial traits and your problems in connecting with others.  So, I have taken into account your background as a matter in mitigation as relevant to some extent to the assessment of your moral culpability.

142Ms Casey also submitted that principles 5 and 6 of Verdins[1] are engaged as a result of your depression and anxiety.  In my view, there is a lack of clarity around the evidence of depression and anxiety in Mr Simmons' report;  but given the view of Ms O'Meara, the neuropsychologist, who also provided a report dated 10 March 2020, as to your anxiety and depression and that it will make imprisonment more difficult, I have taken these matters into account in mitigation as well.

[1]R v Verdins [2007] VSCA 102

143I turn to your prospects of rehabilitation.  Mr Williams, there are a number of matters which are relevant to the assessment of your prospects of rehabilitation.  First, the number and seriousness of the current offences.  Second, your entrenched substance abuse problem that goes back to your early teenage years.  Third, your lengthy and significant criminal history which has resulted in the courts deploying nearly all of the different sentencing orders available without success in stopping your offending.  And fourth, at the age of 32, you are no longer a young man and your patterns of behaviour are well established.

144In all the circumstances, notwithstanding some of the efforts you have made whilst in prison, it is tempting to say that your prospects of rehabilitation are poor.  However, because of the seriousness of this offending, the sentence I must impose will be a lengthy one.

145This complicates the assessment of your rehabilitative prospects.  It is hard to know what the effect of such a sentence will be on you and what your circumstances will be when you are released.  In all the circumstances, I assess your prospects as guarded.

146One significant matter in your favour is that you are a person who has a solid employment record over the years.  With your work ethic, if you can move beyond your substance abuse problems, you would have a reasonable chance of staying out of the criminal justice system.

147You have been at the Barwon prison whilst you have been on remand.  You have become settled there and you have been working in a privileged position in the canteen shop.  You are finding that separation from your family and your stepson, Tainan, has been difficult.

148Because of the restrictions in response to the COVID-19 virus, prison visits have been suspended.  You have been having 30-minute Skype calls each week.  One of those has been with your son, Jacob, along with his mother; and the other with Tainan along with his grandmother, Janice Young.  Before the lockdown, he had been visiting weekly with Janice Young and, as I understand it, visits had been approved for Jacob.

149I have had regard to all these matters and the restrictions imposed as a result of the COVID-19 virus as set out in Ms Casey's submissions.  I have taken these matters into account in sentencing as increasing the burden of your imprisonment.

150I indicate that I have been told and I accept, because I have received a number of certificates, as to what you have been doing in prison. You have enrolled in a small business course, you have done a number of other programs and the small business course will start when the lockdown finishes.  Also, I accept that your mother's illness and the death of your aunt whilst you have been in custody have weighed heavily upon you and will weigh heavily upon you whilst you are in prison for these offences.

151In terms of current sentencing practices, I refer to what I indicated earlier.  The case of Dargan & Walker[2] was discussed and also the case of Lyddy[3] and I have had regard to current sentencing practices as a guide but not a controlling factor.

[2]Dargan Walker v The Queen [2019] VSCA 137

[3]Lyddy v The Queen [2019] VSCA 35

152Considerations of general deterrence, Mr Williams, which is the need to for my sentence to deter other likeminded individuals from offending in the way that you did, and denunciation are important sentencing objectives in offending of this nature.  So too is just punishment; so too is community protection.

153Specific deterrence, the need to deter you from further offending, is also relevant as a consideration in your case and it is of some significance given your record and the number of offences here.

154Mr Williams, your offending is properly characterised as a course of conduct.  In formulating the sentence in this case, I have had regard to the totality principle which requires me to ensure that your overall sentence remains just and appropriate for the whole of your offending and I have moderated the orders for cumulation to the extent necessary to give effect to the principle of totality and to avoid a crushing sentence in this matter.

155I indicate that I have also had regard to all the matters set out in Ms Casey's submissions in the report of Mr Simmons and in the neuropsychological report of Ms O'Meara as well.

156In relation to this matter, Mr Williams, balancing all the sentencing considerations as best I can, my sentence is as follows.

157On charge 1, I sentence you to a period of 4years' and 6 months imprisonment.

158On charge 2, I sentence you to a period of imprisonment of five years' imprisonment.

159On charge 3, I sentence you to a period of imprisonment of two years and six months.

160And on charge 4, I sentence you to a period of imprisonment of five years and three months.

161I order that 12 months of the sentence on charge 1, 15 months of the sentence on charge 2, and six months on the sentence on charge 3 are cumulative on the base sentence of charge 4 and upon each other.

162That should make a total effective sentence of eight years.

163I fix a minimum non-parole period of five years and eight months.

164Pursuant to s.18 of the Sentencing Act, I declare pre-sentence detention of 536 days to be deducted from the sentence that I have imposed.  This will be entered into the records of the court.

165Pursuant to s.6AAA, but for your plea of guilty, I would have sentenced you to 10 years and six months with a minimum non-parole period of eight years.

166All right.  Ms Casey, do those figures add up?

167MS CASEY:  Sorry, Your Honour, I'm just adding up the ‑ ‑ ‑

168MR LEE:  I think that pre-sentence might have been up till the last day it occurred, Your Honour.

169HIS HONOUR:  Was it?  What is it now, Mr Lee?  Sorry, I thought I only just ‑ ‑ ‑

170MR LEE:  Yes.  I think it's ‑ ‑ ‑

171HIS HONOUR:  How much?

172MS CASEY:  Your Honour, I believe it should be 555.

173HIS HONOUR:  Sorry, I beg your pardon.

174MS CASEY:  Not including today.

175HIS HONOUR:  Yes.

176MR LEE:  That's correct.

177HIS HONOUR:  All right.

178Pursuant to s.18, I declare that a period of 555 days pre-sentence detention to be deducted from the sentences I have imposed, and this will be entered into the records of the court.

179MS CASEY:  Thank you, Your Honour.  I have reached the same number on the total effective sentence.

180HIS HONOUR:  All right.  And the minimum is five years and eight months.

181MS CASEY:  Thank you.

182MR LEE:  Thank you, Your Honour.

183HIS HONOUR:  Now, are there any other orders required, Mr Lee?

184MR LEE:  Yes.  I understand that there were disposal and forfeiture orders in relation to the cash.

185HIS HONOUR:  Yes.  Any objection to any of those orders, Ms Casey?

186MS CASEY:  No, Your Honour.  There was a destruction order.  There is one pair of snickers on the destruction order that, by agreement, should be removed.  Perhaps the appropriate course is for the prosecution to file a new or amended order rather than to have Your Honour rule a line through one.

187HIS HONOUR:  All right.  Mr Lee, if you do that, then I will make those orders in chambers.

188MR LEE:  Yes.  We will file a new order.

189HIS HONOUR:  All right.  Thank you, Mr Lee.  No other matters?

190MR LEE:  Nothing arising, Your Honour.

191HIS HONOUR:  All right.

192MS CASEY:  Just one matter, Your Honour.

193HIS HONOUR:  Yes.  Yes.

194MS CASEY:  So, Your Honour, in going through the aggravating features indicated that there were members of the public present in relation to charge 2.

195HIS HONOUR:  Did I?

196MS CASEY:  There were in fact no patrons present.  Yes.

197HIS HONOUR:  I beg your pardon.  That is a mistake on my part, if that is right, and I will withdraw that and amend the sentence.  Anyway, is it agreed there were no members of the public in charge 2? 

198MR LEE:  It is agreed, Your Honour.

199HIS HONOUR: So it is members of the public present in charges 1 and 4.

200MS CASEY:  That's right.

201HIS HONOUR:  All right.  That made no material difference to the sentence in the case.

202MS CASEY:  Yes, Your Honour.

203HIS HONOUR:  All right.

204MR LEE:  If the court pleases.

205HIS HONOUR:  Thank you for that, Ms Casey.

206MS CASEY:  If Your Honour pleases.

207HIS HONOUR:  I will stand down.

‑ ‑ ‑