DPP v Ward [2017] VCC 226

Charge 1 Theft of a BMW motor vehicle, registration number 1AA 8ZF on 18 February 2015.

3 In addition on 14 December 2016, you were found guilty by a jury on the following charges in respect of Indictment number 6.2:

(a) Charge 1, attempted armed robbery of the Aldi Supermarket at Prahran on 18 February 2015;

(b) Charge 3, armed robbery at the Caffe La Via, Malvern on 18 February 2015;

(c) Charge 4, reckless conduct endangering life in High Street, Malvern on 18 February 2015.

4 All the offending the subject of the first two Indictments occurred in the early hours of the morning of 18 February 2015.

5 You have also pleaded guilty to the following charges the subject of Indictment number 6.3

(d) Charge 1, Theft of a registration plate, 1AT 2FW on 5 March 2015;

(e) Charge 2, Theft of a Ford motor vehicle, registration number UNA 797 on 5 March 2015;

All 3 Charges the subject of Indictment 6.2 (charges1, 3 and 4) together with Charge the subject of Indictment 6.1 arise in respect to activity by you on the morning of 18 February 2015 in the space of approximately an hour and a half.

i. Charge 1, involves the attempted armed robbery at the Aldi Supermarket in Prahran, where you, together with an unknown accomplice, entered the supermarket at 5.15am, on 18 February 2015 which entry was effected by your accomplice employing a sledgehammer to smash the glass front door entrance.

• Having entered the store, you together with your accomplice, approached three staff members who were in the process of setting up the store for the morning trade, demanding that you be taken the safe. You made that demand to a staff member who observed that you had in your possession a firearm.

• Having viewed the CCTV footage in this instance however I am not satisfied that you brandished the firearm in any way at the staff member. You were told that there was no safe on the premises and you and your accomplice fled the store via the front entrance.

• The Period of time which elapsed between you entering and leaving the store was approximately one minute. You effectively ran past the employees present who were setting up the store.

ii. Charge 3 the armed robbery at Café La Via the involved you, together with an unknown accomplice, entering a café in Glenferrie Road via the rear kitchen entrance at approximately 7.00 am on 18 February 2015.

• Upon entering the café, you approached a staff member, pointed a shot gun at him and demanded "where is the safe?" You then forced another staff member at gunpoint through the rear of the premises and into the front of the café where that cash register was located.

• At gun point you directed the staff member to open the cash register from which you removed approximately $300 of cash. You then left the café. The time between you entering and leaving the café was approximately two minutes.

iii. Charge 4, the charge of reckless conduct endangering life involved the pursuit at 7.34am on 18 February 2015 of a BMW sedan registration 1AA 8ZF, which you were driving by members of the Prahran Highway Patrol along High Street, Malvern.

• In the course of the pursuit, the police vehicle travelled at speeds of up to 120 kilometres per hour in order to attempt to gain on your vehicle but failed to do so. In order to evade being intercepted, you drove your vehicle across the wrong side of the road, and across the path of an oncoming tram and vehicles. You then braked heavily, drove up onto a footpath outside the Malvern Cricket Ground and travelled for approximately 100 metres along the footpath. At this stage, the pursuit was terminated by the police due to your dangerous driving.

• The chase took approximately 44 seconds during which time both your vehicle and the police vehicle travelled through three intersections controlled by traffic lights. Whilst the traffic was reasonably light, the DVD footage nevertheless shows the presence of other vehicles, the police vehicle having to pass a number of vehicles travelling in the same direction in the course of the chase. The traffic at point at which your vehicle crossed onto the wrong side of the road appeared to be reasonably heavy however the oncoming traffic and the tram appeared to be travelling extremely slow or stationary.

7 The charge of the Theft of the BMW registration 1AA 8ZF, involves your use of the vehicle on 18 February 2015. The vehicle had been stolen from Cyril Street, Elwood between 12 and 13 February 2015. It is not alleged that you were involved in this activity.

• The charge of Theft of a registration plate 18E2 FW involved stealing a number plate from a Ford Falcon on 5 March 2015.

• The Theft of the Ford RX6 registration number UNA 797 involved you driving that vehicle on 5 March 2015, the keys of which had previously been stolen whilst the vehicle was parked outside Victoria Park in Collingwood, to which you had attached the stolen registration plate.

• The charge of Burglary involved you reversing the stolen Ford vehicle into the front entrance glass doors of a chemist shop on 7 March 2015. You then entered the pharmacy and the charge of Theft involved you stealing 30 boxes of cold and flu tablets from the pharmacy.

9 The charge of Armed Robbery carries a maximum prison sentence of 25 years' imprisonment.

10 The charge of Attempted Armed Robbery carries a maximum prison sentence of 20 years' imprisonment.

11 The charge of Reckless Conduct Endangering Life carries a maximum period of imprisonment of 10 years.

12 The charge of Burglary carries a maximum period of imprisonment of 10 years[1].

13 The each charge of Theft carries a maximum period of imprisonment of 10 years.

15 You have a significant criminal history of offences involving dishonesty and violence namely:

• convictions in May 2013 with respect to Theft of a Motor Vehicle; Going Equipped to Steal; Possession of an Unregistered Firearm and Ammunition and Dealing with the Proceeds of Crime;

• two convictions in February 2012 of Making a False Document and Using the same to Prejudice Another;

• a conviction in April 2010 of the Attempted Theft of a Motor Vehicle Burglary and Theft;

• convictions in May 2009 of Theft of a Motor Vehicle and Reckless Conduct Endangering Life;

• multiple offences in 2007 of dishonesty and violence including an Aggravated Burglary and Intentionally Causing Serious Injury in respect of which, by reason of your age, you were sentenced to 14 months imprisonment in a Youth Training Centre.

16 On 28 April 2009, you were sentenced by this Court to four years' and nine months' imprisonment in respect of one count of Armed Robbery and one count of Possessing an Unregistered Firearm as a Prohibited Person.

17 Your sentence involved an effective sentence of four years and three months' imprisonment with a minimum period of two years and three months.

18 The Armed Robbery involved you entering a bakery armed with a sawn-off shotgun which you pointed at a woman who was managing the bakery and made a demand that she provide you with the contents of the till.

19 That offence bears a striking similarity to the behaviour by you in relation to the charge of armed robbery in respect of which I am to sentence you.

20 As I have said you are thirty years old. You were raised by your mother, your parents having separated when you were very young.

21 You left the family home when you fifteen and took up residence at a friend's house.

22 You attended school to Year 9 level and went into the workforce, commencing apprenticeships in carpentry and electronics. Although you did not complete either of these apprenticeships, you hold certificates in construction, carpentry, sand blasting and powder coating.

23 You worked as a meatworker, commencing in 2007, and continued in that employment for some years before you sustained an injury to your right hand.

24 You have a long history of abusing alcohol and drugs. You commenced consuming alcohol at the age of thirteen and eventually moved to the use of cannabis and methamphetamine

25 At the time of the offending in this instance you were using 2 grams or more of methamphetamine daily, which you combined with the use of cannabis on a daily basis.

26 On your behalf, it is put that since being confined to Port Phillip Prison, you have tried to control your use of drugs and in order to facilitate that process, you sought a transfer to Barwon Prison for the reason that Port Phillip Prison was "full of drugs and I wanted to get away from it".

27 You have been assessed by Dr David Ball, a forensic psychologist, who in a report dated 17 February 2017, commented that you presented with no symptoms of depression or anxiety and no evidence of frank mental illness.

28 Dr Ball described you as a man with an impaired capacity to exercise good judgment and a lengthening criminal history in association with a history of substance abuse and living on the fringes of the community.

29 He describes you as no longer satisfying any DSM-V diagnostic criteria for substance use disorders but as presenting with the DSM-V diagnostic criteria for Antisocial Personality Disorder.

30 Dr Ball considered that you had the potential of being imminently employable but commented that you will require monitoring, supervision and community support when you are released into the community. He said that you will also need structured and intensive drug and alcohol relapse prevention treatment.

31 With respect to the three charges in respect of which you have been convicted by a jury it is clear from your statements made to Dr Ball that you maintain your innocence and present with no true remorse.

32 In sentencing you, with respect to those matters I give due weight to the fact that there was some delay in dealing with these matters. Your original trial, having been listed in May 2016, did not proceed through no fault of your own until November of that year.

33 With respect to the Robbery and Attempted Robbery, it was put on your behalf that the offending lacked sophistication was not well planned and that your offences were committed on impulse.

34 I accept that the offending lacked sophistication and was not well planned.

35 Given that the attempted armed robbery involved a co-offender, the use of a stolen vehicle, the use of a sledgehammer, balaclavas and weapons, I do not accept that that offending was committed as a matter of impulse. Further I am satisfied that it is unlikely that the Armed Robbery of the cafe occurred by chance having regard to the location of the back entrance of the cafe which is accessed via a narrow laneway.

36 It is appropriately put on your behalf that the attempted robbery of the Aldi Supermarket involved you, together with your co-offender, spending less than one minute inside the store and leaving the premises when you were told no money was available.

37 The Armed Robbery at Café La Via involved 2 café workers being confronted by you wearing a balaclava and at various times holding a shotgun at each of them which was pointed at them at close range.

38 In my opinion, this Armed Robbery is an instance of serious offending which falls at the more significant end of the range of activity involved in offences of that nature. Although no victim impact statements have been tendered by the prosecution in this instance I am satisfied having regard to the CCTV footage of the armed robbery must have exposed your victims to considerable trauma.

39 Whilst no one was injured in the course of your driving. That driving never the less involved your vehicle travelling at very dangerous speeds in the presence of other vehicles. In my opinion it exposed both passengers in vehicles and potential pedestrians to the real possibility of death in the event of a miscalculation in your driving or the failure of a driver or pedestrian to appreciate that your vehicle was approaching at a speed which was totally unexpected given the area in which the driving occurred. For these reasons I consider this offence to be at fall in the upper range of the activity the subject of this type of offending.

40 The Theft and Burglary charges the subject of Indictment 6.3 to which you have pleaded guilty involved:

• planning in the sense that you employed a stolen vehicle fitted with stolen number plates;

• the Theft of a significant quantity of medication.

For these reasons I am of the opinion of these changes involve serious offending.

41 Given the concession made by the prosecution that your plea of guilty was of real value as the case against you was not overwhelmingly strong, I am satisfied that I should significantly discount the sentence that I would otherwise have imposed in respect of the Burglary and Theft charges associated with your breaking into the pharmacy by reason of the value of your plea.

42 You are also entitled to a discount on the sentence which I would have otherwise imposed with respect to Indictment 6 .1 given your plea of guilty.

43 On your behalf, it is put that you are well supported by your family, particularly your mother who has always stood beside you and that you have a number of skills which provide you with reasonable prospects for employment. I accept each of these statements on your behalf.

44 I also accept that whilst in prison awaiting your trial you have taken steps to control your drug dependency and that, this together with the support you have from your family, potentially speaks positively on the issue of your rehabilitation prospects

45 Your long history of offending and the nature of the offences in respect of which I am to sentence you today cause me to be guarded as to whether you have positive prospects of being rehabilitated.

46 Given the nature of your offending, it is clear that in sentencing you issues of punishment deterrence and community protection at the forefront.

47 In respect of these charges, bearing in mind my obligation to ensure that the totality of your sentence remains just and appropriate in respect of the whole of your offending, I impose the following sentences:

48 In respect of Indictment F1082322 6.1 the Theft of the BMW motor vehicle you are convicted and sentenced to a period of imprisonment of one (1) year.

49 In respect of the charges the subject of Indictment F1082322 6.2

(i) In respect of charge 1 the Attempted Armed Robbery you are sentenced to a period of imprisonment of two and a half (2.5) years;

(ii) In respect of the charge 3 the Armed Robbery you are sentenced to a period of imprisonment of six years and six months (6.5 Years);

(iii) In respect of the charge 4 the Reckless Conduct Endangering Life you are sentenced to a period of imprisonment of two (2) years.

50 As to the sentences the subject of this Indictment I fix the sentence in respect to charge three, the Armed Robbery, as the base sentence I direct that one year of the sentence I have imposed with respect to charge one the Attempted Armed Robbery and one year of the sentence which I have imposed with respect to charge four the Reckless Conduct Endangering Life be served cumulatively with the base sentence and the other sentences which have imposed.

51 Accordingly I have imposed a total sentence of 8 years and six months with respect to the charges the subject of this Indictment.

52 As to the charges the subject of Indictment F1082322 6.3

(i) In respect of charge 1, the Theft of the registration plate, you are sentenced to a period of imprisonment of two (2) months;

(ii) In respect of charge 2, the Theft of the Ford motor vehicle, you are sentenced to a period of imprisonment of one (1) year;

(iii) In respect of charge 3, the Burglary, you are sentenced to a period of imprisonment of two years (2 years);

(iv) In a respect of charge 4, the Theft associated with the Burglary, you are sentenced to a period of imprisonment of one year (1);

As to the sentences the subject of this Indictment I fix the sentence in respect to charge three, the Burglary, as the base sentence. I direct that 8 eight months of the sentence imposed in respect of charge 2, the Theft of the Ford motor vehicle to be served cumulatively with the sentence which I have imposed with respect to charge 3 the Burglary.

53 Accordingly I have imposed a total sentence of 2 years and 8 months in respect of this Indictment.

• six months of the sentence I have imposed with respect to Indictment F1082322 6.1; be served cumulatively with the sentences which I have imposed with respect to Indictment F1082322 6.2.

• one year and six months of the sentence which I have imposed with respect to Indictment F1082322 6.3 be served cumulatively with the sentences which I have imposed with respect to Indictments F10823226.1 and F1082322 6.2.

55 Accordingly I have imposed a total effective term of imprisonment of 10 years and 6 months

56 I am satisfied that it is appropriate to impose an order fixing a minimum period of imprisonment in this instance of 7 years and 6 months before you are eligible for parole.

57 But for your pleas of guilty I would have imposed:

• a sentence of two years with respect to the Theft of the BMW motor F1082322 6.1; and

• an aggregate sentence of imprisonment of 7 years with respect to the offences the subject of F1082322 6.3

58 I will declare that 734 not including today be recorded as time served with respect to this sentence. Is there anything else that I need to attend to, in terms of making the order?

59 MR TRIANDOS: No, just the - Your Honour, no, just to clarify the maximum penalty for Burglary is ten years' imprisonment. Your Honour may have said

61 MR TRIANDOS: Yes, it may have been inadvertent, Your Honour, but

62 HIS HONOUR: Let me just check my sentencing notes - yes it was inadvertent.

66 HIS HONOUR: I just want to allow everyone to check the arithmetic here, which ensured my intention that the end point of this, taking into account the totality of all the charges and the offending, involves a sentence of 10.5 years, or ten years and six months, with a minimum of seven years and six months.

70 HIS HONOUR: So, does anyone want to say anything about that, in terms of the way I have explained the sentence or the structure of it, in terms of the cumulation which I have directed?

74 MR DOYLE: Your Honour, the only query I've got and I'll just check the Act while I'm on my feet,

76 MR DOYLE: is whether it, technically speaking, is permissible, as Your Honour's put it, to order that a portion of a total effective sentence imposed on Indictment 6.3, be served cumulatively on the remainder, or whether Your Honour needs to break that order down

78 MR DOYLE: into the sentences on specific charges in Indictment 2.3.

82 MR DOYLE: obviously to give effect to Your Honour's intention,

83 HIS HONOUR: No, I understand what you are saying, but, of course, do you want

86 MR TRIANDOS: Yes, can we check that, Your Honour?

88 MR DOYLE: Yes, I was checking the statutory language, Your Honour.

89 HIS HONOUR: The end point of this, I want to make it clear that there is going to be no change in the total effective term of 10.5 years or the minimum, but the way I express it obviously has to be in accordance with the Sentencing Act.

90 MR TRIANDOS: Yes, if we could just have a few minutes, Your Honour.

93 HIS HONOUR: I am happy to stay. What is the most convenient?

94 MR DOYLE: Perhaps if Your Honour just stands down for a couple of minutes while we confer.

96 MR DOYLE: I would appreciate that chance, Your Honour.

98 MR DOYLE: Your Honour, we're grateful for the time. The reason I paused,

I think was partly due to a lingering memory of a case called Ludeman[2], which was decided by the Court of Appeal, which concerned other matters, but the reasoning in the case has relevance for the question of how Your Honour would structure this sentence. And my concern was that in order to achieve the total effective sentence in this case, what Your Honour is restricted to doing is, making orders for cumulation on individual charges, the subject of Indictment 6.3 in particular, onto a single based count, rather than making an order for cumulation from one Indictment to another, or one, as Your Honour's put it, total effective sentence to Your Honour.

99 The only course really contemplated by the Sentencing Act

102 HIS HONOUR: As distinct from Indictments - the sentence with respect to Indictment 6.2?

103 MR DOYLE: Yes, Your Honour. Because it seems to me that from the reasoning in Ludeman, the Sentencing Act

104 HIS HONOUR: Well what is there - what is the - is there some issue about this? Have you sought instructions about it?

105 MR TRIANDOS: Yes, I have sought instructions, Your Honour, and I have seen sentences in the way Your Honour has structured it, in the past and so has the person from whom I received advice, however

108 HIS HONOUR: I am sorry to interrupt you, I am just trying to work out

109 MR TRIANDOS: No. So - but however, the Prosecution is willing to have the sentence structured in the way that my learned friend is suggesting, because there's nothing wrong with that either, in terms of the point that my learned friend has raised. So either way, the prosecution is saying it can be done, Your Honour.

110 HIS HONOUR: All right. Well, I must say, I have imposed a sentence with respect to a number of Indictments in this way before, which did not attract anyone's attention, but equally, it was not the subject of an appeal, so it was not validated in any way.

112 HIS HONOUR: But just so that I understand your position, do you say - is your position that with respect to the process, what I should do is find - is not impose a sentence and fix the total effective sentence with respect to each of the Indictments, is not do that? For example, Indictment No.1 falls away because it is the one charge, but Indictment No.2, the Attempted Armed Robbery, the Armed Robbery and the Reckless Conduct, should I not, with respect to that Indictment, indicate what is the process with respect to cumulation and fix

113 MR DOYLE: If - so long as the cumulation - the orders for cumulation are expressed to be in relation to offences, that is the subject of individual charges, then the difficulty I have identified won't arise, Your Honour.

114 HIS HONOUR: All right, well, let's just go through the process. So with respect to 6.2, what I did was, I imposed with respect to the Armed Robbery, two and

a half years. That is the Attempted Armed Robbery, the Armed Robbery was six and a half years, the Reckless Conduct Endangering Life was two years and then I cumulated the 6.5 with one year of the Attempted Armed Robbery and one year of the Reckless Conduct Endangering Life.

116 HIS HONOUR: All right. With respect to 6.3, the Theft, two months, that is the registration plates; the Ford Theft, one year; the Burglary, two years; and the Theft associated with the Burglary, one year, and I cumulated two years of the Burglary and eight months of the Ford Theft. But, do you say with respect to the totality of the sentence with respect to the ten and a half years, and seven and a half years, I should then go through a process of identifying the base sentence with respect to the three separate Indictments and cumulating on that?

117 MR DOYLE: No, it's simply this, Your Honour, that the orders for cumulation Your Honour made in relation to Indictment 6.3.

119 MR DOYLE: Should be expressed in terms of individual charges on that Indictment, rather than an overall order for cumulation in respect of the total effective sentences Your Honour put it on that Indictment itself. So can I put it this way?

120 HIS HONOUR: So that the cumulation with respect to that Indictment, which is a totality of

124 HIS HONOUR: Should be fixed on the basis of either 18 months for the Burglary or something for the Burglary and something for the Theft. Is that what you say?

127 MR DOYLE: Yes, that's precisely the effect of the submission, that the

18 months Your Honour intends to have cumulated based on that series of offences, should be broken down into portions for individual charges and then there's no difficulty with that.

128 HIS HONOUR: Well, my gut reaction about it is that the process I have employed is a correct one. If I was required to identify cumulation with respect to the charges, as to 6.3, I would allocate that in regard to the various behaviour. One year with respect to the Burglary and six months with respect to the Theft of the car and direct that those sentences be cumulated with respect to the sentence imposed with respect to 6.2 and six months of the sentence with respect to 6.1.

130 HIS HONOUR: Well, I am urged by the parties that that is the approach that

132 MR DOYLE: Yes, Your Honour. I had another look at Ludeman and it seems, although Ludeman didn't deal with this exact point, it simply seems to me that the reasoning in the case implies that that is how it should be done. It is

a technical matter, but I thought I should raise it.

133 HIS HONOUR: Well, it is important that technicalities are observed, but I will

134 MR TRIANDOS: And that's the approach the prosecution takes, Your Honour.

136 MR TRIANDOS: What my learned friend says is correct.

139 HIS HONOUR: All right. Well then the end point of the sentencing process will be the same, both with respect to the totality of the effective sentence and the minimum time to be served, but it will be expressed, not in the way that I initially expressed it, but in a way that I have indicated with respect to the cumulation as to the sentences imposed with respect to 6.3.

141 HIS HONOUR: Yes. Do you want a moment to explain this process?

142 MR DOYLE: No, I've had that opportunity, Your Honour.

143 HIS HONOUR: All right. Well Mr Ward should be removed. We will adjourn.

[1] There is no issue that the transcript confirms that in reading my sentencing comments I stated that the maximum sentence for the charge of Burglary was 20 years. See the discussion at paragraphs 59-65. This did not accord with my sentencing notes for this reason I have not altered those notes.

[2] Ludeman v The Queen [2010] VSCA 333.