Director of Public Prosecutions v Ashenden

[2022] VCC 2018

IN THE COUNTY COURT OF VICTORIA

AT BENDIGO

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-21-01781

CR-21-01787

THE DIRECTOR OF PUBLIC PROSECUTIONS

V

COREY ASHENDEN

WAYLON WENSKE

---

JUDGE:	HIS HONOUR JUDGE GAMBLE
WHERE HELD:	Bendigo
DATE OF HEARING:	9 and 10 November 2022
DATE OF SENTENCE:	16 November 2022
CASE MAY BE CITED AS:	DPP v Ashenden & Anor
MEDIUM NEUTRAL CITATION:	[2022] VCC 2018

REASONS FOR SENTENCE

---

Subject:  CRIMINAL LAW - Sentence

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nibbs	Office of Public Prosecutions
For Accused Ashenden	Mr M. Turner (Plea) Ms B. Oliver (Sentence)	Rolfe Criminal Law
For Accused Wenske	Mr J. Lowy (Plea) Mr L. Docherty (Sentence)	Docherty Legal

HIS HONOUR:

Introduction and Overview

1The plea indictment in this matter contains seven charges. Corey Ashenden, you have pleaded guilty to six charges.[1] Waylon Wenske, you have pleaded guilty to three charges.[2]

[1] Charge 1 (affray), Charge 2 (causing serious injury recklessly), Charge 4 (causing injury intentionally), Charge 5 (criminal damage), Charge 6 (theft of a motor vehicle), and Charge 7 (possession of a drug of dependence).

[2] Charge 1 (affray), Charge 3 (causing injury recklessly) and Charge 4 (causing injury intentionally).

2Of the two offences with which you are jointly charged, affray (Charge 1) carries a maximum penalty of five years’ imprisonment, while causing injury intentionally (Charge 4) carries a maximum penalty of 10 years’ imprisonment. The victim in respect of Charge 4 is a man named Christopher Leach.

3In addition, you, Mr Ashenden, have separately pleaded guilty to single charges of causing serious injury recklessly, criminal damage, theft of a motor vehicle, and possession of a drug of dependence, namely methylamphetamine. Those offences are alleged in Charges 2, 5, 6 and 7 on the indictment, respectively. The offence of recklessly causing serious injury carries a maximum penalty of 15 years’ imprisonment. For each of criminal damage and theft of a motor vehicle, it is 10 years’ imprisonment. As I am satisfied on balance that the methylamphetamine was not possessed by you for any purpose related to trafficking, the lesser maximum penalty applies to the possession charge, namely one year imprisonment or a fine of 30 penalty units.

4Mr Wenske, you have also pleaded guilty to the additional offence alleged in Charge 5, namely causing injury recklessly. The maximum penalty for that offence is five years’ imprisonment. The victim of that offence is Brendan Leach. You are charged on a complicity basis. Whilst it was Mr Ashenden who punched that victim, you were present and, in effect, aiding and abetting him to do so. Whilst that punch in fact caused serious injury to Mr Leach Senior, the difference in the charges that you and Mr Ashenden face for that assault are to be understood by reference to your differing states of mind at the time. Mr Ashenden admits having been aware of the probability of causing a serious injury when delivering that blow, whilst you are charged and to be sentenced on the basis that you were aware of the probability that injury, as opposed to serious injury, would be caused. The differing maximum penalties for recklessly causing injury and recklessly causing serious injury are indicative of the relative degrees of seriousness of those offence types.

5There are a number of victims in relation to this offending. The primary victim in respect of Charges 2, 3 and 5 is Brendan Leach, while his son, Christopher Leach, is the primary victim in respect of Charges 4 and 6. Each of those men, as well as the other members of their extended family unit, are victims of the affray offence alleged in Charge 1.

6I note that at the time of this offending Mr Ashenden was aged 23, Mr Wenske was 24, Christopher Leach was 34 and Brendan Leach was 67. They are now aged 26, 27, 37 and 70, respectively.[3]

Circumstances of the Offending

[3] Mr Ashenden was born in February 1996 and Mr Wenske was born in June 1995.

7The circumstances in which each of you committed the offences that you did are set out in the typed prosecution opening.[4] I note that defence counsel have acknowledged that it represents an agreed statement of facts for sentencing purposes. I also note that the basis on which each of you fall to be sentenced was discussed to some extent during the course of the plea hearing.

[4] Dated 29 July 2022 (exhibit A).

8It is sufficient, for present purposes, to provide the following outline of the offending.

9On 3 October 2019, Brendan and Helen Leach, together with their adult son, Christopher Leach, his partner, Kathy Bamert, and their children, set up a campsite at a campground next to the Campaspe River in Goornong.

10At approximately 9.30 pm on 4 October, Mr Wenske and a woman he had newly commenced dating, arrived and, after setting up camp about 25 metres from the Leach campsite, began playing loud music at about 10:40pm.

11On being disturbed, Christopher Leach approached Mr Wenske, while carrying an 18 volt battery torch, and demanded that he, ‘Turn the fucking music down’. When Mr Wenske refused to do so, Mr Leach hit him in the head with the torch, dislodging the battery in the process. As a result, Mr Wenske received a significant laceration to his forehead which bled profusely.

12Mr Wenske initially reacted verbally, saying, ‘Well, we got a fucking problem alright, it’s Friday night and we can have the music up as loud as we fucking want’. At about that time, Brendan Leach approached Mr Wenske’s campsite.

13Mr Wenske then lunged at Christopher Leach and grabbed him around the throat. Brendan Leach intervened by forcing Mr Wenske back and punching him. Christopher Leach then grabbed and punched Mr Wenske while saying words to the effect of, ‘I want to fucking kill him’. Mr Wenske fought back until his female companion intervened and managed to separate everyone.

14Christopher Leach then returned to his campsite after first hiding the torch under the seat of his Volkswagen Amarok Dual Cab vehicle.

15As Mr Wenske and his female friend were packing up their campsite, Mr Wenske located and took possession of the dislodged torch battery. He then left the area at approximately 11 pm and drove his friend home in his Mitsubishi Triton vehicle.

16Later that evening, Mr Wenske first called and then met up with his close friend, Corey Ashenden, at Kangaroo Flat. Mr Ashenden was upset and took a photo of Mr Wenske’s facial injuries on his mobile phone.

17Mr Ashenden and Mr Wenske then drove in the Triton vehicle to a car park in White Hills where they collected at least one other male, before driving back to the campground, arriving there at approximately 2 am on 5 October.

18Everyone except Mr Wenske exited the vehicle. Mr Wenske remained in the driver’s seat while the engine was running and the headlights were directed at the Leach campsite.

19Upon hearing the vehicle arrive, Christopher and Brendan Leach exited their tent. On doing so they were confronted by numerous males including Mr Ashenden and Mr Wenske. In response, Brendan Leach grabbed a pole.

20Mr Ashenden then asked Christopher Leach who had had a go at his, ‘brother’ (a reference to Mr Wenske) and requested Mr Wenske to point out the individual who was responsible. In response, Christopher Leach suggested that it may have been someone from another campsite and advised that there were women and children in his tent. Mr Wenske responded to Mr Ashenden’s request of him by saying, 'Yeah, they’re the cunts there, they’re the bastards that sorted us out'. The group of males then surrounded Christopher Leach and his father, Brendan.

21As this was happening Christopher Leach’s partner, Kathy Bamert, looked outside the tent and threw him a set of car keys. Brendan Leach then raised the pole in order to confront Mr Ashenden, however, before he was able to do so, Mr Ashenden struck him to the side of the head with a clenched fist.

22Christopher Leach fled the scene in his Amarok vehicle in an attempt to induce the offending group of males to follow him. When they did not he drove back to the scene and noticed that his father was on the ground in front of the Triton vehicle. Fearing that his father was about to be run over, Christopher Leach decided to use his own vehicle to ram the Triton vehicle in which Mr Wenske was still seated.

23As this was happening, Kathy Bamert dialled 112.

24Mr Ashenden and Mr Wenske then proceeded to smash the windows of Christopher Leach’s vehicle and then drag him out of the driver’s seat, after which they both punched and kicked him. As this was occurring, Christopher Leach was yelling to his father to get out of the way as he believed they were going to run him over.

25Eventually Christopher Leach managed to get away, collect his father and then retreat behind a camper trailer.

26Mr Ashenden then got into the driver’s seat of Christopher Leach’s vehicle and used it to ram into Brendan Leach’s Toyota Hilux vehicle, which was parked in front of the camper trailer.

27After this, all of the offending males left and travelled in two vehicles to a property on Epsom-Barnadown Road, approximately 7 kilometres from the campground. Mr Ashenden drove Christopher Leach’s vehicle while the others travelled in Mr Wenske’s vehicle. After arriving there, Mr Wenske unloaded his motorbike from the rear of his vehicle and then rode away from that location. By contrast, Mr Ashenden remained where he was and waited for police to arrive.

28Police attended the scene of this incident at approximately 2.30am. Christopher and Brendan Leach were taken by ambulance to the emergency department of Bendigo Health and treated for their injuries. Christopher Leach received glass in his left eye and lacerations and bruising to his face, ear, upper arm, chest and other parts of his body. Brendan Leach suffered total permanent loss of vision in his right eye.

29Mr Wenske was taken to the same emergency department by an unknown associate, where he was treated for his injuries.

Mr Ashenden: Arrest and Interview

30Mr Ashenden, you were arrested by police on that morning at the location to which you had driven Christopher Leach’s vehicle. On examining your mobile phone, police located the photos you had earlier taken of Mr Wenske’s injuries. In the phone case police located the small quantity of methylamphetamine which is the subject of the possession of a drug of dependence charge.

31During the police interview conducted later that day you told police the following, inter alia:

·     You had received a phone call from Mr Wenske in which he had told you that he had just got his head bashed in with a power drill;

·     Mr Wenske had wanted to go to the hospital but you had indicated that you wanted to go and see what was going on and why they had done this to him;

·     You had wanted to go and punch the person responsible in the face and, 'smash him around';

·     When you arrived at the campsite, Brendan Leach attempted to hit you with a pole but you blocked it and then, 'jabbed him', with your fist;

·     You admitted to dragging Christopher Leach out his vehicle and then giving him, 'a couple of slaps';

·     You denied using a hammer or indeed any weapon when assaulting those two men;

·     You had used Christopher Leach’s vehicle to ram Brendan Leach’s vehicle;

·     You were the only person that did anything; and

·     You drove away in Christopher Leach’s vehicle because of what he had earlier done and because you were already in the driver’s seat after ramming the other vehicle. You had thought, 'Fuck it', and decided to take the vehicle for a, 'joyride'.

Mr Wenske: Arrest and interview

32Mr Wenske, you were arrested by police on the same day, but at Bendigo Health Hospital.

33On searching your vehicle, police located the torch battery with your blood on it as well as clothing and a black face mask.

34When you were interviewed later that day, you told police the following, inter alia:

·     It was only after you had set up your campsite and started playing music that you realised that you were so close to the campsite of the Leach family;

·     You were hit in the face with what you thought was a battery drill by Christopher Leach and, as a result, you packed up and drove back into Bendigo as your female friend felt unsafe;

·     You called Mr Ashenden, who decided to go back out to the campground. On the way you picked up an unknown male off the street;

·     You did not know that Mr Ashenden intended to assault the other parties;

·     As you and Mr Ashenden confronted the Leach family, your vehicle was hit by Christopher Leach’s vehicle;

·     You stayed there for a short time and began driving before being hit for a second time;

·     You got out of your vehicle and saw Brendan Leach on the ground in the foetal position;

·     You did not hit him while he was on the ground;

·     After you pulled Christopher Leach out of his vehicle, you punched him and Mr Ashenden threw him to the ground;

·     You denied using any weapon; and

·     You were unable to explain why Christopher Leach had significant injuries all over his body.

No Pre-Sentence Detention

35I note that each of you were released on bail after being charged and that you have remained on bail ever since.

36Accordingly, there is no applicable period of pre-sentence detention available in the event of any custodial sentence being imposed.

Resolution and Guilty Pleas

37I note that after two attempts, this matter was the subject of a contested committal hearing on 18 August 2021.[5] At that time the prosecution were pursuing more serious and additional charges to those on the current plea indictment. In addition, I have been informed and accept that the committal hearing was beneficial in clarifying and refining the proper factual basis on which this matter should proceed.

[5] The first hearing listed for 14 and 15 October 2020 was adjourned while the next listing date of 20 May 2021 was vacated.

38After each of you were committed for trial in this court, the matter resolved following a case conference conducted by another judge of this court on 5 April 2022. During the subsequent arraignment conducted on 20 May 2022, each of you pleaded guilty to the charges that you now fall to be sentenced for. The matter was then listed for a plea hearing in the Bendigo Circuit sittings commencing on 22 August but was later adjourned and then fixed for hearing on 9 November.

39In light of the above circumstances and chronology, I am prepared to treat each of your pleas as having been entered at a relatively early stage in these proceedings and to have regard to that fact and other relevant considerations in the determination of an appropriate discount in your sentences.

Victim Impact Statements

40As will be clear from the above description of the offending, the two primary victims are Brendan Leach and his son, Christopher Leach, although other members of their family have also been impacted and were themselves victims in respect to the offence of affray. This no doubt terrifying incident occurred in the immediate vicinity of Brendan Leach’s wife and Christopher Leach’s partner and two young sons. Its immediate aftermath must have been very distressing for all concerned and, in particular, for Brendan Leach, who must have quickly realised that he had sustained a very serious and painful injury to his eye.

41So much would have been plain from a mere recitation of those events as described in the prosecution opening, but in addition, this Court also has the benefit of the victim impact statements that each of those persons have prepared, and in the case of Brendan and Helen Leach, delivered personally. To the extent permissible, I have had regard to the admissible portions of those statements.

42In his statement, Brendan Leach explains the profound and life-changing effect that the loss of vision in his right eye has caused him. The course of his various surgeries, treatment and rehabilitation has been an arduous journey and remains ongoing. The dreams that he and his wife had for their retirement have been shattered. His enjoyment of life and ability to socialise and undertake leisure activities have been significantly diminished. In short, he has lost his independence. At the time he feared for his life and even to this day he continues to suffer flashbacks and nightmares. He remains at a loss to understand why things happened as they did and continues to experience feelings of anger and grief at being unable to prevent his family from being exposed to such a frightening incident. His vehicle suffered extensive damage and was declared a write-off by the insurance company, leaving him out of pocket to some degree and forcing him to sell his camper trailer to cover the car loan and the various medical bills and associated expenses.

43In her statement, Helen Leach states that she feared for her own life as well as those of her family. She was petrified at the time and, like her husband, continues to experience flashbacks and nightmares. It has had an adverse effect on her mental health and her ability to socialise and travel. She is understandably angry and distressed by the ordeal to which her husband has been subjected and she shares the financial burden that has resulted.

44For his part, Christopher Leach describes the emotional toll that this incident has had on him. He continues to feel guilt for not being able to prevent his family from experiencing such a traumatic event and remains fearful about reprisal attacks. He has withdrawn socially and is currently taking antidepressant and sleeping medication. He is no longer able to take his family camping and has suffered a significant financial loss on account of the damage caused to his vehicle, lost work, increased home security, and his need to see a psychiatrist.

45Kathy Bamert has also been adversely impacted. At the time she feared for the lives of her husband and father-in-law. She has subsequently suffered severe anxiety, bouts of crying, and the exacerbation of an existing back condition. She too has withdrawn socially and had trouble sleeping. She has lost faith and trust in others and remains angry at what she and her family have lost as a result of what occurred that morning. As she details, the financial impost on her and her family has been significant and includes the cost of the specialist behavioural therapists who have been treating her sons.

46Those boys are now aged seven and nine. With the assistance of their mother, this Court has been informed of the impact that this offending has had on them. The oldest of the boys fears sleeping alone, for which he has been prescribed medication. He no longer feels safe, even in his own home. Unfamiliar environments are a concern. His younger brother’s behaviour has become unstable and aggressive, for which he has been receiving intensive therapy and anti-anxiety medication.

Prior Criminal History: Mr Ashenden

47In your case, Mr Ashenden, you have a very limited, aged and inconsequential prior criminal record. It is confined to a single court appearance in October 2014 when, as an 18 year old, you were convicted and fined for an offence of driving whilst unauthorised.

Prior Criminal History: Mr Wenske

48As for your previous criminal record, Mr Wenske, it too is limited and aged. As the result of a single court appearance in July 2014, when you were 19, you were placed on a good behaviour bond without conviction for three offences, namely, resist police, refuse name and address and disorderly behaviour. Your neighbour was a police officer and became concerned that your sister’s dog was left to roam the surrounding streets unsupervised. A dispute ensued, as a result of which, he arrested you. In the context of this case, it is of little if any relevance.

Subsequent Charges: Mr Wenske

49I also note that Mr Wenske was recently charged with unlicensed driving and evade police. That matter is listed for hearing in the Magistrates Court shortly, on 23 November. He intends to plead guilty. The context to that admitted offending is that Mr Wenske drove to the funeral of his best friend, who had tragically committed suicide. When he was intercepted by police he initially stopped the vehicle but then drove away from them a short time later.

Personal Circumstances: Mr Ashenden

50I will now briefly outline the personal circumstances of each accused, commencing with those of Mr Ashenden.

51His background is outlined in the written submissions of his counsel[6] and in the report prepared by the psychologist, Gina Cidoni.[7]

[6] Exhibit CA1.

[7] Exhibit CA2.

52He was born in February 1996 and is now aged 26. He was 23 at the time he committed the offences for which he now falls to be sentenced.

53He is one of five children and was born in Coober Pedy, although the family travelled to such other places as Alice Springs, Murry Bridge and Adelaide. His parents separated when he was 10. His mother is Aboriginal. Her previously diagnosed schizophrenia has now stabilised. His father was a destructive influence in his children’s lives, engaging in domestic violence, drug use and self-harming behaviours. Such contact as there was in those formative years was very limited. There is some ongoing contact presently.

54Mr Ashenden met Mr Wenske at a very young age and they have been very close friends ever since.

55Mr Ashenden struggled academically and left school at age 15, midway through Year 10. Commendably, he has been in regular employment ever since, save for a brief period in 2016. He has worked as a shearer or farmhand in various parts of Australia as well as for brief periods in New Zealand and England. In more recent times he has worked for Bob Ross Shearing and Roket Shearing. The references for that employment speak highly of his work ethic and ability to get on with fellow employees. One also attests to his trustworthiness and devotion to his family.

56Mr Ashenden grew up in South Australia but moved to Victoria for work about three years ago. He intends to remain living in this State.

57He met his current partner, Leticia Hood, when he was working as a shearer and she as a jillaroo. She is an Aboriginal woman whose family reside in Bairnsdale. They have been in a relationship for approximately two to three years now and have a young child, a son, who was born in November last year. The accommodation situation is somewhat unstable and relies on the generosity of friends. Ms Hood suffers from various conditions, including anxiety and depression and relies on the support that Mr Ashenden provides. She is dislocated from her family and has limited supports in the community.

58Mr Ashenden was assessed by Ms Cidoni recently, on 3 November this year. Her conclusions were somewhat speculative in that she stated that Mr Ashenden’s extreme behaviour could have resulted from poor management of a mood disorder. As she also notes, his use of methamphetamine on the morning in question would have exacerbated such symptoms. In the context of his cognitive limitations, including poor memory and difficulty regulating mood, she considers that he would find prison a more onerous experience than for someone who does not have the problems that he has. In her opinion, he can become easily triggered in an environment with unexpected and stressful events, which could worsen his mood instability.

59In light of those observations and the associated limitations and qualifications attached, I consider that the fifth limb of Verdins case has been engaged. In my view, there is an insufficient evidentiary basis to engage the sixth limb.

60Mr Ashenden does not appear to have any issues relating to alcohol abuse although he has used various drugs over a number of years. He was drug affected at the time of this offending, having used methylamphetamine, MDMA and ketamine. As previously noted, he was found in possession of methylamphetamine at the time of his arrest.

61It seems clear that Mr Ashenden decided to become involved in this matter after he had seen the injuries sustained by his close friend, Mr Wenske. He later explained it to Ms Cidoni in the following terms: 'I don’t know what came over me, I just lost it when I saw Waylon'.

Matters in Mitigation: Mr Ashenden

62Mr Ashenden, your counsel was able to rely on a number of matters in mitigation on your behalf.

63Shortly after this offending occurred you were willing to take responsibility for what you did, initially waiting for police and then, when interviewed, making a number of significant admissions

64You have acknowledged that your offending was serious and involved a higher level of culpability than Mr Wenske’s.

65You have pleaded guilty at a relatively early stage, which has avoided the necessity for a trial and spared the witnesses from having to give evidence at a trial. It has resulted in a significant utilitarian benefit to the community, especially during the COVID-19 pandemic when this court is facing the trial listing pressures that it is. It also demonstrates your preparedness to facilitate the course of justice.

66In light of your admissions, pleas and the observations of Ms Cidoni and a number of the referees, I am prepared to accept that you are remorseful for your offending.

67You have no relevant criminal history for current sentencing purposes. Your conduct on the morning in question appears to have been out of character and seems to be principally explained by your drug affected state and the close bond that you had with Mr Wenske.

68Albeit only very recently, you have taken steps to arrange a mental health care plan to address the issues relating to your drug use and mental health.

69You have a very good work ethic and an excellent employment history. You have provided well for your partner and young child, to whom you are devoted.

70You will find the service of a custodial sentence very onerous for a number of reasons. In addition to those identified by Ms Cidoni, I note that you have never previously been to gaol and that you will no doubt worry about how your partner and young son are coping in your absence. You will be unlikely to receive any visits from your family members who reside in South Australia. Furthermore, as explained in Worboyes and a number of other cases, prison is a more onerous experience during the COVID-19 pandemic due to the need to initially quarantine and the various restrictions that the custodial authorities have to implement in response, which adversely impact on visitation rights and the ability of prisoners to undertake education, courses and employment whilst in custody.

71I have taken the fact that you identify as being Aboriginal into account as part of your personal background and am prepared to accept that your Aboriginality will impact the sentence you will be required to serve.

72I do not, however, accept that your unfortunate childhood rises to the level of profound deprivation such as to engage the Bugmy principles. But, I do note that your good work history, scant criminal record and current stable relationship are all the more commendable, given the difficulties that you encountered in your formative years.

73Delay is another relevant consideration, not just because you have faced the anxiety of an uncertain future for an extended period, but also because it has reinforced the fact that this offending was out of character and helped demonstrate that your rehabilitation prospects are sound.

Personal Circumstances: Mr Wenske

74I will now briefly outline the personal circumstances of Mr Wenske, which are addressed in his counsel’s written submissions[8] and in the report of the psychologist, Carla Lechner.[9]

[8] Exhibit WW1.

[9] Exhibit WW2.

75He was born in June 1995 and is now 27 years of age. He was 24 when he committed the offences for which he now falls to be sentenced.

76He was born and raised in South Australia and has five siblings. His parents separated about five years ago after a turbulent and violent marriage. Such violence extended to Mr Wenske when he was a child.

77Mr Wenske was bullied at school and struggled academically, leaving partway through Year 10. He then commenced a six-month agriculture traineeship. He has since obtained a number of certificates in wool handling and shearing. His seasonal shearing work has taken him to many parts of the country. When not shearing, he works in the off season undertaking tree lopping and concreting. Commendably, he has been in continual employment since leaving school.

78He has been in a number of committed relationships in the past. He has a seven year old son from a past relationship, who he sees regularly thanks to an amicable arrangement with his former partner. She has written a supportive reference for use in this proceeding. A subsequent relationship ended not long before this offending occurred. For the past two years or so, Mr Wenske has been in a relationship with a woman named Jackie Handley, who is due to have their baby in approximately four months’ time. They are in the process of building a house together, which is due for completion at about the same time. These developments have brought a new focus and motivation for him. He is no longer going out drinking as he once did and spends more time at home.

79He has struggled with the recent tragic suicide of a close friend, for which he feels partly responsible.

80Mr Wenske was assessed by Ms Lechner fairly recently, on 13 July this year. In her opinion, he presented with symptoms consistent with a diagnosis of adult ADHD and features of PTSD, the latter reactive to his involvement in these offences. In her opinion, the former potentially undermines his judgment and decision making. As to the part that any ADHD condition may have played on the morning in question, Ms Lechner puts it no higher than it may have contributed to impulsive and ill-thought out behaviour. In her view, his self-reported, high level of anxiety undermines his ability to think clearly. As she also notes, the PTSD that developed subsequently to this incident has only partly resolved. The anxiety and depression that Mr Wenske harbours relates to the breakdown of his family unit and the end of a significant relationship.

81In terms of the effect that any custodial sentence may have on Mr Wenske, Ms Lechner states that it would likely lead to a decline in his mental health and, particularly, a marked increase in his anxiety level.

82In light of the above observations and opinions, some of which are qualified and couched in less than definitive terms, I am prepared to accept that the fifth limb but not the sixth limb of Verdins' case is engaged. Any custodial sentence would present as a more onerous experience for Mr Wenske than for other prisoners who enjoy sound mental health.

83Ms Lechner also notes that Mr Wenske may have still been suffering from the effects of the blow that he received to his head with a torch when he returned to offend as he did, offending for which she considers he is remorseful.

84Unsurprisingly, Ms Lechner is of the view that Mr Wenske would benefit from professional counselling aimed at assisting him to learn to better inhibit his impulses, increase his capacity to problem-solve and develop anxiety and mood management strategies.

Matters in Mitigation: Mr Wenske

85Mr Wenske, your counsel was able to rely on a number of matters in mitigation on your behalf.

86Despite being assaulted and provoked when struck with a torch, you did not immediately retaliate and sensibly chose to leave the area. That was the correct response and had it been left there, none of what ultimately transpired would have occurred. Even later, you were not inclined to return to the Leach campsite but, rather, were more interested in getting medical treatment for the injuries you had sustained as a result of being hit by Christopher Leach. That said, when Mr Ashenden made his views known and was adamant about returning, you did not seek to dissuade him from that course and in fact provided the transport to enable him and any others who were involved to get to that location. It may be that you were not in the best state to put up the required resistance, and I accept that you may lack self-confidence. But, you were presented with a choice and you made a very grave error of judgment by opting for the course that you did.

87The fact that you had been earlier assaulted provides a necessary context and explanation for your later offending, but by no means any excuse or legal justification. The appropriate response was to stay away and, if any follow-up action were needed, it should have been left to the police in the event that you were prepared to report the matter.

88I also allow for the fact that due to your head injury, which required numerous sutures, you may have still been dazed or concussed when you decided to return to the campsite and while you were there and that, in turn, that may have adversely affected your ability to think clearly.

89To some extent, you have been punished already for your offending. For example, as a result of your vehicle being rammed by Christopher Leach, you sustained a number of additional physical injuries and a financial loss due to your uninsured vehicle being damaged.

90I note that once arrested by police, you were prepared to make some admissions when interviewed.

91You have followed up on that level of cooperation by pleading guilty to the offences that you have at a relatively early stage in these proceedings. I treat your preparedness to do so in the same mitigatory way that I have done for Mr Ashenden. It is a significant mitigating factor, particularly during COVID-19 times.

92In light of those admissions, your plea and the observations of Ms Lechner and your referees, I am prepared to accept that you are remorseful for your offending.

93I also accept that your offending on this occasion was out of character and arose in a very specific factual context.

94You have a very good work ethic and an excellent work history.

95You have also shown yourself to be capable of being in a committed, long term relationship. You are devoted to your current partner and to your soon to be born child, who will provide an added incentive for you to continue to remain offence free in the future. An additional incentive exists due to your partner's poor physical health and heavy reliance on you to support her.

96In the period since you were charged in relation to this matter, you have no doubt been anxious to learn your fate and, in particular, whether you will have to go to gaol. That has no doubt caused a degree of anxiety. The delay has also given you the opportunity to demonstrate that you are not a person who is prone to be violent and you have not resorted to any violent behaviour in those intervening years.

97Albeit only very recently, you have at least obtained a mental health care plan from your GP with a view to receiving some professional assistance for your anxiety.

98In the end, all relevant matters considered, I have concluded that your prospects of rehabilitation are very good.

Gravity of the Offending

99Of course, matters personal to Mr Ashenden and Mr Wenske are not the only considerations for this court, which must also have regard to the gravity of the respective offending engaged in.

100I consider this offence of affray to be a relatively serious example of its type. Given what occurred and that it took place in the early hours of the morning at an isolated location, it is hardly surprising that those present and unfortunate enough to witness it, or even hear it, were placed in great fear. It was no doubt a terrifying incident to be caught up in for all concerned. And, the fact that each of you were prepared to be a part of it notwithstanding that you had been put on notice about the presence of women and children, is despicable.

101The offence of intentionally causing injury to Christopher Leach was engaged in jointly by the two of you. It was carried out in company and was cowardly and brutish. It was certainly not excused or justified in any way by the fact that the victim had rammed your car, Mr Wenske. He was merely trying to protect his already seriously injured father from any further harm. The entire situation was of your group’s making and you must each take responsibility for it.

102The same can be said of the criminal damage charge which you alone face, Mr Ashenden. To have responded as you did and create the extensive damage that you did to Brendan Leach’s vehicle was simply outrageous. It represents a serious example of that type of offence.

103As for your theft of Christopher Leach’s vehicle for what you later admitted was for the purpose of a 'joyride', it is simply unfathomable. It would seem that you were not content with having assaulted both men and using one of their vehicles to cause extensive damage to the others. In my view, it is a clear illustration of the very angry and callous mindset that you had at the time.

104The offence of recklessly causing serious injury committed by Mr Ashenden against Brendan Leach was a most serious offence and in no way justified by what had transpired earlier, including his decision to arm himself with a pole as his campsite was being invaded by an angry mob. It is entirely understandable why he sought to protect himself and the rest of his family in that way. But even though he had armed himself, he was a man many years older than you and presented no real threat. Instead of deciding to retreat at that point, as you should have Mr Ashenden, you chose to escalate the already frightening situation by delivering what must have been a very forceful punch to the face of
Mr Leach Senior, with dire consequences. In short, you felled him with a single brutish punch which resulted in the destruction of his right eye and half of his vision. Whilst I have no doubt that you were not intending to cause him that actual injury and there is a need to ensure that such unintended consequences do not ‘swamp’ all other relevant considerations, the fact is that you were at least aware of the likelihood of causing a serious injury by punching him in the circumstances that you did. In my view, the level of your moral culpability for that conduct must be viewed as very high and warrants stern punishment.

105The part that you played in the assault on Brendan Leach should not be underestimated, Mr Wenske. Whilst you did not take part in any physical sense, you helped create the situation by first driving what you well knew was an angry Mr Ashenden to the scene and then by pointing out both of the Leach men to Mr Ashenden when he was wanting to know who was responsible for causing the injuries to your face. Whatever initial reluctance you may have had in returning to the campsite and confronting the others, it had clearly evaporated by then. You fall to be sentenced as being criminally liable for Mr Ashenden’s actions in punching Brendan Leach but only in the context where you were aware of the probability that it would cause an injury, not a serious injury. As such, the offence for which you fall to be sentenced, while still serious, is not as serious as that for which Mr Ashenden falls to be sentenced. That said, I regard your moral culpability to be relatively significant although not as high as Mr Ashenden’s.

Sentencing Submissions

106In the sentencing submissions he made on your behalf, Mr Ashenden, your counsel acknowledged the seriousness of your offending but also sought to highlight the fact that it was out of character for you to have acted in the way that you did on the morning in question. Mr Turner also drew attention to your current stable circumstances and the various matters in mitigation upon which you can rely. He ultimately submitted that all of the relevant sentencing factors could be given appropriate recognition and weight by this court imposing a combination sentence, that is, a term of immediate imprisonment followed on release by a suitably onerous and tailored community correction order.

107In the alternative, he submitted that if a head sentence were imposed, any non-parole period should be kept to the minimum.

108For their part, the prosecution submitted that the seriousness of your offending was such that nothing short of a custodial sentence in the form of a head sentence with a non-parole period was open in all the circumstances.

109In the sentencing submissions he made on your behalf, Mr Wenske, your counsel emphasised the fact that you had not initially wished to return to the campsite and when you did, the more limited behaviour in which you engaged was out of character. Mr Lowy submitted that the various matters in mitigation present in your case were such as to warrant a non-custodial penalty in the form of a lengthy, onerous and suitably fashioned stand-alone community correction order.

110By way of contrast, the prosecution submitted that the seriousness of your offending was such that a period of immediate imprisonment was called for, albeit that a combination sentence was, they acknowledged, within the available range of sentences in your case.

Relevant Sentencing Principles

111This court must, of course, have regard to the applicable sentencing principles that arise for consideration in this case.

112Clearly, general deterrence and denunciation are very important sentencing considerations. The decision of each of the accused men to return to the Leach campsite in the circumstances that they did, had a vigilante aspect to it. Such conduct is to be strongly discouraged by the courts and unmistakably denounced. Those in the community who are contemplating acting in a similar fashion by seeking retribution against others for past wrongs, whether real or perceived, must understand that the consequences for doing so will be serious and may even involve a loss of liberty for an offender with a minimal or even no criminal history.

113Specific deterrence and protection of the community are relevant considerations but not as weighty. I consider that the weight to be given to them is somewhat higher in Mr Ashenden’s case than in Mr Wenske’s because of the more extensive and serious conduct in which the former was prepared to engage on this occasion.

114Totality considerations arise given the fact that all of these offences were committed during the course of a single criminal episode that was of relatively short duration. Care must also be taken when sentencing for the affray charge, given that part of the conduct relied on by the prosecution to make out that offence is also relied on for some of the other charges. However, each of the charges has different elements and, in most cases, different victims, and so there is a need to reflect the additional criminality involved in the overall sentence passed, to the extent that is appropriate for each accused.

115Each of the accused men must be punished to an extent and in a manner that is just and fair. Given the difference in the number and type of offences for which they each fall to be sentenced, there is an obvious need for this court to impose a more severe punishment on Mr Ashenden than on Mr Wenske. That is so notwithstanding any parity considerations that must be taken into account.

116Another important sentencing consideration to which this court must have regard is the age and prospects of rehabilitation for each accused. In the end, there is very little, if anything, to separate the two men in that regard.Mr Ashenden and Mr Wenske were relatively young men at the time and each seems to have acted out of character in offending as they did on this occasion. They are of a similar age and have good work histories. Each is in a stable relationship with strong incentives to stay out of any further trouble. In the years since this incident, Mr Ashenden has not reoffended while Mr Wenske has, albeit in somewhat extenuating and non-violent circumstances. All things considered, I have assessed each accused man’s prospects as being very good.

Analysis

117I have had regard to those sentencing principles and the respective sentencing submissions made by each counsel. I have also had regard to the personal circumstances of each accused and the respective matters in mitigation upon which they can rely.

118After having considered, balanced and weighed all relevant sentencing considerations in each case, as best I can, I have determined what I consider to be the appropriate sentences.

119In Mr Ashenden’s case I consider that the nature, extent and seriousness of his offending is such that there is no other option but to impose terms of imprisonment that result in a head sentence with a non-parole period. The custodial part of a combination sentence in his case could not, by law, exceed 12 months. Even if that were combined with a lengthy and onerous community correction order, it would not, in my view, adequately reflect all sentencing considerations or constitute a just punishment for his offending. However, I am prepared to give additional weight to the matters in mitigation when determining the non-parole period, which will be relatively disparate as compared to the head sentence.

120Mr Wenske’s case is different. His offending, while still serious, was not as extensive or as serious as that engaged in by Mr Ashenden. As the Sentencing Act 1991 makes clear, imprisonment is a sentence of last resort and to be avoided if at all possible. Mr Wenske has a relatively inconsequential criminal record for current sentencing purposes and very good prospects of rehabilitation. Although not without some hesitation, I have ultimately concluded that a non-custodial sentence is both open and appropriate in his case.

Sentence

121I will now pass sentence on each accused, commencing with you, Mr Ashenden.

Corey Ashenden

122Mr Ashenden, you will be convicted in respect of each of the charges to which you have pleaded guilty and sentenced to the following terms of imprisonment in respect to Charges 1, 2, 4, 5 and 6.

123On Charge 1, affray, nine months.

124On Charge 2, causing serious injury recklessly, 28 months.

125On Charge 4, causing injury intentionally, six months.

126On Charge 5, damaging property, nine months.

127On Charge 6, theft of a motor vehicle, one month.

128On Charge 7, possession of a drug of dependence, you will be convicted and discharged.

129The sentence of 28 months imposed on Charge 2 will be the base sentence.

130The following periods are to be served cumulatively with the base sentence and with each other: three months on Charge 1, two months on Charge 4, and three months on Charge 5.

131The total effective sentence is therefore three years’ imprisonment.

132In respect of that head sentence, I fix a non-parole period of 18 months.

133Pursuant to s 6AAA of the Sentencing Act1991, I indicate that but for his plea of guilty to the charges for which he has received terms of imprisonment today, Mr Ashenden would have been sentenced to a total effective sentence of four and a half years with a non-parole period of two and a half years.

134Pursuant to s 89(4) of the Sentencing Act 1991, a mandatory licencing order is required in respect of Charge 6. On that charge any driving licences or permits held by him are cancelled and he is disqualified from obtaining any further licences or permits for a period of two years, effective from today’s date.

Waylon Wenske

135Mr Wenske, in respect of the three charges to which you have pleaded guilty, you will be convicted and placed on a stand-alone community correction order for a period of three years.

136The order will have the following conditions in addition to the core conditions attached to every community correction order.

137You will be required to perform 350 hours of unpaid community work.

138And you will also be required to undertake any assessment and treatment in relation to mental health, as directed.

139One of the core conditions is that you not commit any further offence during the period of the order, namely three years. If you do reoffend during that period and/or otherwise fail to comply with any of the conditions, you can be charged with breaching the order, an offence that carries a maximum penalty of three months’ imprisonment. Not only could you be sentenced for that offence but you could be sentenced afresh for the same three offences for which you have been placed on the order today. If that were to happen you would face the very real prospect of being sent to gaol. Stand up, please, Mr Wenske. Do you understand all of what I have just told you?

140OFFENDER WENSKE: Yes, your Honour.

141HIS HONOUR: Please now come out of the dock and stand next to your counsel, thank you. My associate will now provide your counsel with a copy of the proposed community correction order, which I will ask him to go through with you, including the core conditions before I then ask you whether you consent to being placed on that order and ask you to sign it accordingly. Mr Docherty, have you finished doing that?

142MR DOCHERTY: I have, Your Honour, yes.

143HIS HONOUR: Are you satisfied that he understands that?

144MR DOCHERTY: Yes, Your Honour.

145HIS HONOUR: Yes, all right. Mr Wenske, do you agree to be placed on that order with those conditions and to abide by all of those conditions?

146OFFENDER WENSKE: Yes, Your Honour.

147HIS HONOUR: Yes, all right. If you have not already done so, can you please sign in the appropriate section of that order? Yes, all right. Just take a seat if you would not mind for the moment. No, perhaps back a bit. Keep going. Yes, just there, Mr Wenske. You mistakenly signed in the wrong section so we will need to reprint that and get you to do so in the right section. Come forward, please, Mr Wenske. Madam Associate, will you please direct Mr Wenske to the appropriate part of the document he needs to sign? Is that your signature on that document, Mr Wenske?

148OFFENDER WENSKE: Correct.

149HIS HONOUR: Very well, I have also signed the order and it is now in force. You will be given a copy of the signed order before you leave court today. Please just take a seat in the rear of the court there for the moment, thank you.

150Pursuant to s6AAA of the Sentencing Act1991, I indicate that but for his plea of guilty to the three charges for which he has been sentenced today, Mr Wenske would have been sentenced to a combination sentence involving a term of immediate imprisonment followed on release by a community correction order.

Forfeiture Order

151In respect of each accused, I make the forfeiture order in the terms sought by the prosecution, pursuant to s33(1) of the Confiscation Act 1997. In exercising that discretion, I have had regard to the fact that counsel appearing for the accused men did not oppose the making of such an order.

Other Matters

152Are there any matters that counsel need to raise at this stage in relation to the sentences imposed or my sentencing reasons, starting with you, Mr Nibbs?

153MR NIBBS: No, thank you, Your Honour.

154MS OLIVER: No, Your Honour.

155MR DOCHERTY: No, Your Honour.

156HIS HONOUR: Very well, Ms Oliver, what, if anything, do you suggest is necessary to record in the custody management documentation in respect to your client, Mr Ashenden?

157MS OLIVER: Your Honour, with respect to custody management issues, as previously outlined, his indigenous heritage. I believe that to be the only custody management issue available.

158HIS HONOUR: It is the first time he has ever been in gaol.

159MS OLIVER: Yes, Your Honour, first time in custody.

160HIS HONOUR: So I will refer to that as well, would that suffice?

161MS OLIVER: That would suffice, Your Honour.

162HIS HONOUR: Yes, Mr Ashenden can now be taken into custody and removed from the court, thank you.

- - -