Director of Public Prosecutions v Ashweirth
[2024] VCC 988
•27 June 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00560, CR-23-01299, CR-23-01917
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DENNIS ASHWEIRTH |
---
JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 June 2024 |
DATE OF SENTENCE: | 27 June 2024 |
CASE MAY BE CITED AS: | DPP v Ashweirth |
MEDIUM NEUTRAL CITATION: | [2024] VCC 988 |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW - Sentence
Catchwords: Intentionally damaging property – Aggravated burglary – Possess cannabis – Recklessly cause injury – Make threat to inflict serious injury – Common assault – Handling stolen goods – Related summary offences – Plea of guilty – Aboriginal offender – Application of Bugmy principles – Totality.
Legislation Cited: Sentencing Act 1991
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269; R v McKee [2003] VSCA 16; Hogarth v The Queen (2012) 37 VR 658
Sentence:Three years and 9 months imprisonment with a non-parole period of 22 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G. Mohammed | Office of Public Prosecutions |
For the Accused | Ms J. Ball | James Dowsley & Associates Criminal Law |
HIS HONOUR:
1Dennis Ashweirth, you have pleaded guilty before me to an indictment containing a charge of damaging property intentionally, two charges of aggravated burglary, two charges of possessing cannabis, a charge of recklessly causing injury, a charge of making a threat to inflict serious injury, a charge of common law assault and a charge of handling stolen goods. You have also pleaded guilty to a relevant summary offence being the contravention of a family violence intervention order, the maximum penalty is two years' imprisonment.
2The maximum penalty for intentionally damaging property is 10 years' imprisonment. The maximum penalty for aggravated burglary is 25 years' imprisonment. The maximum penalty for possessing a drug of dependence in the circumstances you did is five penalty units. The maximum penalty for recklessly causing injury is five years' imprisonment. The maximum penalty for threatening serious injury is five years' imprisonment. Common law assault, five years' imprisonment and handling stolen goods 15 years' imprisonment. You have admitted relevant prior convictions, including numerous offences of contravening family violence orders, assaults, robbery and drug offences.
Circumstances of Offending
3The circumstances of your offending were set out in Exhibit A. That detailed summary of your offending forms part of these reasons for sentence. I sentence you on those detailed facts, but I do not propose to recite them herein. In much briefer terms, your offending relates to three separate incidents. First, you committed a frightening aggravated burglary on your ex-partner. You attended at her property in breach of a family violence intervention order. You smashed windows whilst she was inside the house, you were screaming demands for a jewellery item and her phone. You entered the house through the window you had smashed, you were holding a kitchen knife, your victim hid, and you eventually left the home.
4You were clearly drug-affected and acting in an erratic and chaotic manner. There is a history of family violence between you and the victim. Some materials provided to me show you were a victim of your former partner many years ago. This provides some context but does not alter the fact that objectively this was a very serious example of breach of a family violence intervention order and aggravated burglary given the context. That offending occurred on 28 September 2019. I have received a victim impact statement from your victim. I accept the contents of that statement and I take the impact of your offending upon her into account.
5The next incident occurs more than two years later on 22 December 2021. In bizarre circumstances, you attacked your victim, Mr Dacey, who was unknown to you. You attacked him with an axe and then a knife, stabbing him to the left side of his ribcage. The knife was hanging out of his body. He barricaded himself in a room before fleeing and later collapsing from loss of blood. He was later treated for numerous injuries at Royal Melbourne Hospital. He had a fractured rib, two scalp lacerations requiring sutures, right chest wall laceration, left chest wall laceration and haematoma requiring sutures. You are fortunate that you were only charged with recklessly causing injury. It is a serious example of that offence.
6The next incident occurred on 25 April 2022. The background of this incident was a stolen motorcycle. You attended your victim, Mr Prietto's, address in company with your co-offender, Thalia Griffiths. She was armed with a fire extinguisher while you were armed with a knife. You both forced your way into the house, you were pointing the knife at Prietto who was trying to evade you. You grabbed him by the shirt and punched him to the face twice causing him to bleed heavily. A second victim, Ms Morgan Carr, came out of the bedroom and saw you holding the knife to Prietto. Your co-offender threatened her with the fire extinguisher.
7Various threats were made to each victim that they would be stabbed. You also demanded money. The incident appears to relate to your view that you were owed money for the stolen motorcycle. I was told that you were on bail at the time of this offence, having been bailed in June 2020. I received a victim impact statement from Mr Prietto and I take the impacts upon him into account. This is a serious example of aggravated burglary and threats to inflict serious injury.
8When you were arrested in July 2022, you were in possession of stolen goods set out in the indictment and at paragraph 63 of Exhibit A. You have been in custody since 20 July 2022. I take that into account in the application of the totality principle, noting that you have only 409 days of that period to be declared as pre-sentence detention.
9You are a proud Wiradjuri man through your mother's line. Tragically your mother passed from an aneurysm when you were only eight years of age. You are the youngest of five. You were then subjected to terrible abuse at the hands of your father over the next two years. Your father was sentenced to gaol for that offending and a copy of the sentencing remarks was tendered on your plea. The impacts of such prolonged trauma, the horrific breach of trust and the effects of abuse are well known. You suffered PTSD and still do. You gravitated toward drug-use at a young age. You have grown up since the age of eight without nurture or loving parental support.
10You lived with an aunt and uncle in Perth for a period before moving to Melbourne to live with an older sister when you were 13. You achieved some academic success despite the trauma, a lack of stability and support and despite the disjointed schooling. You have also had to battle through despite suffering PTSD and experiencing autism spectrum disorder. You attended five primary schools as a result of frequent moves. You completed Year 7 in Western Australia. You did Years 8 and 9 at Essendon Keilor College. You left school at the end of Year 9 due to significant bullying, but you went on and did Years 10 and 11 equivalents through TAFE. You worked after finishing TAFE as an Optus tech support, you were then part of Telstra's Google Team and after that in Microsoft computer sales and call centres.
Personal Circumstances
11Drug-use however has been a problem for you. In 2016 you lost your job due to escalating drug-use. You started using cannabis at a young age, 12 years old. I accept that the substance use was a response to your circumstances, the trauma you had suffered and its consequences. Use became daily use by the age of 15. You continued to use up to the present period of remand, using seven grams of cannabis a day. You also used methamphetamine intermittently in your late teens. In 2016, around six months after losing your job, you were stabbed by your then partner, who is also the victim in
Charges 1 and 2.12You have two children with Ms W and I accept that throughout that relationship of several years, mutual drug-use and associated violence was present.
Ms Cidoni confirms the diagnoses of autism spectrum order and post-traumatic stress disorder that were first formally diagnosed in you at the age of 11. You had been treated through Orygen youth mental health services until you 'aged out' to adopt the terminology referred to in your counsel's helpful outline.
Ms Cidoni notes that from a young age ADHD and bipolar disorder were under investigation, but formal diagnoses were delayed due to familial resistance to medication and other factors.13Ms Cidoni is of the view that bipolar disorder is the most fitting diagnosis in your case. Ms Cidoni regards your substance use as having a bi-directional relationship with your diagnoses. She writes:
'Substance use may have initially served as a coping mechanism for managing the emotional and psychological distress associated with his conditions, including PTSD symptoms and mood-swings in bipolar disorder. However, prolonged substance use exacerbates his mental health symptoms, contributing to mood destabilisation, impaired judgment and reduced adherence to treatment. The diagnoses preceded his substance use, highlighting how these underlying conditions influenced his susceptibility to substance use as a maladaptive coping strategy'.
14I also read from Ms Cidoni's report at paragraph 115:
'His substance use significantly impacted his mental state at the time of the alleged offending. As a user until his remand in July 2022, substances such as methamphetamine and heroin likely exacerbated symptoms of his pre-existing conditions. These substances can induce paranoia, impulsivity and mood instability which contribute to impaired judgment and decision-making during the offences. Additionally, the ongoing use of drugs may have heightened his emotional dysregulation and exacerbated symptoms of PTSD, leading to a heightened state of distress and altered perceptions of reality during the events in question'.
15At 117, Ms Cidoni writes:
'Mr Ashweirth's background, marked by significant trauma and adverse childhood experiences, contributed to the offending. His history of physical and sexual abuse alongside multiple traumatic incidents, including assaults and severe injuries, results in enduring psychological distress and impaired coping mechanisms. These traumatic experiences may have exacerbated his mental health conditions, influencing his emotional regulation, trust in others and overall resilience. Such adverse experiences can contribute to maladaptive behaviours and difficulties in managing interpersonal relationships, influencing his actions during the alleged offences'.
16Ms Cidoni's analysis in those paragraphs provides an understanding of how trauma, early onset drug-use and mental health issues are related and the cumulative impacts they can have upon each other in combination. Your counsel, Ms Ball, relies upon the application of Bugmy principles.[1] In your case, the application of Bugmy principles is straightforward. Ms Ball also relies on Verdins mitigation under limbs 1, 3 and 4 of that authority.[2] The availability of mitigation in this way is complicated somewhat by the substance use and its clear role in the offending - not only the offending but in your decline towards the offending.
[1]Bugmy v The Queen (“Bugmy”) (2013) 249 CLR 571.
[2]R v Verdins (“Verdins”) (2007) 16 VR 269.
17Ms Ball relies upon Ms Cidoni's opinion in this regard in relation to the bi-directional relationship between drug-use and mental disorders, using substances as a coping mechanism when dealing with distressing symptoms of PTSD and bipolar. In my assessment, your mental impairments clearly contributed to the offending, but it is difficult to provide a clear and direct connection. In relation to drug-use, it is significant that trauma underpinned introduction to drug-use at a very young age and your moral culpability for developing substance dependency is very significantly reduced from that what it would be for an older person. In this sense, the authorities of R v McKee & Brooks have application.[3]
[3]R v McKee (“McKee & Brooks”) [2003] VSCA 16.
18Doing the best I am able and viewing contributing factors holistically, I am of the view that there is a relationship between profound disadvantage in the Bugmy sense and its consequences, childhood drug-use, post-traumatic stress disorder, autism spectrum disorder and bipolar disorder and all of the offending before me. That is, the relationship of childhood trauma, escalating drug-use and the bi-directional relationship of mental illnesses and neuro-processing factors is such that each factor augments another. The result is a cocktail in which the constituent quantities are unknown.
19The overall effect is that your moral culpability for the offending before me is substantially reduced from what the assessment would be if you were not shaped by these factors and if they were not operating upon you at the time of the offending. Ms Ball also relies upon the authority of Verdins in relation to hardship in custody and relies upon Ms Cidoni's conclusion that imprisonment is likely to have a significant impact on your mental health, PTSD is expected to worsen given the multiple triggers and stressors in the custodial environment, ASD may result in isolation and interpersonal difficulties given challenges in navigating social situations without support and disruptions in treatment of bipolar disorder can further destabilise mood-swings and impulse management.
20These factors increase the risk of exacerbation of mental health systems and reduce capacity to cope in custody and I accept that submission and accept the opinion that underpins it of Ms Cidoni principally at paragraph 123 of her report. You have been working in the prison environment I was told with what you have been engaged in in that regard. I also take note of Ms Cidoni's findings at 120:
'Mr Ashweirth's prospects for rehabilitation were potentially positive with comprehensive treatment and support. The focus was on addressing his complex mental health needs including interventions for bipolar disorder, ASD-related social and communication challenges and trauma-focused therapies for PTSD. Rehabilitation efforts prioritised enhancing coping skills, emotional regulation and social functioning whilst supporting substance-use abstinence for his sobriety coaching and participation in NA'.
Other Sentencing Considerations
21Ms Cidoni referred to NDIS as an important support moving forward and some support in facilitating access with children being also important to your rehabilitation. Ms Cidoni finds that you are of medium risk of re-offending. I am satisfied that you have some prospects of rehabilitation if you can harness supports in relation to drug-use and those other supports in relation to managing and treating mental illness.
22Ms Ball also relied on the principle of totality which has clear application in your case. You were sentenced in the Magistrates' Court Koori Court on 14 February 2023. You were not able to access Koori Court in this court, given the breach of family violence order.
23You received a 12 months' imprisonment in the Magistrates' Court, which was confirmed on appeal to this court and pre-sentence detention was declared. So that means that despite spending well in excess of 700 days in custody since you first went into remand, 409 days is all that can be declared in relation to this matter, and in those circumstances there is a significant totality consideration, as there is across the entire indictment. Mr Mohammed for the prosecution provided written sentencing submissions and spoke to those. Emphasis was placed quite rightly on the importance of general deterrence, particularly for the offences of aggravated burglary.
24He relied upon the authority of Hogarth.[4] He also pointed out the aggravating features in each case of aggravated burglary. I accept these factors of aggravation. The prosecution submission was that nothing other than a head sentence and non-parole period could meet the sentencing factors of general deterrence, denunciation and specific deterrence and it is not difficult to agree with that proposition. The length of those terms relies upon a synthesis of many other factors, including your plea of guilty which came after a sentencing indication hearing, but nonetheless you are entitled to a discount for your plea of guilty.
[4]Hogarth v The Queen (2012) 37 VR 658.
25I am satisfied, if not true remorse, that you certainly regret and have reflected on your offending history and have a genuine desire, when you re-enter the community, to be free from offending. But totality and, perhaps certainly more significantly, the assessment of moral culpability considering the entwined factors which invoke Bugmy considerations, Verdins principles and what I have referred to as R v McKee & Brooks reasoning, those factors moderate the individual sentences and the head sentence. They are reflected also in the period to be served before becoming eligible for parole.
Sentence
26I now sentence you as follows, Mr Ashweirth.
27In relation to Charge 1, that is damaging property, you are sentenced to three months' imprisonment.
28In relation to Charge 2, aggravated burglary, 18 months' imprisonment.
29In relation to Charge 3, you are convicted and discharged.
30In relation to Charge 4, 18 months' imprisonment.
31In relation to Charge 5, aggravated burglary, two years and seven months' imprisonment and that is the base sentence. In relation to Charge 6, 12 months' imprisonment.
32In relation to Charge 7, 12 months' imprisonment.
33In relation to Charge 8, six months' imprisonment.
34In relation to Charge 9, six months' imprisonment.
35In relation to Charge 10, three months' imprisonment and in relation to Charge 11, you are convicted and discharged.
36I make the following orders for cumulation, and the sentence is otherwise to be served concurrently. Six months of the sentence imposed on Charge 2 will be served cumulatively upon the base sentence. Six months of the sentence imposed on Charge 4 will also be served cumulatively upon the base sentence and other sentences. One month of the sentence imposed on Charge 6 will be served cumulatively on the base sentence and other sentences and one month of the sentence imposed on Charge 7 will be served cumulatively on the base sentence and other sentences.
37That makes a total effective sentence of three years and nine months' imprisonment. I set a non-parole period of 22 months which leaves a substantial gap between the non-parole period and the head sentence and I do that intentionally based largely on my assessment of very significant Bugmy mitigation. But also in your case, seizing an opportunity to, if you are eligible for parole and once you become eligible for parole, to, with the supports of that longer parole period, to hopefully break the cycle in your case and address the criminogenic factors and particular personal issues that have plagued you since childhood.
38Pursuant to s6AAA, were it not for your pleas of guilty, I would have sentenced you to a total effective sentence of five and a half years' imprisonment with a non-parole period of four years.
39I declare 409 days as pre-sentence detention already served in relation to this matter. I make the disposal order that was sought. I will sign that now. I do not think there are any other orders.
40Sorry, I forgot to sentence on the contravene family violence order. In relation to the contravene family violence order, the sentence to be imposed is six months and that will be served concurrently with other sentences in this case. No other orders sought?
41MR MOHAMMED: No, Your Honour.
42HIS HONOUR: No. There is only one summary offence is there not?
43MR MOHAMMED: There was two summary offences, Your Honour. There was also the ‑ ‑ ‑
44HIS HONOUR: Why have I got the ‑ ‑ ‑
45MR MOHAMMED: There was also the possess cartridge ammunition.
46HIS HONOUR: Possess cartridge. So I have got more than one ‑ ‑ ‑
47MR MOHAMMED: If I may just have ‑ ‑ ‑
48HIS HONOUR: I have got more than one relevant summary offence notice, but I erroneously was of the view that only the third one was going ahead. I perhaps should not have assumed that. I am not sure why they are all dated the same date, they are separate.
49MR MOHAMMED: There's three different informants, Your Honour, so in relation to case ‑ ‑ ‑
50HIS HONOUR: So Charge 7 was the contravene family violence intervention order which I have sentenced in respect of.
51MR MOHAMMED: That's correct, yes.
52HIS HONOUR: And I have got Charge 3 in another one which is ‑ ‑ ‑
53MR MOHAMMED: Withdrawn.
54HIS HONOUR: With a weapon – that is withdrawn is it? Yes, that is withdrawn, yes.
55MR MOHAMMED: And there's Charge 12 and Charge 50.
56HIS HONOUR: Charge 12 and Charge 50. Right, so it was commit indictable offence on bail. For some reason I thought that had been withdrawn too. All right, so, yes, well as I stated, you were on bail at the time from June 2020 and as is my practice in relation to committing indictable offence on bail, you are sentenced to one month imprisonment to be served concurrently. Being a
non-prohibited person possessing cartridge ammunition, you are sentenced to seven days' imprisonment to be served concurrently. All right. Yes, we will now adjourn.57MR MOHAMMED: Nothing further. May it please the court.
58MS BALL: As the court pleases.
- - -
0
5
0