Director of Public Prosecutions v Disher

[2014] VCC 720

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

AT SALE
CRIMINAL JURISDICTION

CR 13-01677

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN WADE DISHER

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Sale
DATE OF HEARING:	14 May 2014
DATE OF SENTENCE:	20 May 2014
CASE MAY BE CITED AS:	DPP v Disher
MEDIUM NEUTRAL CITATION:	[2014] VCC 720

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton	O.P.P.
For the Accused	Mr G. Casement	Daniel Taylor Lawyers

HIS HONOUR

1John Wade Disher you have pleaded guilty to one charge of aggravated burglary contrary to s.77(1) of the Crimes Act 1958. The maximum penalty for that offence is 25 years imprisonment.

2You have also pleaded guilty to one charge of intentionally causing injury contrary to s.18 of the Crimes Act 1958. The maximum penalty for that offence is 10 years imprisonment.

3You pleaded guilty at committal mention on 4 September 2013 and I have taken your early plea into account in your favour in mitigation of sentence.

4You have admitted an extensive criminal history for offences of violence, burglary, drug trafficking and other matters.  On 23 July 2007 you were sentenced to seven years imprisonment with a non-parole period of five-and-a-half years for one charge of manslaughter.  Your offending before this court occurred when you were serving parole for that sentence.  I will return to the circumstances of the offence of manslaughter in these reasons. 

5A prosecution opening, was read to the court and tendered in evidence, and your offending, may be summarised as follows:

6At approximately 9.30 p.m. on Saturday 8 December 2012 you entered premises in company with two other males at 90 Patten Street, Sale.  You were heavily intoxicated, in all probability from a combination of drugs and alcohol, and you were armed with a machete.  The occupants of the premises were not known to you, and no explanation for your offending at the premises has been provided to the court.

7After entering the premises you demanded money and drugs.  You assaulted one of the occupants, Michael Ashley, and struck him with the machete.  He received lacerations to his ear and defensive wounds to his hands.  The three other occupants of the premises were placed in great fear by your conduct.  One of them escaped from the premises and contacted police who attended and arrested you.  Your co-offenders have not been arrested and their identity has not been established.

8When you were interviewed by police, you made no comment to their questions and maintained that you had no recollection of the events, the subject of the charges. 

9Your offending is of the utmost seriousness and the sentence I impose must be calculated to deter you and others from engaging others in violence of this kind.  This is a serious example of the offence of aggravated burglary, and your attack on Mr Ashley is also a serious example of the offence of intentionally causing injury. 

10You were remanded in custody following your charge and arrest, and on 8 December 2012 your parole was cancelled.  You have been serving that sentence since that date and it will expire in June 2014.

11As I have said, on 23 July 2007 you were sentenced to seven years imprisonment with a non-parole period of five-and-a-half years in relation to a charge of manslaughter.  You were originally charged with murder but this charge was not proceeded with following your plea of guilty.  Your offending on that occasion concerned you bashing to death a man in his own home.  You were heavily intoxicated at that time.  The sentencing judge, Justice Bongiorno, accepted that an underlying psychiatric condition contributed to your offending and your sentence was moderated for that reason.  The evidence led before His Honour was divergent as to the cause of your condition however.  Dr Danny Sullivan concluded, following an examination of you, that your psychiatric condition was caused by substance abuse.

12In the hearing before me, your counsel relied on a report by Dr Simon Kennedy, a clinical and forensic psychologist who also gave evidence before Justice Bongiorno.  Dr Kennedy is of the opinion that you suffer from borderline and anti-social personality disorders.  He stated that you suffer from psychosis and further, that you pose a moderate to high risk for committing offences of violence.

13I accept that your condition warrants a moderation of the application of the principle of general deterrence in your case, and that your mental illness means that imprisonment involves a greater degree of hardship for you than would otherwise be the case.  I do not accept, however, that the other principles set out by the Court of Appeal in R v Verdins (2007) 16 VR 269 are engaged in your case. In particular, there is no evidence before me of a connection between your mental illness and your offending on this occasion. Your offending involved a degree of preparation and planning and it had the specific purpose of obtaining money and drugs from your victims.

14I accept that you have had a disrupted and deprived background, and you have one child now aged 14, and you have the ongoing support of your family. 

15Following your arrest for these offences your parole was cancelled, and you will be serving that sentence, as I have said, until June 2014.  By operation of s.16(3)(B) of the Sentencing Act 1991, the sentence I impose will be served cumulatively on the sentence you are now undergoing. You have been in prison since 9 August 2006, with the exception of ten months between February and December 2012. I have applied the principle of totality in sentencing in arriving at the appropriate proportionate sentence in your case, and whilst, in my opinion, your prospects of rehabilitation are poor, the sentence I impose must, nevertheless, provide for that possibility.

16However, the protection of the community is a significant sentencing consideration in your case, and in my opinion, you impose a considerable risk to others by reason of your violent behaviour when intoxicated.

17In the result, the sentence of the court is as follows: 

18On the charge of aggravated burglary you are convicted and sentenced to be imprisoned for six years. 

19On the charge of intentionally causing injury you are convicted and sentenced to be imprisoned for two years and six months. 

20I order that 12 months of the sentence on the charge of intentionally cause injury be served cumulatively on the sentence imposed for aggravated burglary. 

21This makes for a total effective term of imprisonment of seven years. 

22I order that you serve five years and nine months before becoming eligible for release on parole.

23But for your plea of guilty I would have sentenced you to a total effective term of imprisonment of eight years and six months and imposed a non-parole period of seven years.  I declare you have served two days by way of pre-sentence detention.

24I have made the disposal orders sought.

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