Director of Public Prosecutions v Leon Woods
[2013] VCC 1287
•17 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-02145
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEON WOODS |
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JUDGE: | HER HONOUR JUDGE NICHOLSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 July 2013 | |
DATE OF SENTENCE: | 17 July 2013 | |
CASE MAY BE CITED AS: | DPP v. LEON WOODS | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1287 | |
REASONS FOR SENTENCE
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Catchwords: Criminal Law: Sentence: Theft; Common Assault; Causing Injury Recklessly; Damaging Property; Summary Charge of Failing To Answer Bail; Plea of Guilty & Remorse; Rehabilitation; General & Specific Deterrence; Mitigating Factors; Delay; Alcoholism & Transient Lifestyle; Victims.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G Walton | Director of Public Prosecutions Office |
| For the Accused | Mr D McKenzie | VLA |
HER HONOUR:
Reasons For Sentence
1 Mr Woods, you do not need to stand at this stage. I need to place on to the record the reasons for the sentence I shall be formally imposing at the end of these reasons for sentence.
Charges
2 As you have heard, I consider it appropriate in all the circumstances to convict you and place you on a Community Corrections Order in relation to all the charges on the further Indictment C12567927.1, subsequently filed over on the previous indictment on the 10 July 2013. On the previous Indictment you had pleaded guilty before me to a number of charges, including Armed Robbery on 13 March 2012. All charges on Indictment C1256792 were stayed on the 10 July, upon the filing over of the further Indictment C12567927.1.
3 A number of Summary Charges were transferred to this Court. All of these charges except for Summary Charge 2, Failing to Answer Bail, were transferred pursuant to s.145 of the Criminal Procedure Act. All these summary charges were noted as withdrawn upon the entry of your plea of guilty to the charges on the Indictment C12567927.1 and to the summary charge of Failing to Answer Bail.
4 I have taken into account the chronology in these proceedings and on the 10 July 2013, on Indictment C12567927.1, you pleaded guilty before me to seven charges of theft being charges 1, 2, 3, 5, 6, 7 and 10. Two charges of common assault being charges 4 and 8, one charge of damaging property, being Charge 9 and one charge of causing injury recklessly being Charge 11 on that indictment. You further entered a plea of guilty to a summary charge, which is summary Charge 2, failing to answer bail.
Maximum Penalties
5 Madam Prosecutor, can I clarify with you, there is a matter that I have overlooked. In relation to the charge of Damaging Property and charge of Causing Injury Recklessly, is that a maximum penalty of 10 years for each charge?
6 MS WALTON: Damaging property is a 10-year maximum and cause injury recklessly is a five-year maximum.
7 HER HONOUR: Five years. Thank you. I now turn to maximum penalties for each of your crimes. Failing to answer bail, there is a penalty involving a term of imprisonment, as I understand.
8 MS WALTON: Twelve months maximum, Your Honour.
9 HER HONOUR: Yes, thank you. In relation to the charge of Theft, Parliament has fixed a maximum penalty of 10 years' imprisonment and a maximum penalty of 10 years' imprisonment for the charge of Common Assault and for the charge of Damaging Property. Parliament has also fixed a maximum penalty of five years' imprisonment for the charge of Causing Injury Recklessly and in relation to the Summary Charge of Failing to Answer Bail, Parliament has fixed a maximum penalty of 12 months' imprisonment. I have had regard to and taken into account the maximum penalties fixed for each of your crimes in determining sentence in all the circumstances of this case.
Circumstances of Offending
10 I now turn to the circumstances of the offending giving rise to the charges to which you have pleaded guilty before me. The learned Prosecutor, who originally appeared in this matter, opened the matter in detail. However, an amended Summary of Prosecution Opening relating to the 'filed over' Indictment CR-1202145 was tendered by the learned Prosecutor who placed the facts and circumstances set out therein when opening this matter before the court on 10 July 2013.
11 I proceed to sentence you on the basis of those facts and circumstances as so summarised by the learned Prosecutor and contained in Exhibit A and all matters discussed during the course of the plea hearing and all the materials.
12 In relation to Charge 1, a charge of theft, briefly, you stole a bottle of Ballantyne scotch whisky, being property belonging to Dan Murphy's on the 24 January 2012.
13 In relation to Charge 2, a charge of theft, on the 25 June, 2012, you stole another bottle of Ballantyne scotch whisky, being property belonging to Dan Murphy's. In relation to Charge 3, a charge of theft, at Malvern East, on 24 July 2012, you stole a bottle of Ballantyne scotch whisky, being property also belonging to Dan Murphy's. They were all different stores at different locations.
14 In relation to Charge 4, a charge of Common Assault at Malvern East, on the 24 July 2012, you assaulted your victim, Troy Muegel-Eldridge.
15 In respect to Charge 5, a charge of theft, on the 6 September 2012 at Dan Murphy's at Camberwell, you stole a bottle of Smirnoff vodka. Of course, it goes without saying the property you stole belonged to the company named within the charge.
16 In relation to Charge 6, a charge of theft, in an unknown location, on the 11 September 2012, you stole a Wiltshire kitchen knife being property belonging to Safeway supermarket.
17 Further, at Charge 7, a charge of theft, on the 11 September 2012, you stole a bottle of Smirnoff vodka being property belonging to Dan Murphy's at Ascotvale.
18 In relation to Charge 8 a charge of Common Assault, on the 11 September 2012, at Ascotvale, you assaulted Richard Sloan.
19 In respect of Charge 9, a charge of Damaging Property, on 5 November 2012, you intentionally and without lawful excuse damaged the property namely the Frankston Police Station belonging to Victoria Police.
20 In respect of Charge 10, a charge of Theft, at Chelsea, on 8 December 2012, you stole grocery items being property belonging to the Woolworths store.
21 Finally, on Charge 11, a charge of Causing Injury Recklessly, on 8 December 2012, without lawful excuse you recklessly caused injury to Peter Constantinidis. You have pleaded guilty to the summary charge, Charge 2, of Failing to Answer Bail.
22 I incorporate into my reasons for sentence the facts and circumstances set out in Exhibit "A", the written summary of Prosecution Opening and I consider your offending to be serious and I also am satisfied that your offending was alcohol-related.
23 I have also taken into account the matters set out on the record and in Exhibit "A" in relation to your arrest and interview and I have had the opportunity of reading all the relevant material and I shall not repeat what is set out in paragraph 10 and 11 of Exhibit A, however, I have taken those matters into account.
24 I have also taken into account that you have served pre-sentence detention of nine days in relation to the offending before this Court.
25 Despite your intoxication and issues with alcohol, Mr Woods, I am satisfied that you must have had some understanding of the possible consequences of your actions and I consider, in each case, that each of your victims, that is, the victims of your crimes has suffered considerably. I have also taken into account the relevant statements, in particular, the Victim Impact Statement that has been declared by Holly Avis and was tendered on your plea hearing and read on to the record. That statement formed Exhibit "B" and relates to Charge 5 on the Indictment, the charge of theft that took place on the 11 September 2012.
26 I am satisfied that Mrs Avis has suffered considerably and as described in her Victim Impact Statement and in all the relevant material and she was no doubt subjected to a frightening and terrifying ordeal.
27 I have also been informed by the learned Prosecutor that each of your other victims was given the opportunity of making a Victim Impact Statement but for one reason or another chose not to do so.
28 The fact that you essentially committed the majority of your crimes to obtain alcohol to fuel your alcoholism does not provide any excuse or justification for your offending. I now turn, however, to mitigating factors. Many have been placed before the Court on your behalf by your counsel, Mr David McKenzie.
29 Firstly, your plea of guilty. You have entered a plea of guilty and you are entitled to have that fact taken into account in your favour and I do so.
30 The community has, by your plea, been spared the time and cost of a trial and witnesses, including your victims, have been spared the ordeal of giving evidence upon your trial. I also take into account your co-operation and the fact that you intimated earlier your intention to plead guilty to these charges.
31 As I said, on 13 March 2013 you initially pleaded guilty to an Indictment that included an Armed Robbery charge.
32 That matter was adjourned so you could be assessed for a Community Corrections Order. On that date, the Court was informed there were a number of matters to be uplifted from the Magistrates Court. On the return date, the 22 March 2013, upon further plea, the sentence in this matter was deferred pursuant to s.83A of the Sentencing Act. Bail was continued until the 27 March 2013 for a bail variation.
33 The matter was also adjourned further to allow the other outstanding changes to be finalised by the Director of Public Prosecution, so the matter was unable to proceed. On 27 March 2013, you did not attend on that date. However, bail was extended in your absence to 9 April for a bail variation. An explanation was placed before the Court on 9 April 2013 and your bail was varied and continued until the 24 June 2013.
34 On the 11 June, 2013, the matter was listed for Mention because your counsel, Mr McKenzie, made application for an adjournment for relevant reasons that were placed before the Court. The application for the adjournment was not opposed by the Director of Public Prosecutions, so the plea date listed for the 24 June 2013 was vacated. The matter was then subsequently listed for plea on the 10 July 2013 when your bail was extended to that date.
35 It was anticipated all relevant changes would be uplifted and could be proceed on that date. On the 10 July 2013, as I said, a further plea was heard. However, you were arraigned on new charges on the Indictment that was filed over. A number of the Summary Charges subsequently transferred to be heard on that plea were withdrawn, save and except, for Charge 2, the Failing to Answer Bail. All charges on the first and original Indictment were permanently stayed.
36 A further Order requesting a Pre-Sentence Report to assess your suitability for a Community Corrections Order was made on that day. So your bail was continued until today's date. That Community Corrections Assessment Report has been prepared and received and there are many positive matters set out therein.
37 Given that chronology, and your plea of guilty, I accept in your plea, indicates true remorse for your actions and I accept your plea of guilty also has utilitarian consequences and therefore facilitates the course of justice. I have therefore given you a significant discount for that plea of guilty in determining sentence and have therefore imposed a lesser sentence than I otherwise would have in all the circumstances.
Personal History and Circumstances
38 I now turn to your personal history and circumstances. I have heard much about your personal history and circumstances, Mr Woods, over a significant period of time when this matter has been before this Court. The delay is through no fault of yours.
39 You were born in New Zealand, on the 9 April of 1985. You are now some 28 years of age. I am told you had a brother one year your junior. When you were approximately five years of age and I am told that you remember your mother and father used considerable amounts of cannabis, sleeping pills and alcohol and you felt neglected, particularly in regard to your emotional needs.
40 I am told as far as your education is concerned you attended school to Year 12 level, although you chose not to go to university as you were working as a waiter and bar tender at the Sky City Casino. You also had a car and a number of friends and you were satisfied with your life at that time.
41 You have enjoyed travels to Cambodia and Singapore before moving to Brisbane because you felt you needed change and a fresh start.
42 You have described the first few years of your stay in Brisbane as fabulous. You remained employed in a number of positions and enjoyed your work. However, I accept that as a result of the global economic crisis in 2008 you became an indirect victim, thus leading you to lose three of your jobs. You describe that as being a particularly significant moment in your life. You were also referred to the psychiatrist. You have continued to wear an Essendon football scarf with the year 2008 emblazoned on it to mark that year.
43 I accept the many matters set out in the report of psychiatrist Dr John Shannon-Reid, which formed Exhibit 1. That was prepared on the 13 December 2012. There are also many other matters contained within that report about your personal circumstances, including details of the mental state examination. I have also been told about the tragic family accident and that you are still grieving in relation to that accident. Those matters are also described in the other materials and Mr McKenzie has also informed the Court about all those personal matters and your ongoing grief in respect of the matters to which have been set out in the materials.
44 Mr McKenzie has submitted in all the circumstances that a Community Corrections Order was the most appropriate sentence. He submitted that you were very vulnerable to others and you are marked by your distinctive clothing which brings comments and he submitted, for a number of reasons, that you would be in extreme risk in gaol, notwithstanding the offending.
45 Initially, the learned Prosecutor, who appeared to prosecute the first Indictment which contained the charge of Armed Robbery called for an immediate term of imprisonment so Mr McKenzie made a number of submissions against such a disposition in your case. He also referred to your distinguishing style, not only dress but personality. He said you had previously spent nine days in custody. He said your sexuality was of major concern to you and that you feel unrelenting pressure and you are physically vulnerable to assaults due to your appearance and sexual orientation.
46 I have been told and accept that you did not cope with the nine days in custody. I have referred to the tragic incident where you lost your parents and brother whilst you were in Australia, which was some eight years ago in New Zealand and you continue to suffer trauma as a result.
47 The psychiatric opinion is to the effect that you do not suffer any psychotic disorder. You also do not have any symptoms of a major stress disorder or Bipolar Disorder. However, you do appear to have an Anxiety Disorder and I accept the opinions of the psychiatrist. As far as your risk of reoffending is concerned, he opined that the risk would be reduced if there was an improvement in your lifestyle circumstances and other various matters, and I do accept that you have been remorseful as well.
48 Of course, there were other materials tendered on your behalf and I have had the opportunity of reading those materials, including the report to which I have referred and the three CISP reports in Exhibits 2, 3, and 4 as well as a letter dated the 27 November 2012; a further report from Peninsula Health, dated the 18 February 2013; a bundle of documents obviously referring to the offending, see Exhibit 7; a letter signed by Janet McCahon, dated 22 March 2013 and a further letter tendered from Peninsula Health dated 25 March 2013.
49 Apart from the Community Corrections materials no other materials were tendered. However, there has been much set out and I accept all that material and take it into account. I have been also told that there are no subsequent or pending matters, however, you have admitted before me to prior convictions.
Prior Convictions
50 There are three such convictions, involving three Court Appearances between 19 August 2010 and 8 June 2011, which involved charges of stealing, unauthorised dealing with shop goods and wilful damage. I consider those convictions are relevant to my task in sentencing you today. However, I have referred to the many mitigatory factors that you can call into favour. I have been impressed by your compliance with the CISP program and also your compliance with bail.
51 I have been told about another unrelated matter when you were placed on a Community Corrections Order and I accept what is evident in the Report received from Community Corrections that you have essentially complied with the conditions of the other Community Corrections Order, including undertaking 20 hours of unpaid work. Therefore, I am satisfied you have made significant attempts to address your issues, including alcohol, and to rehabilitate yourself and that has been a promising and ongoing campaign to address those problems.
52 So that provides real grounds for optimism. However, I consider that you should continue under the structure and supervision that can be provided under a Community Corrections order which was to provide you with the support, supervision and also ongoing assessment and treatment for your issues. So in fixing an appropriate sentence I have maximised your chances of rehabilitation. I have also taken into account the matters that have been placed before the Court.
Delay
53 I have referred to the chronology of these proceedings, including the earlier proceedings in the lower Court, and I accept that there has been delay in this matter. In line with well-known judicial authority, including the pronouncements of the court in R v. Merritt-Piggott and Ferrari (2007), 14 VR, 392, I accept that the relevance of delay here lies in the effect of the lapse of time on you and not how it was caused, although, I do not find there has been any fault fall on your shoulders.
54 So the delay has focused attention on your issues of rehabilitation and fairness to you. I have also taken into account that given the original indictment in this matter you were facing a possible term of imprisonment, given the entry of a plea of guilty to the charge of Armed Robbery. That is no longer the case and for all the reasons I have outlined, delay is a mitigating factor.
55 I have also entertained submissions from Mr McKenzie in relation to the burden on you of being required to serve an immediate term of imprisonment. He submitted that imprisonment would be a greater burden on you by reason of your many issues and that there is a risk of imprisonment having an adverse effect on you and your health. I accept those matters and in a relevant line of judicial authority I have found guidance.
56 As I said, there are many matters to be taken into account, on your behalf and I consider it is worth giving you an opportunity to remain in the community. You have demonstrated significant commitment and strides in your rehabilitation over the time this matter has been before this Court and there are glowing reports about you.
57 Concerns were raised about requiring you to undertake unpaid community work under the Community Corrections Order. No challenge was mounted to that by the learned Prosecutor and I accept Mr McKenzie's submissions in that regard. I consider in all the circumstances of this case that it is not appropriate to require a condition as to Judicial Monitoring.
58 I have also taken into account the submissions of your counsel that a Community Corrections Order with relevant conditions is the most appropriate disposition in all the circumstances of the case and the learned Prosecutor agreed. Of course, it is a question for the Court. As I said, I consider a Community Corrections Order to be the most appropriate disposition in this case in your interests and in the interests of the community.
Purposes of Sentence
59 So I have taken into account the purposes of sentence. As well as those matters personal to you, to which I have referred, including your prospects of rehabilitation. I also take into account matters as deterrence, especially general deterrence, which I do consider is of importance in a case such as this.
60 I also have considered the question of the protection of members of the community from you and borne in mind the likelihood of your re-offending. Whilst Community Corrections officers assessed you as being at a moderate risk of re-offending, I am satisfied that providing you maintain your path of rehabilitation, address your alcohol problems and other issues, there are prospects for rehabilitation.
61 However, if you relapse into alcohol abuse, given your transient lifestyle I have concerns about you re-offending in a similar manner. However, it is hoped that the Community Corrections Order upon which I am about to place you will provide you with the necessary supports to keep you on the right path.
62 I have also taken into account the Sentencing Act and I am required to manifest the community's denunciation of your conduct and to impose a just punishment.
63 I have also taken into account the fact that a sentence of an immediate term of imprisonment is a sentence of last resort.
64 I have accepted the Community Corrections Assessment Report and, in all the circumstances, I consider it appropriate for the reasons I have outlined to sentence you as follows: it may be appropriate before I do that, Mr McKenzie, if you could please approach the dock and look at the appropriate documentation.
65 MR McKENZIE: Yes, Your Honour.
66 HER HONOUR: Have you got the right one there?
67 MR McKENZIE: I had one but it is a different - - -
68 HER HONOUR: It might be best to show it to Madam Prosecutor, before you show it to Mr Woods. I have also signed - - -
69 MR McKENZIE: Apparently it is OK, Your Honour.
70 HER HONOUR: Yes. Yes.
71 MR McKENZIE: Do you want me to explain it to him?
72 HER HONOUR: Yes. And if he could also place his signature on that Order and I will go through the formalities. Any issue as to that proposed form of order, Madam Prosecutor?
73 MS WALTON: Sorry, Your Honour?
74 HER HONOUR: Any issue as to that proposed form of Community Corrections Order?
75 MS WALTON: I am just not sure if Your Honour's made the Disposal Order but you might be coming to that.
76 HER HONOUR: Yes. I will be. I have actually signed the necessary Orders and they will be handed down. That order is in relation to the offence of Common Assault. That is correct?
77 MS WALTON: Yes, Your Honour.
78 HER HONOUR: And I need to explain to Mr Woods what happens when there is a contravention of the Community Corrections Order. I state for the record that a s.6AAA statement under the Sentencing Act is not required, given the disposition I am about to place Mr Woods on.
79 MS WALTON: Yes, Your Honour.
80 HER HONOUR: How are you going, Mr McKenzie? You have gone through that form of order - - -
81 MR McKENZIE: We are getting there, Your Honour. Another a few minutes.
82 HER HONOUR: Right.
83 MR McKENZIE: He has agreed to and understands all of the matters here.
84 HER HONOUR: All right.
85 MR McKENZIE: Do you want me to get him to sign?
86 HER HONOUR: Yes, please, Mr McKenzie. Yes.
87 MR McKENZIE: Thank you, Your Honour.
88 HER HONOUR: Now, Mr McKenzie, it is not necessary for me to go through all those formal conditions.
89 MR McKENZIE: No. I have read through them myself very thoroughly, Your Honour.
90 HER HONOUR: All right. Thank you. Well, if you could please stand again, Mr Woods, I need to make the formal orders.
Sentence
91 In relation to Charges 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and Summary Charge 2, you are convicted and ordered to serve a Community Corrections Order for a period of two years. It starts on today's date and ends on the 16 July 2015. Most importantly, you must attend at Frankston Community Corrections Services Office by the 19 July, 2013, at 4.00 p.m.
92 You have been told about the conditions including supervision, treatment and rehabilitation, and assessment and related programs and do you understand those conditions?
93 PRISONER: Yes.
94 HER HONOUR: You have also been told about the other conditions including that you must not commit any further offences punishable upon conviction with imprisonment. You must not leave Victoria without permission and you must report to the Community Corrections officer as reasonable directed.
95 There are a number of others. I have gone through those generally. So in relation to that Community Corrections order - the form of order, do you understand the conditions and terms?
96 PRISONER: Yes, Your Honour, I do.
97 HER HONOUR: And do you understand the matters that flow from those terms and conditions? The consequences on you?
98 PRISONER: Yes, I do, Your Honour.
99 HER HONOUR: All right. And that is your signature on the form of order?
100 PRISONER: That is correct, Your Honour.
101 HER HONOUR: All right. I now sign and make that Order on today's date. I also need to tell you that if you contravene or breach the Community Corrections order there may be an offence of a Contravention of the Community Corrections order proceeded against you and a penalty of three months' imprisonment may be imposed if found proven. Do you understand?
102 PRISONER: Yes, I do understand, Your Honour.
103 HER HONOUR: All right. Further, I need to tell you that if you are found guilty of an offence of contravening the Community Corrections order, in addition to sentencing you the Court may also make a number of orders, including confirming, cancelling or varying the order. You can also make application to the Court to vary the order as well.
104 The order could be cancelled and you could also be re-sentenced in relation to these charges on which I have placed you on the Community Corrections order. Do you understand?
105 PRISONER: Yes, I do, Your Honour.
106 HER HONOUR: So what all that means is I do not want to see you back here because you will be brought back before me if there is a contravention or a breach of that order laid against you. Do you understand?
107 PRISONER: Yes, Your Honour.
108 HER HONOUR: And Mr McKenzie will explain that further to you.
Ancillary Orders
109 I also make the Forfeiture Order pursuant to the Confiscation Act in relation to Charges 2 and 8 and that has been made with your consent and the property referred to in the Schedule, namely, the knife will be placed in the custody of the Chief Commissioner. I have made it in the terms as set out in that Order and that is made on today's date.
110 Pursuant to s.18(4) of the Sentencing Act, the Court declares that the period of time you have been held in custody in relation to these matters, namely, nine days, be reckoned as a period of imprisonment already served under this sentence. I have also set out on the formal order the number of Summary Charges that were transferred to this Court and that they have been actually consumed within the charges on the Indictment to which you have pleaded guilty before me on 10 July 2013 and those summary charges have now been noted as withdrawn. So that is formally on the record.
111 You now may step out of the dock but you need to wait to get the relevant paperwork. All right. Nothing further from your point of view, Madam Prosecutor?
112 MS WALTON: No, Your Honour.
113 HER HONOUR: Thank you, for your assistance. Nothing further from you, Mr McKenzie?
114 MR McKENZIE: No, Your Honour.
115 HER HONOUR: All right. You will reinforce the matters I have said. Thank you for your assistance.
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