Director of Public Prosecutions v LW

[2025] VCC 248

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

LW

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2025
DATE OF SENTENCE:	5 March 2025
CASE MAY BE CITED AS:	DPP v LW
MEDIUM NEUTRAL CITATION:	[2025] VCC 248

REASONS FOR SENTENCE
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Subject:Sentence

Catchwords:              Intentionally cause serious injury – resisting emergency worker on duty – failure to comply with supervision order – Renzella time – Bugmy principles

Legislation Cited:      Crimes Act 1958; Serious Offenders Act 2018; Summary Offences Act 1966; Control of Weapons Act 1990; Criminal Procedure Act 2009; Sentencing Act 1991

Cases Cited:Nash v The Queen (2013) 40 VR 134; Lecornu v The Queen (2012) 36 VR 382; The Queen v Verdins (2007) 16 VR 269; Strkbak v The Queen [2020] HCA 10; Cameron v The Queen (2002) 209 CLR 339; The Queen v Renzella [1997] 2 VR 88; Loader v The Queen [2011] VSCA 292; Pearce v The Queen (1998) 194 CLR 610; Director of Public Prosecutions v Price [2017] VCC 1766; Bugmy v The Queen (2013) 249 CLR 571; Director of Public Prosecutions v Codey Hermann [2021] VSCA 160

Sentence:                  61 months with a non-parole period of 40 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mx C Rattray (For Plea)	The Director of Public Prosecutions
Ms M O’Halloran (For Sentence)
For the Accused	Mr D Zajd	Stary Norton Halphen Criminal Lawyers

HIS HONOUR:

1LW, you are to be sentenced in respect of the following matters for which you have pleaded guilty.  On Indictment P12445680.1:

Charge 1

Causing injury intentionally

2The accused at Frankston intentionally caused injury to Kristan Waaldyk on 20 November 2023 in breach of s18 of the Crimes Act 1958. Maximum penalty: 10 years imprisonment;

Charge 2

Resisting emergency workers on duty (rolled-up charge)

3The accused at Frankston resisted emergency workers on 20 November 2023 in breach of s31(1)(b) of the Crimes Act.  Maximum penalty: 5 years imprisonment;

Charge sheet offences:

Charge 1

4Failing to comply with a supervision order by causing injury intentionally, contrary to s18 of the Crimes Act, on 20 November 2023, in breach of s169(1) of the Serious Offenders Act.  Maximum penalty: 5 years imprisonment (or 2 years’ imprisonment if heard summarily);

Charge 2

5Fail to comply with a supervision order by resisting emergency workers on duty contrary to s31(1)(b) of the Crimes Act on 20 November 2023, in breach of s169(1) of the Serious Offenders Act. Maximum penalty: 5 years imprisonment (or 2 years’ imprisonment if heard summarily);

Charge 3

6Fail to comply with a supervision order by possessing a controlled weapon without lawful excuse contrary to s6(1) of the Control of Weapons Act 1990 on 20 November 2023 in breach of s169(1) of the Serious Offenders Act.  Maximum penalty: five years imprisonment (or two years’ imprisonment if heard summarily);

Related summary offences:

Charge 5

7Assault emergency worker on duty (rolled-up charge), when the accused assaulted Hilton Clarke, an emergency worker on duty, on 20 November 2023, in breach of s51(2) of the Summary Offences Act 1966. Maximum penalty: 6 months’ imprisonment;

Charge 9

8Possess controlled weapon, in that the accused possessed a controlled weapon, namely a knife, without lawful excuse (hunting knife) on 20 November 2023 in breach of s6(1) of the Control of Weapons Act 1990 Maximum penalty: 1 year imprisonment;

Charge 11

9Trespass, in that the accused trespassed into a residential premises situated at Dandenong Road East, Frankston, without express or implied authority or a lawful excuse, on 20 November 2023, in breach of s9(1)(e) of the Summary Offences Act. Maximum penalty: 6 months imprisonment.

2.Circumstances of offending

10The summary of prosecution opening for plea dated 21 January 2025 was Exhibit P1.

11At the time of the offending before this Court, you were residing in the community in Bentleigh East pursuant to the conditions of your supervision order.

Charge 1 on Indictment No. P12445680.1 and Summary Charge 11

12On 20 November 2023, you were in the Frankston area with an associate, Rhiannon Burnell.

13At approximately 4.45pm, you and Ms Burnell attended the home of the victim, Kristan Waaldyk, in Dandenong Road East, Frankston (“the residence”).

14The victim opened the front door of the residence to Ms Burnell, and Ms Burnell followed him inside.  The victim and Ms Burnell had met previously.  Ms Burnell was seeking to obtain drugs from the victim, but the victim did not have what Ms Burnell was seeking.  The victim directed Ms Burnell to leave the residence and ushered her towards the front door.  The front door remained open throughout this interaction.

15Once at the front door, Ms Burnell made a comment along the lines of “There’s the dog, get him”.  You were waiting outside the front door of the residence at this time.  The victim had not seen you at his front door prior to this, and you and the victim were not known to each other.  As the victim attempted to shut his front door, you reached your arm around and/or through the front door and stabbed the victim three times with a knife (Charge 1 (Indictment No. P12445680.1); Summary Charge 11 – Trespass).  The victim stated he jammed your arm in the door as he tried to close it while being stabbed.

16You and Ms Burnell left the scene immediately following the stabbing incident.  You both ran in an easterly direction along Colin Avenue, Frankston.  You and Ms Burnell were captured by CCTV from a residential premises in Colin Avenue, Frankston.  You can be observed pausing momentarily behind a fence pillar and yelling at Ms Burnell “I mean run.  Take your shoes off and fucking run.  Oi, if they get us at the crime scene we’re fucked.”

17Emergency services were contacted by the victim’s neighbour.  Paramedics and police attended the residence.  The victim was taken by ambulance to the Alfred Hospital for treatment of his injuries.

18The victim suffered a penetrating wound to the right gluteal area and two superficial lacerations to the right arm.  The superficial lacerations were treated with sutures in the emergency department on the same evening.  The deeper wound to the right gluteal area required surgical washout and repair with stapling which occurred on 22 November 2023.  The operative findings indicated a 3cm skin opening with a 10cm long tract in the superoposterior direction through subcutaneous tissue down to the muscle.  The victim was discharged from hospital on 22 November 2023.

Charge 2 on Indictment No. P12445680.1 and Summary Charge 5

19At approximately 4.55pm, witness Louise O’Neill was driving to her home address and observed you and Ms Burnell running along Colin Avenue, Frankston.  A short time later, Ms O’Neill observed you and Ms Burnell loitering within the residential units located at 2 Spray Street, Frankston.  Ms O’Neill observed you hide an unknown item in the bushes at the entrance to the residential units.  Approximately one hour later, Ms O’Neill observed you again within the garden area of the residential units at 2 Spray Street, Frankston and contacted police.

20At approximately 6.20pm, you and Ms Burnell were located by police standing in a driveway within the residential units at 2 Spray Street, Frankston.

21Senior Constables Hilton Clarke and Lize-Mari Mitchley were the first officers to reach you and Ms Burnell.  They advised you and Ms Burnell you were under arrest.  You responded “fuck off” and questioned what you were under arrest for.  You then picked up a glass bottle of alcohol and walked in the direction of police members.  Police warned you to stop, and then Acting Sergeant Jonathan Peters sprayed you with Oleoresin Capsicum (OC) foam as he feared you were going to strike police members with the bottle of alcohol.  The OC foam did not appear to affect you.  You walked away from police, around the other side of a parked car, but there were police officers blocking your exit on both sides.

22You did not comply with the verbal directions of police.  As Senior Constable Hilton Clarke attempted to gain control of you by grabbing you from behind in a seatbelt hold, you swung your arm and the alcohol bottle which struck the side of Senior Constable Hilton Clarke’s face (Summary Charge 5 – assault emergency worker on duty).

23Senior Constable Hilton Clarke was able to bring you to the ground, but you thrashed around and resisted arrest.  Acting Sergeant Jonathan Peters, Senior Constables Hilton Clarke, Lize-Mari Mitchley and John Holz all moved to attempt to restrain you.  Senior Constable Lize-Mari Mitchley and Acting Sergeant Peters both used batons to strike you, which was ineffective.  You continued to thrash your arms around and yell at police to “fuck off”.

24Whilst you were on the ground and police were attempting to gain control of you, police identified that you were in possession of a knife (Summary Charge 9 – possess controlled weapon).  Acting Sergeant Peters used his baton to strike you again, and police were able to disarm you, and Senior Constable Holz moved the knife away.

25Senior Constables Brigette Warner and Paul D’Cruze had attended to the arrest of Ms Burnell, but as she was compliant Senior Constable D’Cruze moved to assist the other officers in restraining you.  You continued to resist arrest in a physically and verbally aggressive manner.

26Senior Constable Brigette Warner also left Ms Burnell at one stage to assist the other officers in handcuffing you.  Senior Constable Gagansingh Dillon also arrived and assisted in restraining you.

27During the process of restraining and arresting you, you bit the finger of Senior Constable Hilton Clarke.  Senior Constable Clarke was wearing leather gloves at the time, and the bite broke through the gloves and caused a small laceration to his finger (Summary Charge 5 – assault emergency worker on duty – this is a rolled-up charge capturing this biting incident and the incident detailed above at paragraph [22] involving the strike of the bottle to the face of Senior Constable Hilton Clarke).  Senior Constable Hilton Clarke struggled to free his finger and struck you to the side of the head in an attempt to release his finger.

28After a struggle lasting approximately four minutes, police eventually restrained you using multiple sets of handcuffs.  At least seven police officers (Acting Sergeant Jonathan Peters, Senior Constables Clarke, Lize-Mari Mitchley, John Holz, Paul D’Cruze, Brigette Warner and Gagansingh Dillon) were required to successfully restrain and arrest you.

29Paragraphs [19] to [23] above particularise Charge 2 on Indictment P12445680.1 forming the resist of an emergency worker on duty.

30Senior Constable Hilton Clarke subsequently attended Epworth Hospital on the evening of 20 November 2023 for assessment and treatment of the injuries he suffered during your arrest.  The bite wound to his finger was cleaned and dressed.  He was administered a tetanus vaccine and antibiotics.  The right side of Senior Constable Hilton Clarke’s face was swollen, with a diagnosis of a soft tissue injury to the face.

3.The victim’s injuries

31No victim impact statement from Kristan Waaldyk or Senior Constable Clarke was filed or tendered on the plea.

4.Nature and gravity of offending

(a)   Cause injury intentionally

32It was put by the Crown that the charge of causing injury intentionally was serious primarily on the basis that there was an element of planning and premeditation, motivated by drug-seeking behaviours.  I would reject that characterisation of the events.  It requires an inference as to the intention possessed by you before you attended at Kristan Waaldyk’s home.  Such an inference would have to be drawn beyond reasonable doubt.[1]  On the accepted facts of the plea, that burden cannot be discharged.  There are any number of possibilities as to what your mental state was at the time that you attended.  It could equally be the case that you attended simply to support Ms Burnell, with no intention to cause injury to Mr Waaldyk.  A further example might be that you stood out of sight in order not to potentially provoke Mr Waaldyk in any way.  No specific intent to cause injury to Mr Waaldyk could be said to have been in your mind.  I would reject that submission.

[1]        Strkbak v The Queen [2020] HCA 10 at [32].

33In an assessment of the gravity of similar offences, some guidance can be taken from Nash v The Queen.[2]  In that case the Court identified a number of indicia which might be useful in guiding a Court as to an assessment of the gravity of offending.  Using those indicia, I am mindful that a bladed weapon was used on an unsuspecting victim.  However, this was an attack of short moment.  I accept that you intended in that moment to stab and deter Mr Waaldyk, but I cannot infer there was an intent to cause more serious injury, as the attack was over quickly.  You then fled.  Overall, I assess the gravity of this offending as being low to moderate.

[2]        Nash v The Queen (2013) 40 VR 134 (noting that case dealt with causing serious injury).

(b)  Resist emergency workers

34In assessing the gravity of this offending, I note that it lasted not more than three minutes after you were verbally warned to stop by police.  You were then OC sprayed, placed in handcuffs and restrained by police officers.  However, it is notable that some seven members of Victoria Police were required to restrain you.  Given that you were clearly warned, had time to comply, and did not, it is somewhat concerning behaviour.  It is also relevant to note that your resistance was more than simply verbal, but constituted physical acts of disobedience as well.  I consider the gravity of this offending to be moderate, given particularly that it was over such a short period of time.

(c)  Contravention of supervision orders

35The prosecution submitted that you clearly had knowledge of your supervision order and its conditions.  This was because of your long history of being on such orders and your previous history of breaching them, such that you knew there were consequences associated with acting in the way that you did on 20 November 2023.  The Crown also submits that the substantive offending which gave rise to the contraventions may be viewed as having elements of pre-planning and intent to participate in drug-seeking behaviour.[3]

[3]Paragraph 33 of Exhibit P1

36For reasons set out above, I reject the submission that there was pre-planning involved in the substantive offending of causing injury intentionally.  There was no element of pre-planning that can be established beyond reasonable doubt.  However, I do accept that there was an element of planning involved in obtaining the hunting knife and carrying it with you.  Clearly the breach of the order in that circumstance was done knowingly.  As to the contravention caused by the resisting emergency workers, I consider this to be less planned, in that it occurred somewhat spontaneously while you were fleeing.

37There is force, however, in the prosecution submission that this offending all constitutes an escalation of the breaching behaviour for which you have previously been before me.  To that extent, I consider the failure to comply with the supervision order by causing injury intentionally to be reactive, and a low to moderate offending; and the breach of supervision order by failure to comply by resisting emergency workers, and the breach of supervision order by failure to comply by carrying the hunting knife, to be moderate offending.

Related summary offence:

Charge 5 - assault of emergency worker

38It is accepted by the prosecution that such offending was short in length and may be viewed as opportunistic.  I would accept that characterisation.  However, it is also relevant to note that a glass bottle was introduced into this resistance, which indicates some intention to aggressively resist, noting that the hunting knife had been disposed of by this stage.  In that circumstance I consider that such offending must be characterised as moderate to high.

Charge 9:  Possess a controlled weapon

39I consider the possession of the weapon to be graded as of moderate severity of offending.  This is because it was well and truly known by you that such implements are dangerous.  Even if it was carried, as you said, for protective purposes, it raised the possibility of you utilising it in a defensive manner or, as ultimately occurred, in an offensive manner.  You clearly took steps to positively obtain it, and this was in contravention of your supervision order, which you were well aware of.  This fact informs the gravity of the offending.[4]

[4]Lecornu v The Queen (2012) 36 VR 382 at [9]-[10], [69]-[70].

Related summary offences: Charge 5, assault emergency workers

40This is a specific charge related to the assault of one emergency worker who suffered injury.  It occurred in a circumstance of real confusion, though of limited time duration.  As I have indicated, the use of the glass bottle and your teeth to bite was a particular feature of you obtaining a potentially vicious weapon to resist.  I consider this to be a moderate example of offending.

Charge 9: Possess a controlled weapon

41For the reasons set out above, I consider this a moderate example of such offending.

Charge 11: Trespass

42I consider this at the low end of the gravity of offending.

Whether the charge sheet offences of failing to comply with the supervision order should be heard summarily?

43I granted the application having regard to ss 28 and 29 of the Criminal Procedure Act.  I have determined that the cause injury intentionally offending was largely unplanned and a spontaneous reaction to a quickly evolving situation.  For the possession of the knife and resisting emergency workers, these charges had a degree of planning, which was not great but makes them different to the other contraventions.  Further, the sentence likely to be imposed here is clearly within the summary jurisdiction.[5]  These matters make the plea on these charges suitable to be heard summarily.

[5]See the prosecution submissions at paragraph 7(c).

Mandatory provisions

44There was debate as to whether the charge sheet offences of failing to comply with the supervision order result in a mandatory minimum term of 12 months.  Such would be imposed if the breach was intentional or reckless.[6]  Here I accept that there was at least recklessness at play in carrying the knife and attending at Waaldyk’s house.  Further, to flee and then resist arrest demonstrates a degree of intention.  This is particularly so in circumstances where the knife had been disposed of but another weapon had been obtained: namely, the bottle.

[6]Serious Offenders Act 2018 s 169.

45In that circumstance, the defendant submits special reasons operate in accordance with s 10A of the Sentencing Act, as it was submitted you had an impaired mental functioning that is causally linked to the offending that substantially and materially reduces your culpability.  I find on the basis of Dr Davis’s report that to be the case.  In fact, the Crown accepted that there was a longstanding personality disorder linked to violent offending based on Dr Davis’s reporting.[7]  I consider that enlivens limb 1 of Verdins,[8] because it does substantially and materially reduce the moral culpability attendant to the events on 20 November 2023.  This results also in my finding that special reasons exist, and as such the mandatory minimums do not apply.

[7]Detention and Supervision Order Progress Report at [92] authored by Dr Michael R Davis, 20 September  2024.

[8]The Queen v Verdins (2007) 16 VR 269.

Personal and family history

46You were born in South Nowra, New South Wales, in August 1994.  You are the second child in a family of five children.  You identify as an Aboriginal man from the Wiradjuri nation.  Your parents separated when you were about 12 years of age.  There was physical violence between your mother and father due to your father’s alcoholism.  You witnessed this.  However, at that stage you were never the recipient of your father’s violent behaviour.  Rather, it was directed at your mother.

47At around the age of 12 your father went to jail for 18 months when he was charged in respect of cultivating a cannabis crop.  When your father emerged from prison you went to live with him, as your mother’s new partner was similarly violent towards her. 

48In about 1995, at the age of 11, you were sent to a boys’ home.  At that time you were sexually abused by an adult.  Ultimately, and much more recently, you took civil action against the boys’ home and recovered a sum of money.  However, at that time you describe blaming yourself as a result of this abuse, and began ever more seriously abusing drugs.

49From about the age of 13 to about 17 you lived with your father on an 800-acre cattle farm.  You and your father had a violent relationship.  During this time it appears your living circumstance was fairly rudimentary, and you describe this as “living in a cave”.

50All up, between the ages of 11 and 18 you spent about nine months in boys’ homes.  At around the age of 16 you had a relationship with a female nurse in a boys’ home.  This was a sexual relationship.  At about the age of 18 you began living with your mother on and off, but then met the mother of your daughter and moved to Tasmania.  You moved back to the mainland at around the age of 20 years.  Around that time your more serious criminality began, and you were incarcerated for long periods of time.

History of past offending:

·        28 April 2003, aged 19, assault with weapon, 12 months;

·        6 August 2003, malicious wounding, 18 months with a non-parole period of three months;

·        19 January 2004, two assaults, eight months with a non-parole period of three months;

·        18 September 2005, aged 21: assault of partner who was pregnant at the time, bashed, stomped, kicked her.  Charge: intentionally cause serious injury, six years and six months with a non-parole period of four years;

·        2009, aged 25, while on parole from the previous charge, breached, and served the remaining two years;

·        2011, aged 27, armed robbery and recklessly cause serious injury.  You had a shotgun which you discharged, but did not shoot anyone, in the course of offending.  Sentence: five years with a non-parole period of three years;

·        14 November 2011, aged 28, theft, two months;

·        2012, aged 29, involved in a riot at prison.  Sentence: two months;

·        2015, aged 31, recklessly cause serious injury, eight years with a non-parole period of four years;

·        2021, aged 37, released from prison but deemed a serious violent offender and placed on a supervision order;

·        4 August 2022, aged 38, variety of breaches of supervision order for use of methamphetamine, heroin use, and tamper with the SCRAM device;

·        20 November 2023, aged 39, date of current offending;

·        26 January 2024, transferred to the Thomas Embling Hospital with a psychotic break and released on 21 February 2024.  Remains on remand.

51It is relevant to note that neuropsychological testing reveals a full-scale IQ in the extremely low-average range.[9]

[9]        Detention and Supervision Order Progress Report at [37] authored by Dr Michael R Davis 20 September  2024. Though some caution about the validity of the test was expressed.

52It is also relevant to note that you remain with a chronic back condition for which you have been identified as suffering from a somatic symptom disorder and for which you require long-term pain medication on a daily basis.

53You have been diagnosed with a post-traumatic stress disorder, depression and anxiety, and an anti-social personality disorder, with a chronic pain disorder from a back injury.

Is the plea at the earliest opportunity?

54There was dispute between the parties as to whether the plea should be considered as being at the earliest opportunity.  This arose because the plea of guilty was only entered after the committal hearing.  It was the defence position that the committal was conducted on a substantially different basis to that which the plea was ultimately entered on.  As such, the defence submitted that the plea was at the earliest opportunity.  The prosecution, however, contended otherwise: that having gone through the committal, where the complainant was cross-examined and time and expense was expended, the plea could not be said to attract a full sentencing discount.

55I would accept the defence submissions in respect of this point.  The Court in Cameron v The Queen went to this issue.  The Court made the point that there ought not be a discouragement of the accused wanting to test the evidence against them.[10]  In the circumstances, I accept that the basis of the plea ultimately was substantially different to that which the committal was conducted on.  In that circumstance, I give weight to the plea as being at an early time.

[10]Cameron v The Queen (2002) 209 CLR 339 at 358, subparagraph [3].

Time in custody

56Having assessed the previous periods in custody, I consider that 103 days ought be calculated as Renzella[11] time.

[11]The Queen v Renzella [1997] 2 VR 88.

57I accept that the pre-sentence detention days are calculated at (471 days as of 5 March 2025).

How to treat the overlap between breaches of the supervision order and the substantive offending

58I am mindful of Nettle JA’s comments (with whom Warren CJ and Ashley JA agreed) in Loader v The Queen[12] where he quoted from the Court in Pearce v The Queen:[13]

“Certainly, to the extent of the overlap, the sentences imposed on [breach offences] must be moderated in accordance with Pearce.  But the offences of failing to comply with the conditions of the orders involves the added criminality of failing to comply with orders of the court.  That warrants additional punishment.”[14]

[12]Loader v The Queen [2011] VSCA 292.

[13]Pearce v The Queen (1998) 194 CLR 610.

[14]Loader v The Queen [2011] VSCA 292 at [53]-[54].

59I make it clear that I am mindful that you not be doubly punished for the one offence.  However, where there is more than one offence committed during the actions you took, and each offence includes different elements, there may be prosecution on more than one offence, and similarly there may be punishment for each of the offences arising out of that episode separately.[15]

[15]Director of Public Prosecutions v Price [2017] VCC 1766 at [14].

The application of Bugmy principles

60Given your background and the material contained in Dr Davis’ report, I consider it undoubted that Bugmy[16] principles apply.  It is clear your background was disadvantaged.  There was a level of real dysfunction and instability in your developmental years.  You were exposed to violence exhibited by your father, your carer at the boys’ home, and to some extent, your stepfather.  Many things that most of us would take for granted in a childhood simply did not exist in your early life.  Yours was clearly a most unenviable background.  I give it full weight in the way in which that phrase is employed in the case law, including Herrmann.[17] These matters give rise to some reduction in your culpability.  There is also a softening of some of the retributive and deterrent purposes of sentencing.

[16]Bugmy v The Queen (2013) 249 CLR 571.

[17]        Director of Public Prosecutions v Codey Hermann [2021] VSCA 160.

The application of the principles of Verdins

61I have set out above why I accept that limb 1 of Verdins applies.

62It was also put that limbs 3, 4 and 5 applied. Given my finding in respect of special reasons above and the enlivening of limb 1, I also will moderate both the general and specific deterrence aspects of your sentence. However, given your long period of offending, this will be only a slight moderation. As to limb 5, I consider given your most recent visit to Thomas Embling with a psychotic break, that there is evidence that the weight a sentence of incarceration will have on you given your mental illness is greater than can be expected. I take this into account in moderating your sentence.

Cumulation and concurrency

63In this case there will be application of periods of cumulation to account for the fact that the factual offending has led to both substantive charges as well as breach charges.  I have been mindful in determining the cumulation and concurrency in relation to the charges with the principle of totality.  I will address this when I come to each individual charge.

Deterrence

64It was put that the principles in Bugmy[18] and limbs 1, 3, 4 and 5 of Verdins apply to moderate deterrence.   I accept that limb 1 applies, and I have set that out above.  I accept similarly that there is some modification of general deterrence, given your background and in particular your psychiatric conditions.  However, this is moderated by the fact that you remain a repeat offender in respect of serious charges.

[18]        Bugmy v The Queen (2013) 249 CLR 571

65I accept that specific deterrence is somewhat moderated by reason of your psychiatric condition.

66As to limb 5, I accept that this has some work to do. 

Remorse

67I accept that there is some degree of remorse expressed by you by reason of the early guilty plea.  In addition, you have written a letter to the Court in which you express your sorrow for the events that occurred.  I take into account that you are remorseful for your actions on the day.

Punishment

68I consider that punishment must be given real effect in this case, given that you are an offender with a long history of violent offending, often involving weapons and knives.

Rehabilitation

69It was accepted that you had been released into the community from your supervision order in April 2022, and this was the first time you had lived in the community since 2011.  At this time there were some breaches of your supervision order which I sentenced you for.  These were reasonably minor matters.  However, overall you had participated very well in various programs such as Moroka and Seahaven.  You had consistently returned drug screens which were negative.  While at Seahaven Rehabilitation Facility you met a woman by the name of Andrea who became your fiancée.  She unfortunately died while you were on remand. However, I accept that there were real positive signs in your rehabilitation up to that point.

70In addition, you are a talented artist and have provided a large number of works to the Torch Project which have been sold.

71At your age rehabilitation is still an important factor.

Sentence

72I now proceed to sentence you in the following manner.

73Charge 1: cause injury intentionally.  Maximum penalty of 10 years.  Sentence: 3 years.  Base sentence 36 months.

74Charge 2: resist emergency worker.  Maximum penalty 5 years.  Sentence: 8 months.  Cumulation: 8 months.

75Charge sheet 1: failing to comply with a supervision order by cause injury intentionally.  Two years maximum, heard summarily.  Sentence: 6 months.  4 months to be concurrent with Charge 1.  Cumulation: 2 months. The cumulation is to account for the separate criminality associated with the breach offence which I have determined as low to moderate gravity of offending.

76Charge sheet 2: failing to comply with supervision order by resisting emergency worker.  Maximum two years heard summarily.  Sentence: 8 months.  4 months concurrent with Charge 2.  Cumulation: 4 months. The cumulation is to account for the separate criminality associated with the breach offence which I have determined as being of moderate gravity of offending.

77Charge sheet 3: failing to comply with supervision order by being in possession of a knife.  Maximum two years heard summarily.  Sentence: 8 months.  4 months concurrent with Charge 2.  Cumulation: 4 months. The cumulation is to account for the separate criminality associated with the breach offence which I have determined as having a moderate gravity of offending.

78Related summary offence 5: assault emergency worker, SC  Clarke.  Maximum six months.  Sentence: 5 months.  Cumulation: 5 months.

79Related summary offence 9: possess weapon.  Maximum one year.  Sentence: 8 months.  6 months concurrent with Charge Sheet Offence 3.  Cumulation: 2 months. The concurrency is to reflect the fact that the same criminal conduct has founded both charges.

80Related summary offence 11: offence trespass.  Maximum six months.  Sentence: 3 months concurrent with base.

81

CHARGE	OFFENCE	MAXIMUMM	SENTENCE	CUMULATION	TES
1	Cause injury intentionally	10 years	3 years	36 months	36 months
2	Resist emergency workers	5 years	8 months	8 months	44 months
Charge Sheet 1	Fail to comply with SO by causing injury intentionally	5 years/   2 years heard summarily	6 months 4 months concurrent with Base	2 months	46 months
Charge Sheet 2	Fail to comply with SO by resisting emergency workers	5 years/ 2 years heard summarily	8 months 4 months concurrent with Charge 2	4 months	50 months
Charge Sheet 3	Fail to comply with SO by possession weapon – knife	5 years/ 2 years heard summarily	8 months 4 months concurrent with Base	4 months	54 months
RSO 5	Assault emergency work – Clarke	6 months	5 months	5 months	59 months
RSO 9	Possess weapon – knife	1 year	8 months 6 months concurrent with Charge Sheet 2	2 months	61 months
RSO 11	Trespass	6 months	3 months	0	61
TES 61 months

82Total effective sentence of 61 months with a non-parole period of 40 months.

83In accordance with s. 6AAA[19] I  declare that but for the plea of guilty at an early stage I would have imposed a sentence of 80 months.

[19]        Sentencing Act 1991

84Pre sentence detention is calculated at 471 days.

85From that ought be deducted the Renzella time of 103 days.

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00595
CR-24-01546
CR-23-01978

DIRECTOR OF PUBLIC PROSECUTIONS

v

LW

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2025
DATE OF SENTENCE:	5 March 2025
CASE MAY BE CITED AS:	DPP v LW
MEDIUM NEUTRAL CITATION:	[2025] VCC 248

SUMMARY SENTENCING REMARKS
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HIS HONOUR: 

1Ms O'Halloran, Mr Zajd.

2MR ZAJD:  Yes, thank you, Your Honour, and may I before we start seek leave of the court to appear unrobed.

3HIS HONOUR:  Yes, certainly, Mr Zajd.  I understand there's difficulties on circuit in getting access to your robes.

4MR ZAJD:  Yes.

5HIS HONOUR:  Before we begin, I'll just check, LW, are you able to see and hear the court?

6OFFENDER:  Yes I can, Your Honour, thank you.

7HIS HONOUR:  Thank you.  I am now going to proceed to sentence and the first thing I will do is I will have published to counsel my full reasons for sentence.  I would ask counsel to please particularly pay attention to the last few pages as to the calculations that are contained there, and advise me at the end of the sentence if there are any matters that need to be revised or any other ancillary orders, particularly you, Ms O'Halloran, for the ancillary orders.

8LW, I am going to sentence you in the following way.  Firstly, I am going to read a short summary to you. That short summary sets out the basic reasons why I have sentenced you the way that I have and then I am going to make some comments to you specifically. 

9I have also published very full reasons setting out exactly why I have reached the sentence that I have and that has gone to your barrister and in due course your solicitor.  So if you need to receive a full copy of those reasons, by all means you are entitled to those and you can look at those and they will tell you exactly why I have reached the decision that I have.

10OFFENDER:  Thank you, Your Honour.

11HIS HONOUR:  So I am now going to proceed to read a summary of the sentence that I propose to impose in this matter.  I make it clear that the statement, or the summary that I read, is not intended to be a substitute for the reasons for sentence that I have handed down, and the summary should not be used in any later consideration of my reasons.

12LW, I will sentence you to a term of 61 months with a non-parole period of 40 months.  I calculate pre‑sentence detention at 471 days.  I also calculate Renzella time at 103 days and that should be deducted from the sentence.

13I have come to that sentence for the following brief reasons.  The major sentence that I impose on you is in relation to the stabbing of Kristan Waaldyk, an innocent citizen.  You went armed with a knife and, even though I have found it was not a premeditated attack, you have a long history of using weapons and so it was no surprise that the knife you had on you was ultimately used.

14The other major part of your offending occurred in the course of resisting police who arrested you.  That behaviour I consider is alarming, particularly the actions aimed towards Senior Constable Clark when you hit him with a bottle and also bit him.  These actions are serious and cannot be tolerated.  Your repeated flouting of the supervision order regime is also concerning and, as the courts have made clear, those behaviours must be condemned and punished.  Therefore the sentence I impose upon you is a stiff punishment.  It denounces your conduct and hopefully acts to deter you and others from such offending. 

15But as I have said to you in the past, LW, you have real prospects for rehabilitation given your remorse and the responsibility you have taken for your actions.  I know that you have derived benefits from the courses and programs and the artwork that you have done.  You will know that I have dealt with you numerous times over the last few years and I continue to be impressed by you and your willingness to engage in those rehabilitation programs and do your artwork. 

16But as I have said to you in the past, the most important part of your rehabilitation is the fact that you have a very supportive family and I have no doubt that once again your mother is online today listening.  You have reached the point that only you can make the decisions to make a better life for yourself and to return to your family and I hope that you begin to make those better decisions immediately upon your release.

17That concludes the summary that I propose to read to LW.  I will now turn to you, Ms O'Halloran.  Are there any matters that I need to revise?

18MS O'HALLORAN:  Your Honour, I just wish to clarify in relation to the Renzella time.  It's the Crown's submission that it should be taken into account by Your Honour in arriving at the appropriate head sentence rather than deducted off as time already served for these offences under this sentence.  So I'm not sure if that is how Your Honour has taken it into account, but I just wished to clarify.

19HIS HONOUR:  Yes, certainly.  Any other matters?

20MS O'HALLORAN: No. In terms of ancillary orders I understand that under s9 of the Control of Weapons Act the knife should be automatically ‑ ‑ ‑

21HIS HONOUR:  Forfeit.

22MS O'HALLORAN:  There should be an automatic forfeiture of that.

23HIS HONOUR:  So there's no specific order that I need to make in that regard?

24MS O'HALLORAN:  No, Your Honour.  And I don't believe there's any other ancillary orders to be made.

25HIS HONOUR:  Thank you.  Mr Zajd?

26MR ZAJD:  Your Honour, I'm sorry, the video cut out just as Ms O'Halloran rose to her feet.  I understand through a discussion that I've had with her just prior the submission that I understand she was going to make about the Renzella time; I don't take any position on that and I don't have anything further either.

27HIS HONOUR:  I see.  And in terms of the calculation overall and the table, there's no issue with that?

28MR ZAJD:  No, Your Honour.

29HIS HONOUR:  All right, thank you.  I can simply say in respect of the Renzella time that I've simply considered it globally when dealing with the issue of totality, so it seemed the easiest way to be understood in terms of the orders which ultimately will be made as to how that should be calculated, to express it in that way.

30MS O'HALLORAN:  Yes.  As Your Honour pleases.

31HER HONOUR:  Thank you for bringing that to my attention though.  So with that said, Mr Zajd, do you need some time on the link with your client or with your instructor?

32MR ZAJD:  That would be appreciated, Your Honour, just a short moment, yes.

33HIS HONOUR:  Yes, all right.  Also I'll just have my associate then send the reasons, the full reasons, to Ms Morris.  I understand your instructor's on the line as well, Mr Zajd.

34MR ZAJD:  Yes, that's correct.

35HIS HONOUR:  Yes, that could be sent to her.  So otherwise we'll leave the court, Mr Zajd, to you and your client and to Ms Morris. 

36MR ZAJD:  Thank you, Your Honour.

37HIS HONOUR:  And I'll ask, once I've adjourned, Ms O'Halloran to leave the Bar table so that you can have that conference with your client.

38MR ZAJD:  Thank you, Your Honour.

39HIS HONOUR:  Otherwise, Madam Associate, please adjourn the court until 2.15 this afternoon.

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