Director of Public Prosecutions v Spilsbury
[2025] VCC 13
•23 January 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-01588
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOEL SPILSBURY |
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JUDGE: | HIS HONOUR JUDGE DOYLE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 December 2024 |
DATE OF SENTENCE: | 23 January 2025 |
CASE MAY BE CITED AS: | DPP v Spilsbury |
MEDIUM NEUTRAL CITATION: | [2025] VCC 13 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - Sentence
Catchwords: Guilty by a jury verdict - Aggravated burglary - Intentionally causing injury - Criminal damage - Entry by banging on the door forcefully and then opening an unlocked door – Offender did not have a weapon – Disability support worker – Uncertainty of future employment due to exceptional circumstances test relating to employees on the NDIS - Gravity of the offending requires non-parole period.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991.
Cases Cited:DPP v Meyers [2014] VSCA 314; R v Verdins [2007] VSCA 102; 16 VR 269.
Sentence:Total effective sentence of 34 months with a non-parole period in this matter of 17 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Pezzimenti | Office of Public Prosecutions |
For the Accused | Mr M. Kozlowski | Keenes Little Lawyers |
HIS HONOUR:
1Joel Spilsbury, on 1 October 2024 after a short trial, you were found guilty by a jury verdict of aggravated burglary Charge 1, intentionally causing injury Charge 2, criminal damage Charge 4, relating to the shower screen and criminal damage Charge 5, relating to the wall in the hallway.
2You were found not guilty by direction of Charge 6 of criminal damage relating to the door lock, Charge 3 was an offence of recklessly causing injury to Kyle Watson, which was an alternative to Charge 2, so no verdict was taken on that charge.
3The foundation of the charges in this case was the evidence of the victim, Kyle Watson. Mr Watson said in evidence that on grand final day in 2022, he went to Shaun Guthridge's house at Hanson Street, Killara to drink and watch the grand final.
4Mr Guthridge was a close friend of Mr Watson. At that time, they were working together. When Mr Watson arrived, there were only two people there and then another person named Brendan arrived, and later you, Mr Spilsbury, and your partner, Abbie, attended. By the time you arrived, the grand final had finished. Mr Watson and the others had been drinking through the afternoon.
5Mr Watson said that he knew you through Shaun Guthridge. He described you and Mr Guthridge as best mates and said that he had met you several times. He said that when he caught up with Mr Guthridge it was rare for you not to be there. He said that during the evening, your partner, Abbie, asked him if he was single. She said she may have seen him on Tinder. Mr Watson told her he was not single and that he was back together with his partner, Lauren Wornes.
6He said to Abbie 'why would you be on Tinder if you are with Joel?' She replied that the relationship was not really romantic and that it was like an open book.
7Apparently, this conversation came to the attention of Mr Guthridge, but not you. Mr Guthridge asked Mr Watson to leave. Mr Watson said that Guthridge pushed him as he was leaving, and he hit his head on a brick wall. He gave evidence he then walked home, home that night being Lauren Wornes' residence.
8Abbie was also asked to leave at that time.
9At that time, Lauren Wornes was living at Callus Street, Killara, approximately 1 kilometre away from Mr Guthridge's place. Mr Watson gave evidence that during the walk home he spoke to Lauren Wornes to tell her that he was going back to her place. She was away at that time. Ms Wornes gave evidence to the same effect.
10Mr Watson said it took him 10-15 minutes to walk to Callus Street. He said that about 10-15 minutes after he got back to Ms Warnes place, he heard a commotion at the front door. He moved from the ensuite in the main bedroom towards the front door and saw you and Shaun Guthridge either inside the premises or around the front door. He believed the door was locked and that you and Mr Guthridge had forced the door open.
11CCTV footage from a neighbouring property was played during the trial. The footage shows you and Guthridge arriving and loudly banging on the door. It is not clear whether you kicked the door or hit the door with your fists, and it is not clear which one of you made those noises against the door.
12Soon after the banging stopped, a clicking noise consistent with the door being opened can be heard, just seconds after the loud banging. Very soon after that, the sounds of Mr Watson in distress and protesting that he had done nothing wrong are audible. What can be heard is consistent with his evidence of an immediate physical attack by you.
13Mr Watson was asked what he heard to attract his attention to the front door. He said he heard a few big bangs on the door. When he saw the two of you inside the house, he said to Shaun Guthridge 'what are you doing here, what's going on?' He said no words were exchanged but that you, Mr Spilsbury, then 'came through the door like a freight train and took me out'.
14I am not satisfied on the evidence that the door was locked. I am satisfied that either you or Mr Guthridge opened the unlocked door and that you entered and charged at Mr Watson immediately after the door had been unlocked and opened, and that Mr Watson was in the vicinity of the door.
15Mr Watson explained that you put your arm straight around his body. He was forced into the ensuite, and he was pinned to the ground. He gave evidence that you delivered a flurry of punches and kicks, that he was thrown around the ensuite, which was just a small room. He said that when you initially grabbed him, he was in the bedroom and he was pushed into a wall in the bedroom, after which he was forced into the ensuite. He was then pushed and pinned to the ground. You were standing above him. He sustained multiple punches to the head. You picked him back up and threw him around the room and that resulted in him going through the shower screen, which shattered. The photo of the shower screen was tendered, which shows that it was destroyed. He gave evidence that you kicked him to the face in the ensuite when he was on the ground. I accept that evidence.
16He said that you and Mr Guthridge then walked out of the ensuite and the bedroom towards the front door. He followed the two of you out. You then came back at him and pushed him down the full length of the hallway, into the wall, putting a massive hole in the wall. There is a photograph of the damage to the wall.
17Soon after, the CCTV footage shows you and Mr Guthridge getting into a car, which had arrived in the street outside the residence.
Mr Watson called Lauren Wornes. He then called his mother, to see if she could drive him to the hospital, but she could not. He called his father, but he was out of town. Finally, he arranged with a friend to take him to the hospital in Wodonga, from there he was transferred to Albury. He ultimately required surgery in Melbourne for facial fractures and he sustained multiple other injuries.18In the depositions there is the statement from Dr Ronald Leo from the Albury Wodonga Base Hospital who treated Mr Watson. He made a statement in which he says this:
At approximately 23:45 hours on 24/09/2022 I attended to a patient suffering from pain and bleeding from his face and neck after being assaulted. On examination I found: (1), back of the head occipital haematoma and swelling; (2), left sided maxillofacial swelling; (3), left sided ear discharge, blood stain, no cauliflower ear; (4), nose, nasal bone pain and swelling; (5), bruising over the anterior portion of the left side of the neck with scratch marks, swelling and tenderness; (6), posterior right-sided chest wall tenderness and abrasions; (6), left-sided chest wall tenderness with minimal abrasion wounds and scratch wounds. [He said that] management consisted of (1), intravenous fentanyl for pain management; (2), sandbags to stabilise cervical spine; (3), referral to the surgical speciality for specialist care. He was also administered intravenous antibiotics, a tetanus injection and other pain management. [Dr Leo said] The findings were consistent with (1), occipital haematoma; (2), nasal bone fracture; (3), left zygomatic arch fracture; (4), posterior chest wall abrasion; (5), left chest wall tenderness; (6), stable anterior neck bruising.
19As I have said, ultimately Mr Watson required surgery for the facial fractures he sustained.
20Turning then to the gravity of these offences. Aggravated burglary is a serious offence reflected by the high maximum penalty of 25 years. This was a confrontational aggravated burglary involving an entry into premises where Mr Watson was staying with Ms Warne's permission.
21In the case of DPP v Meyers[1] the Court of Appeal set out the factors relevant to the assessment of the seriousness of an aggravated burglary offence. These factors include the offenders intent at point of entry, the mode of entry, whether the offender was carrying a weapon, whether the offender was in company, the time of day at which the burglary took place, what the offender knew or believed about who would be inside, or about where people would be and whether the offender was someone of whom the victim was particularly frightened.
[1][2014] VSCA 314
22In this case, your intent at the point of entry was to assault Mr Watson and the offending took place at night. In my opinion, your entry into the unit was achieved by banging on the door forcefully and then opening an unlocked door, after which you charged in and began assaulting Mr Watson.
23You did not have a weapon. You were there with Mr Guthridge. Although I do not conclude Mr Guthridge was complicit in the offending, Mr Watson must have felt he was under threat from two men and not just you.
24At the time of entry, you knew Mr Watson was present in the unit. In my opinion, motivated by jealousy and anger over the interaction between Mr Watson and your partner earlier, you went to the unit intent on some sort of confrontation with him. I do not conclude that from the time you left Guthridge's place, you had decided to break in and seriously assault him; rather, I sentence you on the basis that the intent to assault him inside the unit was formed sometime around when you and Mr Guthridge started banging on the door, and the door was opened.
25It is difficult to be precise about just when you decided to assault Mr Watson inside the residence, but consistent with the jury verdict, by the time of entry your intent, in my view, was to commit a significant assault on Mr Watson, which is what immediately took place. The assault that followed was prolonged and violent and resulted in significant injuries to Mr Watson. Your actions included multiple blows to his face when he was on the ground, effectively unable to defend himself. You also kicked him to the head region. He needed surgery for the fractures he sustained.
26Both in respect of the acts constituting the assault in this case and the gravity of the injuries inflicted, this is a serious example of an intentionally causing injury offence, an offence which carries a maximum penalty of 10 years' imprisonment.
27Criminal damage has a maximum penalty of 15 years' imprisonment. However, the criminal damage offences here were, in my view, incidental to the assault, but they underline the high level of your aggression towards Mr Watson. The damage to the shower screen and then the wall in the hallway also illustrates your aggression was fierce because after the initial incident where you assaulted him in the ensuite smashing the shower screen, things settled down, but you attacked him again in the hall leaving a significant hole in the wall.
28Although Mr Watson did not make a victim impact statement the offending had a significant impact on him. Apart from the injuries he sustained, his distress and fear during the offence is apparent from the audio on the CCTV footage.
29For serious violent offending such as this, committed against a person inside a residence motivated by some perceived wrong; general deterrence, denunciation and just punishment are significant factors in deciding the appropriate sentence.
30Turning then to your personal circumstances. You are 36 years old. You were born in Albury. You are the eldest of two children. Your family moved to Wodonga in 1991, and you have mainly lived there throughout your life.
31Your upbringing was stable. You describe your upbringing as typical. Your father was a strict disciplinarian but there was no significant conflict with your parents. Your relationship with your father improved once you became an adult.
32You moved out of home at the age of 19 to live with your partner at that time, Lisa Howarth. She had two children from a previous relationship. She then had two children with you, a daughter now aged 12 and a son aged 10. You separated from her in 2018, you moved nearby so you could spend time with your children. You describe yourself on good terms with her, and your children have been visiting you once a week in prison. You regard them as your greatest responsibility. Ms Howarth provided a letter of support, which I will subsequently summarise.
33You were educated to Year 11. You were not a particularly good student. At school you had some issues with bullying against you. After school you worked in abattoirs and as a pawnbroker until you turned 19, then between the ages of 19 and 30 you worked in the food manufacturing industry, which was the same industry that your father had worked in.
34In 2018, after your relationship with Lisa Howarth ended you had a breakdown, and you changed careers. You then worked as a logistics manager between 2018 and December 2020. You found this job intense and demanding and left after a few months off work. From March to September 2022, you worked in real estate. You lost your job due to this offending. A letter from Mr Dean Star from Elders Real Estate was tendered. He describes you as dedicated to your work and polite and courteous. It is a positive reference.
35You relocated to Melbourne when this offending became public knowledge, which impeded your ability to gain employment. You worked in various factory and labouring roles including concreting until the start of 2024. In March 2024, you took on a role as a disability support worker with an organisation called Kindred. You also began a Diploma in Community Services. You remain committed to working in rehabilitation. You have found that work rewarding.
36The reference from Kindred explains that your future employment with Kindred in Victoria may be in jeopardy because of the findings of the jury in this matter. However, it seems you can continue to work for Kindred in New South Wales.
37Mr Kozlowski this morning explained that there is an exceptional circumstances test relating to employees on the NDIS that you will have to get through before you can continue work in Victoria after your release. This uncertainty is a cause of concern for you, which I accept will add to the burden of your imprisonment. I also take this into account as a form of extra curial punishment.
38When you are released, you want to further your qualifications by obtaining a certificate in personal training, to offer exercise programs to clients. You have a job within the prison as a carer billet to a 79-year-old man in the gaol. You have completed various courses in the months since you were remanded. Certificates for the courses you have done were tendered.
39Your relationship with Ms Howarth produced two children, a daughter aged 12 and a son aged 10. She has provided a reference in support. In her reference she says you are a hardworking person who puts others first. She says you are family oriented. She says she has seen growth in you over the past six months, both personally and professionally. You have assumed a more hands-on approach with your children. She says both have recently been diagnosed with autism spectrum disorder. She said that the support you provide in looking after the children has been of great assistance to her and has had a positive impact on her mental health.
40A letter of support was provided from Kelly-Anne Hunt. In your role at Kindred you worked as a carer for her son who is autistic. You looked after him two day a week. She says that since you were remanded in custody, he has become withdrawn and he is not engaging with his workers. She speaks very highly of your role in her son's life, obviously your work with her family has been very valuable to her.
41A further reference was tendered from Tara Payne, the Director of Kindred Support. She speaks of your dedication and commitment to your role as a support worker since you started working for Kindred. She describes your performance as a support worker as exemplary. She addresses the implications of these proceedings to your work, which I have already discussed.
42A psychological report was tendered from Ms Daniella Kocic. Based on your self-reported attentional and concentration difficulties, she made a provisional diagnosis of ADHD. She says further assessment is warranted in relation to this condition. She says that at the time of the assessment you were experiencing mild symptoms of depression. In the aftermath of the breakdown of your relationship with Ms Howarth, in the context of the pandemic and reduced contact with your children, you developed an adjustment disorder with depressed mood which has remained ongoing.
43Ms Kocic says you did not appear to meet the criteria for a major mood disturbance at the time of the offending, but that you were experiencing a range of stressors. These included relationship conflicts, unaddressed grief and financial stress. She says your frustration and perceived lack of control over your life circumstances may have contributed to emotional dysregulation and a reduced capacity to manage stress.
44Regarding your prospects of rehabilitation, she says your amenable attitude towards intervention, the absence of antisocial attitudes and other criminal behaviours, and your plans to lead a prosocial life, are protective factors. Her opinion is that you are a low risk of reoffending. She says that imprisonment will more likely weigh heavily on you than a person without your mental health vulnerabilities. She says there is potential for significant mood fluctuation and the volatile nature of a prison environment could exacerbate your symptom profile and risk of decompensation. She regards you as a low general risk of reoffending, as I said.
45Mr Kozlowski referred to your prior conviction. You have a prior conviction for recklessly causing serious injury in 2008. You were placed on a community-based order for a period of 12 months. Mr Kozlowski said this prior conviction involved a fight when you were intoxicated. He submitted that it had limited relevance to the current offending given that it occurred a long time ago and the circumstances were significantly different. He submitted based on the psychological report, there is evidence of some remorse.
46Mr Kozlowski submitted that a short period of imprisonment, combined with a Community Corrections Order, is the appropriate disposition for this offending.
47Your prior conviction does have some relevance to sentencing in that you can not rely on an unblemished record, and when considered alongside the current offending it indicates some propensity for aggression when angered. However, the offending relating to the prior conviction did occur a long time ago and you have otherwise led a stable and productive life.
48Since this offending, you have been able to maintain employment. The reference material is considerably to your credit. It establishes you have been a dedicated father in difficult circumstances, and that in your work with Kindred, you have been a committed and valuable employee.
49Even considering the prior conviction, I am of the view that you have good prospects of rehabilitation and although specific deterrence (that is, the need to send a message to you that this type of conduct will not be tolerated) remains a relevant sentencing factor, having regard to my view that you have good prospects of rehabilitation the weight to be given to specific deterrence is reduced.
50I am not satisfied you have any significant remorse for the offending in this case. In circumstances where the matter proceeded as a trial, and you gave evidence effectively denying the offences. Of course, running a trial is not an aggravating factor, but you are not entitled to the mitigatory benefits associated with a guilty plea, one of which is often a conclusion that an offender has remorse. You did express remorse to Ms Kocic, but the CCO assessment reports notes you did not indicate any sign of remorse on that assessment. Ultimately in the circumstances, I simply cannot form a view that you have any genuine remorse for the offending in this case.
51I am satisfied that the sentence of imprisonment to be imposed in this case, which will be your first, will weigh heavily on you because of your mental health issues and the separation from your children, who have their own mental health challenges as described in the letter from your ex-partner. Therefore, I give some weight to principles 5 and 6 of the case of Verdins[2] relating to the burden of your imprisonment.
[2]R v Verdins [2007] VSCA 102; 16 VR 269
52The prosecution submitted that a sentence of imprisonment with a head sentence and a non-parole period was required in the circumstances of this case.
53I had you assessed for a combined sentence of imprisonment and a Community Correction Order, and you are suitable but ultimately, I have decided that a head sentence and a non-parole period is necessary in this case to reflect the objective gravity of the offending and to give effect to general deterrence, denunciation and just punishment. I have though not lost sight of the need to facilitate your rehabilitation in the community and I have taken into account the positive character reference material that was tendered on your behalf, and of course all the other mitigating factors.
54Finally, the issue of delay was raised this morning. This matter took two years to reach trial. You did have a contested committal which took place in September 2023. As I follow the procedural history, there was also a case conference and a sentence indication hearing on this matter and whilst I do not regard two years as inordinate in the circumstances, I nonetheless take into account the fact that for two years you have had this serious case hanging over your head, with the prospect of a period of imprisonment, which was no doubt apparent to you, and in that time with your work with Kindred and the other positive material, you have demonstrated a capacity for rehabilitation.
55In sentencing you, I have had regard to the totality principle which requires that the total effective sentence is just and proportionate to the overall criminality of the offending.
56In this case, all offences arise out of the one episode. The criminal damage offences were very closely connected to the assault conduct. Substantial concurrency between the individual sentences is necessary to give effect to the totality principle. In my view, there needs to be some cumulation for the intentional injury offence, given its seriousness, but I have decided that the sentences for the criminal damage offence should be wholly concurrent.
57The non-parole period mitigates punishment in favour of rehabilitation. It must though be consistent with the objective gravity of the offending. It is the minimum period justice requires you to serve before becoming eligible for release on parole. In fixing the non-parole period in this case and allowing for a significant period of supervision, I have had regard to my positive view of your prospects of rehabilitation and the other mitigating factors I have outlined.
58The sentence of the court for the various offences is as follows.
59In relation to Charge 1, you are convicted and sentenced to be imprisonment for a period of 28 months.
60In relation to Charge 2 of intentionally causing injury, you are convicted and sentenced to be imprisoned for a period of 18 months.
61In relation to Charge 4 of criminal damage, you are convicted and sentenced to be imprisoned for a period of four months.
62In relation to Charge 5 of criminal damage, you are convicted and sentenced to be imprisoned for a period of four months.
63Six months of the sentence on Charge 2, intentionally causing injury, will be cumulative on the base sentence of 28 months for the aggravated burglary. That makes a total effective sentence of 34 months. I intend to fix a non-parole period in this matter of 17 months.
64I allow pre-sentence detention of 114 days which will be deducted administratively from the sentence that I have imposed.
65Are there any other orders I need to make? Was there a summary offence that needs to be struck out here?
66MS PEZZIMENTI: Sorry, Your Honour, I will just double check that. Yes, there was ‑ ‑ ‑
67HIS HONOUR: There might have been - yes I think there was a summary assault of some sort.
68MS PEZZIMENTI: So the assault in company, I think there was, yes that - I think that ‑ ‑ ‑
69HIS HONOUR: Well that will be struck out.
70MS PEZZIMENTI: Yes.
71HIS HONOUR: Yes. Any other?
72MS PEZZIMENTI: And there was a - yes sorry. There was a disposal order, Your Honour, that was made - I don't remember if Your Honour made it on the last occasion.
73HIS HONOUR: Did I make that last time?
74MS PEZZIMENTI: Yes, possibly.
75HIS HONOUR: If I didn't make that order last time, I will make it today.
76MS PEZZIMENTI: Thank you, Your Honour.
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