Director of Public Prosecutions v Timothy Willis
[2017] VCC 576
•11 May 2017
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-02312
DIRECTOR OF PUBLIC PROSECUTIONS Prosecution
v
TIMOTHY WILLIS Defendant
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JUDGE: His Honour Judge Murphy
WHERE HELD: Horsham & Melbourne
DATE OF HEARING: 1 March, 27 April 2017
DATE OF SENTENCE: 11 May 2017
CASE MAY BE CITED AS: DPP v Willis
MEDIUM NEUTRAL CITATION: [2017] VCC 576
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentence – charges of making a threat to kill (2), recklessly causing injury (2), robbery, making a threat to inflict serious injury and relevant summary charges – serious violent offender – offender on parole at time of offending – parole cancelled accordingly – significant and relevant prior criminal history – psychiatric difficulties insufficient to invoke Verdins principles – protection of the community the primary sentencing consideration – sentence of two years and 8 months imprisonment with a one year and four month non-parole period – R v Verdins (2007) 16 VR 269, considered
Legislation Cited: Sentencing Act 1991 (Vic)
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APPEARANCES: Counsel Solicitors
For the Crown Mr P Bourke Office of Public Prosecutions
For the Defendant Mr N Graham (solicitor) Nick Graham Legal
HIS HONOUR:
Timothy Willis, you have pleaded guilty to two charges of making a threat to kill, two charges of recklessly causing injury, one charge of making a threat to inflict serious injury and one charge of robbery.
You have also pleaded guilty and agreed to the following summary charges being heard by this court: one summary charge of using a drug of dependence (amphetamine), one summary charge of using a drug of dependence (cannabis), one summary charge of unlawful assault with an instrument, one summary charge of driving without a licence or permit, one summary charge of trespass, one summary charge of committing an indictable offence whilst on bail, one summary charge of harassing a witness and two summary charges of contravening a condition of bail.
The maximum penalty for these offences were set out in the Crown opening which I incorporate by reference.
On Charges 1 and 5, pursuant to s.6D of the Sentencing Act, you stand to be sentenced as a serious violent offender. There is a presumption of cumulation in respect of these offences, and protection of the community must be the primary sentencing consideration. I will return to that shortly. The Crown did not seek that I should impose a disproportionate sentence.
Circumstances of the Offending
The circumstances of the offences were set out in the Crown opening which was read in open court and which I incorporate by reference.
At the time of the offences in June 2016, you were aged 26 and living in Stawell. You had recently been released from prison and were on parole at the time of the offending. Subsequent to the offending for which I am sentencing you, your parole was cancelled and you were returned to prison.
At the time of the offending, you were living with your partner Kylie Thow and a friend of yours, Glenn Barker. You had resumed your relationship with Ms Thow who was the mother of your son, who is aged nine and who is now in the care of the welfare.
On 4 June at approximately 11.30 pm, Ms Thow was at home when you arrived with Mr Barker and demanded she get in the car. She did so and Mr Barker drove the three of you to Connor Jenkins' house where he lived with his partner, Alicia, and her young daughter.
The five of you remained at Mr Jenkins' property for about 20 minutes whereupon you, Mr Barker and Mr Jenkins left the house for the remainder of the night.
The following day between 10.30 and 11 am, you returned to the property with Mr Barker and Mr Jenkins. You, Ms Thow and Mr Barker then drove back to your premises. During the trip, you became verbally aggressive to Ms Thow, you called her a liar and a slut and accused her of sleeping with several of your friends, including Mr Jenkins. You became increasingly aggressive despite Ms Thow denying your accusations. You wanted Mr Barker to turn the car around and return to Mr Jenkins' house so you could “stove his head in”. Mr Barker did not turn the car around and continued driving the three of you back to your house.
11.Upon arriving, Mr Barker stayed in the car while you and Ms Thow entered the house. Upon entering the house, you continued to accuse Ms Thow of cheating on you. She continued to deny your accusations. This made you increasingly aggressive at which point you punched Ms Thow to the left side of the face. You then picked up a vase and hit her over the head with it. She was petrified of you at this point.
12.You then picked up a large steel pole, approximately 1.2 metres in length, which was being used as a fire stoker. You waved the pole around, threatening Ms Thow with it. This constitutes summary Charge 7, assault with an instrument.
13.At this point Mr Barker entered the house and saw Ms Thow bundled up in a corner while you were still holding the metal pole. You then began counting down from 30 in minutes, telling Ms Thow that unless she told the truth, you were going to kill her. You stated to her that she was not leaving the house unless she was in a body bag. You then proceeded to slap her in the face with an open palm and punch her to the ribs two or three times causing her to go into a fit. Both Ms Thow and Mr Barker were terrified of you at this stage and MrBarker felt as though he could not leave his own home due to your threatening behaviour. After punching Ms Thow, you proceeded to smash a television set and smash a glass bowl using the pole.
14.As a result of your assault upon her, Ms Thow received soreness and bruising to her head and body and had a lump on the base of her skull, and pain down the back of her neck. She attended hospital and was treated accordingly. These events constitute Charge 1, making a threat to kill, and Charge 2, recklessly causing injury.
15.Ms Thow was able to move herself close enough to the backdoor and took the opportunity to escape. She ran and screamed for someone to call the police and took refuge in a neighbour's house. A female resident of the neighbouring house called the police. At this point, you exited the house and got into the driver's seat of Mr Barker's ute. You demanded that Mr Barker get into the passenger seat and you proceeded to drive up and down the street looking for Ms Thow. After driving for a period of time and being unsuccessful in your attempts to find Ms Thow, you returned to your house and ran inside, telling Mr Barker to remain in the car as you packed your belongings, stating that you had to flee town.
You then drove Mr Barker's ute with Mr Barker in the passenger seat to Mr Jenkins' property in Stawell. During this period, you did not have a driver's licence. Accordingly, this constitutes the summary Charge 9, driving without a licence or permit.
17.As you were driving, you said to Mr Barker that you were going to stove Mr Jenkins' head in, break his arms and legs and make his brains pop out. You said that you wanted to keep him alive long enough to burn him inside his flat, and that if Mr Jenkins' partner's child was present, you would kick her. This constitutes Charge 5, making a threat to kill.
18.Upon arriving at Mr Jenkins' premises, you and Mr Barker entered his premises with permission. You then demanded that Mr Barker get the metal pole that was stored in the ute, which he obliged and gave to you. You then told Mr Jenkins that you wanted to speak with him in private. Both Mr Jenkins and Mr Barker felt threatened by you and felt that they would be attacked if they said the wrong thing.
19.You said to Mr Jenkins that you believed he was sleeping with Ms Thow, and that you had just belted Ms Thow until she confessed to it. Despite this, Mr Jenkins denied the allegation. You then stated to Mr Jenkins that, if he did not give the correct answers, you would smash his head in so hard with the metal pole that his brains would come out of the side of his head. This threat constitutes Charge 3, making a threat to inflict serious injury.
20.Mr Jenkins then asked you on several occasions for you to leave as he was fearful for his safety, the safety of his partner and her child. You refused. This constitutes summary Charge 12, trespass.
21.You then demanded that Mr Jenkins give you money for petrol, otherwise you would belt him. Mr Jenkins complied with your demand and gave you all the money he could find, which was $18.65. You then gave the money to Mr Barker and instructed him to fill up the ute with petrol so you could flee town. This constitutes Charge 4, robbery.
22.As Mr Barker left Mr Jenkins' property to fill his ute with petrol, he was intercepted by the police. You were arrested at Mr Jenkins' residence shortly thereafter.
23.Whilst at this address prior to being arrested, you smoked ice and cannabis, which constitutes summary Charges 4 and 5, respectively. This was effectively a drug-affected course of conduct, as you admitted in the record of interview.
24.You were taken to Stawell Police Station and were interviewed by police. You denied that you had assaulted Ms Thow and effectively blamed her. You were charged and bailed to appear at the Stawell Magistrates' Court on 19 July 2016. Conditions of your bail included, amongst others, that you were not to contact witnesses and not attend the township of Stawell, save for when you were required to attend Court.
25.The following day, 6 June 2016, you observed Mr Barker at the BP service station in Stawell. You were aware that Mr Barker had made a statement to police surrounding the events of the previous day. You approached Mr Barker's vehicle and opened the driver's side door and requested that Mr Barker to attend the police station and attempt to have the charges against you dropped. These events constitute the first summary charge of breaching a condition of bail (Charge 13), and the summary charge of harassing a witness (Charge 15).
26.When Mr Barker replied that he did not know that you had been charged by the police, you punched Mr Barker to the face with a closed fist. The punch connected with the right side of his face near his eye. As a result, he suffered pain and bruising to his eye. This constitutes Charge 6, recklessly causing injury and the summary charge of committing an indictable offence whilst on bail (Charge 16).
27.On the same day, you sent a text message and attempted to contact Mr Jenkins, the victim of your assault the previous day. This constitutes the second summary charge of breaching a condition of bail (Charge 17).
28.You were arrested on 19 June 2016 and interviewed at the Horsham Police Station. Your parole, as I mentioned earlier, was cancelled on this day and you were returned to prison. You have been in custody since and complete your sentence on 25 May 2017.
29.You pleaded guilty at the committal mention and I give you credit for that. You have saved the need for a trial, and saved the witnesses from having to give evidence against you. The prosecution accepts that this was a plea at the earliest opportunity.
30.Despite there being no victim impact statements filed in this matter, this does not detract from the seriousness of the offending. This is serious offending which must have had a significant impact on the victims, particularly Ms Thow. As I have indicated, you stand to be sentenced as a serious violent offender on Charges 1 and 5.
Seriousness of the Offending
31.Your counsel did not dispute the seriousness of the offending. You had been in a relationship with the complainant. That relationship was fraught, the offending erupted when you formed the opinion, wrongfully, that she had been unfaithful to you. You were not prepared to accept her denials and then proceeded to engage in violent verbal abuse as well as physically striking her using both a vase and your fist. You were also waving about a steel pole and threatening to strike her. You then made what must have been a chilling threat to kill her. As I have indicated, it must have been a frightening experience for her notwithstanding no victim impact statement. Adding to the overall impact of the offending was the fact that you smashed the television set with a glass bowl and your behaviour was such that you terrified another occupant, Mr Barker. You then proceeded to make the threat to Mr Barker that you would seriously injure with Mr Jenkins.
32.When you arrived at Mr Jenkins' premises, you threatened Mr Jenkins at the same time you were in possession of a dangerous instrument, namely a steel pole. It must have been very frightening for everyone. Your conduct can only be described as outrageous. You then proceeded to rob Mr Jenkins of a minor amount of money so that you could flee town.
33.You were in breach of your bail conditions subsequently by attending at Stawell committing the further offences. Your counsel conceded that you were under the influence of cannabis and ice at the time of the offending. This provides no excuse for what was a drug-fuelled series of offences and the impact on the complainants in this matter must have been significant. While the physical injuries place the assault offences at the lower end of the scale, the psychological impact must have been significant, particularly on Ms Thow.
34.Your culpability for the offending is enhanced because of the time you were on parole from the South Australian sentence, your parole having been transferred to Victoria.
Prior Convictions
35.I turn now to your prior convictions which again goes to enhance your culpability. You have a significant number of prior convictions both in Victoria and South Australia. You were born in 1989. On 31 March 2009 before you were aged 20 at the Horsham Magistrates' Court, you were sentenced to 12 months' detention in a Youth Training Centre and your licence was cancelled and you were disqualified for a period of two years on charges of, amongst others, two charges of burglary, three charges of theft, three charges of failing to answer bail, attempted robbery, possessing a weapon without excuse, reckless conduct endangering serious injury and two charges of unlicensed driving.
36.In 2010, you were sentenced on two separate occasions in the Elizabeth Magistrates' Court in South Australia on charges of being an unauthorised person driving a motor vehicle. You were fined. On 8 August 2011 in the Mildura Magistrates' Court on charges of driving whilst disqualified, driving an unregistered motor vehicle, and using fraudulent registration label, you were convicted and fined $1000 and disqualified from driving for a further two months.
37.Then, on two occasions in less than two weeks apart in October and November 2012, you were sentenced in the Mackay Magistrates' Court in Queensland on charges of, amongst others, possessing dangerous drugs and driving without a licence.
38.Relevantly, on 11 June 2014 in the Horsham Magistrates' Court, on charges of making a threat to kill, making a threat to inflict serious injury, two charges of common assault and three charges of failing to answer bail, you were convicted and sentenced to a 12-month community corrections order, which, in addition to the mandatory conditions, required you to complete 100 hours of unpaid community work and be under supervision.
Whilst on the community corrections order, on 30 October 2014, you were sentenced in the Mount Gambier Magistrates' Court in South Australia to 14 days' imprisonment on charges of aggravated assault and multiple charges of being an unauthorised person driving a motor vehicle.
Further, during the operational period of the community corrections order, on 24 March 2015 in the District Court of South Australia, you were sentenced to 25 months' imprisonment with a non-parole period of 12 months on weapons charges.
Breach proceedings for the CCO were commenced by the Horsham Community Correctional Services, and on 4 November 2015, you were resentenced in the Horsham Magistrates' Court to a period of 2 months' imprisonment on the 11 June 2014 charges. On the same day you were also sentenced to an effective sentence of 6 months' imprisonment on charges of, amongst other things, recklessly causing injury, dealing with the proceeds of crime, theft, possessing methylamphetamine, cannabis and amphetamine, and failing to answer bail. You completed that sentence and were released on parole shortly before this offending for which I am sentencing you, and as I have indicated, your parole was transferred to Victoria from South Australia.
42.You thus have a number of relevant prior convictions for violence offences and failing to answer bail. This is to be taken into account when determining your prospects of rehabilitation and assessing the need for specific deterrence.
43.Most significantly, you have three prior convictions for making a threat to kill, one for making a threat to inflict serious injury, one for unlawful assault, another for assault with an instrument, one in South Australia for aggravated assault against a child or a spouse and one for recklessly causing injury. In addition, you have a number of dishonesty prior convictions and convictions for bail offences as well as drug offences, and as I have indicated you were sentenced to 25 months' imprisonment from 18 August 2014 with a non-parole period of 12 months for possessing a firearm and drug offences.
44.Therefore, your criminal record indicates a failure to comply with a community corrections order and that you have served multiple terms of imprisonment. These are all matters relevant to your prospects of rehabilitation.
Matters in Mitigation
45.In a comprehensive plea your counsel put a number of matters in mitigation which I take into account. First the prosecution accepts that you pleaded guilty at the earliest opportunity. There were negotiations when this matter was listed for a committal mention and it was resolved at that point by a plea of guilty. The matter was then the subject of some delays – you made an application for the matters to be dealt with summarily which was refused. I give you full credit for your plea. You have facilitated the course of justice and spared the complainants the need to give evidence.
46.Your counsel did not suggest however that there was any remorse or victim empathy in the matter.
Personal Circumstances
47.You are currently aged 27. Your parents were in court on the plea to support you. You are the only child of the marriage. You were born in Bendigo in 1989. When you are aged about five your parents moved to Renmark in South Australia and you were educated there until you were aged approximately eight. Your father was a concreter and a shed maker and the family then proceeded to move around Australia looking for work commencing at that time. As a result of that you were home-schooled from aged eight and your education was disrupted. As the result of behaviour problems, you were also prescribed Ritalin for ADHD. According to the psychiatrist's report,[1] you are effectively illiterate.
[1] Report of Dr Remy Glowinski, Forensicare Psychiatrist, dated 24 April 2017.
48.Your parents separated in 2009. At that point, you moved to Horsham living with your mother. It was at that stage you commenced to be caught up in the criminal justice system and, as I have indicated, you were sentenced to a 12 months Youth Detention Centre at that point.
49.At that stage you commenced a relationship Ms Thow, the complainant. Your son, James, was born in 2010. He is now in child protection. Ms Thow has a number of other children and who are in the hands of the welfare. You resumed your relationship with her when you were released from prison. It appears that she has had her problems with drugs.
50.Your mother has taken significant responsibility for your itinerant existence which led to you not developing good social skills and relationships, including exposure to an abusive relationship between your parents. You are thus in a position where you have had difficulty coping with life and not surprisingly, you have become exposed to cannabis and other drugs, including ice. A number of your prior convictions are drug-related and, as I have indicated, you have served a two terms of imprisonment.
51.In response to an invitation from your counsel, I had you assessed by Forensicare. In that assessment your major difficulties were identified. They are essentially set out where the examiner said that it is:
"very likely you have a significant and severe personality disorder".
52.The report also indicates you have a polysubstance abuse and dependency disorder. In the report you advised him that upon your release from prison, you failed on parole due to inadequate housing and no proper social or medical assistance. He opines that it was in these circumstances, and perhaps it is not surprising you relapsed into substance abuse and returned to an unstable relationship which then led to this offending. The report concludes:
"[i]t is clear to me that Mr Willis, as a result of a complex mixture of cognitive impairment, severe personality disorder and substance abuse problems, has major deficiencies in areas of impulse management, mood regulation, judgement and decision making. It appears that all of these factors were at play during the commission of the index offending."
53.He indicates that you will require considerable support upon release from prison, and that with substantial support, a reduction in the risk of reoffending and institutionalisation may be achieved. The report indicates that you are in pre-contemplation phase of addressing your drug problems. He is of the view that upon release you need supported accommodation to allow you to manage.
54.In response to the report, your counsel did not seek to invoke Verdins[2] considerations, but he submitted that the report indicated the difficulties that you face and identified the recommendations that provide a basis that in the future with appropriate medication and support that you may be able to become a productive member of the community. Your counsel referred to the fact that you are now properly medicated and are in a position to live with your father upon release in the Horsham area.
[2] R v Verdins (2007) 16 VR 269.
Purposes of Sentencing
55.The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
56.In this case, as submitted by the learned Crown prosecutor, the offending arose out of a domestic relationship and the complainant is entitled to the protection of the law and not to be exposed to the type of assaults and threats that you undertook against her. The same applies to the other two complainants in the matter. Whilst, as I have indicated, there are no victim impact statements, your offending must have had a significant impact on the complainants in particular Ms Thow. While the physical injuries are at the lower end of the scale, the psychological impact given your state at the time of the offending must have been considerable.
57.In relation to the robbery, which is clearly at the lower end of the scale, however, again, the complainant in the matter is entitled to protection.
58.You have also pleaded guilty to a number of summary offences. They are lesser seriousness but again highlight your failure to comply with court orders and your inability to control your impulses.
59.Aggravating all your offending is the fact that you were on parole at the time of the offending.
60.In sentencing you on Charges 1 and 5, I am required to sentence you as a serious violent offender. There is a presumption of cumulation.[3] The Crown does not call for a disproportionate sentence. The nature of the offending here is such that general deterrence is important. Domestic violence and drug-affected aggression is all too common. Your prior offending and the fact that you were on parole means that specific deterrence is also a consideration.
[3] Sentencing Act 1991 (Vic), s. 6E
61.Your prospects of rehabilitation must be taken into account. As I have indicated notwithstanding the submission of your counsel, I regard them as best as guarded. As indicated in the Forensicare report, you face a risk of institutionalisation given the significant periods of imprisonment that you have been required to serve in the last three years. You had only been released from prison for a short time before you committed this offending and that resulted in revocation of your parole, with the result that you have now been in prison for nearly 12 months.
62.The learned Crown prosecutor conceded that in a general way, I am entitled to take into account the fact that you have been in prison for nearly the last 12 months. I must also, in sentencing you, take into account considerations of totality and proportionality. The learned Crown prosecutor also referred to the fact that some of the offending involved a single episode or course of conduct. That is a relevant factor although there are individual complainants. In a fair submission, the prosecutor indicated that the issues identified in the Forensicare report supported your counsel's submission of a sentence that involved a longer than usual parole eligibility period.
63.Your counsel originally submitted that a community corrections order should follow a term of imprisonment. I do not accept that submission. The offending here is too serious for a combined sentence given your poor, or guarded, prospects of rehabilitation.
64.At one stage your counsel did not seek a parole period. I regard it as appropriate to order a period after which you will be eligible for parole. The sort of support that you will require should you be granted parole is made clear in the report from Forensicare.
65.Your counsel submitted that a sentence that focuses on your rehabilitation is appropriate. Given your failure to respond to previous sentences, I regard your prospects of rehabilitation, as I have indicated, as guarded or poor. Only time will tell whether as you get older and develop maturity, you will be able to address your longstanding personality problems and problems with the use of drugs, such as ice.
66.Weighing all the submissions and noting that you have had, through no fault of your own, a difficult upbringing that has left you with significant personality problems and social deficiencies, I have sought to craft a sentence that is not crushing and seek to avoid institutionalisation and gives you what is, in effect, the last opportunity to commence to integrate back into society.
67.As your offending occurred whilst on parole, your sentence I am satisfied should commence when you complete your current sentence which, as I have indicated, is on 25 May 2017.
Sentence
68.The sentence of the court is as follows.
69.On Charge 1 of making a threat to kill, you are sentenced to 18 months' imprisonment. That is the base sentence.
70.On Charge 2 of recklessly causing injury to Ms Thow, you are sentenced to 12 months' imprisonment.
71.On Charge 3 of making a threat to inflict serious injury to Mr Jenkins, you are sentenced to 12 months' imprisonment.
72.On Charge 4 of robbery against Mr Jenkins, you are sentenced to three months' imprisonment.
73.On Charge 5 of making a threat to kill Mr Barker, you are sentenced to 18 months' imprisonment.
74.On Charge 6 of recklessly causing injury to Mr Barker, you are sentenced to 9 months' imprisonment.
75.On the summary charge of using a drug of dependence (amphetamine), you are convicted and fined $500.
76.On the summary charge of using a drug of dependence (cannabis), you are convicted and fined $200.
77.On the summary charge of unlawful assault with an instrument on Ms Thow (Charge 7), you are sentenced to 1 month's imprisonment.
78.On the summary charge of driving without a licence (Charge 9), you are sentenced to 1 month's imprisonment.
79.On the summary charge of refusing to leave a private place, trespass (Charge 12), you are sentenced to 14 days' imprisonment.
80.On the first charge of contravening a bail condition (Charge 13), you are sentenced to 1 month's imprisonment.
On the charge of harassing a witness, Mr Barker (Charge 15), you are sentenced to 2 months' imprisonment.
82.On the charge of committing an indictable offence on bail (Charge 16), you are sentenced to 1 month's imprisonment.
83.On the second charge of contravening a condition of bail (Charge 17), you are sentenced to 1 month's imprisonment.
84.Charge 1 is the base sentence. I direct that the three months of the sentence on Charge 2, three months of the sentence on Charge 3, four months of the sentence on Charge 5, and four months of the sentence on Charge 6 be served cumulatively upon each other and upon the base sentence. The total effective sentence is, therefore, two years and eight months.
85.I direct that all other sentences are to be served concurrently upon each other and upon the base sentence.
86.I declare, pursuant to section 6F of the Sentencing Act 1991, that I have sentenced you as a serious violent offender on Charges 1 and 5 and direct that this declaration be entered in the Records of the Court.
87.I order that you serve a period of one year and four months before being eligible for parole.
88.I declare, pursuant to section 6AAA of the Sentencing Act 1991, that had you not pleaded guilty, I would have imposed a total effective sentence of three years and nine months with a non-parole period of two years and seven months.
89.There is no pre-sentence detention.
90.You are granted a stay of two months to pay the fines, totalling $700.
91.I make the ancillary order sought by the Crown, namely a disposal order for the pole and a forensic sample order. Having regard to the seriousness of the offending, I will order that you provide a mouth swab to the authorities and they are entitled to use reasonable force to get that sample from you.
92.I must explain the sentence to you. I have cumulated some of the sentences on the basis that there are individual complainants in the matter and the total effective sentence is two years and eight months' imprisonment which is to commence when you conclude your current sentence. You are to serve one year and four months before you are eligible for parole. I make those disposal orders and forensic sample orders and all the other sentences are to be concurrent with the sentence.
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