Director of Public Prosecutions v Wade
[2022] VCC 1629
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-20-01385
CR-21-00423
CR-21-00426
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEIGH WADE |
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JUDGE: | HIS HONOUR JUDGE HOLDING | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 01 September 2022 | |
DATE OF SENTENCE: | 27 September 2022 | |
CASE MAY BE CITED AS: | DPP v Wade | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1629 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – criminal record – obtaining property by deception – persistent contravention of a family violence order – contravention of an order – causing injury recklessly – carjacking – extortion with the threat to destroy property – make a false report to the police – verdins – bugmy – worboyes – delay – covid-19 – self harm – rehabilitation – community protection – childhood trauma – drugs – horrible family violence.
Legislation Cited: Crimes Act 1958 (Vic) - Family Violence Protection Act 2008 (Vic) - Summary Offences Act 1966 (Vic) – Sentencing Act 1988 (Vic).
Cases Cited: R v Verdins & Ors [2007] VSCA 102 - Bugmy v R (2013) 302 ALR 192 - Worboyes v The Queen [2021] VSCA 169.
Sentence: Total effective sentence of three years' imprisonment before release upon a community correction order for a period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. McKenry | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr J. Connolly | Stary Norton Halphen |
HIS HONOUR:
1Leigh Wade, you have pleaded guilty to the following offences on
Indictment K11767417A.1:
a)One charge of obtaining property by deception, contrary to s 81(1) of the
Crimes Act 1958 (Vic); maximum penalty 10 years' imprisonment.
b)One charge of persistent contravention of a Family Violence
Intervention Order, contrary to s 125A of the Family Violence Protection Act 2008 (Vic); maximum penalty five years' imprisonment.
c)One charge of contravention of an order, that is, Family Violence Intervention Order, intending to cause harm or fear; maximum penalty
five years’ imprisonment.
d)One charge of causing injury recklessly, contrary to s 18 of the Crimes Act 1958 (Vic); maximum penalty five years' imprisonment.
e)One charge of carjacking, contrary to s 79 of the Crimes Act 1958 (Vic); maximum penalty 15 years' imprisonment.
f)One charge of extortion with a threat to destroy property, contrary to s 28 of the Crimes Act 1958 (Vic); maximum penalty 10 years' imprisonment.
2You also pleaded guilty to the following uplifted summary offences:
1)Summary Charge 4, contravention of a Family Violence Intervention Order contrary to s 123 of the Family Violence Protection Act 2008 (Vic); maximum penalty two years' imprisonment; and
2)Summary Charge 10, making a false report to police contrary to s 53(1) of the Summary Offences Act 1966 (Vic); maximum penalty one years' imprisonment.
3The circumstances of your offending are set out in detail in the
Summary of Prosecution Opening dated 20 June 2022.[1] These reasons should be read in conjunction with that document. However, I will briefly summarise the circumstances of your offending.
[1] Exhibit A on the Plea.
Circumstances of your offending
4The six charges that you have pleaded guilty to are constituted by six separate incidents. Your offending was committed against four victims; your former partner Tracy Trainor[2], your former partner Alison Robards[3], your female friend Bree Lyons[4]. I have mentioned them by reference to pseudonyms as it may be that they do not wish to have their names publicly announced. And the Morwell branch of the Returned Services League, that is, the Morwell RSL.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
5On 26 November 2016, you and Ms Robards were at a friend's house in Morwell. You called the Morwell RSL, gave a false name and asked to speak to Bruce Jeffrey, the president of the RSL. You told Mr Jeffrey that you were a member of the Bega RSL and that Ms Robards’ vehicle had been broken into and some of her personal belongings had been stolen. You requested that $500 be donated to Ms Robards to assist her in getting back to Bega and that she would attend and collect the money and the Bega RSL would transfer $500 to compensate the Morwell RSL. These were all lies.
6However, Mr Jeffrey believed you. Later that night, you drove Ms Robards and her young daughter to the Morwell RSL and instructed Ms Robards to collect the money. In doing so, you made threats towards her daughter. In fear, Ms Robards complied, and collected the money. This conduct constitutes Charge 1, obtaining property by deception.
7The next charge is constituted by various breaches of an Intervention Order where Ms Trainor and her children Poppy[5] and Milly[6] were the protected persons and you are the respondent. I will refer to this as the Victorian Order. Poppy and Milly are your also your children. This order was made on 12 August 2015 and expires on
31 December 2060.
[5] A pseudonym.
[6] A pseudonym.
8On 7 June 2019, you sent multiple Facebook messages to Ms Trainor and attempted to call her on Facebook Messenger. On 18 June, you repeated this conduct. On 19 June, you again attempted to call Ms Trainor on Facebook Messenger. It is not alleged that these messages were in any way threatening, however, your attempted contact through these messages, clearly breached the Intervention Order. This conduct constitutes Charge 2 which is charged as persistent breach of a Family Violence Intervention Order.
9You also sent a lengthy Facebook message to Poppy on 8 May 2022 in contravention of the Victorian Order. You stated that you loved and missed her and provided her with a mobile contact number. This conduct constitutes Summary Charge 4, contravention of a Family Violence Intervention Order.
10The next charge is constituted by a breach of an Intervention Order where Ms Robards is the protected person and you are the respondent. This is the
South Australian Order. This Order was made on 7 June 2018 and remains in effect.
11On 25 June 2019, just before 2 am, Ms Lyons called 000 and reported that there was a male at Ms Robards’ address armed with a knife. Ms Lyons was told this by you. You claimed that Ms Robards had told you this by text. You eventually took over the 000 call from Ms Lyons and claimed you were Terry Burgess. Again, these were all lies.
12As a result of your report, police attended Ms Robards’ house. She informed attending police that there was no male at her address and she suspected that you had made the calls. Police then called you back on Ms Lyons’ number and you gave the false Burgess name, a false date of birth, a former address and falsely claimed that you were a long-time friend of Ms Robards. When the police asked if you were in fact Leigh Wade, your demeanour changed and you hung up the phone.
13Your conduct in causing police to attend Ms Robards’ house constitutes Charge 3, contravention of an intervention order intending to cause harm or fear.
14The same conduct also involves you reporting false information and details to police and constitutes Summary Charge 10, making a false report to police.
15The final three charges against you arise out of your conduct against Ms Lyons in
June-July of 2019.
16On 26 June 2019, you, Ms Lyons, and her 11-year-old daughter Lidia[7] were driving near Trafalgar and Yarragon in a car registered to Ms Lyons’ ex-partner. Ms Lyons was driving and you were navigating from the front passenger seat. Sometime just before midnight an argument between you and Ms Lyons began. You became furious with Ms Lyons and elbowed her to the nose. There was an audible crack when you struck her. This constitutes Charge 4, recklessly causing injury.
[7] A pseudonym.
17You grabbed the steering wheel and caused it to swerve to the left. Ms Lyons heavily applied the brakes and narrowly avoided a collision with a ditch. Ms Lyons got out of the vehicle and realised that her nose was bleeding heavily. You threatened her, and she got back into the vehicle in fear and you all continued your journey.
18The next day 27 June 2019, just before midnight you, Ms Lyons and Lidia were travelling in the same car in Keilor Downs. Once again, Ms Lyons was driving and an argument broke out. She slowed the vehicle and told you to get out. You threw her property out of the window. You told Ms Lyons to stop the car or you would hurt her. Ms Lyons complied. You pushed Ms Lyons out of the driver's side of the vehicle and climbed into the driver's seat. Ms Lyons attempted to get Lidia out of the vehicle but you shouted that you would drive off with Lidia if she did not get back in the vehicle. In fear, Ms Lyons complied.
19You then drove the car towards Calder Freeway and an argument continued. You came to a stop on a freeway entrance and grabbed Ms Lyons by the head and smashed her head into the door. You punched Ms Lyons in the head six or seven times, then reached over, opened the passenger door and ejected her from the vehicle. Lidia got out of the vehicle. You shouted that you were taking the car and drove away. This conduct in combination constitutes Charge 5, carjacking.
20I pause to note that all of your conduct constituting Charges 4 and 5 was witnessed by Lidia, that is, Ms Lyons’ young child.
21On 1 July 2019 at approximately 3.30 am, you sent Ms Lyons a Facebook message stating:
Got your car in the same condition and when you have it to me. If you ever
wasn't it back then you have today to pay the $750 into my account or your cat [meaning car] will burn along with all your clothes, photos and the kid's clothes.
22You provided your bank details to Ms Lyons and further Facebook messages were exchanged regarding a time for payment, including a message you sent stating: 'You or the cops will be lucky to find your car. If you put the 750 in my bank account you would have a car to live in or, in your case, die in.'
23This conduct constitutes Charge 6, extortion. I note that this car was recovered in
South Australia sometime later.
24On 4 July 2019, you were arrested after a collision. You were taken to hospital and on your discharge the next day were taken to Geelong police station for a record of interview. You have been remanded in custody since your arrest on
4 July 2019.
Personal Circumstances
25I now turn to your personal circumstances.
26Tendered on your behalf were a number of psychological reports and letters by people who know you.[8] These reports detail your background and I have read the reports and letters carefully. I might say, I was particularly assisted by the report tilted, 'Forensicare Mental Health Services Ravenhall Psychological Assessment Report.' This report was based upon a program involving 12 sessions conducted over five months while you were in custody in the 'Moroka Unit'. The report comprehensively details your background, mental health issues and recent attempts whilst in custody to undertake programs to address the risk of
re-offending. I refer back to that report later in these reasons.
[8] Exhibits 2, 3, 4, 9, 14, 16,and 18.
27You were aged 37 to 40 at the time of your offending and are now 43 years old. You were born in the Latrobe Valley and are the eldest of five children. Your parents separated at the time of your birth but reconciled and remarried when you were six months old. You reportedly displayed 'oppositional behaviours' from an early age.
28Your father was a boilermaker who engaged in shift work. He was a veteran of the Vietnam War and was diagnosed with post-traumatic stress disorder and anxiety and reportedly had problems with gambling and drinking. Your mother worked as a hospital cleaner and in a sewing factory. Your early life was characterised by frequent verbal and emotional abuse and sometimes physical abuse by your father. Your parents separated several times and, during these separations, you assumed many adult responsibilities within your family unit.
29As your behaviour became more and more difficult to manage, you had several short placements at a children's home called Swan House in Traralgon. You were then placed in Baltara Boys' Home for several weeks at the age of 10. At this institution, you suffered horrific sexual abuse at the hands of an adult worker. I do not deem it necessary to set this abuse out in detail but I have carefully considered the several psychological and psychiatric reports placed before me and I can safely find that this abuse has had lasting and severe negative impacts upon your life. In recent years, you have been awarded damages from the State of Victoria of several hundred thousand dollars as compensation for the institutional abuse you suffered.
30Your father died by suicide when you were 11 years old. Before he took his own life, your father called your mother but you picked up the phone. He told you that he intended to take his own life, and then he did so. Your siblings blamed you for your father's suicide and this strained your relationships with them for a long time. You became a ward of the State at the age of 14 and lived an iterant lifestyle for the remainder of your minority.
31At 21 years old, you commenced a relationship with Ms Trainor. You went on to marry, have two children and buy a house together. While you speak highly of Ms Trainor, you acknowledge that at times you were angry and aggressive towards her. Your marriage ended at the age of 33 because of your stalking behaviours and breaches of intervention orders. You were incarcerated interstate for this conduct. You have not seen your two children, Poppy who is now an adult, and Milly since this time and you experience grief at the loss of these relationships.
32Your mother described you as an intelligent child but you struggled academically through your schooling. You attended several different primary schools, some of which you were expelled from. You then attended Morwell Christian College where your schooling and behaviour improved. However, there was a deterioration after your father's suicide. You attended several different secondary schools where you struggled with your studies, were teased by other children and got into fights. You eventually left school halfway through Year 9. You started working sporadically at the age of 16. Your longest period of employment was as an Army Reserve plumber while you were married to Ms Trainor. You have also worked as an interstate truck driver.
33The psychological and psychiatric reports before me make it clear that you suffer from severe and chronic mental health conditions. Ravenhall clinicians diagnose you with borderline personality disorder, antisocial personality disorder, avoidant personality disorder, a probable diagnosis of paranoid personality disorder, and a provisional diagnosis of severe PTSD. Mr Cummins, psychologist, also diagnoses you with major depressive disorder of at least moderate severity. He notes that you probably suffer from a trauma and stressor-related disorder.
34You have engaged in significant self-harming behaviours while in custody. The Ravenhall report sets out self-harm in previous terms of imprisonment which I will not recite in these remarks. In the start of this present remand, you engaged in a period of severe self-harming, including inserting your fingers into existing wounds,
re-opening wounds and smearing faeces into them, removing sutures, cutting yourself, swallowing razor blades, swallowing metal shavings, and tying a ligature around your neck. It appears that after treatment in the Moroka program, your self-harming decreased, but did not cease. You report that your self-harming has improved markedly. You have not been in an observation cell since October 2020.
Submissions of the parties
35Your counsel Mr Connolly does not rely upon your mental health conditions as engaging the principles of Verdins[9] relating to the assessment of your moral culpability for the offending before me. He submits that limbs 5 and 6 of Verdins are engaged in your case, that is, that the sentence of imprisonment would weigh more heavily than on someone in normal health and that imprisonment is a less appropriate disposition due to your mental health.
[9] R v Verdins & Ors [2007] VSCA 102.
36Mr Connolly also submits that the principles of the well-known case of Bugmy are engaged in the general sense.[10] The general sense of Bugmy suggests that where you have been raised in a community surrounded by abuse and violence, your moral culpability is likely to be less than an offender whose formative years have not been marred in that way. Mr Connolly relies on your multiple mental health diagnoses as compounding your disadvantage.
[10] Bugmy v R (2013) 302 ALR 192.
37He submits on your behalf that this is an early plea of guilty that has significant utilitarian value. You indicated that you would plead guilty to Charges 2, 3 and 6
some time ago. The remaining charges resolved in February 2022. He submits that this was an early guilty plea which has significant utilitarian value and he also submits that Charge 1 would have been severed had this matter run to trial, causing further inconvenience.
38Mr Connolly submits that there has been a significant period of delay between your arrest in July 2019 and you being dealt with now. He concedes that some delay is attributable to you failing to attend your committal hearing in December 2019 and in the resolution of Charges 1, 4 and 5 taking until February 2022. However, he submits that the delay has otherwise been COVID or witness related.
39Mr Connolly submits that you have expressed significant remorse beyond your early plea. You have written a letter of apology to the Morwell RSL, repaid the $500 that you stole and donated a further $2000. You regret the offending against the RSL in particular because of your father's military service. You have written an impressive letter to the court outlining your remorse. Importantly for your prospects of rehabilitation, your compensation payout will enable you to enrol in a rehabilitation centre on your release and to secure housing and financial security in the community.
40The Crown does not quibble with many of the submissions put by Mr Connolly. Indeed, Mr McKenry for the Crown agrees that your childhood was extremely deprived, that you have suffered in custody and that you have demonstrated real remorse.
41However, Mr McKenry submits that your complex mental health diagnoses cut both ways. While your mental health has increased your suffering in custody, it also means that you are unfortunately more likely to re-offend on your eventual release. He submits that while the Bugmy principles are engaged, this also cuts both ways. Your moral culpability is reduced, but protection of the community is enhanced as a sentencing consideration. He points to your pattern of breaches of court imposed intervention orders and offending against partners and former partners as concerning and warranting specific deterrence.
42Mr McKenry submits that while you have clearly rehabilitated yourself in an impressive way since your offending, this has taken place in a custodial environment. He points out that, on your release, there will be an inevitable risk of recidivism. He submits that I should be guarded as to your future prospects, that I should take into account the benefit of a period of supervision on parole.
Analysis
43It is not in dispute that the offending you have committed can only appropriately be dealt with by a period of imprisonment. The carjacking and recklessly causing injury charges are particularly troubling in that you used violence and the threat of force upon a woman in the presence her 11-year-old daughter. Indeed, the carjacking offence is a category 2 offence under s 5(2H) of the Sentencing Act 1991 (Vic). That means that I am restricted in imposing a combination sentence of imprisonment and a community corrections order unless there are substantial and compelling circumstances. I do not regard such circumstances to be present in this case. The extortion charge was also manipulative and psychologically coercive in an abusive context. You have a number of serious prior convictions for charges of assault, threat to kill, and breaching Family Violence Intervention Orders. Whilst you are not to be punished again in respect of prior convictions, they are relevant to my assessment of your prospects of rehabilitation and
moral culpability for this offending. There is a need for this sentence to reflect the purpose of general deterrence and denunciation of your conduct. You have displayed a troubling lack of regard for court-ordered intervention orders and committed violent offending against partners and former partners. Such offending is a scourge against our society and you must understand that such behaviour is unacceptable.
44I accept that, because of your background and, to some extent, your mental health issues, the assessment of your moral culpability for this offending is reduced. However, as your prospects of rehabilitation are somewhat guarded, protection of the community is a very relevant consideration and there is still a significant component of specific deterrence that must be reflected in the sentence.
45I accept that limb 5 of Verdins is engaged and that your experience of imprisonment is more burdensome because of your mental health issues. I do not regard limb 6 of Verdins to be a significant factor, as it appears that your mental health has actually improved in more recent times as a result of treatment you have received in custody.
46In fact, despite your guarded prospects of rehabilitation, I am encouraged by the following statement in the Ravenhall Psychological assessment report:[11]
Mr Wade presents with a number of significant factors that are positive indicators of his capacity to improve his overall mental health. He is a man who presents as help seeking, who has demonstrated the capacity to establish therapeutic alliance and to openly discuss his internal experiences.
Mr Wade's commitment to a range of therapeutic interventions while in the
Moroka Program was highly positive, whereby, he consistently attended sessions, expressed motivation to change, showed a willingness to reflect on his past experiences and learn and practice new ways of coping. Mr Wade also possesses a range of individual qualities that are positive indicators of his capacity to engage in and benefit from therapeutic intervention, including resilience, resourcefulness and determination.
[11] Exhibit 2.
47
It is also important that offenders appreciate the importance of complying with
Family Violence Intervention Orders. For this reason, the Court of Appeal has stressed the significance of general deterrence as a significant aspect of the sentence imposed for breaching these orders. The psychological strain placed on protected persons who are just trying to get on with their life without continued harassment is significant. Ms Robards has made a Victim Impact Statement that I have read carefully.[12] It is clear that your offending in disobeying the obligations of intervention orders involving her has resulted in significant psychological effects. She describes a continual heighted state of concern regarding her personal safety. She regards your relationship with her has having had an adverse impact upon her life in a variety of ways.
[12] Exhibit B.
48
Your mental health plays a very important role in the sentencing synthesis. I accept that your time in custody has been more difficult than someone of normal health. This is evident in the complex interplay of diagnoses and in the severe
self-harming behaviour that you have engaged in. This hardship is exacerbated in the time of the pandemic. Your time in custody has undoubtedly been very difficult and you are entitled to amelioration of your sentence because of this. However, there is evidence that you have been engaging in severe self-harming behaviours for several years before this present remand and that there is a chronic aspect to it. I therefore do not accept that looking forwards, your mental health makes imprisonment an inappropriate disposition.
49I accept that you have suffered a deprived childhood, characterised by an unstable home life, physical and emotional violence at the hands of your father, the trauma of your father's suicide and the horrific sexual abuse suffered at Baltara. I find that the Bugmy principles are engaged in the general sense and that I must have regard to your background in ameliorating to some extent my assessment of your moral culpability for these offences. However, this has consequences for your prospects of rehabilitation.
50I find that your prospects of rehabilitation are guarded at best. I have been very impressed by the efforts you have made whilst in custody. You have not been sitting idle and you have made commendable efforts to better yourself for your eventual release. The fact that you have paid a deposit for a rehabilitation centre suggests that you genuinely mean to avoid relapsing into drug use. The fact that you have received a significant compensation payout from the State of Victoria will be a significant protective factor. However, as the Crown rightly point out, all of your progress to date has been in the structure and constraints of a custodial environment.
51After you plea hearing on 1 September 2022, I adjourned your matter to
14 September 2022 for sentence to be delivered. Both the prosecution and defence had submitted that the only appropriate sentence was to impose a head sentence with a period served before being eligible for parole. On the morning I was intending to deliver sentence, I received two further documents. One document was filed by the prosecution and was a Victim Impact Statement from Ms Lyons.[13] She does not wish for that document to be read aloud in Court but I have read it carefully and take its contents into account. It is clear the impact upon her has been, as she describes, 'huge'. It has affected her relationship with her daughter, causing trust issues and Ms Lyons now believes she suffers from PTSD. She feels like her life has been turned upside down and wonders whether she will ever get her life back on track.
[13] Exhibit D.
52The other document I received on that morning before delivering my sentence was a letter from you dated 12 September 2022.[14] In that letter, you expressed a concern that upon your release from custody you may lack 'support'. You suggested you would benefit from a community corrections order. Part of your letter stated:
Having a CCO officer will help me transition back into the community and give me the stability knowing I have an order hanging over my head. Having a CCO officer would benefit me in a lot of ways, such as random drug testing, directing me to do things like counselling and helping support me along my way through my rehabilitation. Sir, to say to that I'm not worried or scared of failing is an understatement but failing to do anything and coming back before the courts is what scares me more than anything. I have to do something for myself and at least try and change my life.
[14] Exhibit 15.
53Your letter contained further statements of you believed would be the benefit of a period of supervision upon a community corrections order upon your release.
54On the morning of 14 September, I read your letter in open court to the prosecution and defence and invited further submissions. Your defence counsel submitted that it would be appropriate, given the time already served by you in custody for you to transition back into the community under the supervision of a
community correction order. The prosecutor Mr McKenry declined to make further submissions, despite my invitation and my indication that I thought there was some merit in the imposition of a community correction order after such a lengthy period of imprisonment in better addressing community protection concerns, which, in my view, was obviously a very important sentencing consideration.
55
I adjourned your case until today so that you could be assessed by the
Office of Corrections. I have now received an Assessment Outcome Report from the Office of Corrections dated 16 September 2022, as well as a report from the
Mental Health Advice and Response Service dated 16 September 2022. I have also received a letter through your solicitors from Silvana Scerri of the
Hader Clinic[15] and a letter from Mr Jeremiah, an NDIS support worker dated
20 September 2022.[16] Your Counsel has filed further written submissions dated
26 September 2022, submitting that a combination sentence would be an appropriate disposition. The letter from the Hader Clinic confirms that you are, upon your release, seeking to be admitted to the Hader Clinic
'Residential Rehabilitation Treatment Program' to undertake an initial inpatient
90-day program. The Office of Corrections are aware of your plans to seek treatment through this program and have found you suitable and state:
This service will liaise with the Hader Clinic for the duration of the treatment episode. Following completion of residential rehabilitation, referral to appropriate community services can be addressed to ensure ongoing development of risk mitigation strategies and relapse prevention.
[15] Exhibit 16.
[16] Exhibit 18.
56The prosecution has also filed further written submissions, maintaining that the appropriate disposition is still a head sentence with a longer than usual parole period. I will indicate that the further material that I have referred to will be tendered as exhibits on your plea.
57On your release, you will risk returning to drug use and to your old patterns of attempting to contact former partners who have intervention orders against you. While your payout is a significant protective factor, there is a risk that you could use that money to access drugs. While you claim that your mother controls those funds, there is a risk, given your history, that you could force her to hand the money back. Your rehabilitation is in the interest of the community, as it goes to community protection. However, I cannot find your prospects higher than guarded, given your history. I am persuaded that the potential benefits of an intensive residential program such as offered by the Hader clinic, is the best way of maximising community protection. As you have already served a significant period of imprisonment, I intend to adopt the course of imposing a combination of imprisonment and a community correction order, as I regard it as appropriate in particularly circumstances of your case.
58I accept that this is an early plea of guilty and you have saved the victims the inconvenience and distress they would incur from attending court to give evidence at trial. Your plea also has significant utilitarian value in that the plea removes a trial from the backlog in this court caused by the pandemic. This is especially so where issues of severance that might have caused two trials. Your plea results in a pronounced and perceptible amelioration in sentence.[17]
[17] Worboyes v The Queen [2021] VSCA 169.
59I find that there has been significant delay in this matter and, while you have partly contributed to it, it has largely been also due to factors outside your control. You are entitled to mitigation in sentence because of two aspects of the delay; first, these proceedings have been hanging over your head and causing you distress and anxiety whilst in custody and this distress is exacerbated in someone of your symptomatology; second, in the period of the delay, you have not sat idle and have used your time in custody productively. This is favourable for your prospects of rehabilitation.
60You have clearly expressed significant remorse for your offending beyond your plea. I accept that you feel genuine and heartfelt remorse for your offending. In relation to Charge 1, you feel like you have just disrespected your connection to the armed services via your father and have not only repaid the money but made a significant additional donation. In relation to the offending against Ms Trainor, you have undertaken not to contact her or your children, except through formal legal means and, even then, only once you have demonstrated your rehabilitation. This suggests true remorse for what you did to them.
61I have considered carefully all the material before me and weighed the competing considerations and submissions. I keep in mind that the sentence I imposed on you must incorporate the principles of just punishment, specific deterrence, general deterrence, denunciation, rehabilitation, and protection of the community. Taking account of all relevant matters I sentence you as follows.
Disposition
62Could you please stand up. Mr Wade:
a) On Charge 5 of carjacking, you are sentenced to two years' and two months' imprisonment. This will be the base sentence.
b) On Charge 1 of obtaining property by deception, you are sentenced to
one months' imprisonment.
c) On Charge 2 of persistent contravention of a Family Violence Intervention Order, you are sentenced to four months' imprisonment. One month of this sentence is to be served cumulatively on Charge 5 and all other sentences imposed this day.
d) On Charge 3 of contravention of a Family Violence Intervention Order, intending to cause apprehension or fear in a protected person, you are sentenced to six months' imprisonment. Two months of this sentence is to be served cumulatively on Charge 5 and all other sentences imposed this day.
e) On Charge 4 of causing injury recklessly, you are sentenced to 12 months' imprisonment. Three months of this sentence is to be served cumulatively on Charge 5 and all other sentences imposed this day.
f) On Charge 6 of extortion, you are sentenced to eight months' imprisonment. Four months of this sentence is to be served cumulatively on Charge 5. You are also sentenced on this charge to a community correction order of
18 months' duration. I will detail the conditions of this community corrections order in a moment. The community corrections order is to commence upon your release from imprisonment.
g) On Summary Charge 4 of contravention of a Family Violence Intervention Order, you are sentenced to two months' imprisonment.
h) On Summary Charge 10 of making a false statement to police, you are sentenced to one months' imprisonment.
63This makes a total effective sentence of three years' imprisonment before release upon which you must comply with the obligations of a community correction order for a period of 18 months.
64Pursuant to s18(4) of the Sentencing Act 1991 (Vic), I declare that the period of 967 days that you have been in custody be reckoned as time already served under the sentence passed today and I direct that this be entered into the records of the court.
65In addition to the core conditions of the community corrections order, the following special conditions are imposed:
·Section 48D(3)(a) treatment and rehabilitation programs regarding drug use.
·Section 48D(3)(b) treatment and rehabilitation programs relating to alcohol use.
·Section 48D(3)(d) treatment and rehabilitation programs regarding medical conditions .
·Section 48(3) (e) treatment and rehabilitation programs regarding
mental health.
·Section 48(3)(f) programs that address factors relating to offending behaviour.
·Section 48E supervision.
·Section 48K judicial monitoring with the first date to be arranged upon your release approximately four weeks from that date of release.
66I should indicate that, in reading my reasons, I did not mention that I had to have regard to the principle of totality. That is, that I have to take into account the total criminality in your offending in terms of the total imposition of the sentence that I impose and I have taken that principle into account.
67Now, I will ask that the community correction order be prepared so that it can be signed by the accused. Mr Wade - - -
68OFFENDER: Yes, sir.
69HIS HONOUR: - - - you've heard the sentence that I've pronounced. It's important that you understand the obligations of a community correction order. I think you've been on them before, so you'll have some understanding of them but the most important thing is, that if your circumstances change significantly, you have to discuss that with the Office of Corrections. For example, if you want to change residence, get employment, leave the state, things of that nature. You have to discuss this before you undertake such changes with the Office of Corrections.
70You have to abide by all the lawful directions that they give you. I haven't made it a condition of this community correction order that you complete the Hader Clinic program because it seems to me that you haven't experienced such a program before. I'm not necessarily confident that you'll get through it but I certainly regard it as important that you enter program upon your release and that's one of the reasons I'm imposing the judicial monitoring.
71I can only say that I'll be extremely disappointed if, about four weeks after your release, you come before me and I hear you've left that program. The
Office of Corrections may direct you to remain in that program, that's a matter for them. They will obviously be monitoring how you're going and will be interested in any such conditions if you were to change. But I'm going to leave it to the
Office of Corrections with their expertise in terms of their ability to impose these conditions as to what is best for you.
72I did regard your letter as being genuinely expressing a desire to maximise your chances of not reoffending and the reason that I impose this combination sentence is because I've also been satisfied that it is in the interests of the community that you enter this program and that you have further monitoring by the Office of Corrections. So it's got to be very much up to you.
73OFFENDER: I understand that, sir.
74HIS HONOUR: I can only say to you, if things start to go array, don't hide it. Discuss it with the Office of Corrections, deal with the problem before you risk going off the rails and doing criminal activity.
75Can I ask counsel whether the sentence that I've imposed seems to accord with the arithmetic and is fully understanding of the sentence that I've imposed.
76MR CONNOLLY: A couple of matters just for the sake of completeness,
Your Honour. I believe a 6AAA declaration's required because a sentence of imprisonment has been imposed.
77HIS HONOUR: Yes.
78MR CONNOLLY: My understanding of s11, given that this is a sentence of imprisonment great than two years, a non-parole period is required unless the court finds that it's not appropriate based on what sentence - - -
79HIS HONOUR: It's an unusual situation, isn't it?
80MR CONNOLLY: Yes.
81HIS HONOUR: He's almost done the time.
82MR CONNOLLY: Yes. So it's implicit in the sentence that that be considered, whether - I don't believe section - - -
83HIS HONOUR: No, I appreciate that indication, it's a good idea.
84MR CONNOLLY: Yes.
85HIS HONOUR: I will indicate that in the unusual circumstances, whereas I understand it taking account of the PSD, the accused may have a short time to serve in terms of months or weeks. It's difficult for me to know the precise time because there may be emergency management days that will result in his almost being released immediately, I'm just not sure.
86In the unusual circumstances where he's served a significant period of time and in the unusual circumstances where he himself is contemplating needing restrictive conditions upon his release, I don't regard it as appropriate to impose a non-parole period in the circumstances of this case.
87MR CONNOLLY: Thank you, Your Honour. I don't believe it then requires a formal declaration but that's just for the sake of completeness. On my calculation, the pre-sentence detention would result in an earliest release date of 3 February 2023. I'm not sure if my - - -
88MR KcKENRY: Haven't done the math.
89MR CONNOLLY: My friend hasn't but what Your Honour says in relation to emergency management days may have that affect given the time that he's been in. So s6AAA is the only outstanding matter.
90HIS HONOUR: I'll indicate, pursuant to S 6AAA, that this was a significant plea of guilty and had you not pleaded guilty, I would've imposed a total affective sentence of four years and eight months' imprisonment. I don't regard it as appropriate to also indicate a non-parole period in relation to that.
91MR KcKENRY: As Your Honour pleases.
92HIS HONOUR: Thank you. There's no further orders required, is there?
93MR KcKENRY: There's none.
94MR CONNOLLY: No.
95HIS HONOUR: Mr Wade, fairly unusual case yours. I haven't struck a situation like this before, where somebody's done such a significant period of imprisonment before the plea has been conducted that has also impressed upon me the importance of undergoing a community correction order. There's all sorts of complications in your life. I can only wish you the best of luck in fortifying yourself and making sure you do everything you can. Stay in that Hader clinic. It's not going to be easy.
96OFFENDER: Nuh.
97HIS HONOUR: It's going to be a completely new situation for you. I'll be seeing you in about a months' time after you've got out. I'm going to leave it to the
Office of Corrections and I'd appreciate defence counsel sending a message to the Office of Corrections. I can't seem to affix a date now because it's too uncertain as to when he's going to be released, but I'd also appreciate an undertaking from defence counsel to make an inquiry with Corrections as to his likely release and to assist him in terms of those arrangements from being transported.
98I would be pretty disappointed if I hear on the judicial monitoring that he walked out of gaol and left to his own resources. You've put before me material that suggests that the NDIS people will assist him - - -
99MR CONNOLLY: Yes.
100HIS HONOUR: - - - and the Hader Clinic also put in their letter that if they know what the situation is, they'll transport him there. So I'd appreciate it if you could give an undertaking to the court that, through your solicitors, there'll be some arrangements made for people to know when he's going to walk out the door and that he won't be just on his own there, he'll be transported directly to the clinic.
101MR CONNOLLY: I give that undertaking. I can say I have already emailed my instructor who is also present on the link.
102HIS HONOUR: Thank you very much. I appreciate that assistance and I appreciate the submissions of both of you, they've been very helpful. Thank you.
103MR CONNOLLY: As Your Honour pleases.
104MR KcKENRY: If Your Honour pleases.
105OFFENDER: Thank you, Your Honour.
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