Director of Public Prosecutions v Wade

[2017] VCC 1737

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-17-01483

DIRECTOR OF PUBLIC PROSECUTIONS

v

RYAN WADE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	23 November 2017
CASE MAY BE CITED AS:	DPP v Wade
MEDIUM NEUTRAL CITATION:	[2017] VCC 1737

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr P. Morrissey	Pica Crime
For the Accused	Ms M. Tittensor	Pica Crime
For the Director of Public Prosecutions	Mr P. Triandos	The Office of Public Prosecutions

HIS HONOUR:

1Ryan Wade, you have pleaded guilty to one charge of damaging property, one charge of attempting to pervert the course of justice, one charge of persistent contravention of a family violence order and one charge of breach of a violence order.  Those crimes carry maximum sentences of 10 years, 25 years, 5 years and 2 years respectively.

2The breach charge is an uplifted summary matter and you have pleaded guilty to that.

3You are now 25 years of age.  You have pleaded guilty to a settled indictment.  You purport to have appropriate remorse.  There certainly has to be a utilitarian benefit to all of this and still only being 25 you are a youthful offender.

4You do have prior convictions for driving matters and matters for which you have subsequently been convicted, which occurred prior to all this.  They do not relate to this particular victim and are, on the face of it, at least driving and drug related.  That would tend to support the materials contained within the report of Mr Newton, which was tendered on your behalf.

5A summary of the offending is that you were in a relationship with a woman between 12 March and 23 March 2016.  She was driving on the freeway at Morwell, you were in the passenger seat and an argument ensued that continued until you reached your mother's home.  During the course of that argument you became angry and kicked the dashboard of the car, causing damage.  That is the criminal damage.

6On 6 May 2016 the complainant apparently made a statement about that to police and charges were filed against you that same day.

7On 10 May a final family violence intervention order was made in the Magistrates' Court here in Latrobe Valley.  Which ordered you not to damage property of the complainant or threaten to do so.

8On 7 August 2016 you and the complainant spent the night at the home of a friend.  On the next morning there was an argument over the driving of a motor vehicle.  After a period of time she drove the vehicle and you were in the passenger seat.  During the course of that argument you kicked the door, causing a large crack in the lining.  That gives rise to the summary matter of contravening a condition of a family violence intervention order.

9You eventually attended Latrobe regional hospital, waited some time without being treated, before leaving together.  You then drove her to your mother's house in Traralgon.

10On 9 August 2016 she provided a second statement to police.  Further charges were filed against you on 10 August.  One 10 August that family violence order - the new one was made, which contained various conditions.  Including, effectively not contacting the complainant.

11Between 13 October 2016 and 23 November 2016 you made 52 phone calls to her from prison, where you had been remanded on 18 September 2017 for the unrelated matters that I will be referring to again in a moment, insofar as renzella time is concerned.

12Those calls were made utilising the prison telephone system and a different name was used to enable them to take place.  I have read the transcript of the calls that are relied upon in this particular matter and it seems pretty clear to me that the only reason you were ringing her on all those occasions was because she could not ring you.

13She certainly does not appear to be under any duress or anything like that in those calls.  But in any event that is what gives rise to the most serious of these particular charges.  Those calls are persistent contravention, as I have said.  It is my view at the lower end of all that.

14Between 17 October and 17 November 2016 the pair of you conversed over the phone.  As I have said, during those calls you discussed the evidence against you and the effect of her withdrawing allegations.  You encouraged and supported her to make a further statement to police which would refute earlier statements and assist in having you released from gaol.

15A series of events then took place and I am not going to go through each and every conversation.  She attended at your solicitors.  A letter was provided from a psychologist and it is quite clear that, firstly, you were encouraging her to pervert the course, in regard to these charges that are before me, which is all I can sentence you for.  And she was an active participant in that.

16In fact, I am now informed that she made a statement in what is agreed to be perjurous terms and she has not been charged at all.  This is not a matter of parity in the legal sense but the accused person is entitled to some fairness in the process.  In any event, that gives rise to the charge of attempting to pervert the course of justice.

17The other matters, in my view, aren't serious but the pervert is almost invariably serious.  Though, it can attract a very, very wide range of sentences.  It must be discouraged.  Of course the application of general deterrence and in your situation an element of specific deterrence and of course must be an appropriate punishment.  There is no victim impact statement.

18Gaol is a common result for pervert the course of justice.  In this particular situation the Crown submission was that a combination sentence was in range that would put a limit of 12 months' imprisonment on it.

19In any event, on 5 April of this year you were sentenced for other matters to a total, I am assuming, of 199 days, which was declared as having been served.  That allows for 199 days, though I am aware it is not a mathematical calculation of renzella time.

20That means effectively had those matters been delayed until the present time you would have done in excess of a year.  You have 232 days for the charges that are before me.

21Materials were provided on your behalf, including a large number of references and a report from Mr Newton, the psychologist.  I take note that you have done a significant number of courses in prison, which is very much to your credit.  And it is to be hoped that you have realised that the way you have been conducting yourself previously will send up in further periods of incarceration.

22Mr Newton outlined your person history and I can do it in very brief form.  You were born in Melbourne, you moved to Sale when you were very young.  You went to primary school in Bundalaguah and ultimately to Sale College.

23You truanted for most of Year 8 and you were asked to leave.  You finally obtained a Year 11 VCAL.  Since then you have had a few jobs but not a lot.  Since you have been in gaol you have been working in metal fabrication, which as I have said is to your credit.

24You have clearly begun binge drinking and using drugs at a relatively early age.  And you had two relationships of significance.  The first with lady with whom you have a child, Noah, who is referred to throughout the materials and who you continue to see on a regular basis, and indeed there is a reference from the mother of that child.

25The second significant relationship was with the complainant in this matter and it is quite clear that must have been a relatively tumultuous relationship and I will go no further than that.  I am aware that this indictment and these matters are settled and there are probably a lot of matters here that will be dealt with in a Magistrates' Court or a family court.  They have really got nothing to do with me.

26I accept that at around about the time of this offending - and this is borne out by the subsequent charges that you were gaoled for - that you were heavily involved in the use of drugs and the like.  And it is really a matter for you whether you are going to be able to turn that around.

27As I have said, I have taken into account all the references.  There is no Verdins attached to this.  You have clearly got depression, clearly had drug addiction in the past.  But I sentence on the basis of what this offending is objectively worth and in my view to impose a CCO on top of the time that you have already done in gaol would be excessive.

28I can say that I would have thought in all these circumstances that the time that you have done in any event would be sufficient.  But when I put it into the overall circumstance of there having been no action being taken against the actual perpetrator of the crime then I have no doubt that you have done enough.

29Prospects of rehabilitation are up to you.  Things are put in place for you, it is a matter for you whether you avail yourself of them.  The risk of you reoffending; I would be guarded in my assessment of that.  And it seems clear to me that it will depend very much upon your avoidance of substance abuse.

30In any event, taking all those matters into account as best I can and bearing in mind the rather unusual situation that exists here on the charges on the indictment before me, you are sentenced to be imprisoned for an aggregate period of 232 days.  On the summary matter, seven days to be served concurrently with the indictment sentence.  And I direct that 232 days be reckoned as having been served under this sentence.

31Pursuant to s.6AAA of the Sentencing Act, I say that but for your plea of guilty I would have sentenced you to imprisoned for a period of 12 months.  Though again, in this scenario with a settled indictment, that is meaningless.

32There any other orders I have to make?

33MR MORRISSEY:  No, Your Honour.

34HIS HONOUR:  The 464, I'm assuming that the order's already been made.

35MR TRIANDOS:  Yes, it was made on 5 April.

36HIS HONOUR:  Well, they can use that one, they don't need one from me.  And there's no other forfeitures or anything like that?

37MR TRIANDOS:  No, Your Honour.

38MR MORRISSEY:  No.

39HIS HONOUR:  No, all right.  They'll have to take you back to put you through the books, all right.  But you'll be released within the next half hour or so.  Yes, thanks, Mr Morrissey; thanks, Ms Tittensor; Mr Triandos.

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