Director of Public Prosecutions v Wade

[2015] VCC 1148

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR-15-00029

DIRECTOR OF PUBLIC PROSECUTIONS

v

HOLLY WADE

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Shepparton
DATE OF HEARING:
DATE OF SENTENCE:	19 August 2015
CASE MAY BE CITED AS:	DPP v Wade
MEDIUM NEUTRAL CITATION:	[2015] VCC 1148

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

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms. A. Hassan
For the Accused	Mr. A. Pyne

HIS HONOUR:

1Ms Wade, you have pleaded guilty to one count of aggravated burglary. You have also, pursuant to s.145 of the Criminal Procedure Act, consented to six counts of not complying with the conditions of bail, and committed six offences as a result of, as I understand it, continuing to co-habit with Dean. He is not worth it. He is not here supporting you now, is he? He is in prison.

2You have heard the learned prosecutor Ms Hassan, tell this court that the maximum sentence that can be imposed for this offence is that of 25 years imprisonment and that the maximum sentence that can be imposed for each offence of failing to comply with your conditions of bail, is three months imprisonment.  That is three months on each. 

3Ms Wade, the offence of aggravated burglary is a particularly serious offence.  That should be indicative to you and the community when you see what the maximum sentence is that can be imposed for that offence.  That maximum sentence is not fixed by judges or barristers or police officers.  It is fixed by Parliament.  For having pleaded guilty, I will impose a lesser sentence than I otherwise would have imposed.  In other words, you receive a discounted sentence for having pleaded guilty. 

4Ms Wade, at the time of this offending you were in a relationship with Stuart Dean.  You were then living together at 14 Isabella Street here in Shepparton.  It was at about 9.50 pm on Sunday 20 July 2014 that you went there first, and then Stuart Dean joined you at the Safeway supermarket in Archer Street, Shepparton. 

5Whilst you were at the supermarket, Christian Freeman entered that store at approximately 10.30.  You have previously been in some sort of a relationship with that fellow.  Ms Wade, you observed Freeman inside the store and you began to follow Freeman, calling upon Dean to assist you.  You have a grievance with him because you made an allegation of his misbehaviour with you in terms of sexual offending. 

6Freeman became aware that he was being followed within the store, so he - Freeman - then ran from the store, being pursued by yourself and Dean.  You gave chase to Freeman but were unable to find him, having left Safeway, as he disappeared.  Ms Wade, you and Dean then got into a car, driven by another person - I think that fellow's name is Carl Adams, and you decided to attend at Freeman's home. 

7Having arrived at Freeman's home, you and Dean entered the house without permission, and you found a fellow called Swan Diamond therein.  You asked Diamond where Freeman was.  Diamond was not able to assist as to where Freeman was at that time.  Both you and Dean then searched through the house looking for Freeman - again, as I indicated - he was not present. 

8Once both of you realised that Freeman was not present, Mr Dean approached the victim and asked the victim if he had any money.  Dean then took the victim's wallet, brandishing a knife.  When the victim objected, you and Dean ran from the house. 

9Some three or four weeks later, on 15 August, police officers executed a search warrant at your address, 14 Isabella Street.  You were observed running from the main bedroom and Dean was later located hiding in a bedroom wardrobe.

10When the police officers located Dean, they then searched other areas within the house and they located the victim from the aggravated burglary's identification cards and other cards owned by him were located in your kitchen.  His personal banking details were also located on paperwork being printed out on a laptop computer and also located on the laptop computer as a stored file.  I suspect that there was other mischief afoot in relation to that. 

11When interviewed, you made admissions to being at the Archer Street Shepparton Safeway complex with Dean.  You admitted to chasing Freeman from the complex, that is, the Safeway complex, but you denied attending at the home address of Freeman and being present during the commission of the aggravated burglary.  Now, of course, you admit it and plead guilty.  The prosecution concede that you paid a lesser role in the commission of this offence, to that of Dean. 

12

Ms Wade, you are now aged 26, having been born on 30 April 1989.  Ms Carla Lechner, a well-known psychologist in the courts, in her report dated

1 July, reports as to your family history and I briefly quote a little of your family history.

13She says that you are aged 26.  You are the only child of Sue Wade and Mark Harrison.  Mr Harrison is now deceased.  You stated that your father died seven years ago of a heroin overdose, adding - and this is what you said to Ms Lechner"

14"I met him five times in my life and didn't get on." 

15Lechner goes on to say that you have had no contact with three younger half-brothers on your father's side of the family.  Further, Lechner says that you were in a seven year relationship with Bryce Knight, now aged 32; that you and Knight separated in 2012, and there are two children, Anega Jean and Sebastian.  They are in the care of either their father or maternal grandmother.

16Ms Wade, you grew up in Shepparton, attending the Gowrie Street and St Georges Road Primary Schools.  You recall being bullied a lot at school on account of your epilepsy.  You said to Ms Lecher: 

17"I was called a spastic and big ears." 

18You told Ms Lechner that you could suffer up to 31 seizures a day and that you were on Epilim medication until the age of 14.  You also advised Lechner that your paediatrician had told you that you would grow out of it - that is, grow out of your epilepsy problem, but you did suffer a couple - and to quote you - "a couple of drop-seizures during your first pregnancy." 

19You found learning hard.  You said to Lechner: 

20"I can't retain information." 

21You further said, "I have a scar on my temporal lobe and was born with it."  You also told Lechner that you had few friends, describing yourself as a loner and you were not able to attend Blue Light Discos for example, hence you felt alienated from your peers. 

22Ms Wade, you reported to Carla Lechner, that you were the victim of numerous sexual assaults, even some occurring in your relative infancy.  I think the first time was when you were in your minor years of three, or thereabouts.  That is a disgrace. 

23You have been abused both my male and female adults.  Your first boyfriend was violent.  If he was in need of sexual favours - and not surprisingly Ms Lechner reports, and I quote: 

24"Ms Wade has harboured immensely traumatic memories for many years with no therapeutic input." 

25It is your intention, so you tell Lechner, to commence counselling with CASA.  I think you know what that is all about.  I implore you to do so.  Perhaps you do not understand that word.  I urge you to go to CASA.  You do need counselling, you do need help and do not feel in any way embarrassed by it.

26Ms Wade, you attended Shepparton High School to Year 10, leaving school because of bullying.  You then attended Adult Education to complete Year 10, and then commenced TAFE to study Year 11.  Whilst at TAFE you left there to commence an apprenticeship as a chef at a hotel over in Mooroopna.  That position unfortunately folded when the premises were sold and the new owners did not wish to employ an apprentice chef.  You were fortunate enough to pick up a continuation of apprenticeship with the Victoria Hotel. 

27After celebrating your 18th birthday, you must have cut loose badly on that occasion.  You were employed for a short time as a dancer in Goldfinger down in Melbourne, almost next-door to the County Court, but soon found yourself enmeshed in the drug culture.  You returned to Shepparton and met your partner, Bryce, and I have just spoken about him a few moments ago.  You have two children, as I mentioned, from that union.  Your partner was unfaithful, and he too, was using drugs.  When this union disintegrated, you commenced abusing drugs again, and put simply, really it has been all downhill since then.

28Ms Wade, Carla Lechner reports this, and I quote.  This is what Carla Lechner said. 

29"Although not formally assessed in this regard, Ms Wade impressed as being of low average intelligence.  She is generally capable of reflecting on the impact that her behaviour has on both herself and others, but is often overwhelmed by social and emotional factors that together with her drug-use, undermine her judgment and decision making.  Whilst able to identify triggers to her negative feelings, Ms Wade finds it hard to cope with internal distress in an adaptive manner, often abusing drugs to block it out.  She stated she feels immensely depressed about 'Not seeing my children.  I feel like a failure.'"

30That is what you said to Lechner.  Lechner goes on to say:

31"She has felt suicidal on occasions and attempted to take her life once.  She suffers anxiety attacks triggered by telling about my past.  I have had 8 months of anxiety, it's hard to remember things, I wish my mum was here."

32That is what you were thinking at the time of speaking with Lechner.   Lechner goes on to say:

33"She stated that she 'feels angry about anything to do with my kids, frustrated really and mostly with myself that I have allowed this to spiral out of control.' "

34Ms Lechner in her report raises your significant mental health issues.  I do not say any of this to embarrass you.  You have got to attend to it and seek help.  I assure you I have read Lechner's report touching upon those issues.  I do not wish to enlarge upon them and cause embarrassment to you publicly.  You know what they are - you must attend to them. 

35Among other things in Lechner's report, she formed this opinion and I again quote her opinion, she had a number of opinions, I'm only quoting one of them. 

36"At interview, Ms Wade impressed as capable of reflecting on the impact that her behaviour has on both herself and others, but is easily overwhelmed by social and emotional factors, that together with her drug-use, undermine her judgment and decision making.  Whilst able to identify triggers to her negative feelings, Ms Wade is less well able to manage them in an adaptive manner, abusing drugs as a form of self-medication against her internal distress.  She most likely has a genetic predisposition for developing an addiction problem and this will be a lifelong challenge for her."

37I am told by these persons, that you struggle with large and informative words.  I will try and put that simply.  It is saying that if there is members of your family who have got addiction problems, that there is a gene there that is passed on.   That is what all those fancy words mean.  Do you understand that?  Now, you are burdened with that, so you have got to attend to it, and you can only attend to that and get help with counselling.  Do you understand that?  That is why I say it is important you go to CASA.  That is for sexual assault, but you need counselling for all sorts of other matters.  I will come back to that.

38I will go back to what those words were, and you may be confused by them, but I will read them again.  Lechner says:

39"She most likely has a genetic pre-disposition for developing an addiction problem and this will be a life-long challenge."

40You have got it for life, so you have got to wrestle with it and deal with it.

41"Ms Wade is currently exhibiting symptoms of major depressive with a score in the moderate range on the Beck Depression Inventory.  She gained some symptomatic relief from anti-depressant medication."

42As you well know Ms Wade, you have also seen a neuro-psychologist, Dr Monteith.  I propose to exhibit both Carla Lechner's report and Dr Monteith's report for these sentencing comments.  I quote from Dr Monteith's report, wherein amongst other things, Dr Monteith says this: 

43"Neuro-psychological assessment reveals significant cognitive impairment.  Ms Wade's intellectual functioning falls in the extremely low range.  She demonstrates significant difficulties in the domains of attention information processing speed, executive functioning and memory.  One of the strengths in the domain of language-processing tend to mask Ms Wade's significant underlying cognitive difficulties."

44I will try and put that simply for you quickly.  You are very articulate apparently, and that covers, or bluffs your way through what your shortcomings are.  Now, I am not saying this to embarrass you - that is the reality.  If I just pause there for a moment.  You are an attractive woman.  There are a whole lot of hoons out there that are taking advantage of your deficits and abusing you and using you.  Somehow or another, you have got to learn to cope with that and say "No." 

45Dr Monteith goes on to say: 

46"Her current level of intellectual functioning is consistent with testing that was conducted in 2002."  Apparently you were tested some 12 or 13 years ago.   "This level of functioning is also consistent with your history of widespread learning difficulties at school.  Her current level of functioning places her in the range of eligibility for Disability Services."

47That is why you heard Mr Pyne and myself talking to ensure that you have got your due entitlements in terms of pensions.  Mr Pyne assures me you have. 

48"A number of factors are likely to have influenced Ms Wade's brain functioning during the developmental period.  These include her significant history of seizure disorder, as well as a history of developmental trauma, substance abuse and emotional distress.  With ongoing substance abuse, Ms Wade is at risk of sustaining further brain insult." 

49That means injury.  So do not use.  It is making it harder for your brain to cope. 

50"Given her limited cognitive resources, no level of substance use is likely to be considered safe."  So take one pill, you are gone.  "Her goal of sustained abstinence is therefore strongly supported.  She will require a high degree of structure and support to work toward this goal." 

51I do not expect you to understand this, but for the record, I believe I must say it.  I have no difficulty finding the well-known principles from Verdin's case apply to you personally, and your personal circumstances.  It also applies to your offending, indeed I believe all six or seven of the principles that are quoted in Verdin's case apply to you.  I must take that into account in arriving at a proper sentence.  I do not expect you to fully understand that, but it is on the record and your lawyers do understand what that means. 

52Ms Wade, you must understand that the offence of aggravated burglary is very, very serious - 25 years' gaol you can get for it - and this sort of offending, as you have done with this fellow, is to be denounced in the strongest of terms.  You went along and then he got really into it with the knife and burgling or robbing or thieving from the victim in the house. 

53Ms Wade, you appeared before the Shepparton Magistrates' Court.  I find this also quite surprising and I am sure that Ms Hassan and Mr Pyne agree with me.  Ms Wade, you have appeared before the Shepparton Magistrates' Court on four separate occasions involving, as I see it, 66 separate offences.  You have numerous convictions and many adjournments, good behaviour bonds and that sort to thing, from those multiple number of offences.  You have indeed, at least on one occasion, served a short prison term in amongst those 66 offences. 

54Taking into account your significant health problems, you have never - I find this amazing - never had the benefit of a Community Corrections Order where you may have sought some help.  You have now got it - and if I can put it in the vernacular, do not stuff it up.  You understand what that one means don't you? Sixty six offences and never once considered for a Community Corrections Order.

55Ms Wade, I assure you that I have taken into account all that has been said on your behalf, by Mr Pyne.  I take into account the fact that you have pleaded guilty which, to a degree, is indicative of your remorse.  Ms Lechner refers to your remorse in her report on numerous occasions.  I quote from one of those observations made by Lechner.  Lechner said this:

56"Ms Wade expresses regret and shame for her actions.  She reports that she was abusing ice at the time.  This is no doubt adversely affecting her judgment and decision making skills as well as her capacity for impulsive inhibition. "

57I do not know "impulse inhibition."  I do not know that you understand these big words from what they say.  You have got to control what your feelings are.  What you feel you should do when under ice.  No ice, no stupidity.  It is well documented that ice negatively impacts executive brain functioning.  Dr Monteith in her report, as to remorse says, and I quote: 

58"Ms Wade is aware that she has committed an offence, regrets her actions and appears to show remorse.  She expressed the commitment to get her life back on track, remaining abstinent from substances and re-engage with her children.  She recognised her need for external support to achieve such goals."

59You have got no hope of getting your kids back if you are on ice.

60Further, I accept that you have indeed been very active whilst in custody in endeavouring to rehabilitate yourself.  I see many persons in custody come before this court.  Never before - and I have been a judicial officer for 34 years, a long time - never before have I seen a prisoner who has completed so many courses in the time that you have been in custody at the Dame Phyllis Frost Centre.  You have been, as I understand from these documents, you have completed successfully, 14 separate courses.  What I normally see is three or four.  I have seen five or six.  Never before have I seen 14, so that is indicative that you are at least having a go, but you have got to keep having a go. 

61Further, in addition to those 14 courses, you produced reports indicating that you have attended Narcotics Anonymous and Alcohol Anonymous whilst in custody, so you have been very busy in terms of attempting to rehabilitate yourself whilst in custody.  All of these reports are indicative of your prospect of a positive rehabilitation, and that all depends on staying off illicit drugs of any kind, in particular, ice.

62On Count 1 on the indictment - the only count - and on all six summary offences, you will be convicted and released on a Community Corrections Order for a period of 12 months.  The order that I make is that the offender, taking into account it is a very serious offence, but also taking into account she has served a significant time in custody, so a penalty has already been served if you like, I only impose - and when I say 'only impose' 50 hours of community work.  It is substantially reduced because this lady has been in custody.  I have given her no credits other than that.  Of course - and I hope she does not - of course if she reoffends and finds herself facing just this, she can try and call those s.18 credits up, but at this time, the only credit she is getting is a reduced number of hours. 

63Further you must - I will read it out and then I will explain it.  You must undergo assessment and treatment for drug abuse and dependency as directed by the Office of Corrections.  You must undergo assessment and treatment for alcohol dependency assessment and treatment at the direction of the Office of Corrections.  You must undergo any medical assessment and treatment that may include general - because you have got health problems that need to be addressed - assessment and treatment.  I will come back to that, as to your medical issues.  You must also undergo a mental health assessment and treatment if required.

64Let me explain that.  The Office of Corrections will send you to whoever; a medical practitioner in terms of your medical problems and you will have an assessment done.  If the medical officer says you need X, Y and Z, you have got to do X, Y and Z.  If you do not, you are in breach.

65If the assessment is you do not need further treatment, well, that is the end of it.  When you go for mental health issues - again highly probably a doctor or a mental health nurse - you will be assessed.  If you need treatment, then you must undergo it.  If you do not, you are in breach.  The same applies - you have got to go to, I assume, some form of counselling expert in relation to your drug issues.  You will be assessed and then recommended for treatment.  You must do it.  If you do not, you are in breach. 

66The same again for alcohol: you must be assessed for alcohol dependency and problems and if you are clear, well, you are clear.  If you have got to undergo treatment, you must do it.  And if you fail to do any of those things, you will be in breach and you will come back before me and you will be going back to prison.  It is not a threat, it is an observation, because it is a very serious offence. 

67I do not think I need say anymore.  In relation to s.464ZF, I order that a forensic sample be taken.   I will come back go that in a moment.  I think the only other announcement I should make is pursuant to s. 6AAA.

68MS HASSAN:  Yes, Your Honour.

69HIS HONOUR:  Taking into account the very serious nature of the offence, had it not been for your plea of guilty, I highly believe I would have imposed a prison term of at least two years with a minimum of 18 months in your circumstance.  Do you understand that? 

70So if that is any indicator, if you breach, you are highly probably looking at something like that.  I have got to also say this.  I believe you will be living in Shepparton.   Do you know where the Shepparton Police Station is?  If you remain a resident of Shepparton within the next days or three days, you have got to go around to that police station, because they will have a copy of that order, and they will take what is called A 'buccal swab.' You put a little piece of cane in your mouth, and they twirl it around and they get a sample and they can use reasonable force to take it if you resist, and I do not anticipate you will, but I have got to tell you that.  You understand that?  All right, when you have signed the forms, you are free to leave.

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