Director of Public Prosecutions v Wainwright

[2016] VCC 707

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-16-00604

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIAN ALLEN WAINWRIGHT

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	25 May 2016
DATE OF SENTENCE:	25 May 2016
CASE MAY BE CITED AS:	DPP v Wainwright
MEDIUM NEUTRAL CITATION:	[2016] VCC 707

REASONS FOR SENTENCE
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Subject:Aggravated burglary – recklessly causing injury – common assault – contravention of family violence intervention order.

Sentence:Total Effective Sentence 4 years and 6 months imprisonment – 3 year Non Parole Period – 2 year alcohol exclusion order upon release from custody.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	O.P.P
For the Accused	Mr M. Goldberg	Valos Black & Associates

HIS HONOUR:

1Damian Allen Wainwright, you have pleaded guilty to one count of aggravated burglary, one count of recklessly causing injury, one count of common assault and one uplifted count of contravening a family violence final intervention order.

2The circumstances of the offences were set out in the Crown opening which was read in open Court this morning and which I incorporate by reference, including the maximum penalties set out therein.

Circumstances of the offences.

3In brief outline, these offences occurred over a narrow window of time in the late afternoon of 16 April 2015.  Significantly, at that point you had only been released from prison for a period of a bit over a month.  Up to the point, of release you had been on remand for a number of offences of contravening a family violence intervention order.  You had then been placed on a community corrections order and were also the subject of a final family violence intervention order in favour of the complainant in this matter.

4You had been involved with the complainant over a period of about five years and the relationship was marked by incidents of family violence associated with alcohol consumption.

5On the day of the offending, you had been staying at the house of the second complainant and were drinking.  The first complainant had attended at that property in order to see the second complainant who was looking after her dog.  You were with the second complainant, drinking with him.  Both of you were intoxicated.  You overheard a conversation between the complainant and the second complainant which referred to another person she had recently met.  There was a brief verbal altercation.  The complainant left to walk to her home which was a short distance away.  You followed her and shouted abuse at her, and the tenor of your abuse was that you were jealous of her new friendship with another gentleman named Andrew.  You stopped following her and then returned to the second complainant’s residence where you'd been staying.  You prevailed upon the second complainant to attend at the first complainant’s residence in order to ascertain whether she wanted her dog returned.  At the time, the first complainant was in bed watching TV and refused to answer the door to the second complainant.  The second complainant returned towards his home and there met you on the way back and you demanded he return to the first complainant’s residence with you.  You then attended at the first complainant’s door and knocked on it demanding to be let inside.  This was in breach of the family violence intervention order.  In the record of interview, you admitted that you were aware of the breach of that order or the existence of that order.  When the first complainant refused to let you in you then proceeded, after yelling at the first complainant saying you were going to get in, to walk down the side of the house and found your way into the residence by opening the spare bedroom window.  You then let, the second complainant into the house through the front door.  By your plea, you have admitted that when you entered the property, you had an intention to assault.

6On the plea your counsel submitted that as you believe there was another male in the house your intention was not necessarily to assault the complainant when you entered the premises.

7I do not accept this.  Reasoning back, from your prior animus to the complainant I am satisfied that when you entered the premises you intended to assault her, which is exactly what you did.

8Once inside the house you went to the other bedrooms and then ended up in the bedroom of the complainant where you then proceeded to abuse her, insisting that she had been having sex with other men.  She was terrified and pleaded with you to leave.  You then grabbed the second complainant's walking stick and struck her across the wrists and hands.  You then accused the second complainant of having sex with the complainant and demand that he admit the affair, and then proceeded to punch him in the left eye.  The punching of the second complainant constitutes Charge 3.  The earlier striking of the first complainant and then later slapping her with an open palm constitutes Count 2, recklessly causing injury.  You also spat on her and said, "You wanted to cheat on me."  She denied that she had done so.  You then proceeded to again abuse her.  She repeatedly pleaded for you to leave and you threatened her again and eventually left the house.  

9In evidence is a 75 minute audio of the events at the house made by the complainant where, in the course of assaulting her, you proceeded to abuse and humiliate her, notwithstanding her numerous requests that you leave.

10The next morning the complainant contacted the police and you were interviewed.  She receive bruising and swelling to the left cheek, neck, both arms and chest, and the second complainant received a black eye to his left eye.  It appears that neither of the complainant’s attended for medical examination or treatment.  Neither have filed a victim impact statement.

Assessing the seriousness of the offences.

11Your counsel, in a comprehensive plea, did not seek to downplay the seriousness of the offences here.  Aggravated burglary is an inherently serious offence as evidenced by the 25 year maximum penalty.  Here, the first complainant had sought the protection of a family violence intervention order against you.  Notwithstanding that, you proceeded to burst into her home and assault her.  She was in a vulnerable position.  You must be taken to have aware of that, given that you also knew that she had been drinking.  It was not disputed that you were intoxicated at the time but that does not reduce your moral culpability.  An additional aggravating feature here is the fact that you were on a community corrections order at the time, and you had a number of prior convictions for breaching intervention orders.

12This is what is described as an intimate relationship aggravated burglary which the Court of Appeal has said on a number of occasions is inherently serious and totally unacceptable.

13The assault on the first complainant, while at a lower level in terms of physical injuries was serious in that you have a prior conviction for assault on her and as I have indicated she had sought the protection of a family violence intervention order to prevent you repeating your conduct against her.  The assault was in circumstances that it was accompanied by verbal threats and made more serious by that and by the humiliation, evidenced in the recording, Exhibit B.

14The assault on the second complainant, is at a lower level.  He is unable to remember the details of the offending and, as I have said, both complaints have not filed VISs.

15Overall, this offending must be seen as a serious course of conduct given your awareness of the fact that you were the subject of a family violence intervention order, your intoxication, the prior animus that you had against the first complainant and the fact that there was some premeditation in that, notwithstanding, you were of the family violence intervention order against you, you proceeded to walk from where you were staying to her house and then perpetrate the offending.

Prior convictions.

16As I have indicated, you have admitted a significant criminal record.  You are now aged 43 and the criminal record you have admitted goes back to when you were aged 18.  You have numerous prior convictions that have been dealt with in the Magistrates' Courts, including for offences of dishonesty and driving offences.  You also have a number of prior convictions for assault and for violence type offences.  Your prior convictions include, on 5 March 2012, when you were placed on a community corrections order for 12 months on two counts of contravening a family violence order.  You breached that order and were dealt with on 30 August 2012, when you are sentenced to 4 months imprisonment to be suspended.  On the same date, you were dealt with for offences of recklessly causing injury and two counts of contravening a family violence order and harassing a witness as well as stalking. The total effective sentence was nine months, with 154 days declared served.  You were placed on a suspended sentence that date and you breached that suspended sentence and it was partially restored on 14 February 2013.  You were next before the Magistrates' Court on 3 May 2015 when, on two counts of contravening a family violence order and one a count of recklessly causing injury, you were sentenced to 12 months' imprisonment with a non-parole period of three months.  Your counsel indicated that you were required to serve that whole sentence.  Your next appearance was before the Latrobe Valley Magistrates' Court on 11 April 2014 where, on counts of contravening a family violence order and recklessly causing injury, you were sentenced to 44 days' imprisonment.  You were also sentenced to a nine months community corrections order.  On 10 July, you contravened that order and it was confirmed.  You were also dealt with for unlawful assault and another contravention of a family violence intervention order on that date.

17On 13 March 2015, you  were dealt with for contravening the community corrections order that had been imposed on 10 June 2014, as well as on one count of contravening a family violence order, one count of committing an indictable offence on bail, and a count of contravening a condition of bail, as well is an additional count of contravening a family violence intervention order.  You were re-sentenced on the contravention of two earlier community corrections orders, and on the additional offences, to 181 days’ imprisonment and a 15 month community corrections order, to commence immediately. 

18Your prior convictions indicate that you have failed to respond over the years to a number of non-custodial dispositions.  You continue to contravene family violence intervention orders and have a number of prior convictions for assault type offences.  This indicates that specific deterrence must be a salient sentencing consideration here.

Your personal circumstances.

19Your difficult personal circumstances and upbringing were set out on the plea by your counsel.  You were born in Brisbane, the oldest of three children.  Your father was in the army and was an alcoholic.  He abused both your mother and you and your siblings.  Your mother left him at age 7 and came to Melbourne.  Thereafter, she had a series of relationships with men that involved violence, alcohol and violence to her and to you and your siblings.  You eventually left the family home at age 16.

20This difficult background has, as set out by your counsel, set the scene for you having a serious problems with alcohol which is reflected in your prior convictions including for a number of driving offences, drug offences and street type of offences.

21Your employment history did not emerge in the course of the plea.  Significantly, for the last five or so, you have spent significant periods in prison which would disrupt any employment activities.

22On the plea, it was submitted that the period that you have been in custody to the present time, some 404 days, has given you the opportunity to reflect on your past and to realise that alcohol is that the seat of your problems and attempt to effectively turn over a new leaf when you are released.  You have been involved with AA in prison and have undertaken a drug and alcohol course and have also undertaken a number of other educational and TAFE courses.

23In the prison system, you were the subject of the period of three months with major lockdowns after the riots in June at the MRC.  You became a prisoner representative immediately after those events.  This was a position of responsibility within that prison.  You are now at Port Phillip Prison and you have been appointed a carer to a prisoner with significant health problems.  This good behaviour in prison is put as a basis that you do have some prospects of rehabilitation on release.  I accept that you have taken all possible opportunities in prison to advance your rehabilitation prospects and I take it into account.

24Given your failure to respond to a number of non-custodial dispositions in the past, your counsel accepted that, at its highest, your prospects of rehabilitation within the community are guarded.  Given your age, at some stage it is likely that you will realise that the cycle of alcohol, offending and imprisonment is to no avail.

25Your counsel indicated that you have the support from a woman who was in Court on the plea who you have met about four years ago and lives in the area.  You have been in contact with her since you being in prison and she is prepared to support you on your release.  I have taken that into account in sentencing you.

Sentencing submissions.  

26Your counsel submitted that a community corrections order followed by a period of imprisonment was an appropriate disposition.

27I have considered that submission and also the submission by the learned Crown prosecutor and am satisfied that the offending here is of such seriousness that such a combined sentence is out of range.

28In sentencing you, I have had regard to your plea of guilty.  The prosecution accepted that it was entered at the earliest opportunity.  I give you full credit for that.  It has avoided a contested committal.  It indicates that you are taking responsibility for your conduct.  It does have significant utilitarian value.  There is little evidence of victim empathy, however.

29Your counsel indicated that you have, however, accepted that any relationship that you have had with the first complainant is now ended and I've taken that into account.

30Your plea in relation to the second complainant is significant given that he has no recollection of the event.  As I have indicated it appears also, that this assault is on the lower end of the scale.

Purposes of sentencing.

31The 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 interest of the community in denouncing criminal conduct with the interests of the community and seeking to ensure that as far as possible, offenders are rehabilitated and re-integrated into society. 

Sentencing considerations.

32As I indicated in the course of the plea, there are a number of salient sentencing considerations here.  First, general deterrence is an important consideration.  This offending arose out of a domestic relationship and general deterrence is important.  Males in our community must understand that women are entitled to end relationships without retribution.  Further, men in the community must also appreciate that when women take out intervention orders in order to provide protection from former partners, then the courts will vindicate their rights to that protection.

33In your case, specific deterrence is also an important sentencing consideration given your prior convictions for violence and for breaches of an intervention order against the first complainant.

34Denunciation is also an important consideration.  The sentence of the Court must highlight that your conduct, intoxicated as it was, in the face of an intervention order, in the face resistance to any further relationship with you by the complainant:  She is entitled to have the protection of her home vindicated. Your conduct that evening was absolutely unacceptable and on behalf of the community, I denounce it strongly.

35Rehabilitation is also important.  In your case I regard, as I have indicated, your prospects as guarded given your failure to respond in the past.  I am prepared to accept the submissions by your counsel that you have undergone a process of reflection as well as involvement in AA and that upon your release you will attempt the address the underlying problems which have led to what is, in effect, a revolving door with the criminal justice system over the past five or so years.

36Your counsel also raised a sentencing consideration that you have experienced the heightened conditions whilst on remand after the riot.  This will have made your experience of imprisonment over that period on remand, for a period of about three months, more burdensome on you and I take that into account in mitigation of sentence.

37I also take into account submissions of totality and parsimony.  In sentencing, I propose to impose a sentence that seeks to take into account all the matters put by your counsel and be a sentence that satisfies both punitive and mitigatory objectives of sentencing.  I regard it as appropriate to order partial cumulation of the sentences on recklessly causing injury and breach of the intervention order to reflect the different offending and your specific culpability for those two offences.  In relation to the sentence for assault on the second complainant, I will make it concurrent.

38I have considered the issue of an appropriate non-parole period, that is the period before which you will be eligible for parole, which must reflect the seriousness of the offending and the period before which you will be eligible to serve the balance of your sentence in the community, having regard to all the purposes of sentencing.

39The prosecution has also sought an alcohol exclusion order in relation to you.  I don't regard that as an additional sentencing consideration: it's a preventative consideration in the future.  I will grant the prosecution leave to extend the time to make the application.  I note that you consent to the order.  I regard it appropriate to make the order in the terms sought by the prosecution.  In relation to the issue of major events, this relates to the Liquor Control Act and obviously does not include minor events such as local football match.  I do not regard it is appropriate to delete that provision, nor do I regarded the continuation of that provision as infringing substantially on your ability to move about in the community and reintegrated into it.

The Sentence of the Court is as follows: 

40On the count of aggravated burglary, you are sentenced to three years and six months' imprisonment, that's the base sentence.  On the count of recklessly causing injury, you are sentenced to 15 months' imprisonment.  On the count of common law assault, you are sentenced to three months' imprisonment.  On the uplifted count of breaching a family violence intervention order, you are sentenced to six months' imprisonment.  I direct that eight months of the sentence of causing injury recklessly be served cumulatively on the base sentence and four months of the sentence for breaching a family violence intervention order be served cumulatively on the base sentence and on the sentence of causing injury recklessly, making a total effective sentence of four years and six months. 

41I declare that you must serve a period of three years before being eligible for parole. I declare 404 days of PSD, including today and I declare that pursuant to s.6AAA of the Sentencing Act, had you not pleaded guilty, I would have sentenced you to a total effective sentence of six and half years imprisonment; the non-parole period of four years and three months. 

42And I make a two year alcohol exclusion order against you which commences on the day that you are released from custody. 

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