Director of Public Prosecutions v Wakefield

[2023] VCC 1433

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01780

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA WAKEFIELD

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JUDGE:	RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2023
DATE OF SENTENCE:	18 August 2023
CASE MAY BE CITED AS:	DPP v Wakefield
MEDIUM NEUTRAL CITATION:	[2023] VCC 1433

REASONS FOR SENTENCE
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Subject:Sentence --- Aggravated Burglary

Catchwords:              Sentence --- Aggravated Burglary --- Conduct Endangering Serious Injury --- Firing Handgun --- Assault --- Criminal Damage --- Intimate Partner Violence --- Chronic behavioural issues --- Mental Impairment --- First significant period in Custody --- Plea of Guilty

Legislation Cited:      Sentencing Act 1991

Cases Cited:Bugmy v The Queen [2013] HCA 37 --- R v Verdins & Ors [2007] VSCA 102.

Sentence:                  6 years 1 month imprisonment with a non-parole period of 3 years 8 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Michael Roper	Office of Public Prosecutions
For the Accused	William Blake	Emma Turnbull

HER HONOUR:

1Joshua Wakefield, you have pleaded guilty to one charge each of aggravated burglary, conduct endangering serious injury, common law assault and intentionally damage property. Those charges relate to an episode of offending which can be characterised as intimate partner violence, committed as they were against your former partner and her male friend, in a fit of apparent jealousy and anger.

2You are now 27 years old and were 26 at the time of the offending.

3The victim was Chantelle Austin[1], she was 23 years of age at the time of the offending. You and Ms Austin had previously been in an intimate relationship but had separated prior to this incident.

[1] A pseudonym.

4Your co-offender was Georgia Spong. She was 25 years old at the time of the offending. She has been dealt with in the Magistrates’ Court and there was no suggestion of issues of parity.

Summary of offending

5On 20 January 2022 at approximately 6.20pm, Ms Austin arrived at her uncle’s property where she was staying with her two friends (Wyatt Keller[2] and Maia Combs[3]), her cousin Kendra Austin[4], and her cousin’s 11 year old daughter. Ms Austin parked a silver Mercedes Benz in the driveway. While the four adults went inside, the 11 year old girl stayed in the car.

[2] A pseudonym.

[3] A pseudonym.

[4] A pseudonym.

6Minutes later, a red Holden commodore sedan and a black Toyota Aurion pulled up outside. The Toyota parked at the front of the driveway while the Commodore parked on the road outside of the address.

7Ms Spong and another female exited the Toyota and approached Ms Austin’s vehicle which had the driver’s door open. They appeared to search the vehicle, while the child was still in the back seat.

8You and another male then went to the open driver’s door and searched the centre console of the vehicle.

9While you were searching the vehicle, Kendra Austin, having seen you arrive on CCTV, came outside and removed her daughter from the vehicle and walked her to the café next door.

10At one point Ms Combs came outside and left the address, along with the other female you arrived with.

11You were in an agitated and aggressive state.  You walked quickly towards the front door of the residence, reaching for a black coloured handgun which you had secreted in the front of your pants. As you approached the front door, you held the handgun pointed out in front of you. You were yelling “Where’s [Wyatt]?” and “Where is he [Chantelle]?”

12You proceeded to enter the secure enclosed porch of the house and attempted to force the front door open while Ms Austin and Mr Wyatt held it closed from the inside. That entry into the building as a trespasser intending to assault and carrying with you the firearm constitutes the Charge of Aggravated Burglary. (Charge 1 – Aggravated Burglary)

13Unable to open the door, you then fired two shots into the door using the handgun.  Those shots placed Ms Austin and Mr Keller, who were holding the door shut, in danger of serious injury. (Charge 2 – Conduct Endangering Serious Injury)

14The other male returned to the red Holden and seated himself in the driver’s seat. You began to walk away from the front of the premises towards the road. Ms Austin then came outside armed with a black bat to protect herself. You turned around and walked quickly towards her, drawing the black coloured handgun from the front of your pants, and pointing it towards her.

15You chased her around her vehicle in the driveway yelling out “Georgia get her”. At this time, Ms Spong was standing at the rear of Ms Austin’s vehicle. As Ms Austin was running around the vehicle to get away from you, Ms Spong punched her to the head and pushed her against the back of the vehicle. She continued to punch and knee Ms Austin several times to the head and body.  You then joined in that assault, using the butt of the firearm to strike Ms Austin to the head a number of times. (Charge 3 – Common Law Assault) She can be heard screaming and in distress.

16Kendra intervened and Ms Austin managed to get back in the house but was bleeding and in pain.  She hid inside the premises.  At this time, the Commodore reversed into the driveway and rammed Ms Austin’s Mercedes, causing damage to the rear. Ms Spong also punctured all four tyres of the vehicle with a sharp object.

17You remained on the front porch area of the premises yelling aggressively, “Where’s [Wyatt]?”  After a pause, you then used the butt of the firearm to damage a motorcycle belonging to Mr Keller that was parked in the walkway to the front door. Ms Spong walked up to you with the bat tucked under her arm and you grabbed it and used it to further damage the motorcycle.

18Ms Spong then walked back to the Commodore and got in. You continued to use the bat to smash the front bedroom windows of the house which face the driveway and then threw the bat through one of them. (Charge 4 – Intentionally Damage Property – rolled up charge relating to windows and motorcycle)

19You then got into the Commodore which drove away.

20The sound of the pistol shots and smashing glass were heard by the neighbouring café owner who called 000 to report the matter.

21Ms Kendra Austin called an ambulance which conveyed Chantelle Austin to Geelong Hospital. She was treated there for superficial head injuries. The hospital notes record a small forehead haematoma, multiple scalp lacerations and complaints of head and chest pains.

22The entire incident is captured from 4 different angles by the CCTV camera fitted at the premises.

23Police who arrived at the scene shortly afterwards recovered two fired bullet fragments, a fired bullet and two fired cartridge cases at the premises. The gun itself has never been recovered.

24You were arrested on 3 February 2022 and made a no comment interview.

Sentencing Principles

25The CCTV footage of this offending amply depicts your aggressive, violent and threatening behaviour during this offending. You cast an intimidating figure, determined to cause fear to your victims.

26Your apparent motivation is that you had been told your ex-girlfriend had been seen with another man – Mr Keller.  Your attitude of entitlement and control towards her and your apparent belief that you could have a say in what she did and who she interacted with is a concerning feature of your offending. It falls squarely into the category of intimate partner violence.

27Courts and the community well understand the particularly disturbing nature of intimate partner violence displayed in offending such as this. There is a particular fear and intimidation caused in that setting. It is now well understood that women are at an increased risk of violence in the period immediately after separation from a partner. 

28For those reasons the sentence I impose must send a message to you, and other men who think they are free to inflict fear and terror on a former partner.  That message is that such behaviour will result in serious punishment. The sentence I impose must deter you and others from committing such violence.

29It must also look to protect other women who may come into contact with you, and women generally. It must express the Court and the community’s disapproval for this type of conduct, and must appropriately punish you.

Objective Gravity of Offending

30The offence of Aggravated Burglary carries a maximum penalty of 25 years imprisonment, reflecting parliament’s view of this serious offence.  Yours is a confrontational style of aggravated burglary and that fact elevates its seriousness. 

31There was an obvious intention on your part to go to your ex-girlfriend’s place of residence, to enter, with a weapon, and to assault her and or her male friend.  The period over which you planned to take those actions is unclear, likely only in the course of that day, but it was a pre-determined act.

32You went there, with others, which increases the level of intimidation.

33You went there armed. The fact that the weapon you took was a handgun increases the seriousness of the offence. The fact it was loaded further aggravates the level of your offending.

34Your determination in revealing the gun and brandishing it as you went into the portico of the house is disturbing.

35The only reason you could not enter the house any further is that the victims held the door shut, preventing you from doing so.  That is extremely fortunate.

36For those reasons in my view the objective gravity of the aggravated burglary here is high.

37Having reached that conclusion I note that aggravated burglary is a curious offence.  It stops at the moment the offender passes the threshold.  It is usually eclipsed by what happens inside. In your case I take into account the limited entry and limited time frame of the aggravated burglary. I accept the entry was limited to the portico and was very brief, however as I have said that was good fortune on the part of the victims rather than good decision making on your part.  

38Not deterred by the fear and resistance of the victims, your anger then bubbled over to the point that you fired shots into the door. That is very serious behaviour.  You fired those shots knowing that Ms Austin and Mr Keller were behind that door preventing your entry.  The risk of serious harm is obvious.  It is a serious example of that offence. The maximum penalty for Conduct Endangering Serious Injury is 5 years imprisonment.

39Your behaviour in then assaulting Ms Austin by hitting her repeatedly to the head with the butt of the gun is appalling. You are a much bigger and physically stronger person than she is. She was already being assaulted by your co-offender who you directed. The assault on Ms Austin was determined, as you pursued her around the car. It must have been extremely frightening for her given your use of the gun to hit her – a weapon you had already discharged, and given the mayhem of the surrounding scene, and your level of aggression.  It was obviously painful to her and the injuries she suffered place this at the upper end of a common law assault. It too is a serious example of that offence. The maximum penalty for Common Law Assault is 5 years imprisonment.

40You then committed the gratuitous acts of damaging the two forms of property.  There is time as seen in the CCTV footage, for you to pause, to think, to consider what you were doing.  Instead of walking away at that stage, you then smashed up the motorbike, broke the front windows and threw the bat into the window of the house.  No doubt that damage cost the owners of those items.  The maximum penalty for Intentionally Damaging Property is 10 years imprisonment.

Victim Impact

41Ms Austin declined to provide a statement or a Victim Impact Statement to police. I expect that fact is reflective of her feelings of fear after this event. Nonetheless I take into account the obvious distress and physical pain she must have experienced at the time, and the level of intimidation caused by such brash behaviour.

42There was no dispute that the only appropriate sentence for this offending is a term of imprisonment.

Personal Circumstances

43I have received helpful written and oral submissions from your Counsel Mr Blake.  I have also been assisted by a thorough Neuropsychological report from Dr Matt Treeby.[5]  In summary you have a long and documented history of developmental and behavioural difficulties. Dr Treeby had access to medical records dating back to a psychological assessment from 2010, Royal Children’s Hospital records from 2011, paediatrician and Orygen Youth Health records from 2012, alongside Department of Families Fairness and Housing (“DFFH”) confidential court reports and a Western Health secure welfare drug and alcohol assessment all from 2012.

[5] Although Dr Treeby noted that test results indicated that Mr Wakefield was not performing to his true ability at all times during the evaluation, there was no request to cross-examine him. Nor was it suggested that his opinion was invalidated in any way by that fact.

44You were born in Melton in 1995, the youngest son of your parents. You have an older brother. You experienced developmental delay in your speech and language ability, reportedly first communicating with words at age 3.

45Your mother was a childcare worker throughout your childhood. You and she continue to have a good relationship.

46Your biological father has been absent your whole life. Medical records indicate that he has a history of major mental illness in the form of schizophrenia.

47Your mother re-partnered with your step-father early in your childhood. He is a truck driver and they had your three half-sisters together.

48You attended Wedge Park Primary School. You struggled with attention, concentration, and hyperactivity in the classroom. You struggled socially and found making friends difficult.  You underwent a paediatric assessment at age 11 the result of which was a diagnosis of attention deficit hyperactivity disorder. You were prescribed methylphenidate and dexamphetamine between ages 12 and 14, before ceasing that medication due to side-effects. The DFFH records, as well as your mother, report it was not very effective on you.

49In your middle adolescence you had involvement with the Royal Children’s Hospital behaviour clinic in the context of aggressive and threatening behaviour at home and school.

50You attended Melton Secondary College, where your behaviour became increasingly problematic during Years 7 and 8. You underwent a cognitive assessment with a psychologist from the Department of Education and Early Childhood Development in 2010 when you were 14. Your full-scale IQ was assessed at 73, falling in the borderline range.

51In 2011 you had a two night inpatient psychiatric admission at the Royal Children’s Hospital to allow for assessment. At that time you were diagnosed with conduct disorder and ADHD. You were noted to have communication difficulties, rigid coping strategies and extremely poor social skills, all of which raised the possibility of an autism spectrum disorder.

52You were suspended from school for various transgressions and behavioural issues, including twice for fighting. You were oppositional, school refused, increasingly truanted, were ultimately expelled.

53You were then transferred to the Community and Learning Melton School (CALM School). CALM School provided an alternative education environment catered towards psychosocially disadvantaged young people with personal, behavioural, and mental health challenges. Your attendance remained poor and you left school at the conclusion of Year 10.

54You perpetrated aggressive behaviour in your family home during adolescence and this has compromised your familial relationships. Your severe behavioural problems first came to the attention of the Department of Families, Fairness and Housing (DFFH) Child Protection in 2011, when you were aged 14.

55Your parents were unable to manage your aggression or enforce boundaries to curtail your antisocial behaviour and you were taken into DFFH care between the ages of 15 and 16. You resided in DFFH group homes in Ballarat during this time and also spent time in secure welfare in 2012.

56You increasingly gravitated towards older antisocial peers, you often absconded at night, and engaged in heavy polysubstance use. At age 13 you began drinking alcohol, cannabis and smoking cigarettes. You quickly developed dependence and continued smoking cannabis daily during adolescence and early adulthood and indeed up until the period of your current remand. You were provided with intervention services through Berry Street during your late adolescence in the context of concerns regarding your behaviour and mental state.

57At age 15 you were introduced to methamphetamine and again quickly developed a dependence with your use escalating to daily by the time you were 18.

58At age 17 you were referred to Orygen Youth Health. By that time you were using cannabis and methamphetamine heavily and were noted to be experiencing paranoia and persecutory ideas. You were also noted to have self-identity issues and unusual behaviours around sleep and eating. Your mood was described as labile with marked anger and mood regulation issues including that you were quick to escalate.

59Your drug addiction was ongoing.  You experimented with a number of other drugs at various times. GHB became a regular problem from age 23 and you report consuming that drug on a daily basis prior to the current remand. In addition, you were reportedly smoking as much is 1.7 g of ice daily in the lead up to this offending.

60When you were 17, you returned to the care of your mother and step-father, living in a caravan on their property for approximately six months.

61You then entered into a relationship with a woman and lived together for 5 years. You both engaged in heavy substance use (cannabis and amphetamine), often argued and ultimately separated when you were 22 years old.

62Following this, you commenced a relationship with a second woman. You both smoked methamphetamine daily. This relationship broke down after you were sentenced to a six-month term of imprisonment in 2019. You say that relationship broke down when “I got out and she was cheating on me with other people”.

63You subsequently entered into a relationship with the victim of this offending, Ms Chantelle Austin. Ms Austin moved in with you shortly after you commenced a relationship. You were together for a year and a half.

64You are now single. You continue to enjoy the support of your mother and remain in contact with your brother. Your mother was present at the plea and has been your only regular visitor in custody.

65You have no occupational history and have been in receipt of the Disability Support Pension since the age of 16.

66Your Counsel specifically disavowed reliance on the principles espoused in Bugmy v The Queen.[6]  He did so due to the fact that you had the ongoing love and support of your mother.  Nonetheless, I take into account the features of your childhood and formative years which have clearly left a mark on you.  Your father was absent and despite her best efforts, your behaviour was such that your mother could not care for you at all times.  The period of time in DFFH care was at a formative stage of your development. You were separated from family, and at times in secure welfare.  Those are significant features of your life.

[6] Bugmy v The Queen [2013] HCA 37.

67It was around that time in your teens that you came into contact with drugs and criminal behaviour.

68You have a relevant criminal history dating back to 2015 encompassing a number of drug and dishonesty offences. In 2018 you were given a Community Correction Order for an assault in company, which you later breached. You were given another opportunity to complete that Order which you again breached.

69In 2020 you were sentenced to 162 days imprisonment and a Community Corrections Order with treatment conditions for burglary, six charges of posses prohibited weapon and drug matter. That matter is now listed for breach proceedings.

R v Verdins

70Your Counsel did however rely on the principles of R v Verdins.[7]  He did so give your behavioural difficulties are organic.  They are the result of a diagnosed mental impairment, existing since childhood.

[7] R v Verdins & Ors [2007] VSCA 102.

71I accept that you have a mental impairment. Therefore when I consider your background and in particular your developmental years, I must take them into account through the prism of your mental impairments. It is relevant to why you went into State care, and no doubt to your experience of that time, and the impact on you.

72I accept you have a mental impairment as referred to in the case of Verdins and the cases which follow and expand on it. I accept that your mental impairment and the expression of that impairment in your behaviour has a relationship to and connection with your offending.

73There are a number of relevant diagnoses outlined by Dr Treeby in that regard.  Specifically he confirms you fulfill the criteria for a diagnosis of ADHD as an adult. He notes that condition is often, as it is in your case, comorbid with conduct problems in adolescence and that combination often leads to substance misuse and psychosocial dysfunction in young adulthood. In Dr Treeby’s opinion your history of impulsive behaviour can be partly explained by your ADHD.

74Specifically, Dr Treeby opines that you have a poor capacity to engage in consequential thinking, difficulties with logical reasoning and problem-solving more broadly, you struggle with generating and expressing thoughts and have impulsive behavioural tendencies with the poor capacity to regulate your behaviour in a socially appropriate manner. Again, he says these impairments would have been evident at the time of the offending and will be going forward. He notes that your capacity to control impulses and engage in consequential thinking would be further impaired if you are overwhelmed, emotionally heightened, or substance affected.

75Dr Treeby states that your executive impairments will manifest in significant difficulties in the real world and you will struggle to problem solve and apply logical reasoning when confronted with difficult situations. When overwhelmed or your coping resources are exceeded you may be inclined to resort to suboptimal, ineffective or clearly problematic coping and problem-solving strategies without consideration of the consequences.

76Dr Treeby also notes that your persistent substance use difficulties can be regarded as a major contributing factor to your poor psychosocial functioning dating back to early adolescence. You meet the DSM-5-TR criteria for diagnoses of stimulant use disorder methamphetamine type, cannabis use disorder and other substance use disorder for GHB.

77Dr Treeby also says that given your aggressive and antisocial behaviour has persisted into adulthood, you have an antisocial personality disorder.

78I accept what your Counsel submitted that regardless of the specific label of your mental impairment, it is the effect on you and your behaviour which is important to my considerations.  I accept that the expert opinion of Dr Treeby, which draws on your documented history, establishes a connection between your mental impairment and the way in which that affects your behaviour, and your offending.

79For that reason, I accept that your moral culpability is reduced.  That is, an allowance must be made to take that long-standing mental impairment into account when I consider your moral culpability for this offending, as distinct from a person who does not suffer that impairment.  Similarly, I accept that there must be some sensible moderation of specific and general deterrence. 

80I also take into account however, that there is an overlay of illicit drug use which exacerbates your behavioural issues and which complicates this consideration. Your ongoing risk of illicit substance use and the seriousness of your offending, mean the need for community protection is elevated. Therefore, any moderation can only be modest.

81There was no submission that Verdins limbs 5 and 6 apply, but I do take into account the fact you will be operating in the prison system under the weight of your behavioural difficulties.  In that way imprisonment may be more difficult for you than for a person without those diagnosed difficulties.

Plea of guilty

82You pleaded guilty on 5 December 2022 following a Case Assessment Hearing in this Court on 16 November 2022.

83However, the parties agree that you indicated your intention to plead guilty at an earlier stage, with the only sticking point being a legal one regarding whether the definition of ‘part of a building’ in a charge of aggravated burglary included the portico of the house.  No witnesses were cross examined at any stage.

84I take that into account. You are entitled to the benefit of your plea of guilty.  It saves the Court and the community the expense and time of a criminal jury trial.  Importantly in matters such as this it saves the victims and other witnesses from re-living a terrifying event. 

85I also take into account the fact that your plea was entered in 2022 at a time when the delays caused by the COVID-19 pandemic were still a real issue for the court.  I take into account that you are entitled to a palpable discount for entering your plea at that time.

86It was not suggested your plea evinces evidence of remorse.  I agree.  While I accept you have acknowledged the seriousness of your offending, there is no evidence before me that you have sympathy for Ms Austin or the others involved, or that you acknowledge the stress you placed her and others under.

Prospects of Rehabilitation

87In terms of your prospects of rehabilitation, they are guarded.  Your capacity for self-reflection and insight is limited. You clearly need significant assistance to deal with organic behavioural issues.  You also need assistance to deal with your drug addiction. 

88In the past you have breached a number of Community Correction Orders which have been aimed at your rehabilitation.  That is unfortunate. 

89You have the ongoing support of your mother and a relationship with your older brother.

90You have expressed some interest in pursuing cabinetmaking or similar hands-on work on your eventual release.

91There is an intention to use the Neuropsychological report as the foundation for an application to the National Disability Insurance Scheme for a package of support.  That would be an important step in my view.  It could provide you with a scaffold of supports in a variety of aspects of your life which could enhance your ability to stay drug and offence free.  It could enhance your life more broadly.

92Dr Treeby makes a variety of recommendations in relation to supports and treatment interventions which could be of benefit in your rehabilitation.  Those should be considered by anyone involved in determining programs or supports for you.

Time in Custody

93This is your first time in custody for any significant period.  You will remain in custody for some years.  Hopefully that will allow you to undertake preparation work towards your eventual release.

94I take into account that you have been in custody during the COVID-19 pandemic, albeit at the waning end of that period.

Current Sentencing Practices

95I have given consideration to other cases and to current sentencing practices.  There are always similarities and differences in relation to both the offending and the offender. Ultimately I am required to impose a just sentence in all the circumstances and that is what I have endeavoured to do.

96Your counsel submitted that a head sentence with a shorter than usual non-parole period would enable you to return to the community with ongoing supports and allow for your ongoing supervision.

97The Prosecution, while conceding that principles 1, 3 and 4 of Verdins apply, submit any moderation of sentence is a matter of degree.  They submit the need to protect the community is significant here, and that ultimately a ‘usual’ non-parole period is appropriate.

Parole period

98In my view there is some merit here in allowing for a longer than usual period on parole than I otherwise might have. This will be your first parole sentence. Given your chronic cognitive difficulties and the need for active supervision, some slight moderation is warranted in my view.

Cumulation

99In relation to each offence however I will impose a degree of cumulation.  That is because they are discrete offences. At the plea I discussed with Counsel whether the aggravated burglary or the reckless conduct charge was the more serious offence.  My ultimate conclusion is that the aggravated burglary is more serious given the aggravating features I have outlined.  For that reason it will form the base sentence. 

Sentence

100The sentence I impose is as follows –

101On Charge 1 of Aggravated Burglary you are convicted and sentenced to 4 years and 5 months imprisonment.

102On Charge 2 of Reckless Conduct endangering persons you are convicted and sentenced to 3 years imprisonment.

103On Charge 3 of Common Law Assault you are convicted and sentenced to 2 years imprisonment.

104On Charge 4 of Intentionally Causing Damage you are convicted and sentenced to 18 months imprisonment.

105Charge 1 will be the base sentence. 

106I direct that 1 year of the sentence on Charge 2, 6 months of the sentence on Charge 3 and 2 months of the sentence on Charge 4 be served cumulatively on the base sentence and on each other.

107The total effective sentence therefore is 6 years and 1 month imprisonment.

108I direct that you are to serve a period of 3 years and 8 months imprisonment before becoming eligible for parole.

109I declare that you have served 561 days of pre-sentence detention and that that period should be reckoned as having been served under this sentence.

110Pursuant to Section 6AAA, but for your plea of guilty, the sentence I would have imposed would have been one of 8 years and 4 months imprisonment with a non-parole period of 5 years imprisonment.

111I propose to make the Disposal Order in the terms sought.