Director of Public Prosecutions v Wakeling
[2018] VCC 1036
•6 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-18-00457
Indictment No. H13350425
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIMOTHY WAKELING |
---
JUDGE: | HER HONOUR JUDGE CONDON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 27 June 2018 | |
DATE OF SENTENCE: | 6 July 2018 | |
CASE MAY BE CITED AS: | DPP v Wakeling | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1036 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Sentence – home invasion – plea of guilty
Legislation Cited: Crimes Act 1958 (Vic), s77A.
Sentence: Total effective sentence of six years and six months’
imprisonment with a non-parole period of four years and three months. Fine of five hundred dollars.
Section 6AAA declaration: eight years and six months’ imprisonment with a non-parole period of six years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K Hamill | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms N Valos | Valos Black & Associates |
HER HONOUR:
1 Timothy Wakeling, you have pleaded guilty before me to:
· one charge of home invasion;
· two charges of traffick in a drug of dependence;
· one charge of prohibited person possess firearm;
· one charge of being an unlicensed person failing to securely store a firearm;
· one charge of possess drug of dependence; and
· one charge of use carriage service to menace.
2 You have also agreed to have a number of summary charges dealt with by me, being:
· possess cartridge ammunition without a licence;
· possess controlled weapon without lawful excuse;
· possess prohibited weapon without exemption or approval; and
· make false report to the police.
3 Exhibit A on the plea contains in detail the facts and circumstances related to this offending. However, I will briefly summarise the offences that bring you before me.
4 At the time of the commission of these offences you were 44 years of age, and you are now 45.
5 The principal offence involved a home invasion at a property owned by the Hardy[1] family. You knew Mr and Mrs Hardy’s adult daughter, Megan, who was living with her parents at their property. You paid a co‑offender to carry out the offending, in an effort to steal property by way of "reimbursement" for property that you allege Megan Hardy had stolen from you. The basis for your liability in respect of this charge arises as a consequence of you entering into an agreement whereby your co-offenders would carry out the offending.
[1] Ms Megan Hardy, Mr Stephen Hardy and Mrs Jacqueline Hardy are all pseudonyms,
6 In the lead-up to this offence you sent Megan Hardy a number of messages via Facebook between 3 November and 3 December 2017. The content of each of these messages contained both veiled and overt threats. The language used by you was often vile and degrading.
7 The source of your grievance with her stemmed from the fact that she allegedly administered to you an overdose of the drug GHB, before then stealing your drugs, money, and credit cards.
8 Prior to the home invasion on 4 December 2017, you had broadcast to various third parties your growing resentment towards Megan Hardy. In the course of a text message exchange with a person by the name of Ryan in late November 2017, the subject of compensation from Ms Hardy’s parents was raised as a means by which the "debt” could be settled.
9 On 3 November 2017, you sent a Facebook message to Megan Hardy which read:
"I’m sending my Coeys and I’m going to chuck in an extra 2 K that will get u a good anal fisting up to the elbow and BBQ woffa is still on the menu me and my Coeys have never been inside only dumb cunts like you go inside and dumb cunts like you show people like me where you live u dumb cunt be seeing you real soon get the anal lube ready no they love it tight and dry.”
10 Two days later on 5 November 2017, you sent a message which read:
"My last 2 lt 0f 10 and regoing now another 10 for the long weekend 6k profit for the weekend not to bad hey how’s your supply quality going, lol fucking lol 6 K I’ll being seeing you real soon u can’t hide in doveton either. I’m coming for you cunt."
11 Furthermore, on the day before the home invasion you sent Megan Hardy a message which read:
"my guy is following u every where (sic) your hiding with people I know and they contact me with you warwabouts … I saw really nice things at urplace mmmm interesting to see what presys my guy will bring back ... I luv dry raping young ares I. can’t wait."
12 These messages, as outlined in paragraphs 9-11 above, form the basis of Charge 7 on the Plea Indictment.
13 At some point between 2 and 3 December 2017, you had a meeting with a man of Arab descent who you knew only as Zee. He was made aware of your difficulties with Ms Hardy, and offered to "redeem" some of your money.
14 An arrangement was struck between the two of you which you understood would involve Zee going to the Hardys’ house with a couple of his "boys". Your expectation was that, in accordance with the plan hatched between the two of you, your co-offenders would scare the Hardys by kicking in the door and potentially tying them up, with a view to obtaining something of value from the house.
15 In return for carrying out the agreement or plan, Zee requested $2,500 and half a ball (1.7 g) of methamphetamine as part payment for doing so. You provided him with both. The provision of the drugs in this context constitutes the offending on Charge 2 on the plea indictment, trafficking in methamphetamine. You also allowed Zee to use your car in the home invasion, which was a Mitsubishi Triton registered in your name.
16 Early the next morning, on 4 December 2017, Zee attended at the Hardys’ address in company with two unidentified co-offenders. The offenders arrived just before 7:30 in the morning when Mr and Mrs Hardy and their daughter were all in their bedrooms.
17 Stephen Hardy was getting out of bed when he heard a loud bang come from the front door, which was the sound of the offenders breaking open the front door. He was then confronted by three offenders, one of whom was holding a firearm. Mr Hardy told them to get out of his house. Zee walked into the house while the co-offenders remained at the front, the armed offender continuing to point the firearm at Mr Hardy. He was told that they were there to rob him and Zee demanded that he pay the money owed.
18 The other two co-accused then walked through the house to the master bedroom. Mrs Hardy then had a gun pointed at her. The three men then left and were pursued by Mr Hardy. He then retreated after one of the offenders slashed at him with a knife, causing a small wound to his stomach. Ultimately, they did not take anything from the property.
19 In the course of the police investigation, checks revealed that the Triton was registered to you. When investigators arrived at your address on the same day as the home invasion, you lied to them, stating that your car was missing but said that you had not reported it stolen because you believed a friend may have taken it.
20 The next day, on 5 December 2017, you then sought to further mask your involvement in the offence and called the Narre Warren Police Station, reporting that your vehicle had been stolen. This conduct relates to Summary Charge 14, make a false report to the police.
21
Police then executed a search warrant at your home in Narre Warren on
6 December 2017, wherein a cache of weapons was located. In your bedroom, police located a rifle (this relates to Plea Indictment Charges 3 and 4); a rifle bag containing eight Winchester rounds of ammunition (this relates to Summary Charge 6); an improvised weapon comprising a meat cleaver with a long pole extension duct-taped to it (this relates to Summary Charge 9); and a brown double-bladed hunting knife in the bedside table (this pertains to Summary Charge 10). They also located a small but unweighed quantity of cannabis in a plastic bag and this pertains to Charge 5 on the Plea Indictment, possess drug of dependence.
22 You were interviewed by the police later that day; you made admissions to the offending. In relation to the home invasion, you disclosed to police the role of Zee and the payment made in his favour of cash and drugs by you. You told the police that you had insisted that no one be hurt. However, you conceded that you had instructed Zee to scare the residents to recoup your money and had assumed that Zee and his boys would scare the occupants by kicking the door in for the shock factor and possibly tie them up. You also told police that you knew that Megan Hardy lived at the property with her parents and that they, being the parents, would be "scared out of their wits".
23 While speaking to the police you admitted that you hoped that the "busting in and intimidation" would be enough to get something back and to "get the parents offside with their daughter".
24 You admitted possession of the items found during the search warrant. As to possession of the rifle, you claimed that you needed it for protection. You said that it had been purchased three days prior and that the ammunition came with it. You said that the improvised weapon, involving the meat cleaver, was made for self-defence.
25 In relation to possession of the rifle, your explanation advanced to forensic psychologist Carla Ferrari was rather different.[2] You told her that you had purchased it in the weeks prior to the offence with the intention of using it to kill yourself and stated that you had no other intention for it whatsoever.
[2] Exhibit 2
26 Forensic analysis of your phone at a later junction showed a significant number of text messages between your phone and the phones of a number of third parties on a regular basis between 24 October 2017 and 6 December 2017, in relation to the trafficking of substantial quantities of GHB. In the messages, you made reference to "litres", "juice" and "drink" coming up from your dealer; negotiated prices for on-sale to your customers; chased debts from customers; and claimed that you were "moving 10 litres of g per week". This conduct relates to Charge 6 on the Plea Indictment, which is a charge of trafficking simpliciter.
27 These matters resolved at the committal mention stage. Therefore, I take into account that the pleas of guilty have been entered at the earliest available opportunity and are consistent with a desire to facilitate the administration of justice. I also accept that you have expressed remorse. At the conclusion of the record of interview with police, you apologized and said that you felt "awful" for Mr Hardy, presumably because you were aware by that stage that he had been injured in the home invasion, and expressed regret that the home invasion had gone "this far". I also note that although weapons were produced in the home invasion, you are not to be sentenced on the basis that you knew that the co‑offenders would produce any weapons.
28 In assessing the objective gravity of this offence, I have taken into account the following matters:
· the fact that it took place early in the morning when the occupants of the house were still in their bedrooms;
· the fact that the front door was kicked in;
· the fact that it is clear from the messages, both the subject of Charge 7 and other text messages, that Megan Hardy was the target of your grievance and that she was living at the property; and
· that the intention underlying this offence was clearly to recoup some money and/or property.
29 Your state of mind, as revealed by your admissions to police, was that you contemplated some violence to be deployed in order to achieve this final aim which, at the very least, involved tying up the residents of the house.
30 The offence of home invasion is a grave one. When individuals are subject to fear, intimidation and violence in the sanctuary of their own home, the sentence imposed must give full expression to the principle of general deterrence. The community, quite rightly, expects nothing less.
31 Here, although you were not present at the Hardys' home, you were the mastermind and driving force behind this offence. You alone held the grievance against Megan Hardy, and you alone were the one who sought to redeem your perceived loss. The arrangement negotiated between you and Zee was cemented purely because of that grievance. The tone and tenor of your attitude to Megan Hardy is made crystal clear from the base and vile language used in the Facebook messages sent prior to the home invasion.
32 The prosecution characterised the home invasion as coming within the mid-range of offences on the spectrum and your defence counsel did not argue against that description. Therefore, I sentence you on the basis of that characterisation.
33 Mr and Mrs Hardy were subject to a truly terrifying experience. Mrs Hardy’s Victim Impact Statement is a testament to the profound impact that this crime has had on her life. She was dignified and stoic as she read it out on the plea before me. As a consequence of the home invasion, she cannot relax at home and constantly worries about her husband's emotional wellbeing. Quite understandably, she is angry that her life has been thrown into turmoil because of your actions and those of your co‑accused. She relives the event several times a week and becomes so overwrought with emotion that she ends up in tears.
34 The key to your offending in relation to the gravest of these offences, being the home invasion, lies in your introduction to ice three years ago. You began injecting ice, and at the time of these offences were a daily methamphetamine user, using up to 1.5mg per day. You were also using one to two points of heroin regularly. Furthermore, in the lead up to the 4 December 2017 you had stopped taking your prescription medication.
35 Upon becoming addicted to ice, its corrosive effect was swift. Your life then commenced in a downward spiral. You had previously been in a long-term relationship with your now ex‑wife, the mother of your two children. You have a son, who is 24 years of age, and a daughter, who is now 13 or 14 years of age. I was told that the relationship with your wife became volatile as you increased your ice use. Your business started to fail and the relationship with your now ex‑wife broke down.
36 In September of last year there was a financial settlement in respect of property the subject of the marriage. You then moved into rented premises at Narre Warren and met Megan Hardy in around September or October 2017, after having communicated with her on the internet meeting site known as Skout.
37 You are now 45 years of age. You have thus far led a largely blameless life. You admitted two prior matters before me, although neither of them resulted in conviction; therefore, I regard them of marginal relevance. You were on an adjourned undertaking at the time of these offences, for contravention of a personal safety intervention order and an unlawful assault. Thus whilst this is not your first experience of the criminal justice system, your previous matters pale by comparison to this offending.
38 At a mature age you have launched yourself into serious offending. I say this not only with reference to the home invasion charge, but equally to the armoury of weapons found at your premises and the parameters of Charge 6, albeit a trafficking simpliciter charge. I accept the prosecution submission that this is not offending at the lower end of the scale. I also take into account the confession that you made to the police in relation to trafficking in GHB well before the police had analysed your phone and uncovered the extent of your trafficking in relation to that drug.
39 Your counsel also relied on your mental health history as providing some context for the downward spiral that precipitated your offending here. You have been medicated for depression for the last 20 years. You were previously prescribed 300mg of Effexor, but since having been in custody that has been reduced to 225mg per day. In the past you have been prescribed Seroquel, Valium, and Xanax.
40
You experienced an episode of drug-induced psychosis in early 2017 where you were seen by the Casey Hospital Crisis Assessment and Treatment Team (CATT), as you had ceased your medication and you were using illicit substances. Exhibit 3 on the plea was your patient health summary from
March 2004 to December 2017. It is clear from a review of that document that you have indeed faced a long-term battle with depression and been medicated regularly for it.
41 This is your first experience of being incarcerated. I am told that you have found it exceptionally difficult. You expressed to Ms Ferrari your insight in relation to the impact your behaviour has had on your family. Your period of incarceration has forced you to evaluate your life choices and the impact that they have had on yourself and others. You realise that your substance abuse and your criminal behaviour is intrinsically linked, and you have acknowledged that you need professional support in order to address these symptoms.
42 Insofar as your prospects of rehabilitation are concerned, I assess them to be reasonable. Your offending has occurred within the prism of excessive drug abuse and the linked breakdown of your long-term relationship and your business. I note that Ms Ferrari diagnosed you as susceptible to substance abuse disorder, albeit in remission, given you are in custody and have remained drug free. Your ability to remain so will no doubt be tested when you regain your liberty.
43 It is, however, to your credit that whilst in custody you have completed a number of vocational courses and produced at least one negative urine screen. I take into account the evidence in this regard as disclosed by exhibit 4 tendered on the plea.
44 I turn now to your personal circumstances. As already noted, you are now 45. You grew up in and around Dandenong. Your parents divorced when you were nine or ten years of age. Your father was present in court and remains supportive of you. You have one older brother, Nicholas, who has a successful career in politics. Throughout your life you have felt inadequate compared to his achievements.
45 You attended Rosewood Downs Primary School until around Grade 5. You then went to Haileybury College. You were asked to leave Haileybury College at the end of Year 7 because of behavioural issues. You completed Year 8 at Lyndale High School, which is in North Dandenong. You then went to Berengarra Alternative School in Box Hill, where you dropped out after completing Year 9. It was submitted on the plea, and I do accept, that you are a man of limited education and literary skills.
46 After completing Year 9 you then worked on golf courses until 22 years of age. Your then girlfriend, who later became your wife, fell pregnant, so you then were then employed as a storeman and forklift driver until around 2005. You then purchased a Jim’s Mowing franchise, and after six years you began your own business in the same line of work.
47 Up until your remand for these offences you have had a good work record and, as I have already observed, maintained a largely blemish-free record. You have also, however, battled with varying degrees of drug addiction stemming from your early twenties when you began using amphetamine. This, coupled with your enduring mental health issues, in particular your diagnosis of severe depression, may create real challenges for you in so far as your rehabilitation is concerned.
48 The basic purposes for which a court may impose a sentence are punishment, general deterrence, specific deterrence, rehabilitation, denunciation, and protection of the community. In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances, and those of the victim.
49 Please stand, Mr Wakeling.
50 In relation to Charge 1, being a charge of home invasion, I sentence you to five (5) years, six (6) months' imprisonment.
51 In relation to Charge 2, being a charge of traffick in a drug of dependence, namely methamphetamine, I sentence you to two (2) months' imprisonment.
52 In relation to Charge 3, being a charge of prohibited person possess a firearm, I sentence you to twelve (12) months' imprisonment.
53 In relation to Charge 4, being a charge of being an unlicensed person failing to store a firearm in a secure manner, I sentence you to one (1) month’s imprisonment.
54 In relation to Charge 5, being a charge of possess drug of dependence, namely cannabis, you are convicted and discharged.
55 In relation to Charge 6, being a charge of trafficking simpliciter in GHB, I sentence you to two (2) years' imprisonment.
56 In relation to Charge 7, being a charge of using a carriage service to menace, I sentence you to six (6) months' imprisonment. I also order that the sentence of imprisonment in respect of this charge commences from today's date and I do so in accordance with s19(3) of the Crimes Act 1914 (Cth).
57 In relation to Summary Charge 6, being a charge of possess cartridge ammunition without a licence, I convict and fine you five hundred dollars ($500.00).
58 In relation to Summary Charge 9, being a charge of possess a controlled weapon without lawful excuse, and in relation to Summary Charge 10, being a charge of possess prohibited weapon without exemption or approval, I sentence you to an aggregate term of two (2) months' imprisonment. Given that both these items were found in the course of the search of your premises, I have determined it appropriate to impose an aggregate sentence.
59 Finally, in relation to Summary Charge 14, being a charge of make false report to the police, I sentence you to one (1) month’s imprisonment.
60 I order that four (4) months of the sentence on Charge 3 be served cumulatively upon the sentence imposed on Charge 1. I order that eight (8) months of the sentence on Charge 6 be served cumulatively upon previous orders. I order that all other sentences are to be served concurrently.
61 The total effective sentence is six (6) years and six (6) months imprisonment. I fix a period of four (4) years and three (3) months before you become eligible for parole.
62 Pursuant to s18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 212 days of pre-sentence detention, and I order that such declaration be made in the record.
63 Pursuant to s6AAA of the Sentencing Act 1991 (Vic), if it were not for your plea of guilty in this matter, I would have imposed a sentence of eight (8) years and six (6) months with a non-parole period of six (6) years.
64 I make orders for confiscation and forfeiture as requested by the prosecution.
65 I order, pursuant to s464ZF of the Crimes Act 1958 (Vic) that you provide an intimate forensic sample.
66 You may be seated Mr Wakeling. Are there any other matters, counsel?
67 MS VALOS: No, Your Honour.
68 MS HAMILL: My instructor is just doing the maths again, Your Honour.
69 HER HONOUR: Yes.
70 MS HAMILL: Just to make sure. Yes, Your Honour.
71 HER HONOUR: There is no issue with Charge 7 and the declaration there in terms of the Commonwealth matter?
72 MS HAMILL: I do not think so, Your Honour.
73 HER HONOUR: No, I have made that clear that it is to commence from today.
74 MS HAMILL: Yes.
75 HER HONOUR: All right, very well.
- - -
0
0
0