Director of Public Prosecutions v Wallis (a pseudonym)
[2020] VCC 1100
•24 July 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRIAN WALLIS (A PSEUDONYM)[1] |
[1] To ensure no identification of a victim of family violence, these reasons for sentence have been anonymised by the adoption of a pseudonym in place of the name of the offender. A schedule of substitutions will be retained by the Court for future reference.
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| JUDGE: | HER HONOUR JUDGE CARLIN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 February 2020 and 25 March 2020 |
| DATE OF SENTENCE: | 24 July 2020 |
| CASE MAY BE CITED AS: | DPP v Wallis (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2020] VCC |
REASONS FOR SENTENCE
---Subject: Criminal Law
Catchwords: Aggravated offence of recklessly expose emergency worker to risk by driving; theft; arson; related summary offences; offending committed over four days in the context of family violence where intervention order in place; offender using ICE at time of offending; early plea of guilty and remorse; limited but serious criminal history; deferral of sentence to allow offender to attend residential rehabilitation facility; reduced moral culpability due to depressive illness; second limb of s 5 (2H) of the mental health exception under the Sentencing Act 1991 applied.
Cases cited: Akoka v R [2017] VSCA 214.
Legislation Cited: Crimes Act 1958 (Vic); Crimes Legislation Amendment (Protection of Emergency Workers and Others)Act 2017 (Vic); Sentencing Act 1991 (Vic); Bail Act 1977 (Vic); Road Safety Act 1986 (Vic).
Sentence: 261 days imprisonment combined with a two-and-a-half-year Community Corrections Order. License disqualification for three years.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Webster | Office of Public Prosecutions |
| For the Accused | Mr H. Lewis | Michael J Gleeson & Associates |
HER HONOUR:
Introduction
1Brian Wallis[2], the events giving rise to this sentence occurred over the course of four days in July last year when you were suspicious, angry and distressed. During those four days you followed your wife, rammed her car, stole her mobile phone, set fire to her possessions, (including photographs of your wedding and her children) threatened and abused her. Your behaviour continued even after the police applied for a family violence intervention order against you and bailed you on conditions which prohibited you from contacting your wife in any way.
[2]A pseudonym.
2Things came to a head on the third day when police were called in response to you attending the place where your wife was staying. In an endeavor to escape you twice drove into the police car and then swerved around it at speed. You were not deterred by the driver of the police car pointing his firearm at you and yelling at you to stop. You were not deterred by the fact multiple police cars were pursuing you with lights and sirens, nor by the fact one of your tyres had burst. Only after the tyre shredded and you were driving on the rim, did you stop and were you finally arrested. You were sobbing and apologetic.
3You were remanded in custody upon your arrest on 8 July 2019. You were charged with a number of offences and indicated your intention to plead guilty at the earliest opportunity.
4On 27 February 2020 you in fact pleaded guilty to the following offences before me:
Charge 1- Theft, contrary to s.74 of the Crimes Act 1958 (Vic) punishable by a maximum term of 10 years‘ imprisonment
Charge 2- Arson, contrary to s.197(1) & 197(6) of the Crimes Act 1958 (Vic) punishable by a maximum term of 10 years‘ imprisonment.
Charge 3 – A rolled up charge of aggravated recklessly exposing an emergency worker, being two police officers, to risk by driving, contrary to s.317AF of the Crimes Act 1958 (Vic) punishable by a maximum term of 10 years’ imprisonment and mandatory licence cancellation and disqualification for at least 24 months. This charge is also subject to the mandatory sentencing provisions I will shortly outline.
A Related summary offence, Charge 6 - which was a rolled up charge of dangerous driving, contrary to s.64(1) of the Road Safety Act 1986 (Vic) punishable by a maximum fine of 240 penalty units or two years’ imprisonment or both and mandatory license cancellation and disqualification for at least six months.
Related summary offence, Charge 8 – A rolled up charge of contravene bail condition, contrary to s.30A(1) of the Bail Act 1977 (Vic) punishable by a maximum fine of 30 penalty units or three months’ imprisonment.
5Pursuant to s.5(2H) of the Sentencing Act 1991 a custodial sentence (not being one combined with a corrections order) is mandatory for Charge 3 unless certain exceptions exist and pursuant to s.16(3D) of the Sentencing Act 1991, any term of imprisonment imposed must be cumulative on any other uncompleted sentence of imprisonment unless otherwise directed.
6At the initial plea hearing your counsel, Mr Lewis, submitted that I should defer your sentence to allow you to attend a rehabilitation facility with a view to imposing a combination sentence, that is, a sentence of imprisonment combined with a Community Corrections Order. At that hearing the prosecutor, Ms Webster, accepted that overall a combination sentence was within range, but did not concede that a corrections order (alone) was within range on either the family violence Charges (1 and 2) or Charge 3.
7In the event, after adjournment of the matter and receipt of further psychological material, I acceded to the request to defer sentence and released you on bail. At that stage you had spent a total of 261 days in custody. Further, in light of the extra material, Ms Webster submitted that it was now open to me to find that one of the exceptions allowing for the imposition of a non custodial sentence, or a custodial sentence combined with a corrections order, in respect of Charge 3, did exist.
8Against that background and with the deferral of your sentence now complete, it falls to me to sentence you for your conduct.
Circumstances of the Offences
9The agreed facts are set out in the Summary of Prosecution Opening and can be summarised thus. To preserve her anonymity, I will not name your wife.
10In the evening of 5 July 2019, your wife left your matrimonial home in Seymour to visit a mutual male friend in Campbellfield. She was of the view you were going to stay at home.
11Later in the evening, your wife was driving the friend in her car when she saw you behind them. You pulled up beside her, wound down your window and said, ‘What’s goin’ on darling, what the fuck are you doing?’. You then accelerated hard, side-swiping the front driver-side panel of her car with the front passenger-side of the bonnet of your car before driving off. You quickly returned and rammed the rear of her car. These two instances of driving damaged your wife’s car and constitute the summary charge of dangerous driving (Charge 6).
12Your wife stopped her car, got out and confronted you. An argument ensued and you took her mobile phone from the centre console of her car and left (Charge 1 – Theft).
13You then called the male friend and asked him ‘How’s my darling wife?’. You told him to tell her ‘I’m burning everything’. You followed through by returning home to Seymour and setting fire to your wife’s personal belongings including clothing, shoes and the photographs. You filmed yourself doing this and then sent that video to your wife via text message (Charge 2 – Arson).
14Your wife reported your conduct to the police and overnight they obtained a Family Violence Intervention Order complaint and warrant against you. At about 12.45 pm on 6 July 2019 police attended your house and arrested you on that warrant. You were obviously drug affected and spoke of suicide so they took you to Shepparton Hospital. They served you with the Intervention Order application and bailed you to appear at Seymour Magistrates’ Court on 12 July 2019 on conditions reflective of a comprehensive Intervention Order. Thereafter you were not allowed to contact your wife or be within 200 metres of anywhere she was residing.
15On 7 July 2019 you were interviewed in relation to the offending on 5 July 2019 and released pending summons. Unfortunately, this experience did not deter you. Within three hours you again called your mutual male friend and told your wife over loudspeaker that she was a ‘lying dog’ and if she went back to the house in Seymour you would ‘cut her head off’.
16Later that night you sent your wife a series of text messages that read:
‘typical slut’
‘you’re dead to me’
‘see you soon’
‘I can’t do this anymore …, I want to die. I’m trying to buy a gun. We’re past the point of no return’.17You also drove to the male friend’s address in Campbellfield and parked for a minute or two before driving off.
18You returned to that house at about midday the next day and parked in the driveway. Your wife, who was inside with your friend’s 10-year-old daughter, saw you on external security cameras. You sent her a text asking where she was. When she did not respond you started banging on the front door. You were crying. Your wife called the friend who called police.
19Your conduct in threatening and repeatedly communicating with your wife and attending at the house where she was staying constitutes the summary offence of contravene bail condition (Charge 8 ).
20As you were reversing out of the driveway police (comprising Senior Constable Archdale and Constable Zammit) arrived in a marked police car. Senior Constable Archdale was driving and Constable Zammit was in the front passenger seat.
21They activated their lights and siren and pulled in behind you on a slight angle. You nudged the front of their car before driving forward along the footpath and nature strip. They drove alongside you on the road for approximately 20 metres, stopping at the driveway of the house next door in an attempt to block your path. You then drove at their car, hitting the passenger side, just behind the front door, with force, before reversing again. Senior Constable Archdale alighted and went to the rear of the police car. He pointed his firearm at you yelling something like, ‘Police, stop the fucking vehicle!’. He could see that you were crying.
22You did not stop your car. Rather, with Constable Zammit still in the front passenger seat you rammed the rear passenger side of the police car again, pushing it further onto the road so that you could escape. Senior Constable Archdale repeated his command to stop. You again ignored him and reversed into a timber fence before accelerating towards and around the rear of the passenger side of the police car, forcing Senior Constable Archdale to take cover behind a parked car. You then sped away down a nearby Court.
23Your conduct in twice deliberately colliding with the police car and then driving towards and around it constitutes the aggravated offence of recklessly exposing an emergency worker to risk by driving (Charge 3). It is an aggravated form of the offence because of the damage you caused the police car, namely large dints and impact marks, a broken taillight and puncture marks on the passenger side of the vehicle running from the front passenger door to the rear passenger corner.
24Senior Constable Archdale (on foot) and Constable Zammit (driving) followed you into Bambury Court which proved to be a dead end. You turned around and sped past them, forcing each of them to take evasive action to avoid you. Constable Zammit pulled the police car to the side of the road and Senior Constable Archdale jumped into a nearby front yard.
25At this stage another police car activated its lights and siren and took up position directly behind you. A police pursuit was initiated, with two more police vehicles involved. You drove for approximately 15 minutes, until one of your tyres burst and then shredded, before stopping, whereupon you were arrested.
Objective Gravity of your offending and moral culpability
26Objectively your offending was very serious. You exposed your wife, your friend, the police and other road users to danger by your reckless and dangerous driving. You used your car as a weapon. You were manipulative, abusive and threatening to your wife over several days. Nothing would deter you.
27As well as being angry, you were observed to be visibly upset at various times during that period. Indeed, you apparently took an overdose of tramadol and were taken to hospital expressing suicidal ideation on the second day. I have been provided with no documentation in relation to this hospital admission, however, clearly you were extremely distressed.
28You were also using ice (methamphetamine) at this time.
29Mr Lewis argued that your moral culpability was reduced on account of your mental state and the principles enunciated in a well-known case of Verdins. He relied on a psychological report of Mr Watson-Munro dated 16 October 2019 which opined that you were suffering severe depression at the time of the offending. During the plea there was discussion about the utility of Mr Watson-Munro’s report given that he only saw you on one occasion, on 10 October 2019, and his diagnosis was based solely on your reporting of symptoms without resort to clinical records, which apparently existed. Further, his report seemed largely to attribute your offending to your ice use, rather than any depression.
30For this reason your legal representatives obtained two further reports during the adjournment of your case. Both reports were from clinical psychologist Jeffrey Cummins. Disappointingly Mr Cummins also did not access your clinical records. His opinion was based on two video conference interviews with you on 6 and 12 March 2020. He also assessed you as suffering from a major depressive disorder at the time of the offending as well as at the time of interview. He considered that your disorder commenced when you fell-out with your mother in 2010 and was exacerbated by your discovery in November 2018 that your step-daughter had been sexually abused.
31Significantly, Mr Cummins believed your depressive disorder existed well prior to your dependence on ICE. At the time of your offending, he considered your disorder impaired your ability to think clearly, exercise appropriate judgments, make calm and rational choices and appreciate the wrongfulness of your conduct. Further, he believed your disorder obscured your intent to commit the offences and that you were, at that time, engaged in a course of self-destructive behaviour. I note that the language adopted by Mr Cummins was clearly designed to meet the Verdins’ criteria. By contrast, his reference to your use of methamphetamine was quite cursory, only saying that it contributed to you being disinhibited at the relevant time.
32It is somewhat difficult to reconcile the opinions of Mr Watson-Munro and Mr Cummins as to the respective contributions of your drug use and mental illness to your offending. According to Mr Watson-Munro you conceded that your ice use ‘had a dramatic impact’ upon both ‘your mood, judgment and sleep’ and ‘your impulse control’. He reported ‘it is apparent that at the time of [the] offending [you] were suffering a significant Substance Use Disorder, in addition to a Depressive Disorder’.
33Even Mr Cummins said you ‘explained’ your offending by stating that you were ‘acutely depressed and suicidal and simultaneously dependent on methamphetamine and sometimes abusing alcohol’.
34The impact of your drug use on your offending cannot be ignored, especially given your own concessions as to its effects. These concessions were made both to the psychologists and to the Corrections officer who prepared a pre-sentence report during the deferral of your sentence. I shall return to that report in due course.
35The fact an offender is under the influence of drugs may be explanatory but is never mitigatory. I do accept that you had an underlying mental condition and that that condition contributed to your conduct and reduced your moral culpability to an extent, however, I am not satisfied that your drug use is as irrelevant as Mr Cummins appears to suggest. In my view his opinion is undermined by his failure to address the contribution of your concurrent drug use and all psychological reports suffer from a failure to have regard to contemporaneous clinical records, such as hospital discharge summaries.
Current Sentencing Practices
36One, and one only, of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices. The reason is to promote consistency of approach in sentencing, particularly the application of relevant sentencing principles.
37Whilst no two cases are ever the same, sentences imposed in comparable cases may provide a convenient yardstick against which to measure any sentence proposed in the instant case.
38I was not referred to any comparable cases by counsel appearing, perhaps reflecting the divergent ways in which your particular crimes can occur.
39I therefore proceed to sentence on general principles cognisant that ultimately my duty is to impose a just and appropriate sentence on you in the circumstances of this case.
Impact of your offending
40Neither your wife, nor the two police officers you specifically exposed to risk by your driving submitted victim impact statements to the court.
41I note however that your wife was present in court during your plea in a supportive capacity, as were her parents. Whether or not your wife has forgiven you, there can be no doubt that your conduct over those three days would have been extremely frightening to all exposed to it.
Plea of Guilty, co-operation and remorse
42You are to receive a discount in your sentence for the fact you have pleaded guilty to the offences at the earliest available opportunity. In indicating your intention at that early stage you facilitated the course of justice and took legal responsibility for your crimes. Your wife and other witnesses were spared the experience of coming to court to give evidence. You are entitled to a substantial discount for that.
43You made admissions during your police interview on 7 July 2019, however you also downplayed parts of your offending by blaming your wife, including telling police that you were paying for your wife’s phone and that it was ‘technically’ yours.
44Immediately after your arrest on 8 July 2019 you were sobbing and continuously saying ‘I’m sorry’. You said you knew you could have hurt someone when ramming the police car. You were also sobbing at various times during the offending demonstrating both your fragile mental state and, perhaps, regret for your actions.
45One of your character references states that they believed you are ‘very sorry’ for what you have done. Similarly, Mr Watson-Munro described you as ‘expressing significant and appropriate remorse for [your] behaviour’, although he did not elaborate. Mr Cummins also said that you expressed regret and remorse for your offending but somewhat cryptically noted that your depressive disorder impacted your ability to ‘express comprehensive remorse’.
46Whilst it is often difficult to separate true remorse from other feelings of sorrow and regret, I am satisfied that your plea of guilty is accompanied by genuine remorse entitling you to an even greater discount on sentence.
Background and personal circumstances
47Your background and personal circumstances were set out in the psychological reports (Exhibits 2, 9 and 10), the Outline of Defence Submissions (Exhibit 1) and oral argument.
48Very briefly, you are now 33 years of age. You have been with your wife for 11 years and married for the last four. You are step-father to her two daughters who are aged 11 and 16. While there are difficulties within your marriage, your wife continues to support you, as evidenced by her presence during your plea hearing and her desire to revoke the police-issued intervention order against you.
49The reports of Mr Watson-Munro and Mr Cummins differ as to the history of your early childhood. Suffice to say you describe an unstable and difficult childhood. Your relationship with both parents was troubled. They separated when you were very young and you were largely raised by your mother who had a number of partners and moved around a lot. You attended seven primary schools and two different high schools.
50Your father, who has now died, was a heavy drinker who experienced a range of serious psychiatric conditions including bipolar disorder. Your mother apparently abused a ‘range of drugs’ and you have had no contact with her since 2014. You have a younger brother and an older brother and sister who are fraternal twins. You had an ongoing relationship with a stepfather, but he has also now died.
51You completed Year 11 before joining the workforce. You have maintained steady employment throughout your life, working for eight years at a concrete piping business and approximately seven years in steel fabrication.
52In late 2018 you learned that your older stepdaughter was sexually abused by a family friend when she was seven years old. This led to you feeling anxious and guilty which in turn led to a significant escalation of your ICE use. In that regard I note that whilst you told Mr Watson-Munro that your ice use commenced after the disclosure, you told Mr Cummins that it ‘increased’ at that time. As well as the suicide attempt on 5 July 2019, there were apparently two other occasions where you attempted suicide in the months preceding the offending. Further, you apparently spent one night in early 2019 in the Shepparton Base Hospital psychiatric ward. You told Mr Cummins that your suicide attempts were cries for help.
53Prior to being remanded on this matter you had never been in custody. You reported detoxifying from drugs during your incarceration and said you were ‘keen’ to have therapy for your mental health issues. You put your time in custody to good use, commencing studies in business management with a view to starting your own business in steel fixing. One stepdaughter visited you in custody and is supportive of you. In court you were supported not only by your wife, but also her parents and two friends.
54You hope to reconcile with your extended family once you are released.
Your character and risk of reoffending
55You have a limited, albeit serious, prior criminal history. You had six court appearances between April 2009 and July 2011 in relation to four matters.
56A most concerning feature of your criminal history is a previous incident in October 2010 when you drove your vehicle into the front of another car whilst unlicensed and under the influence of alcohol. At the time your wife was standing talking to the driver of the other car and had to step away to avoid the impact. She was not injured but the other driver sustained a broken nose as well as other facial and chest injuries. You were charged with reckless conduct endanger serious injury, unlicensed driving and refuse breath test. You were sentenced to a term of imprisonment to be served by way of an intensive Corrections order (albeit that sentence was later varied) and you lost your license for four years. Worryingly, this incident confirms your preparedness to use your vehicle as a weapon.
57While your history is serious, it is very much in your favour that after the matter just mentioned there was no other offending until the instant matters, a gap of almost nine years. This gap demonstrates that you are capable of remaining free from the criminal justice system.
58As mentioned, you have a good employment history and it is only due to your remand on these matters, that you are currently unemployed.
59I received four character references on your plea. These references speak of you being ‘decent’, ‘hardworking’ and ‘willing to help’. I accept these references at face value, however I do note that one referee regarded the present offending as ‘extremely uncharacteristic’, whilst another said it was a ‘one off event’, raising doubts about the extent of their knowledge of you.
60Mr Watson-Munro opined that your ‘overall prognosis from a forensic perspective is positive’, providing you can be treated for drug use, depression and anxiety. He recommended you engage in cognitive behaviour therapy with a focus on relapse prevention. You expressed a ‘strong desire’ for therapy to Mr Watson-Munro.
61Similarly, you told Mr Cummins you were keen to attend residential rehabilitation. He described your presentation at the time of interview as ‘moderately – severely depressed’. He considered that you required ongoing mental health treatment with a focus on symptoms of depression, grief and guilt and that it was most unlikely that you would be able to receive this treatment in custody. For that reason, he believed your mental health would deteriorate the longer you spent in custody.
62Using a clinical assessment tool, Mr Cummins assessed your risk of committing an offence of violence as moderate. He recommended your participation in a comprehensive anger management program.
63Whilst your willingness to engage in therapy and the nine-year gap in your offending give cause for optimism it is a fragile optimism, undermined by the extremity of your behaviour over those four days in July 2019. It is for this reason I decided a deferral of sentence was appropriate to enable me to better assess your prospects of rehabilitation. This course was not opposed by the Crown.
64Accordingly, on 25 March 2020 I bailed you to attend a residential rehabilitation facility called the Cottage, situated in Shepparton for a period of 4 months. You were under no illusion that if you did not perform well during that period it would be likely that you would return to custody. On the other hand, if you did, then not only would it be positive evidence of your prospects of rehabilitation, but you would also be entitled to some credit for the punitive component of your four-month residence – see Akoka v R [2017] VSCA 214 at [107] to [110].
65I have received a report from the Cottage in relation to your stay. Pleasingly the writer indicates that you engaged well with all aspects of the program and returned negative urine screens, including after day leave.
66As mentioned, I have also received an extended pre-sentence assessment report from the Department of Justice and Community Safety. In my view you spoke openly and honestly to the author of that report about your drug use and that is to your credit. You attributed your offending to your consumption of large amounts of ICE in the preceding days and said that at that time ICE was basically controlling your life. You also admitted that during your time at the Cottage you did struggle with the urge to smoke ICE, but were able to resist after reflecting on how far you had progressed and with the help of some mentors. Further, you said that you did not intend to resume living with your wife upon your release as you believed that she was still using drugs.
67As I say it is to your credit that you have been open about your drug use including your desire to use drugs again. I have no doubt that you genuinely desire to remain drug-free and not to offend again. However, as you admitted it will not be easy, especially once you are back in the community. The pre-sentence report assessed you as at medium risk of re-offending and I concur with that assessment.
Purposes of Sentencing
68In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 (Vic) prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community.
69There are also certain specific sentencing principles applicable to offences against s.317AF of the Crimes Act 1958 (Vic), which is your Charge 3.
70Section 317AF came into effect on 5 April 2018 as a result of the Crimes Legislation Amendment (Protection of Emergency Workers and Others)Act 2017 which introduced Division 8A into the Crimes Act 1958 (Vic). Division 8A created new serious driving offences focused on the safety of emergency workers, custodial officers, youth justice custodial workers and emergency service vehicles. The rationale was to address the prevalence of offenders using motor vehicles to harm police and emergency workers and to recognise that violence towards police and emergency workers in the line of duty is unacceptable and will not be tolerated.
71As I have already mentioned, sections 5(2H) and 16(3D) of the Sentencing Act 1991 create two sentencing presumptions. First, that people who offend against s.317AF will receive a term of imprisonment and secondly, that term will be cumulative upon any other term of imprisonment.
72Subject to those presumptions, I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes and only to impose a custodial sentence as a last resort.
73In your case, even without regard to s.5(2H) of the Sentencing Act, the seriousness of your conduct is such that I am satisfied that a term of imprisonment is the only appropriate sentence in relation to your Charge 3, even taking into account your mitigating factors. Emergency service workers such as police are entitled to go about their lawful activities without fear that people such as you will use their cars as weapons against them. I accept that your prime motivation was to escape, but nevertheless you recklessly disregarded the safety of the attending police for your own ends.
74Similarly, your conduct towards your wife, including, again, your use of your car as a weapon, and your cruel and threatening behaviour in stealing her phone, burning her possessions, sending abusive messages and repeatedly contacting her in breach of your bail, was appalling.
75Courts in this state have repeatedly condemned controlling, dominating and violent behaviour against partners or ex-partners and emphasised the need to impose sentences that will deter would-be perpetrators, who are usually men, from such conduct. The message needs to be especially clear when the behaviour occurs in flagrant disregard of a court order or bail condition as here.
76Principles of general deterrence, just punishment and denunciation loom large in the sentencing process for all your offences. Because of your prior convictions, particularly your prior use of your car as a weapon, there is also a need for specific deterrence and protection of the community. However, in your case the application of those principles must be moderated to some extent by your underlying mental illness. Indeed your various mitigating factors are such that in my view all sentencing purposes can be achieved by a sentence which combines a lengthy community corrections order with a sentence of imprisonment which does not exceed the term of 261 days you have already served. In coming to that view I have taken into account the element of punishment involved in your four month stay at the Cottage as well as the extra burden that COVID-19 imposes on the prison population. Further, your stay at the Cottage has started your journey of rehabilitation and it is desirable and in the community interest that that journey continues.
77I am only able to impose a term of imprisonment combined with a Corrections order on Charge 3 if you fall within one of the exceptions set out in s.5(2H) of the Sentencing Act. Whilst I am satisfied that your depressive illness contributed to your offending and reduced your moral culpability to some extent, I am not persuaded that it substantially reduced your culpability so as to bring you within that limb of the mental illness exception. This is because of your concurrent use of ICE and its undoubted contribution to your behaviour. I am satisfied however that you fall within the second limb of the mental illness exception, namely that your present mental state means prison will be substantially more burdensome for you than the ordinary prisoner.
78The pre-sentence report assessed you as suitable for a community corrections order and you have indicated your consent to that order.
Sentence
79On Charges 1, 2, 6 and 8, which may broadly be described as the family violence related charges, I convict and sentence you to an aggregate term of imprisonment of 180 days' imprisonment. I impose an aggregate sentence on these charges because they are founded on the same facts and are related in character. This is the base sentence.
80On Charge 3, I convict and sentence you to a term of imprisonment of 180 days, 99 days of that is to be concurrent on the base sentence, making a total effective term of imprisonment of 261 days. I have ordered this partial concurrency notwithstanding the presumption of cumulation in the Sentencing Act, having regard to your mitigating factors and the principles of totality.
81On all charges I convict and sentence you to a single community corrections order. The order will last for two and a half years, that is 30 months.
82You are to report to: the Shepparton Community Correctional Centre within two working days.
83As well as the mandatory conditions, and those mandatory conditions include that you not commit another offence, as well as various other things such as, you must not leave Victoria without first getting permission to do so, you must obey all lawful instructions from and directions of the Secretary and there are other mandatory conditions as well. But as well as those, I have imposed some special conditions and they are as follows:
· You are to be under the supervision of a Corrections officer for the duration of the order;
· You are to perform 350 hours of unpaid community work over the period of the order;
· You are to undergo assessment and treatment for drug abuse and dependency;
· You are to undergo assessment and treatment for alcohol abuse and dependency;
· You are to undergo mental health assessment and treatment as directed;
· You are to undertake other treatment and rehabilitative programs as directed, in particular the men's behaviour change program.
84I direct that all of the hours that you satisfactorily undertake in treatment and rehabilitation are to be counted towards the 350 hours of unpaid community work.
85Your counsel will explain that order in more detail. You must make sure you comply with that order because breach of the order is an offence in itself and in addition you are liable to be re-sentenced for the original offences. The Corrections order I have imposed is a long order. That is because of the seriousness of your offending, which would ordinarily call for a longer term of imprisonment than you have already served and because I think having you supervised for that length of time is the best way of ensuring that you maintain abstinence. You should realise that by imposing the Community Corrections Order I am giving you an opportunity to avoid further gaol time. If you breach the order re-sentencing you on the original offences is a real option and in that event you are likely to go back to prison.
86On Charges 3 and 6 I am required to make an order against your license. I have taken into account the burden that not having your license will mean for your future work and completing the Corrections order, but I consider the nature of your driving and your priors are such that I should exceed the mandatory minimum period. On both charges your license, if you have one, is cancelled and, in any event, you are disqualified from driving for a period of three years effective from today.
Presentence Detention
87I declare that you have served a total of 261 days' pre-sentence detention, not including today, in respect of this sentence and order that this declaration be entered in the records of the court and that the period be deducted administratively.
Section 6AAA
88If you had not pleaded not guilty to these charges and been found guilty, I would have sentenced you to a total effective sentence of imprisonment of three years, six months with a non-parole period of two years and six months.
89So, Mr Wallis, do you understand the sentence that I have imposed?
90OFFENDER: Yes. Yes, Your Honour.
91HER HONOUR: So, what is left, unless you breach the order because, as I said, if you breach the order then you are liable to be re-sentenced as well as breaching the order is an offence in itself. But if you do not breach the order then what is left for you in order to dispose of these matters is to complete that Corrections order. As I have said during my remarks, I am confident that you intend to remain drug-free and that you intend not to commit any further offences but all of that is tied up with your ability to remain drug-free. So, I have got the order here. I sign it and because you are not present in court we will scan the order and have it emailed to the Cottage. You will then sign that order and they can scan it and send it back to court today. I believe that is right. There is someone from the Cottage there, you can do that.
92SUPPORT PERSON: We can.
93HER HONOUR: All right, thank you very much. Is there anything else, counsel that I need to order?
94MS WEBSTER: No, Your Honour.
95MR LEWIS: No, Your Honour.
96HER HONOUR: All right, thank you very much, we will adjourn the court.
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