Director of Public Prosecutions v Walsh
[2021] VCC 307
•9 March 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-20-00790
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WAYLON WALSH |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 9 March 2021 | |
CASE MAY BE CITED AS: | DPP v Walsh | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 307 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. O'Toole | |
| For the Accused | Mr C. Morgan |
HIS HONOUR:
1 Waylon Walsh, you have pleaded guilty to one charge of causing serious injury intentionally, one charge of trafficking in a drug of dependence, four charges of possess a drug of dependence, and two charges of prohibited person in possession of a firearm. Those crimes carry maximum penalties of 20 years, 15 years (in these circumstances one year) and 10 years respectively.
2 You are now, as I understand it, 36 years of age. You pleaded guilty at a relatively early time and have expressed, within your own abilities, appropriate remorse. You must also get the utilitarian benefit of that plea of guilty.
3 You have a very significant criminal history. You have prior convictions for violence, drugs and dishonesty extending back over a significant period of time.
4 You have also pleaded guilty to three summary matters and those matters are number 3, 10 and 15. Number 10 only carries a monetary penalty. Just to get rid of those now:
· Charge 3, three months concurrent
· Charge 10, convict and discharge
· Charge 15, three months concurrent.
5 All other summary matters are therefore struck out.
6 A summary of the matter is that you were 35 years of age at the time of the offending, living with your partner Rebecca in Echuca. The victim in the matter was 42 years of age. You and your partner and the victim were known to each other, as he would purchase heroin from you and your partner every few days and had done so for a number of years.
7 On 15 September 2019, a series of phone calls were made which, putting it in brief, enticed the victim to the premises in which you and your partner lived as a result of some sort of dispute. I am assuming that had something to do with drugs or whatever it might be. Also, at this stage I will point out that these drug related matters always concern, either there is a certain milieu into which they all fit, and whilst that does not excuse anything, it has to be looked at within the terms of that milieu.
8 When the victim arrived at the property, he was met by your partner. As he entered the premises, she locked both the main wooden front door and the security door. As he entered the hallway, he says that you came out of the adjoining bedroom yelling at him. He observed you to be holding a knife in your left hand. You ran towards him and punched him with both fits approximately three or four times to the face causing immediate pain to him. He fell on his knees and then returned to his feet, grabbed you and swung you down to a nearby couch. He held you down, face down, as you still had the knife in your left hand which you then swung back and cut his hand. He punched you to the back of the head in attempt to disarm you and that is where I have just indicated that is when the stabbing motion took place. That blow backwards got him in the right hand and also in the head and caused significant pain and lacerations.
9 You then stabbed backwards again with a knife, penetrating through the complainant's mouth and up into the nasal and cheekbone area. He began to feel weak and lose control of you. He pulled you up by the collar and stomped on your head before attempting to leave the premises. As he exited the front door and was nearing the front lawn, you lunged at him and stabbed him in the right armpit and, in doing so, dragged the knife that you had at that point across the front of his chest with the wound concluding near the centre of the complainant's chest, passing across his right nipple. In reality, that is the stab wound that give rise to the serious injury, though obviously, the others are taken into account as well.
10 He has tried to stem the bleeding and other people endeavoured to help. A phone call was made to triple zero by your partner, saying he ad been stabbed. You then drove the victim to the Echuca Hospital and dropped him off and drove away. He was treated in the Emergency Department and the police came around and spoke to you. You discussed it with them, if I can put it in a neutral way, and you made a formal statement, which was clearly untrue.
11 In any event, you were then subsequently charged. You had blood splatter on your face and clothing and were included as a suspect from the outset. Various items were then seized and a search warrant was later carried out on your premises where a hunting knife was found and was assumed to have been the knife you used in this incident. There was a package containing white powder, which, as I understand it, was 3.6 grams of heroin pure. That gives rise to trafficking in a drug of dependence. That is Charge 2.
12 I note that this is a charge over one day and whilst I may have serious doubt as to how long this had been going on, you were charged for a substance that is only just over the trafficable quantity and it is for one day, therefore, it does not have the seriousness that that charge might otherwise have.
13 Various containers were found containing various drugs and I will be sentencing concurrently for each of those. Shotgun shells were found under the bed and on the floor of the bedroom. The was a notebook being utilised as a tick book to record drug transactions which was located on the bed. A significant amount of money was found and those items were photographed.
14 As a result, the injuries suffered by the complainant were a wound to the scalp, a wound to the back of the right hand with tendent damage, fractures of the third and fourth metacarpals, fracture to the fourth rib both to the front and side, laceration to the inside of the left ankle, fractured nasal bone with bilateral periorbital haematomas, a subconjunctival haemorrhage, a wound to the inside of the upper lip, and a zygomaticomaxillary complex commuted fracture, that is, three separate areas of the cheekbone and eye socket, and most importantly, a penetrating right posterior chest wound extending, as I said, from the lower aspect of the right armpit, across the right nipple to the centre of the chest causing the right side hemopneumothorax.
15 He suffered from a hypovolemic cardiac arrest in the Emergency Department. Advanced life support was used and chest compressions were administered and he was incubated down to emergency right-handed thoracotomy, that is, an open incision to the chest, before then transferred to the operating theatre for surgical repair for the intercostal artery and lung lacerations where chest drones were inserted. He was transferred to the Alfred Hospital following surgery. He had further surgery on 17 September of 2019 for the tendons and metacarpals and further surgery on 20 September 2019 for facial fractures being repaired with insertion of a metal plate.
16 The cut across the chest in itself is serious, the other injuries make it even more serious. In terms of the circumstances and objective seriousness of it, the version the Crown opening relies upon is, as I understand it, that of the complainant and I do have minor concerns with details that probably do not matter I suppose. You, in talking in October of 2019 from custody, with your partner, engaged in the following conversation which I have no reason to doubt was true. She said, 'You were only supposed to tap him up. Fucken jemmied in front of me, you dog.' Your reply was, 'I know, I got fucken wild with him when he went in the lounge room. I'm like, what the fuck are you doing.'
17 I do not quite know what that all means but it certainly means that he was lured there with the intention of being assaulted. In these circumstances, I must sentence you on the basis that the use of the knife was a last-minute thought on your part and I am not satisfied as to when that knife was actually picked up. I am, however, satisfied obviously that the knife was yours and that you used it in the manner that has been described. It is a serious example of intention of causing serious injury. The other matters are not so bad.
18 In your record of interview there are various matters that are put to you that I do not really think apply here. Of significance, at some time later in January of 2020, again, while you were still in custody, police conducted another search and firearms were found in the roof cavity. They were a .22 bolt action rifle and a sawn-off shotgun. Sawn-off shotguns and drugs go together. Sawn-off shotguns only have really one purpose, that is, either to do armed robberies or to use against people. It has to be regarded as serious and you must receive a cumulative aspect for those or at least certainly one of those particular crimes.
19 You also mention during the course of your talks to McGee that he - that is, the victim - ran into the lounge room. What that is about, I do not know, but as I think I have already indicated, you had no right to use a knife and the injuries you caused were indeed serious. There is no option here but gaol and a minimum term, bearing in mind particularly the circumstances of this, together with your prior history. Your co-accused was sentenced to a reckless serious and apparently it has been adjourned for a CCO, but I think that is no way comparable to what you actually did and what you were intending to do when all this started, so I do not take much notice of that.
20 I was given a decision of Lacuca by the Crown in regards to this. That was a sentence of nine years and a minimum term of six years and nine months. That was described by the Court of Appeal as severe, though, not wholly out of range. I consider that that set of circumstances was more serious than yours and I think that your background, as I will mention in a moment, is of greater benefit to you than his - that is, Mr Lacuca's - was to him. Having said all that, the Court of Appeal in that case make it very clear what the consequences of stabbing people on multiple occasions are going to have to be.
21 You have now been in custody for 541 days. In the normal course of events, this sort of offending calls for the application of general and specific deterrence, as well as denunciation punishment and community protection. In your particular situation, the Crown concede that all the principals of Verdins apply. They concede that the principles of Bugmy apply. In my view, bearing in mind your acquired brain injury, the principles involved in Muldrock probably apply as well. Community protection, however, in these circumstances always does remain a significant sentencing factor. I take into account obviously the concept of totality not to impose a sentence which would be crushing and I am also very concerned about someone in your situation with your difficulties being institutionalised. In those circumstances, I then look to matters personal to you and was given very helpful and succinct submissions by your counsel.
22 I should point out at this stage that I have read the victim impact statement. I have indicated I do not propose to quote from it, but clearly, the consequences to this man were significant and ongoing and, as I have indicated at the time, I think I do take that very much into account.
23 Firstly, you have now been in custody for 541 days. A significant period of that has been served during the course of the COVID pandemic and obviously unable to receive visits and all sorts of difficulties that arises out of that, including courses. I take those matters into account in terms of the sentence that you have undergone. Tendered on your behalf was a report from Dr Cidoni which is unusually brief, if I might say so, but it contains the basic material that we need to know.
24 In so far as your background is concerned, your counsel points out that you are now a 36-year-old indigenous man. You had very intermittent schooling as a result of a disruptive home family life. There was family violence. Your biological father was regularly physically violent towards your mother and to you. You left school at the end of year 7 and you are supposedly functionally illiterate. Your mother separated from your natural father, partnered for a time with another man who was also a violent alcoholic. You left home at 15 and you have lived a largely transient life since. You have been in a relationship with Ms McGee since she was 17. You have five children together ranging in age from 18 to six years old. The younger children are presently apparently in the care of your mother.
25 I note that, whilst you have had the five children, your relationship has extended over that period of time. Those children appear to have been in DHS, or whatever the New South Wales equivalent is, for a lot of that period of time, but ultimately in the end it seems you have not been denied contact or access with them so a point of your ultimately release is the hope that you are sufficiently together and they are sufficiently mature for the family to perhaps be reunited.
26 I also note that in 2007 you were involved in a serious car accident - we do not have to go into the details of that - and were placed on a disability support pension as a result of the injuries suffered. It is my understanding that, as a result of that, you have been on that pension, that your affairs have been handled by the Public Trustee. I just simply note that, in this situation, apparently police found a notebook that you had filled out with the various debts and who owed what and who had been paid and everything else. It is a bit difficult to reconcile all that with somebody who has been - not that you are being sentenced for trafficking over a period of time, but somebody who is obviously conducting a business in regard to that trafficking. However, be that as it may, that is what is put to me and there is no, effectively, challenge to it and that is what I sentence upon.
27 Dr Cidoni goes through your history, says exposure to family violence, instability, chronic drug use, talks about the acquired brain injury, talks about the State Trustees managing your finances. It points out that you have had the children. You and your partner have both had periods of imprisonment. You are better if you did - I am assuming, joint sentences in New South Wales a few years ago and it is clear from her description that you do have marked weaknesses in a number of your cognitive features. I do not think I need to go into the detail of it.
28 You are an Aboriginal man who has basically copped it since you were very little. You have - and I accept this - chronic PTSD, you have maladjustment, you have major depression disorder, you have an opioid use disorder, though I note that you are on methadone at the present time, and you have had, in the past, transient drug psychosis. Again, because of the Crown's very sensible concession, that those various principles apply, I do not think I have to go into that in any more detail.
29 It seems that the time you spent in Echuca was probably the most stable that you had had for a number of years. We can only, hope, that upon your ultimate release that you will be able to return or whatever the authorities may have in place for you. Prospects of your rehabilitation, I think, are relatively bleak but it is really up to you. If you can stop drug use and get your act together, the risk of you reoffending should be reduced considerably. You have now been in custody for an extended period of time. I am told you have not been using during that time and I accept that. Whether that has been long enough for you to get your head around all this, I do not know.
30 But in any event, it is to be hoped also that whilst you are in custody, you can try and get some sort of cultural connection whilst you are there. I understand the difficulties that, obviously, Aboriginal people have. As I understand it, both of your parents were Aboriginal. In terms of connection to the outside world, when there is heavy drug use, there is also disconnection. Gaol does give you the chance to connect with your people and if you can do that and do it well, it will assist greatly, I think, in your ultimately rehabilitation. You are Yorta Yorta man, as I understand it, so really, in that sense, it is all up to you and you should be able to get a lot of help from your elders and respected persons.
31 In any event, whilst I do not like doing this in situations such as this, the sentence has to reflect what you have done accordingly.
· Charge 1, six-and-a-half years
· Charge 2, six months
· Charge 3, three months
· Charge 4, three months
· Charge 5, three months
· Charge 6, three months
· Charge 7, 12 months
· Charge 8, six months.
32 Because of totality, I am not going to mess around with a month and a month there. I will simply say that, six months of the sentence imposed on Charge 7 is to be served cumulative on the sentence imposed on Charge 1. That gives a total effective sentence of seven years. In these circumstances, I will leave it up to the Parole Board to determine whether or not you have rehabilitated or whether or not you are safe to be let back into the community, so I will fix a minimum term of four-and-a-half years. I direct that 541 days be reckoned as having been served under this sentence.
33 Just so you know what the benefit of your plea of guilty was, in this particular situation I have given you a significant benefit for that. But for your plea of guilty, you would have been sentenced to be in prison for a period of 11 years with a minimum term of seven.
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HIS HONOUR: Are there any other orders I need to make?
MR MORGAN: No, Your Honour.
MR O'TOOLE: As Your Honour pleases. Nothing further, Your Honour.
HIS HONOUR: That's it? Yes, all right. I'll let you talk to your client in a second, I'm sorry to do this.
MS MORGAN: No, that's all right.
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