Director of Public Prosecutions v Wardle

[2019] VCC 298

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

AT MILDURA
CRIMINAL JURISDICTION

CR 18-02442

DIRECTOR OF PUBLIC PROSECUTIONS

v

RHYS WARDLE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Mildura
DATE OF HEARING:	13 March 2019
DATE OF SENTENCE:	13 March 2019
CASE MAY BE CITED AS:	DPP v Wardle
MEDIUM NEUTRAL CITATION:	[2019] VCC 298

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Ms K. Farrell	Valos Black & Associates

HIS HONOUR:

1Rhys Wardle, you have pleaded guilty to two charges of criminal damage, one charge of commit indictable offence on bail and one charge of unlawful assault; they being uplifted summary matters.

2The crimes carry:  criminal damage, ten years' imprisonment; unlawful assault and indictable offence on bail carry imprisonment of three months.

3The circumstances of the criminal damage are that the first occurred in
May 2019, when a dispute occurred between you and a lady that you were in an on/off relationship with.  You, at her address, where I have belief that you were probably living too, got into an argument and you were told to leave by others.  There were a number of people there and it all became fairly ugly.

4You did leave the premise but came back carrying a weapon, which in this situation is described as a pitchfork, a sledgehammer or an axe.  Turns out it was a fence paling.  In any event with that you came back to the property, you used it to hit the middle fence to the property, causing a hole in the fence and you also caused a hole in a screen wire door.  Both those matters give rise to Charge 2, of criminal damage.

5You were picked up and bailed on these matters and later on in Melbourne you broke the side mirror off a car and that gives rise to the summary matter of commit indictable offence on bail and the second, as I have indicated, charge of criminal damage.

6The unlawful assault is the fear that your then on/off partner was placed in.  Clearly, you were in enraged and I have got no doubt that it would have been fear, indeed.

7The submissions that were put on your behalf by your counsel outline your background and the circumstances are that you do not have a particularly long criminal history.  When you are released from prison you will have your grandmother's to go to live with and you have decided that you are going to try and get your act together.

8You have used methamphetamines and between May and June of last year you were using it intravenously.  Obviously, you have now been dry for a period approaching nine months.

9You assert that you are going to behave yourself.  You have been treated in the past for suspected bipolar affective disorder, attention deficit disorder and you are suspect of having Asperger's syndrome. There has been treatment for that, which would not appear to have helped you any great deal.

10At the time all this occurred you were suffering from severe anxiety and depression, and you have done the time in gaol with difficulty.

11You have done courses in gaol and you have endeavoured to improve yourself.  What you have got to realise in this situation is that whilst your prospects of rehabilitation, if you can stay of alcohol and drugs, should be pretty good.  Therefore, the risk of you re-offending, low.  If you were in a situation such as this again, I think I just had the discussion with your counsel, but you have got to understand.  If you were in that frame of mind with a weapon and got inside you could find yourself doing years, depending on what occurred.  You could find yourself in another jurisdiction where they have got red robes on.  You cannot get yourself into that situation again.

12In these circumstances, because of what has occurred, I do not think a community corrections order is necessary and I think for the objective seriousness of this offending and the time that you have undergone is too much.

13This is the first time you have been in custody.  On the charge of criminal damage to the house, I sentence you to be imprisoned for one month; on the charge of criminal damage to the rear vision mirror, seven days, concurrent; on the charge of unlawful assault on your partner, two months and; on the charge of failing to appear on bail, seven days, concurrent.

14I direct that the two months be served cumulatively on the one month, which gives you an effective sentence of three months and I direct - sorry.  Make that 100 - we will make that 90 days.  Where I have said we will make them days.

15MS FARRELL:  Yes, Your Honour.

16HIS HONOUR:  Right, for obvious reasons.  Yes, 30 days and 60 days for the assault.  Which gives an effective sentence of 90 days and I direct that 90 days be reckoned as having been served under this sentence.

17And pursuant to s.6AAA - all right?

18MS FARRELL:  As Your Honour pleases.

19HIS HONOUR:  All right, and let it be a good lesson to you, Ms Farrell, don't ever plead to things that aren't there.

20MS FARRELL:  Yes, Your Honour.

21HIS HONOUR:  Ever, ever, ever, ever.  Nothing else I need to do?

22MR O'DOHERTY:  Maybe some orders.

23HIS HONOUR:  Yes, probably would be.  Fence paling's got to go, I suppose.

24MS FARRELL:  DNA.

25MR O'DOHERTY:  DNA, forfeiture order.

26HIS HONOUR:  They'd already have his DNA, surely.

27MR O'DOHERTY:  Yes, we'd seek a DNA order.

28HIS HONOUR:  Any objection to that?

29MS FARRELL:  No, Your Honour, my client's indicated he'll consent to a DNA order.

30HIS HONOUR:  All right, we'll (indistinct.)  We haven't got that yet.

31MR O'DOHERTY:  Confiscation order.

32HIS HONOUR:  Have you got a copy of the DNA application?

33MR O'DOHERTY:  Yes.

34HIS HONOUR:  Yes, I have to sign it now though.  Yes, print it out for me.  What I'm going to do is making an order that you provide a saliva sample for DNA purposes.  You can do that at Mildura police station.  If you refuse to provide a sample police can use reasonable force to take it from you.  (Indistinct words.)  Forfeiture order's made and handed down.

35MS FARRELL:  As Your Honour pleases.

36HIS HONOUR:  Yes, okay.  All right, nothing else we need to do?  Yes, what he'll need to do in this scenario I've only declared the time served.  So he understands he's got to go back to get released.  I can't release him from the court.

37MS FARRELL:  Yes, Your Honour.

38HIS HONOUR:  All right, so you've got to go back to fill out the paperwork.  If you've been acquitted you walk out of the dock, but when it's just me directing central records decides the sentence is finished, not me.  So you'll need to go back.  All right, yes, you can take him now.  Thanks, gents.

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