Director of Public Prosecutions v Wastell

[2023] VCC 1024

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT BALLARAT

CRIMINAL JURISDICTION

CR 23-00288

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRODIE WASTELL

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	19 June 2023
CASE MAY BE CITED AS:	DPP v Wastell
MEDIUM NEUTRAL CITATION:	[2023] VCC 1024

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Walker
For the Accused	Ms Ellis

HIS HONOUR:

1Brodie Wastell, you have pleaded guilty to one charge of aggravated carjacking; one charge of theft; one charge of conduct endangering persons; one charge of make threat to inflict serious injury; and uplifted summary matters of indictable offence whilst on bail.  On that charge you are convicted and discharged, and there is another one there too, I think.  There was another - my memory is there were two summary matters.

2MS ELLIS:  Yes, Your Honour, that is correct.

3HIS HONOUR:  Yes, what ‑ ‑ ‑

4MS WALKER:  Contravention of a condition.

5HIS HONOUR:  What was the other one?

6MS ELLIS:  And unlicensed driving, Your Honour.

7HIS HONOUR:  Unlicensed driving, yes.  I will make the unlicensed driving one week concurrent.  Those crimes carry maximum penalties of 25 years, 10 years, five years and 10 years respectively.

8You are now 19 years of age.  You were 18 years of age at the time of the offending.  You pleaded guilty and you must get the benefit of that.  In your particular personal situation remorse will be somewhat problematic but I will certainly give you the benefit of the doubt in relation to that.  You also get the utilitarian benefit of that plea of guilty.  You get the benefit of having pleaded in the time of Worboyes and the significant discounts which are given for that.

9You do have a prior criminal history, all of which is in the Children's Court. 
That clearly is of some concern in this particular situation.  I will say from the outset that objectively, without looking at your personal circumstances, the offending is serious indeed.  In the normal course of events, it would call for the application of general and specific deterrence as well as denunciation and appropriate punishment.

10The circumstances of it all were, the complainants in these matters were not known to you.  You at the time of this occurring were living in supported NDIS accommodation.  It is supported 24 hours a day and as I understand you were the sole resident at that property.  You have been in the care of the department since you were 12 or 13 and it appears that nothing much has changed over that period of time.

11In any event, at about 11 o'clock on the night of 16 October 2022 the complainant, Tiku, was on shift.  She received a call from a colleague to inform her that a client of hers wanted a pick-up from your address.  She drove to that address and her client opened the front door.  You, carrying a black and red coloured Nerf toy gun, told her to, 'Get out of the car or I'll shoot you'.  She did not respond and you said, 'You're not scared'.  You then reached into your waistband and removed a knife from a green and black cover.  You pointed the knife at her and said, 'If you don't get out of the car, I'll stab you'.  You said a number of times, 'I'll do it, I'll do it'.  She left the key in the car and got out. 
You and her client got into the car and you drove off.

12Ms Tiku contacted a work colleague.  You were then contacted.  You were told to return home.  You began to drive towards that address and then drove past it, did a U-turn and kept going.  Later on in the course of that night, you took $50 worth of petrol from a petrol station without paying for it and you arranged to pick up some young people.

13At approximately 7.55 am in the morning you were driving in K Road in
Werribee South.  The estimates of the speed of the vehicle are enormous. 
It is estimated somewhere between 150 to 200 kilometres an hour at times. 
In any event, you made no attempt to brake at a sharp, left-hand corner, lost control of the vehicle, hit a street sign and a power pole.  The vehicle came to rest against a fence facing the opposite direction to which you had been travelling.  That is reckless conduct endangering serious injury.  It is pretty clear from the speed you were travelling at that if you had caught that pole full on there would be three dead bodies in that vehicle I suspect very deeply.

14In any event, Mr Tomaskos was sitting in his vehicle.  He saw you and began following you.  At one stage you pulled up, got out of the car, produced a knife, looked at him and said, 'I'll come stab you with this knife', and that is Charge 4 of a threat to kill.

15In any event, matters proceeded from there.  You were arrested and charged.  You have been in adult custody for a significant period of time.  You had a failed bail application, as I understand it.  This is your first time in custody and unfortunately it is going to have to stay that way for a number of reasons. 
I have read the victim impact statements that were read out, and clearly the driving had a terrifying effect and a lasting effect on each of the two young people who were in that car with you.

16I then look to matters personal to you.  The situation here is that because of the carjacking charge the only sentence I am able to impose is one of custody. 
I am going to do it in any event, unless there is special reason as to why not on the material that is before me, and I will read just a very short passage from it in a moment, this applies to both s5(2H) and 10A.

17I am satisfied on the balance of probabilities at the time of the commission of the offence you had impaired mental functioning that was causally linked to the commission of the offence.  That has substantially materially reduced your culpability.  Secondly, I am also comfortably satisfied on the balance of probabilities you had an impaired mental function that resulted in you being the subject of substantially and materially greater than the ordinary burden of risk of imprisonment, and if I be wrong on those two, and I know that I am not, I find there was substantial and compelling circumstances that are exceptional and rare that justify doing so.  As the Court of Appeal said in the decision of Fariah:

'We also considered that the mere fact that some that some individual circumstances may commonly be encountered by sentencing judges in the County Court will not by that fact alone necessarily deprive them of their character as substantial and compelling and exceptional and rare. Every case will necessarily depend on its particular facts. Circumstances which individually are relatively common may in combination enliven the exception in s 5(2H)(e)'.

18And obviously with intent, and just leave it at that.  The circumstances are, and this can be done, as I say, the material has all been tendered and will all be sent to the Parole Board.  Before I quote very briefly, it seems to me this is a situation where you can rely on all the principles in Verdins, you can rely on all the principles in Muldrock, you can rely on all the principles in Bugmy.  It is hard to see any other principles that existed you could not rely on in your particular personal situation.

19I have before me a report from JHG, a report from Origin, people who deal with intellectual disability and various other people who are endeavouring to care for you.

20I am not going to go through your life history.  I do not think there is any purpose in that but I simply point out that you have been diagnosed with several comorbid - I will quote it actually:

'Brodie's been diagnosed with several comorbid conditions, including autism spectrum disorder'

- which is a mental impairment in itself -

'attention deficit hyperactive disorder, generalised anxiety disorder, intellectual disability

- which attracts a special reason in itself in any event -

'and oppositional defiance disorder.  In addition to these diagnoses Brodie has frontal lobe lesions which results in compromised executive functioning, translating to poor emotional control, impulse control, planning and prioritising, organising and flexibility.  Brodie has complex and challenging behaviours which includes threats of self-harm, threats to kill, violence and aggression, including assaults against his family members and caregivers.  Brodie at times refuses to take his prescribed medications.  This then impacts on Brodie's capacity to regulate his emotions and limits his impulse control, often resulting in high risk taking behaviours and/or violent outbursts'.

21The situation is, I have to say, those - actually I am satisfied on the balance that probably all those conditions apply and that they were causal in this overall offending.  Insofar as making it more burdensome in prison I am confirmed in my view of that by the evidence given before me by a psychologist, and also the comprehensive report that has been filed by the gaol.  Essentially what Corrections say is that:

'Mr Westall's interactions with other prisoners has been extremely difficult to manage in the Malmsbury Disability Unit.  Mr Westall's lack of social skills creates numerous ongoing issues of him saying inappropriate things to others.  Mr Westall often tries to insert himself in others' conversations and when asked to leave reacts badly.  Mr Westall constantly blames others for his reactions and he's unable to see his part in any argument or altercations.  Mr Westall is unable to listen to others, constantly cuts off others off in conversation and will continue to argue.  When Mr Westall does not get what he wants immediately he reacts with threats, aggression or reverts to threats of self-harm'.

22Anybody who has that condition and that mental state in prison is going to have a nightmare of a time.  I accept that that is what has occurred and unfortunately for a period of time at least will need to continue.  Not need to but will in fact continue to occur.

23Insofar as the harder in prison is concerned, in a report from JHG group spoke:

'This is particularly impactful in his current prison setting as he's often getting himself into trouble with other roommates and prison staff, who his lack of understanding around both explicitly stated rules of unit and the often unsaid or implicit rules around the perceived snitching.  These rules stated here are not being adhered to by Brodie, not as a deliberate or defined act, but rather the concepts themselves (both explicit and implied) are not being encoded within his working memory.  Further, even if these rules are successfully encoded, "as was the case with adhering to bail conditions in the past", Brodie's lack of impulse control because of his frontal lobe lesions, means he's more likely to act upon his emotions prior to understanding the consequences of these actions (if he understands them at all)'.

24That is confirmed later on in that report as well and I do not think I really need to take all those aspects of it much further as the Youth Justice Bail Service report and all the matters in regard to the mental health and the like.  I am satisfied that gaol is not the mandatory option but unfortunately it is going to be the only option.

25It is a situation where I would very much like to have released you on a community corrections order with a Justice plan but you have no certificate of disability.  I understand that was granted.  From what I can read, it was granted when you were about 13 but the paperwork all seems to have been lost.  I am not going to have you sitting there for another three months waiting for a Justice plan.  The situation is that I could have had you assessed to go to Youth Justice instead, and that would have been my much preferred option, but again, that seemed pointless.  You have now been in an adult gaol for 170 days.  That means it is unlikely that they would accept you and it is clear from the report from the adult gaol that, to use the vernacular, you would not last 10 minutes in YTC.  You would be transferred almost immediately; I would have thought.

26Also, during the course of your limited understanding of the conversation I was having with your counsel, you pointed out to me quite vehemently over the Webex that you were not going to Malmsbury.  Yes.  So that is the situation.  So, I really would much have preferred other dispositions but it seems to me that there are elements of community protection here as well.  There could have been dead bodies all over the place in your circumstances.

27As I understand from the evidence before me and the material that has been placed before me, you are now in a situation where there is a certain regularity to what you are going through.  You are getting specialist intervention, you are seeing a psychologist, NDIS are very much involved with you, and I think it is a matter of the Parole Board trying to integrate you back into the community with all those supports in place.  One can only hope, as a really ugly sentencing scenario to be dealing with someone with your difficulties and your potential dangers at such a young age.  You are only 18 or 19 but, in any event, light is about all I can really do.  The prospects of your rehabilitation are problematic.  The risk of you reoffending, who knows, high I would have thought.

28What I am going to do is give you a gaol sentence, much against my will, put it that way, it will show the seriousness of it.  I am going to declare the time served as a minimum term.  That means you will become eligible for parole immediately, fully aware that that will not happen immediately.  That will take time.  I would rather have you in a situation where you were released by the Parole Board under their conditions.  One of the difficulties with a community corrections order, of course, is that there is no urgency to it.  If something goes wrong it will be weeks before anything happens.  If something goes wrong, Brodie, whilst you are on parole, they will put you straight back in, my friend.

29Anyway, best I can do is this: 

(a)  Charge 1, 12 months;

(b)  Charge 2 is seven days concurrent;

(c)  Charge 3, 12 months;

(d)  Charge 4, one month;

(e)  and I will make three months of the sentence imposed on Charge 1 cumulative on Charge 3, which gives you 15 months.  I will direct that you serve a minimum term of 170 days before becoming eligible for parole. 
I direct that 170 days be reckoned as having been served under this sentence.

30As I have indicated throughout, it is a very unfortunate sentencing situation but had you pleaded not guilty and been convicted of these matters, pursuant to s6AAA, despite your wishes I would have put you in Youth Justice for
three years.

31All right, I also make - I hand down that.    There is a forfeiture order too, I think, Ms Ellis.  I saw it somewhere.  Yes.

32MS ELLIS:  There is, Your Honour, and just before we move on from the sentence - - -

33HIS HONOUR:  Yes, I will mark - yes, that is - yes, got that.

34MS ELLIS:  On my calculation there is 164 days of pre-sentence detention.

35HIS HONOUR:  No, 171 - 170 is my calculation.

36MS ELLIS:  Counsel and I read as at 6 June there were 151 days and 13 days have passed since then, Your Honour.

37HIS HONOUR:  I thought it was agreed it was 100 and - - -

38MS ELLIS:  One-fifty-one, Your Honour.  I am just looking here at the plea submissions just to confirm that.

39HIS HONOUR:  No, no, no, no, no, I am glad you pointed it out.  I am trying to work out where I got that from.

40MS ELLIS:  The last paragraph of my learned friend's submissions,
paragraph 26, we have got a total of 151 days and she breaks it down there.

41HIS HONOUR:  I thought that came - we changed that though.

42MS WALKER:  No, no, we did not change that.  My friend is right, and another 13 days on top of that would be 164.  I agree with that.

43HIS HONOUR:  Where did I get 170 from?

44MS WALKER:  I do not know.

45HIS HONOUR:  I will change the minimum term, 164.

46MS ELLIS:  Thank you, Your Honour.  I chose not to interrupt whilst my learned friend - - -

47HIS HONOUR:  No, I appreciate you telling me, thank you.  Yes, minimum term of 164 days pre-sentence detention of 164 days.  We will see what happens.

48MS ELLIS:  Yes, Your Honour, that leaves just the forfeiture order such as the knife.

49HIS HONOUR:  Yes, I just made that, yes, all good.

50MS ELLIS:  Thank you, Your Honour.

51HIS HONOUR:  That is made and handed down.

52MS ELLIS:  As the court pleases.

53HIS HONOUR:  All right, thanks, Ms Ellis.  Thank you for that.  Thanks,
Ms Walker.  I have got a jury sitting out there, so you can have a yarn to your client and try and explain it to him for five minutes.

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