Director of Public Prosecutions v Wells

[2020] VCC 1160

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00109

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHANTELLE WELLS

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	19 June 2020
DATE OF SENTENCE:	31 July 2020
CASE MAY BE CITED AS:	DPP v Wells
MEDIUM NEUTRAL CITATION:	[2020] VCC 1160

REASONS FOR SENTENCE
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Subject:   CRIMINAL LAW
Catchwords:   Sentence, guilty plea, aggravated burglary, intentionally cause   injury, COVID-19
Legislation Cited: s.6AAA of the Sentencing Act
Cases Cited:   DPP v Hogarth DPP v Meyers [2014] VSCA 314

Sentence:Combination order of 10 months imprisonment and 2 year community corrections order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Teo	The Office of Public Prosecutions
For the Accused	Mr C. Baker	Robyn Greensill & Associates

HIS HONOUR:

1Chantelle Wells you have pleaded guilty to one charge of aggravated burglary, for which the maximum penalty is 25 years' imprisonment and one charge of intentionally causing injury for which the maximum penalty is 10 years' imprisonment.

2The facts of this matter are set out in the prosecution opening on the plea which was tendered as Exhibit 1 and which I summarise.

Background

3The offending in this case took place on 25 December 2018.  At that time, you were 23 years old, you have since turned 25.

4The victim in this matter, Jay Gidley, lived at 3 Donne Court, Mooroolbark.

5You and Mr Gidley had been in a relationship for about six months and apparently had separated not long before the offending.  During that relationship, you lived with Mr Gidley at that address in Mooroolbark.  When you separated, you had moved most of your belongings out of Mr Gidley's house.

6Apparently soon after the end of the relationship with Mr Gidley you resumed a relationship with a Mr John Bilham, who I am told was released from prison sometime in 2018.  In the latter part perhaps.  And it seems that by Christmas day 2018 you were living in Dandenong or staying in Dandenong with Mr Bilham and Alan Manuel, who are the two alleged co-offenders in this matter.  To complicate the picture even further Alan Manuel had also lived with Mr Gidley until shortly before this offending.

The offending

7On 25 December 2018, Mr Gidley was at home.  His friend, Mark Hockley, was visiting.  At about 3.00 pm, Mr Gidley saw you walking up the pathway.  He asked you what you were doing at the address.  You said that you wanted to see Mr Gidley's dog 'Kahoo'.  Mr Gidley put a collar and lead around the dog's neck, and you took the dog out the front.  As you were walking off towards the front door, you told Mr Gidley, 'I have a surprise for you'.  Mr Gidley at that time was sitting on the couch with his friend, Mr Hockley.

8Mr Gidley then heard the front door swing open.  Two men entered.  The prosecution alleges that these two men were Alan Manuel, and John Bilham.

9Mr Gidley, as I said earlier, had met Mr Manuel through you and had let
Mr Manuel stay at his home in the period from August to December 2018.  As a result of an altercation about one week earlier, where Mr Manuel is alleged to have wielded an axe, Mr Gidley told Mr Manuel to leave the house.  Mr Gidley had not met John Bilham before.

10When he entered the home on Christmas day 2018, Mr Manuel said to
Mr Gidley, 'I told you I’d be back'.  He was holding a machete that was about 40 centimetres long, it had a rusty blade.

11Mr Manuel swung the machete at Mr Gidley and hit him on the left arm and the right calf and the ankle area.  The blade was blunt, but it cut Mr Gidley and it caused bleeding.  Mr Manuel then hit Mr Gidley in the throat with the handle.  The man the prosecution say is John Bilham started to punch Mr Gidley to the face and the body.  Mr Gidley estimates that he was hit more than 30 times and that the incident lasted for about two or three minutes.  Mr Gidley was balled up on the couch and he was unable to defend himself.

12As he was being assaulted, Mr Gidley heard the men say things like 'give us money'.  Mr Gidley told them that they could take anything and lied about having money under his bed.  As the men went towards his bedroom, he pushed them back and he ran out the front door.

13When he reached the street, he saw you there with police.

14They had been patrolling in Donne Court, and they were speaking to you when he made it out to the street.  He yelled to the police for help.

15After Mr Gidley had left the house, Mark Hockley observed the two men run down the side of the house and into the backyard.  He then left the house out the front and approached the police who were present with you and Mr Gidley.

16Mr Gidley was taken to the Maroondah Hospital.  He was observed to have obvious bruising to the left side of his scalp, swelling and bruising to the left side of his face, which was very tender to touch, and bruising and swelling below the right eye cheekbone.  There was minor bruising to the anterior neck and bruising to the upper shoulder and wrist.

Investigation and record of Interview

17There was ultimately a search warrant executed at your residence and a mobile phone registered to you was seized.  The mobile phone revealed a text message sent to an unknown recipient at 2.44 pm. The words of this message are in the depositions and they read as follows:  'I'm in Ringwood with Allan and Johny going to bash Jay lol and take my puppy'.

18This was the piece of evidence on which the prosecution relied to show that you were party to an agreement, arrangement or understanding to commit the offences on the indictment.

19You were ultimately taken to the Mooroolbark Police Station for a Record of Interview.  In that record of interview, you told the police:

a.You were leaving with your dog and two men had come up from behind you;

b.One of the men was Alan (Manuel) and you did not know the other man;

c.You went inside, you had a conversation with Mr Gidley;

d.You had an argument with Mr Gidley over the dog, and walked the dog out of the house;

e.You saw police in the street who recognised Mr Gidley's dog;

f.You were explaining to the police that the dog was yours, and then Mr Gidley had come running down the street;

g.You said you were arrested and searched;

h.You said Alan and the other man walked into the house after you had walked out the front gate;

i.You had known Alan for several years, and you did not have any idea who the other person was;

j.You said did not witness Mr Gidley being assaulted;

Plea of guilty

20I turn to your plea of guilty in this matter.  You pleaded guilty on 28 January 2020 at a Committal Hearing prior to any witnesses being called.

21Your counsel Mr Baker submitted that it was significant that you entered your pleas before either of the alleged co-accused have been through their committal hearings, which are currently listed in December of this year.

22I accept that for you to plead was a big step in the circumstances where the two alleged co-offenders had their matters pending and is perhaps consistent with the evidence that you have decided to leave behind your undesirable associates.

23By your plea you have saved the community the time and expense of a trial and you have spared the witnesses, particularly Mr Gidley, the ordeal of giving evidence.  I give you significant credit for the utilitarian value of your plea.  And I accept that your plea is consistent with some level of remorse for your offending, though at the time of the record of interview, some of which was lies, you demonstrated little remorse.

Gravity

24In relation to the gravity of these offences, aggravated burglary is a serious offence as reflected by the maximum penalty of 25 years.  So too is the offence of intentionally causing injury, which carries a maximum of 10 years.  In the case of Hogarth v The Queen, referred to by the prosecutor, Mr Teo, during the course of the plea; the Court of Appeal talked about home invasion as a 'particularly nasty form of criminal conduct' and went on to give this description:

'Typically, a home invasion involves multiple offenders entering a person's home, carrying weapons, intending to rob or injure the victims in revenge for some actual or perceived wrong.  The entry of the offenders — acting in anger and often fuelled by alcohol — is itself a terrifying experience for the householder(s), irrespective of what may occur after entry'.

25Those comments are plainly applicable to the offending in this case.

26In the case of DPP v Meyers [2014] VSCA 314[1] the Court of Appeal said,

[1]DPP v Meyers [2014] VSCA 314 at [47], [48]

'Determining the sentence to be imposed for any particular offence of aggravated burglary will in large depend on a careful assessment of the (relative) seriousness of the offence.  There was argument on the appeal about how the gravity of this particular instance of aggravated burglary should be assessed.

In our view, the following considerations will ordinarily be relevant to such an assessment:

i.the offender's intent at the point of entry (whether to steal or commit assault or cause damage);

ii.the mode of entry (e.g., by forcing a door or breaking a window);

iii.whether the offender was carrying a weapon;

iv.whether the offender was alone or in company;

v.the time of day at which the burglary took place;

vi.what the offender knew or believed about who would be inside; and

vii.whether the offender was someone of whom the victim was particularly frightened'.

27This was an aggravated burglary of a private residence.  The entry of the two co-offenders was an entry in company carrying a dangerous weapon, namely a machete, with an intention to assault the victim.  The entry was during the afternoon rather than at night.  The two co-offenders were aware the victim was home as a result of what you did in going in and then leaving with the dog.  There was no forced entry, but there was no need for that, given that you had just walked out, then they went in, very shortly after you left.

28By your plea you have accepted you were a party to this aggravated burglary and the intentional injury which took place when the two men entered.  The assault that occurred within the premises was a serious one, involving the use of a weapon and multiple blows.  It seems to me Mr Gidley was lucky to escape when he did and fortunate to find the police nearby.

29The text message you sent makes it very clear that you knew the victim was to be seriously assaulted in his own house.  Your role, as I understand the way the case was put, and which I accept, was to be the advance party, presumably to see if he was home and to facilitate the entry of the other two by leaving the door open.  This is the way the prosecution put the case against you.

30Applying the considerations set out by the Court of Appeal in Meyers, in my opinion, this was a serious instance of aggravated burglary which was planned in advance.  This is clear from the text message you sent and the circumstances of the incident.  It seems clear the three of you travelled from Dandenong to Mooroolbark together to carry out the offences.

31You may have had your own motivation being to take the dog you regarded as your own (which is a matter clearly disputed by the victim), but you had no misgivings in also contributing to the aggravated burglary and the assault.

32Mr Baker submitted on your behalf that you played a lesser role in this offending because you were not present when the assault took place and because you were not a trespasser when you entered.  He submitted it is likely that the episode was motivated by Mr Manuel's prior altercation with the victim.

33In my view the fact that when you entered you were not a trespasser is largely irrelevant as it is the entry of the two co-offenders with whom you are complicit that constitutes the aggravated burglary.

34I do not take the view that you orchestrated this incident and I accept it is entirely possible, given the physical altercation a few days earlier, that Mr Manual's animosity towards Mr Gidley was the major reason the incident occurred.  But I have no real information concerning the reasons for that earlier assault and indeed, the reasons for this aggravated burglary and intentional injury are not entirely clear to me.

35I accept that your role in the offending was less significant than the older
co-offenders who delivered the beating and who also wanted money from the victim during the course of the assault.  I accept that you had no knowledge of those sort of demands being made.

36However, your plea of guilty indicates that you were acting pursuant to an agreement to commit the crimes on the indictment.  Aware that your
co-offenders intended to injure the victim inside the house and that they had a machete, you played your part.  The text you sent indicates your willing participation and concurrence in the crimes against Mr Gidley.

37Considerations of general deterrence and denunciation must be important sentencing objectives in a case such as this.

Victim impact

38The victim in this matter, Mr Gidley, did not make a victim impact statement but he said this in his statement to police:

'I was terrified.  I thought they were going to kill me.  I'm not sure how I walked out alive despite being bashed and slashed with machetes'.

39I rely on that passage to indicate the fear that he experienced.  He was hit with the machete, but there is no description of being slashed.  So, I do not rely on it insofar as it suggests that.  But I have no hesitation in accepting that he was terrified by the entry of these two men into his home carrying a weapon and assaulting him.

Personal circumstances

40I have received a number of psychological reports in this matter, which were tendered as exhibits.  There are two reports from Mr Bernard Healey, the first dated 18 December 2018 and the second dated 29 June 2020.

41I have also received a report from Fiona Jessep, a senior social worker with the Mental Health and Response Service attached to the Frankston Magistrates' Court.

42The reports detail your very difficult childhood and teenage years; that you have been subjected to violence in your personal relationships with men; and that you have attempted suicide on a number of occasions.

43Whilst I accept a good deal of what is in these reports it seems to me not everything you told Mr Healey can be relied upon.  For example, in the final paragraph of his most recent report he writes of your positive compliance with the community correction order you are subject to.  This assessment has turned out to be inaccurate, a matter to which I will return.

44In the report of December 2018, he painted a positive picture of your rehabilitation and then seven days later you committed these offences.

45Nonetheless, these reports and the character references from Kaylah Howie and Leoni Frost, and the reference and evidence from Helen Dawson do suggest you have taken some positive steps in recent times.  Notwithstanding that you have been in breach of the community correction order, which you are currently undergoing.

46Also, the reports, the references and the evidence of Ms Dawson do support that you have been the victim of domestic violence in a series of unsatisfactory relationships that you have had in recent times.

47I also accept that the reports establish that you suffer from anxiety, PTSD, severe depression and post-traumatic stress disorder, as well as a borderline personality disorder.  And I have had regard to those matters.

48Your personal circumstances are that you were born in Preston in
February 1995.  You are an only child.  Both your parents were heroin users.  They separated when you were aged three.  Apparently, your mother went on to have another 13 children to other partners.

49When you were aged 12, you were placed with your maternal grandmother, pursuant to DHHS intervention.  You have had no contact with your mother since the age of 13 because at that time you reported you had been sexually assaulted by one of your mother's partners and you were in response physically assaulted by her.

50Your grandmother died in 2012 from cancer.  You were 17 at that time.  You went to live with your father's sister in Perth, where finished your secondary education.  You have the equivalent of a Year 12 qualification.

51You obtained some further qualifications after leaving school, including:  Early Childhood Education; First Aid; Business; Civil Construction; and Qualifications for Excavator, Skid Steer, Roller, and Stop & Go.

52You have also had various jobs.  You worked at McDonald's for a few years including in Perth.  You have had short stints of casual work in warehouses, in a childcare facility as part training for your certificate, and most recently in
mid-2019 you were employed in a fish and chip shop until you burnt yourself in a workplace accident.

53When you were aged 19 you returned from Perth to Victoria and you formed a relationship with an older man.  Around that time your father died from a heroin overdose and you attempted suicide as a result of your grief at your father's death.  Subsequently you lived a transient existence around Frankston and Chadstone and embarked upon a series of abusive relationships.

54During your adult life you have had several unsatisfactory relationships with older men, marred by drug use and domestic violence.  One of those relationships has been with one of the alleged co-offenders in this case, John Bilham.  That relationship seems to have commenced around 2017.  One of the offences for which you are currently on a community correction order was committed with him.  Both Bilham and Mr Manuel are considerably older than you.

55Your drug use dates back to when you were aged 14 by which time you say you were using cannabis daily.  You started using ice at the age of 16 and this has been a problem for you since that time.  I was told that at the time of this offending you were affected by ice.  I am also told that you have ceased using this drug in recent times.

56Indeed, in recent times you have been living in Phillip Island with a friend
Ms Kaylah Howie and her son.  She has provided a reference which was tendered as an exhibit and I have had regard to the contents of that reference.  I also heard evidence on the plea from Helen Dawson who spoke about your problematic relationships and the difficulties you have had, including a number of hospitalisations in the period she had known you.  Ms Dawson gave some evidence about your vastly improved physical appearance now compared to when she first met you in the middle of 2018.  She also gave evidence that in February of this year you decided to make a break with your past associations.  She gave evidence under cross-examination that in December 2018 your health had improved a good deal, but you still needed assistance removing your belongings from Mr Gidley's house.

Criminal History

57I turn now to your criminal history.

58You do not have an extensive prior criminal history, but you are currently on a 12-month community correction order imposed by Judge Brooks on appeal on 2 October 2019.  This order was imposed for a variety of dishonesty offences committed in 2017 and 2018, pre-dating this aggravated burglary and intentional injury.  You were originally charged in relation to these matters in January 2018 and as I understand the material they were first dealt with in the Magistrates' Court in June 2019.  I have been provided with a report, as I indicated earlier, from Mr Healey relating to an assessment that he conducted some seven days prior to this aggravated burglary.  And the chronology of events set out in that report makes it clear that these other charges were pending at the time you committed the current offences.  It seems clear enough that you were on bail for those matters when this incident occurred.

59The assessment report for a community correction order, which I ordered, reveals that your compliance with that order of Judge Brooks has been poor.  The report says that your attendance has been minimal, and you have made no progress towards conditions of the order and that you 'absconded from the service' with your last contact in January.  The community correction order assessment says that a decision concerning breach proceedings in relation to that community correction order remains pending following the outcome of these matters before me.  When asked about your noncompliance during your recent assessment, you said that fear of your ex-partner Mr Bilham who lives in the Dandenong area was the main reason for your noncompliance and subsequent disengagement, in addition to a continuous struggle with substance abuse.  The assessment report suggests you are a high risk of reoffending.

60I heard evidence from the case officer at Corrections who now has the responsibility of your file, Ms Vuillaman.  She has had no personal contact with you, but she told me that Corrections have had no contact with you since
27 February and only learned that you were living in Phillip Island as a result of a police notification.  She said the supervision component of the community correction order never really got off the ground, but you did engage relatively well with a mental health professional on the order.  In the end, the assessment says you are suitable for a further community correction order and it seems to me you displayed a frankness in the assessment that perhaps you had not previously displayed when you were speaking to Mr Healey in relation to your progress on the order.

61Just returning to your criminal history, very importantly you have no prior convictions for offences of violence.

Rehabilitation

62I turn now to your rehabilitative prospects.

63Notwithstanding your poor progress on the community correction order there are indications that you have been drug free while you have been living in
Phillip Island since around March of this year and I am prepared to accept that some sort of process of rehabilitation has commenced.  It is very difficult to know though what genuine gains you have made, in circumstances where you have not really participated in any meaningful way with the community correction order imposed by Judge Brooks, designed to assist your rehabilitation.  You said to the author of the community correction order assessment report that you attributed your progress to having stable accommodation in Philip Island and to 'being away from everyone' and focusing on your treatment.  This statement is consistent with the evidence of
Ms Dawson that in February you decided to break free of your past associations.

64Mr Healey noted in his second report when he assessed you this year, in
June 2020, that your weight had increased to approximately 60 kilograms and you were much healthier than when he assessed you in December 2018.  This is also again consistent with the evidence of Ms Dawson.

65Apparently, you are no longer in a relationship with Mr Bilham. You say that despite the fact you still have strong feelings for him you recognise that you are, 'Not good for each other'.

66I accept that if you can stay away from drugs and unsatisfactory relationships you have reasonably good prospects of rehabilitation.  I am also of the view that your very difficult upbringing has contributed significantly to your issues with drugs, mental health, problematic relationships with older men and an involvement in a criminal milieu.  In my view all of those things are casually related to your involvement in this offending.

67You were aged 23 when you committed these offences and, in my view, although you are now aged 25, the principles relating to youthful offenders have some application to your case.  Rehabilitation is perhaps a more important sentencing principle in your case than it would ordinarily be for an offence such as this.

COVID-19

68I take into account the current circumstances surrounding the COVID‑19 pandemic.  From information provided by Corrections Victoria, it is apparent that personal visits to prison have been suspended, there has been a reduction of services and programs, and some prisons are experiencing lockdown conditions.  Those circumstances cause additional stress for prisoners and their families and also affect the programs and supports in prison designed to assist in rehabilitation and transition into the community.  In your circumstances, I accept this is a matter I must take into account in your favour.  I also note you are an asthmatic who requires preventative medication.  Material suggests that you have in the past been hospitalised for your respiratory condition, which makes you a potentially vulnerable person in regard to the virus.  And I take this into account as likely to increase your level of anxiety in the prison environment.

Burden of Imprisonment

69This is your first sentence of imprisonment and I am satisfied that it will weigh heavily upon you particularly in the current restricted environment.

Sentencing Submission

70Mr Baker submitted on your behalf that I should impose a community correction order alone.  He referred to the decision of Boulton in support of this submission.  The prosecutor, Mr Teo submitted that a combination sentence of imprisonment and a community correction order was within range, but the offending required a period of imprisonment to be served.  Mr Teo maintained this submission, notwithstanding the evidence related to your progress on the community correction order imposed by Judge Brooks.

Sentencing principles

71The purposes for which a court may impose sentence are just punishment, deterrence – both specific and general – denunciation and protection of the community.  But I must also seek to ensure, as far as possible, that you, as an offender, are rehabilitated and reintegrated into society. 

72I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.  In this case, general deterrence and denunciation are significant sentencing objectives.  Specific deterrence, whilst still relevant, is less important given that this is your first sentence of imprisonment and that you do not have a significant criminal history and you have no priors for violent offences.

73I regard rehabilitation as important in your case and, after much thought, I intend to impose a combined sentence of imprisonment and a community correction order in this case.  In my view that disposition best reflects the need for general deterrence and denunciation, balanced against factors relating to your rehabilitation.

74I am of the view that given the serious nature of this offence your moral culpability and the importance of general deterrence and denunciation, that a period of imprisonment to be served is appropriate in this case and that there is no other option.

Sentence

75In relation to this matter, Ms Wells, in respect of Charges 1 and 2, I sentence you to a period of imprisonment of 10 months.

76I also impose on both charges a two-year community correction order, with the following special conditions:  supervision, treatment and rehabilitation in relation to your mental health.  And I will impose a condition in relation that you participate in programs, offending programs as directed.  Judicial monitoring has recommended and given that recommendation I do intend to impose such a condition.  I will make the first judicial monitoring appointment Monday,
6 September 2021.

77I will just have the order printed out and go through it again.  So that is
10 months' imprisonment, with a two-year community correction order.

78I will come back to that, but I will indicate that if it were not for your plea of guilty, I would have imposed a sentence of three years and four months, with a minimum of two years' imprisonment. So, I make that declaration pursuant to s.6AAA of the Sentencing Act.

79I will declare in this case - I declare that you have served two days of
pre-sentence detention and that that is to be deducted from the sentence that I have imposed, pursuant to s.18(4) of the Sentencing Act.

80Now, I will just return briefly to the terms of the correction order.  You cannot commit another offence for which you could be imprisoned during the time the order is in force.  You have to comply with any obligations or requirements under the sentencing regulations.  To report to and receive visits from Corrections.  You must report to a Community Corrections Centre within two clear days of the commencement of the order.  So that is in 10 months' time, that is after your release.  You must let a community corrections officer know if you are changing your address or your job.  You cannot leave Victoria without getting permission to do so from Corrections and you must obey all of their lawful instructions.

81So those are the core conditions.  If you do not comply with those conditions and you are in breach of the order the supervision - I will just go back through the special conditions.  It is supervision, it is for a period of two years.  Assessment and treatment for drug abuse, mental health assessment and any programs or courses as directed by Corrections.

82I have not imposed any community work, that was not recommended, and you are serving this period of imprisonment

83I do have to indicate to you, Ms Wells, that if you reoffend or if you do not comply with the order and you are in breach of this order, the matter can be brought back before me.  And what happens from there is all of the orders I make today, including the prison sentences are vacated and you would be re-sentenced, and you would face a further period of imprisonment; do you understand that?

84OFFENDER:  I do.

85HIS HONOUR:  Now, this order will be sent through to the prison, I will sign it and you will sign it.  Do you consent to this order, community correction order at the end of the period of imprisonment?

86OFFENDER:  Yes.  Yes, Your Honour.

87HIS HONOUR:  All right, well that is a sentence of 10 months, two days
pre-sentence detention, to be followed by a two-year community correction order.  Were there any other orders I needed to make, Mr Teo?

88MR TEO:  No, Your Honour.

89HIS HONOUR:  No.  And nothing further?

90MR TEO:  Not from me, Your Honour.

91HIS HONOUR:  Mr Baker, nothing further?

92MR BAKER:  Nothing further, Your Honour.

93HIS HONOUR:  All right, thank you both for your submissions in this matter and assistance.  All right, I will now stand down.

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