Director of Public Prosecutions v Wells
[2016] VCC 1584
•24 October 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-00051
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EDDY JOSEPH WELLS |
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JUDGE: | Hi Honour Judge Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 July 2016 and 17 October 2016 | |
DATE OF SENTENCE: | 24 October 2016 | |
CASE MAY BE CITED AS: | DPP v Wells | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1584 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A French | OPP |
| For the Accused | Ms J Swiney | Chris McLennan |
HIS HONOUR:
1 Eddy Wells, you have pleaded guilty to one charge of burglary, one charge of theft and one charge of making a threat to kill. The maximum penalty for each of these offences is 10 years imprisonment.
2 The prosecutor presented a summary of your offending. It is not my intention to repeat that summary. It will be attached to these remarks as Exhibit “A”.
3 Very briefly, at 7 pm on 19 May 2015, you broke into a house at 23 Festival Terrace Berwick and ransacked the front bedroom. You stole an apple iPhone. Later that evening, you sent a text message to Cliff Gilchrist (who resided at the home you burgled) saying – “Weak rat, I’ve got an iPhone for sale if you want it belonged to ya dead she knocked her self because you’re a cowardly mutt. I’m going to carve u up mutt what happened are you still coming from work dead dog?”
4 Your counsel told me that Mr Gilchrist had befriended you in the past and that the offending occurred in “a state of drug use and paranoia” where you were under the delusion that Mr Gilchrist had slighted you in some way.
5 This is nasty offending. You broke into another person’s home, stole a mobile phone and then sent a text message to the victim threatening to kill him. General deterrence is an important sentencing consideration in this case.
6 Because you have a prior conviction for threat to kill for which you received a sentence of imprisonment, I am required to sentence you as a serious violent offender. I direct that this be entered into the record of the court. In addition, if I consider a sentence of imprisonment is justified, in determining the length of the sentence, I must regard protection of the community as the principal purpose for which the sentence is imposed and, in order to achieve that purpose, may impose a sentence which is longer than that which is proportionate to the gravity of the offence. The prosecution did not make a submission on this point and I do not intend to impose such a sentence. The various purposes of sentencing can be met without the need for a disproportionate sentence.
7 The Sentencing Act also says that unless otherwise ordered, a sentence of imprisonment imposed on the charge of threat to kill must be served cumulatively upon any uncompleted sentence or any other sentence of imprisonment. There is a tension between this provision and the principle of totality that is not easy to resolve. I must ensure that I do not impose a sentence that would be crushing.
8 You come before the court with a lengthy and relevant prior criminal history. You have been sentenced twice in the County Court for serious criminal offences. You have been sentenced to periods of imprisonment and have had great difficulty in complying with parole in the past. Given this history, specific deterrence is a relevant sentencing consideration.
9 I now move to matters that relate to your background.
10 You are 29 years old. You grew up in a totally dysfunctional family. Your parents were very young when you were born and neither of them were able to provide you with the stability and support that is so essential for a child’s development. Child Protection became involved in your life and you spent your childhood and adolescence living variously with your grandparents, in foster care and in residential units. You have no education beyond Year 7 and you have a very limited work history.
11 Any sentence I impose should recognise the considerable disadvantage that you have suffered in your life and your moral culpability moderated accordingly. On the other hand, you have been given opportunities to change your behaviour and you have shown limited ability to do so. You have an understanding of how your use of drugs invariably leads to criminal offending, and yet, you are unable to stop using drugs. This reinforces the importance of the weight that must be given to the principle of protection of the community.
12 Psychological reports have been provided to various courts in the past that have confirmed the following matters.
1. You come from a background of significant disadvantage.
2. That you are poorly educated.
3. That you have a deep seated and long standing problem with drug abuse.
4. That you have a low IQ.
13 In 2010, Mr Bernard Healy, clinical psychologist assessed your IQ at 79. He also thought that your cognitive abilities may have been affected by your history of substance abuse and by blows to the head that you had received throughout your life. He stated that he found thought confusion with symptoms of depression, anxiety and schizoid features.
14 In November 2011, Dr Aaron Cunningham, forensic psychologist, assessed you as suffering from substance use disorder with symptoms of depression and anxiety. He stated, on the basis of testing, that your cognitive functioning was in the intellectually impaired range. He assessed your risk of reoffending as medium to high.
15 A more recent assessment by Dr Cunningham in February 2016, confirms the diagnosis of substance use disorder, with symptoms of anxiety and depression. He also expresses the opinion that you suffer from Post Traumatic Stress Disorder, as a result of the trauma you suffered as a child and adolescent. Given your background, this assessment is not surprising. He assessed your IQ at 62.
16 A recent assessment from Disability Services states that you do not have a disability as defined by the Disability Act 2006. This is because although you do have significant deficits in cognitive ability, you did not have these significant deficits before the age of 18. When you were assessed as a teenager, you were functioning in the borderline to low average of intellectual ability, which is above the range associated with an intellectual disability. However, the writer of the report concedes that you may have an acquired brain injury.
17 Mr Wells, I am satisfied that there should be some moderation of sentence, to reflect the fact that a sentence of imprisonment would be more onerous for you, than it would be for a person without your lowered intellectual capacity and Post Traumatic Stress Disorder.
18 You were initially charged with an offence of aggravated burglary. After the committal hearing, you made an offer to plead to the charges on the indictment and the offer was accepted by the prosecution. In these circumstances, I do regard your plea as an early plea of guilty. Your plea is indicative of remorse and it has saved the victim from the trauma of giving evidence. Your plea has also avoided the costs involved in a criminal trial. You will be given credit for all these matters.
19 On 12 August 2015, you were arrested on unrelated criminal offences and remanded in custody. On 11 February 2016, you appeared in the Magistrates Court and sentenced on those matters to a total of 16 months imprisonment, with a minimum term of 10 months. There was 183 days pre-sentence detention. You are currently undergoing that sentence. I was told that you would have been eligible for parole on 11 July 2016 and that the sentence will expire on 8 January 2017. This is an important and relevant matter for me to take into account in determining sentence in this case.
20
Mr Wells, your long history of drug abuse and your past failures to change your behaviour make me extremely guarded about your prospects of rehabilitation. In relation to this, I note that when you appeared before
Her Honour Judge Cohen in 2010, you gave evidence before her about your plans for the future. In her sentencing remarks Her Honour said:
“I was impressed that you were prepared to go into the witness box in the hearing before me, and on your oath, not only explain what you wanted to say, but answer questions from the prosecutor and from me. With your background, that cannot have been easy. I have since reread the letter you had written to me. I accept that despite your background, and what looks like relatively quick relapse into abusing alcohol and drugs and reoffending, you have since thought long and carefully about the position you find yourself in and have taken stock about what you want to happen in the future.”
21 A little later in her sentencing remarks Her Honour noted that she was satisfied:
“That you are still young enough that if you continue with your current stated intentions that you can turn your life around and establish a stable and law abiding life with a partner and child.”
22 I also note on this issue of prospects of rehabilitation that you appeared before His Honour Judge Shelton in November 2011, for an offence of armed robbery that was committed within a few months of being released on parole on Judge Cohen’s order.
23 Finally, although your offending is serious, I am satisfied that the gravity of the offending in this case is at the lower end of the scale in comparison to other offences of this type.
24 Please stand Mr Wells.
25 On the charge on threat to kill, you are convicted and sentenced to nine months imprisonment.
26 On the charges of burglary and theft, you are convicted and sentenced to an aggregate imprisonment term of nine months.
27 I order three months of the sentence on the charge of threat to kill be served cumulatively upon the sentence on the other two charges. This makes a total effective sentence of 12 months imprisonment.
28 In addition, on all charges, you are convicted and placed on a community corrections order for a period of 15 months. The order has the following conditions attached. To be under supervision; to participate in treatment and rehabilitation for drug abuse; to participate in treatment and rehabilitation for mental health and to participate in programs to reduce reoffending. You are to report to the Dandenong Office of Corrections within two working days of your release from custody.
29
Mr Wells, because you have been in custody on other matters since
August 2015, it would not be appropriate to make my sentencing order cumulative upon your current sentence.
30 Had you pleaded not guilty to the charges ,and been found guilty after a trial, I would have sentenced you to a total effective term of 18 months imprisonment, together with an 18 month community corrections order.
31 I make the disposal order sought by the prosecution. Are there any other matters?
32 MS FRENCH: Your Honour, I just wanted to clarify. With respect to the burglary and theft charges, did Your Honour impose an aggregate sentence of nine - - -
33 HIS HONOUR: An aggregate imprisonment term of nine months.
34 MS FRENCH: Yes, Your Honour.
35 HIS HONOUR: And I've made three months on the threat to kill cumulative, which gets the 12 month sentence and then there's the 15 month CCO to follow on.
36 MS FRENCH: As Your Honour pleases.
37 HIS HONOUR: You take a seat Mr Wells, you have to sign the community corrections order. Thank you.
38 MS SWINEY: May I go and check that he understands all of that, Your Honour?
39 HIS HONOUR: Yes.
40 MS FRENCH: I'm sorry, the CCO Your Honour was imposed also on each of the - - -
41 HIS HONOUR: On all of the charges.
42 MS FRENCH: Yes, Your Honour.
43 HIS HONOUR: Yes.
44 MS FRENCH: Your Honour, if I may just - I'll wait for my learned friend to come back, it's just with respect to the aggregate sentence and the requirements of the Sentencing Act.
45 HIS HONOUR: Yes, Ms French.
46 MS FRENCH: Your Honour, just with respect to the aggregate sentence, I've just gone to s.9 of the Sentencing Act and because they're not utilised as much in the County Court, I just wanted to check whether Your Honour needs to - under sub-s.3, "A court proposes to impose an aggregate sentence. It must be for - doing so, announce in open court, in language likely to be readily understood by the offender. a) The decision to impose an aggregate sentence and the reasons for doing so, and b) The effect of the proposed aggregate sentence".
47 I wonder if Your Honour just needs to say something to Mr Wells with respect to the aggregate sentence that was imposed, in relation to the burglary and the theft.
48 HIS HONOUR: Well I would've thought it's fairly obvious, but I will comply with the section by announcing that this is a case where the burglary and theft are offences which are founded on the same facts or form or are part of a series of offences of the same or a similar character. And I have acted pursuant to that section in relation to the two charges.
49 MS FRENCH: As Your Honour pleases.
50 MS SWINEY: As Your Honour pleases.
51 HIS HONOUR: Yes. Now has he signed that order?
52 ASSOCIATE: Yes.
53 HIS HONOUR: All right, thank you.
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