Director of Public Prosecutions v Wentworth (a pseudonym)
[2020] VSC 435
•16 July 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0057
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| HAYDEN WENTWORTH ( a pseudonym)[1] | Accused |
[1]To ensure that there is no possibility of identification, this sentence has been anonymised by the adoption of a pseudonym in place of the name of the accused.
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 July 2020 |
DATE OF SENTENCE: | 16 July 2020 |
CASE MAY BE CITED AS: | DPP v Wentworth (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 435 |
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CRIMINAL LAW – Sentence – Murder – 16 year old accused stabbed grandfather 24 times – Plea of guilty – Reasonable prospects of rehabilitation – Youth – Sentence of 16 years’ imprisonment with non-parole of 11 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R Harper | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr S Moglia | Amad Lawyers |
HIS HONOUR:
On 11 June of this year before Hollingworth J, you pleaded guilty to the murder of your grandfather on 21 August 2019. In setting out the circumstances of your offending, I have called heavily upon the Prosecution Plea Opening which became Exhibit 1 on the plea.
At about 6.20 am on 21 August 2019, your grandmother Helen left 2/2 Browning Street, Kilsyth and drove to work in Monbulk. She left your grandfather asleep in bed. He later prepared food and watched television. As was the usual practice, you were dropped off at Yarra Hills Secondary College by your father at about 8 am. You placed your laptop bag and mobile phone into your friend’s locker. You then left the school grounds armed with a knife and it is assumed that you were intending to kill or really seriously injure your grandfather.
You walked almost 2 km to your grandparents’ address in Browning Street, Kilsyth using the hood of your jumper to disguise your identity. At about 8.56 am, Alison Jamison who lived at Unit 1/2 Browning Street returned home after dropping her children at school and joined her husband Scott.
At about 9.00 am you arrived at Unit 2/2 Browning Street and knocked on the door. Your grandfather opened the front door, leaving the television on, and was confronted by you. A physical altercation took place which spilled out onto the driveway. You punched your grandfather to the face and, during the subsequent struggle, his grey jumper came off and was left in the garden bed next to the driveway.
Your grandfather managed to break free from you and ran next door to his neighbour Patricia De Vries’ house at Unit 1/4 Browning Street. He yelled for help, but despite his efforts to escape you chased him into the yard and attacked him metres from the doorstep, using a knife to stab him in the upper-right chest and left abdomen. He fell onto the concrete path leading to Ms De Vries’ front door, where you knelt beside him and repeatedly stabbed him in the back, shoulder and neck and head regions.
As this was happening, Ms De Vries, who was in her bedroom, heard a male voice outside yelling, ‘Help me, help me. Get off, get off’. She went to the window and looked out into her front yard, where she observed your grandfather lying on his stomach. You were kneeling next to him with your right arm raised in the air, striking your grandfather to his upper body.
At the same time, Alison Jamison heard murmurings outside and went out to investigate. Thinking Ms De Vries may have fallen, Ms Jamison called out over the fence. There was no response, so she opened the gate and walked into Browning Street, where she saw your grandfather lying injured in Ms De Vries’ front yard. As Ms De Vries came out of her house, Ms Jamison asked her to call ‘000’. The person Ms De Vries had earlier seen attacking your grandfather was then nowhere to be seen.
At 9.06 am Ms Jamison called emergency services from Ms De Vries’ mobile phone. Ms Jamison commenced first aid while Ms De Vries called out for Scott Jamison to come outside too. At 9.11 am Scott Jamison came out of Unit 1 and, upon seeing his wife administering first aid, called the police before walking down the driveway of Unit 2. He then called your uncle Peter. At 9.14 am ambulance paramedics arrived and found your grandfather to be unresponsive with no pulse. At 9.15 am your uncle Peter left work in Bayswater North and drove to Browning Street, arriving a few minutes later.
At 9.17 am two more paramedics arrived at the scene and at 9.21 am your grandfather was declared deceased. The police arrived minutes later. Your uncle Peter took them down the driveway to Unit 2, where the grey jumper was found in the garden bed and the front security and wooden doors of the unit were found to be unlocked.
A post-mortem examination was conducted by pathologist Dr Melanie Archer at the Victorian Institute of Forensic Medicine on 21 August 2019. The examination revealed 24 sharp force or stab wounds to your grandfather’s scalp, neck, anterior chest and back, 10 of which were significantly penetrating. Of the 10, seven were to the right chest, one was to the left chest from the back, one was to the abdomen and one was from the back of the neck to the right-anterior neck. Many of the injuries were to the back and showed a clustered or monotonous pattern suggesting your grandfather was relatively immobile at the time he was stabbed. There were also abrasions to the elbows and lower back, which may indicate a fall or dragging of his body, although on the evidence no question really of dragging arises.
The cause of death was found to be multiple stab injuries. Those injuries resulted in a combination of blood loss, both external and internally into the right chest cavity, pneumothorax or air in the chest cavity due to a lung puncture and collapse. The major injuries were to both lungs and to the right jugular vein of the neck.
Homicide Squad investigators canvassed CCTV in the area, which indicated a young Caucasian male wearing black shoes, loose-fitting grey shorts and a black hooded jumper was in the area at the time, some 1.25 kilometres from the Yarra Hills Secondary College. That description led the police to investigate CCTV footage and attendance registers at the school.
On 10 September 2019, in an attempt to identify the male in the footage, investigators presented the CCTV to all students in Years 7 to 12 at Yarra Hills Secondary College. That night your mother informed police that she was aware of the presentation and that her estranged son attended Year 11 at the school.
Police confirmed that you were marked as present for period 1, physical education, which commenced at 9 am on 21 August 2019. But on 22 October 2019 a further review of CCTV from the school established that you had in fact arrived late on 21 August 2019 and hard copy student records show you were absent for period 1.
The CCTV showed you, wearing a blue school polo shirt, loose-fitting grey shorts, black shoes and carrying a black jumper, walk into the school grounds from the direction of Cambridge Street and into D block male toilets at 9.22 am.
You then walked into B block toilets and left without the black jumper. You were seen with your friend and accessed his locker, removing a laptop bag and walking back into B block toilets. You then went to your locker and returned to the scene in the B block building.
An unidentified DNA profile was located on the outside upper left shoulder region of the grey jumper that has since been matched to a covert sample of your DNA.
From 20 November 2019, police lawfully monitored telephone calls between you and your sister. On 6 December at 3.29 am, you were heard to discuss your relationship with your grandfather and the fact that your sister had not seen him for eight years and other aspects of the investigation.
A search warrant was executed at your home. Among the items that were seized from the house where you lived with your father and sister was a Hewlett-Packard (HP) laptop, a Smith & Wesson ‘Extreme Ops’ folding knife, a black ‘Anaconda’ Swiss Army style knife, a wooden-handled ‘Ryset’ knife in a box containing five assorted knives and a slingshot. Eventually it is only the HP laptop and the Smith & Wesson ‘Extreme Ops’ folding knife that are of any significance in this case.
On 11 December 2019, police attended at your home address and spoke to you in the presence of your father. You maintained that you were at school for the duration of Period 1 on 21 August 2019. Then you were invited to the Lilydale police station where you participated in a DVD-recorded interview with the police.
You initially denied any knowledge of your grandfather’s murder, however, you were shown CCTV footage from the school of the day of the incident and being told by police that they were speaking to your friends and executing a search warrant at your home. You admitted the offending and provided something of a motive. At one point, you say:
(a) Fine, I did it. …[2]
[2]Record of Interview with [Wentworth] held on 11 December 2019 , answer to question 192.
Later, you went on to say:
(b)He wasn’t exactly a nice man. He was also a bit of a creep. O.K.? [3]
(c)And he did some things that were very, shall I say, creepy, to my sister, right. I did not like that. He - you don’t mess with my sister, no way, especially something like that, nup, there’s no way he’ll get away with that ….[4]
(d)Oh, look, he didn’t, like — he didn’t put her — put his hands on her but, like, some of the things he did shouldn’t have been done ...[5]
(e)Went down there, pretty much just walked, covered up my face, I walked — walked to the house, did what I had to do.[6]
(f)I can’t remember the roads that I took, I just - I was just set on a mission and just did it.[7]
[3]Ibid, answer to question 193.
[4]Ibid, answer to question 194.
[5]Ibid, answer to question 197.
[6]Ibid, answer to question 213.
[7]Ibid, answer to question 214.
A written statement was obtained from your sister which disclosed that when she was between seven and nine years of age and alone with her grandfather in the unit, he would stand naked in front of her while getting changed in his bedroom. She said this happened four or five times and that he sometimes would give her beer. She told police she informed you of those things in May 2019. She made no disclosures regarding any direct sexual assaults.
I note in February 2020, analysis confirmed the DNA belonging to your grandfather was detected on a section of the blade of the Smith & Wesson ‘Extreme Ops’ folding knife located under your bed. Analysis of your HP laptop showed a number of searches for terms such as, ‘How many years imprisonment for murder in Australia?’, having been conducted after your grandfather’s death.
On the plea, I received victim impact statements from your maternal grandmother and your great aunt, your grandfather’s sister. Your grandfather will be greatly missed by them. Their anguish is heightened by your close relationship and I have taken those victim impact statements into account.
You are now 17 and will be 18 in September of this year but you were only 16 at the time of those events. You lived with your parents until their separation when you were nine. You were then the subject of a shared custody arrangement but when you were 10, you went to live with your father.
As I have already observed, you told the police that your grandfather had behaved inappropriately towards your sister. Also, as I have already observed, your sister told the police that in May 2019 she told you the details set out earlier in these reasons. That conduct was said to have occurred when she was between the ages of seven and nine. It emerges elsewhere in the material that when you were both much younger, there had been some discussions about the subject.
As part of your plea, I received reports from forensic psychiatrist, Dr Adam Deacon, dated 1 December 2019 and Pamela Matthews, consultant psychologist, dated 25 May 2020. Although nothing really turns on it, there must have been an earlier report from Ms Matthews because Dr Deacon refers to her findings in his report. I also received a pre-sentence report from Youth Justice. I have chosen not to publish that report.
You told both Dr Deacon and Ms Matthews that you also had been indecently assaulted by your grandfather. It is not clear but it seems you also told Ms Matthews that you had not been assaulted by him.
You had gone to some lengths in your record of interview to say that your sister had not been touched and you denied any assault on you. I am not sure that the fact that you had been assaulted by your grandfather would make any difference to the sentence. On the whole of the material, I am not satisfied that you were assaulted. I do not treat this finding as a matter in aggravation because I am not satisfied that you deliberately lied about the matter.
It seems that the most important feature of your life was the separation of your parents in about 2010. Your mother formed a new relationship and your father left home. For about a year, you stayed with both your parents. You did not enjoy the time with your mother and you found a trip to the United States with your mother and her new partner particularly harrowing. You reported to Ms Matthews that your mother was physically and verbally abusive.
In 2011, you left your mother’s house and moved in with your father full-time. Your sister did the same shortly afterwards. You have formed and continue to have a particularly close relationship with your father and your sister. You have no relationship with your mother and apart from acknowledging your biological connection, you do not regard her as your mother and you have no relationship with your mother’s family including your grandparents.
What does appear to be of significance is best described in Ms Matthews’ notes as follows:
The writer is of the view that [Mr Wentworth’s] emotional development has been more significantly impacted by how his parents managed the parental separation than his exposure to his grandfather’s alleged behaviour.
Developmentally [Mr Wentworth] as a child (was) subject to an insensitive and poorly managed parental separation. When the relationship between separating parents becomes divisive, children are exposed to that division rather than protected from that division, by one or both parents, they, the children, do not have the cognitive nor emotional capacity to reconcile the competing needs of either parent. Children in this situation tend to resolve that competition or feeling torn, by choosing to align with one parent and in this process may become rejecting or alienated from the other parent. In doing so, children in this situation develop defensive structures which emotionally reconcile the choice they have made. Splitting is a defensive structure sometimes relied upon by children in this situation, for example, dad is all good, and mum is all bad. Splitting is the failure in a person’s thinking to integrate both positive and negative qualities of the self and others into a cohesive, realistic whole. It is a defence mechanism that can appear transiently in adolescence, but unresolved is fundamental to the development of borderline personality disorder or features of borderline personality disorder.
In the writer’s view, [Mr Wentworth] in presenting with emerging features of Borderline Personality Disorder which is evident in his fixed, extreme black and white thinking in regards to the deceased, his description of an inner world in which he struggles to integrate a good voice and bad voice, reports ruminative angry thinking leading up to the events before the Court, and possibly dissociative anger accompanied with high levels of angry arousal.[8]
[8]Report of Ms Pamela Matthews, Consultant Psychologist, dated 25 May 2020, 17–18 (‘Matthews Report’).
Dr Deacon reported under the heading ‘Opinion and Recommendations’:
1.[Mr Wentworth] is a 17 year-old young man. He reported that his parents raised him until age 9 when they separated. Whilst reporting having limited childhood memories, he noted that he disliked and disrespected his mother. He noted that his mother was moody, volatile and physically abusive. He was openly disparaging of his mother to the extent that he didn’t regard her as a mother figure.[9]
[9]Report of Dr Adam Deacon, Consultant Psychiatrist, dated 1 December 2019, 9. (‘Deacon Report’).
Under the next recommendation he notes:
2.[Mr Wentworth’s] stark criticism of his mother may be reality based and representative of the quality of her as a person and their relationship, but it is possible he has acquired a particularly polarised and extremely negative opinion of his mother in order to maintain a comparative sense of safety and positive regard for his father who he openly praised. Children involved in circumstances of separating parents are commonly caught in a dilemma of competing loyalties leading to an inability to reconcile that both parents are worthy of praise and regard. This process of splitting is a coping mechanism that allows a person to not be caught with ambivalent feelings. If splitting continues as a coping mechanism more broadly it can contribute to significant interpersonal problems.[10]
I accept those findings.
[10]Deacon Report 9.
Ms Matthews reported some findings consistent with autism spectrum disorder and post-traumatic stress disorder but reached no firm conclusion in relation to those matters. She also saw emerging features of borderline personality disorder. Dr Deacon, however, rejected any role of autism.
On the plea, I was urged by your counsel Mr Simon Moglia, who appeared on your behalf, to view the record of interview and I have done so. Prior to the plea, I had read the record of interview. Ms Matthews had observed that ‘[Mr Wentworth] in his Police interview, presents as confident, glib and emotionless in his denials of involvement in his grandfather’s murder’.[11] I would add ‘articulate’. It is clear that you cared for your father and, consistent with what the professionals have said, there is an element of support from you to your father during the interview which has about it an element of role reversal.
[11]Matthews Report 18.
Your schooling was relatively unremarkable, although you were bullied at primary school, which you managed to overcome as you got older and progressed into secondary school. Your academic performance was largely average, but you were low in literacy. You were found by Ms Matthews to have an overall IQ of 70, which is relatively low. Your score was higher in vocabulary and verbal reasoning. The assessment of your overall IQ of 70 came as a surprise to Dr Deacon.
Although I accept that you have some insight to your offending and regret the pain you have caused your father and sister and the balance of your extended family — you have expressed some limited regret to your mother’s extended family. Dr Deacon said:
19.[Mr Wentworth’s] derision and hatred for his grandfather appears to be the underling predisposing factor regarding the offence. The specific trigger of the offence occurring on the day is unclear.
20.[Mr Wentworth’s] thinking relating to his grandfather’s purported sexually abusive conduct was notably concrete. He considered his grandfather, and people who had similarly sexually abused children, to be worthless. Whilst he can in part recognise in hindsight that his conduct, and the fatal consequences to be extreme, he gave the impression that he maintained a sanctimonious position without obvious contrition.[12]
Finally he said:
21.Whilst mental health-related issues are germane in the background, and placing this offence in context, there is not a direct nexus between mental health condition and the offence. There are no grounds for consideration of a mental impairment defence.[13]
[12]Deacon Report 11.
[13]Ibid 11.
I should perhaps interpolate here by saying of the two reports the report of Dr Deacon was much more confined to issues relating to matters such as mental impairment, while Ms Matthews’ report was more wide ranging.
At the time of the offending you were a frequent user of cannabis and discontinued that use shortly after the offending because you had ambitions of joining the army. Ms Matthews could not rule cannabis in or out as related to your offending. Dr Deacon, on the other hand, did not regard it as having any significance.
You were suffering from no mental disorder, but your behaviour and progress in detention has been good. Ms Matthews had expressed your risk of further offending as follows:
In terms of risk to the community, in the writer’s opinion [Mr Wentworth] represents a low-frequency high-intensity future risk of violence. Contributing to that risk estimate is his age and stage of development, loss of important attachment figure in childhood, difficulties with emotional regulation, emerging personality features of concern, his cannabis use, and cognitive limitations. These risk factors are tempered by the significant support from his father, sister and extended paternal family.[14]
[14]Matthews Report 19.
I do my best to assess what is meant by that, but I take Ms Matthews to be saying that in relation to this offending, which must in general be regarded as situational, that any high risk that you might represent would only be a high risk in terms of a repetition of similar features, which are most unlikely in your future. I do not regard you as being a high risk of reoffending, however, the possibility of reoffending cannot be excluded.
I must do my best to assess your prospects of your rehabilitation, which at your age are very hard to predict, but in general they must be regarded as reasonable. What was said by Ms Matthews about that is this:
From a rehabilitation perspective, [Mr Wentworth] is managing in the juvenile custodial situation and is likely to continue to do so. He presents as socially delayed in the area of peer relationships and identity development, with these aspects of his presentation mostly relating to his autistic features and development attachment history. Hence it is the writer’s view that [Mr Wentworth] is likely to be physically and emotionally vulnerable and to struggle to transition at this stage if he is moved to an adult custodial system.[15]
[15]Ibid.
I will return to those findings.
In relation to my own view about your prospects of rehabilitation and regarding what is reasonable, I make that finding having particular regard to the fact your offending was situational and, unlike the predominant majority of young men who come before this Court, you have no experience in the criminal justice system and no apparent behavioural difficulties in your immediate past. That continued to be so even though some aspects of your schooling were difficult for you.
It is most important to note that you have the unqualified support of your father and your sister and of your extended paternal family. Again, there are mechanisms which are likely to be in place at the time that you are to be released.
The maximum term of imprisonment for murder is life. You were only 16 at the time of the offence and therefore the Standard Sentencing Regime does not apply to you. In the final analysis, this was a brutal murder borne out of anger for which you have expressed a reason but that reason cannot be in any way regarded as adequate even making allowance for your youth, but it does distinguish your conduct from cases involving gratuitous and unexplained violence. There was some planning in your offence shown by the carrying of the knife but I do not regard it as being premeditated.
I am obliged to have regard to just punishment and denunciation of your conduct. I have not had regard to the principles of general deterrence because of the circumstances of your offending and your youth.
You will be sentenced to be imprisoned for 16 years with a non-parole period of 11 years. The non-parole period is somewhat lower than that which might have been fixed for an adult offender and the period of a possible five years on parole might be regarded as lengthy but I regard as important that on release you have as much support as possible.
I declare that you have served 218 days by way of pre-sentence detention.
I indicate that pursuant to s 6AAA of the Sentencing Act 1991, I would have, but for your plea of guilty, sentenced you to be imprisoned for 21 years with a non-parole period of 17 years.
I direct that the above declaration and indication be entered into the records of the Court.
In this case, it is appropriate that I recommend to the Adult Parole Board that they, pursuant to s 471 of the Children, Youth and Families Act 2005, consider your transfer from the adult system into the Youth Justice system and I will, this morning, provide to the Adult Parole Board all the material relevant to that recommendation and I emphasise in particular the matters raised by Ms Matthews.
In addition, I specifically draw to the attention of those who will have care of your immediate custodial environment the matters raised by Ms Matthews and my recommendation to the Adult Parole Board and, again, I will have that done so that at least a version of my sentencing remarks will accompany you today.
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