Director of Public Prosecutions v Westhorp

[2014] VCC 1696

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

TY WESTHORP

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	LaTrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	8 October 2014
CASE MAY BE CITED AS:	DPP v Westhorp
MEDIUM NEUTRAL CITATION:	[2014] VCC 1696

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Offender	Mr P. Skehan

HIS HONOUR: 

1Ty Aaron Westhorp, you have pleaded guilty to one charge of causing injury intentionally, one charge of theft, one charge of aggravated burglary, one charge of damaging property, one charge of common assault and one charge of causing serious injury intentionally.  Those crimes carry maximum penalties of ten years, ten years, 25 years, ten years, five years and 20 years respectively.  You have pleaded guilty to a settled indictment and you must get the benefit of that. 

2Whilst remorse in your particular situation might be somewhat problematical, I accept that there is a really significant utilitarian benefit to your plea.  Your plea of guilty has also been made in the face of a system of beliefs that you have in as to what occurred, which are probably due to psychiatric disturbance.  I accept that it would have been hard for you to accept the materials and enter that plea of guilty, and you must get the benefit of it. 

3You are now 34 years of age.  You do have a significant prior history and I will deal with that in a moment.  You have now been in custody for 448 days.  You have done most of that in protection and I sentence you on the basis that you will serve the bulk of the sentence that I impose in protection. 

4Your criminal history is disturbing, to say the least.  You have many prior convictions for violence, you have prior convictions for dishonesty and a lot of it would appear to be drug and alcohol related.  Of most significance is that in 2001 you were sentenced by a Magistrates' Court for recklessly causing serious injury and on appeal to the County Court that sentence was imposed at two years, 12 months of which was suspended.  You then subsequently in November of 2004 appeared before Judge King, as she then was, in relation to a matter of recklessly causing serious injury. 

5Each of those crimes involved the use of a knife and each of them would appear to have caused serious injury indeed.  Judge King sentenced you to be imprisoned for a period of five years, with a non-parole period of two years and six months.  The recklessly cause serious injury from 2002, the suspended portion of that sentence was reinstated and it was ordered to be served concurrently with the sentence that Judge King had imposed.  You ended up doing, before being released on parole, something in the order of two years and nine months.  I am told from the Bar table that you successfully completed that parole, which is to your credit. 

6Your offending for violence would appear to have commenced around about the year 2000, when you were about 20.  It is not long after that, that from what I can gather from the materials, you had your first involuntary admission to a psychiatric unit.  You have subsequently had at least six such admissions, both voluntary and involuntary.  As Judge King found when she sentenced you back in 2005, she said "It is clear that you have serious psychiatric problems".  I do not think anything has changed in that respect. 

7You have been, somewhat understandably, a very poor historian.  I say before I go into the circumstances surrounding the offending that I accept that the principles of Verdins apply in your situation.  I accept that in the overall circumstances there has to be a reduction in moral culpability.  I do not think that you are a particularly good vehicle for general deterrence and specific deterrence is somewhat problematic.  When you get into these states, whether it be by drugs or psychosis or alcohol, I do not know that specific deterrence is going to be play a large part in your conduct. 

8The situation was that the main victim in these matters was known to you and you were next door neighbours in Traralgon.  You had apparently met him previously in the Flynn Unit at the Traralgon Hospital, which of course is the mental health accommodation.  On the night of 20 February 2013 there was a dispute between a person who was at your house and a Mr Monnington.  In the early hours of 21 February Mr Monnington was on the couch.  His summary says that you walked in without permission with a steel crowbar and he told you to get the fuck out of the house. 

9He says you swung the crowbar at him, grabbed his shirt.  There was a bit of a wrestle.  That gives rise to causing injury intentionally.  I should note that insofar as the settled indictment was concerned a number of serious charges were dropped, very sensibly I might add.  At that point in time Mr Monnington, the victim, has grabbed a vacuum cleaner pole and struck you with it. 

10On 26 April 2013, in the afternoon, you stole a computer from an employment agency in Traralgon.  It gives rise to the charge of theft. 

11On 17 July 2013 Mr Monnington was asleep on his couch with a Mr Troy Carrous, who was also staying there.  In the early hours of the morning there were banging noises and you came into the unit, having jemmied the wire door open, and you had a crowbar in your right hand.  That is the aggravated burglary. 

12Monnington told you to get out.  You lifted the crowbar above your head.  He picked up a piece of board from a shelf to try to defend himself.  You ran at him, swung repeatedly with the crowbar, and struck him to the leg and head.  He was struck in the eye apparently with a screwdriver and on the evidence available, you struck him about four times.  He endeavoured to throw punches in response.  The result of that attack gives rise to Charge 6 of intentionally causing serious injury.

13Mr Monnington received a depressed skull fracture, as well as lacerations.  There is no information before me that the depressed fracture was treated otherwise than conservatively.  But a skull fracture is not, one would have thought, an unexpected occurrence of being hit in the head with a crowbar. 

14You were told to get out at that point in time and you smashed the TV.  That's Charge 4, damaging property.  A Mr O'Neill, who was a neighbour, came in to try and stop it and you struggled with him.  That gives rise to Charge 5.  Police attended, found the place in total disarray, and you were arrested and taken, as you were the first time, back to police station where you essentially said it had already happened, it had nothing to do with you. 

15On the face of it, it is obviously serious offending, or some of it is at least, and calls for the application of general and specific deterrence.  As I have indicated, in your particular circumstances I do not think they are of great significance.  However, it does remain serious and there must be a very significant custodial sentence imposed. 

16As I have indicated your state of mind, which I accept to be genuine, is very different to what is disclosed in the Crown summary and I give you credit for having acknowledged the reality of the circumstances in which you found yourself.  As your counsel pointed out to me, this matter started as a trial and it was resolved once you saw the record of interview and could not equate what was occurring in that record of interview with your memory as it stood on the day the trial started.  That must be a very confusing and frightening circumstance to find yourself in.

17You are now 34 so childhood history does not really matter a lot.  Judge King, who she then was, went through that.  You had difficulties with your parents, and went to live with a grandparent.  You were in strife by the age of 14.  You were working in a timber mill.  By the age of ten, as I understand it, you were drinking; by 12 you were using cannabis.  Again, as I have indicated, you were a very poor historian but you would appear to have used amphetamine and opiates over the years.  At times you have denied using alcohol and other times asserted that you have used it to a great extent. 

18It seems pretty clear here that when this offending took place that you were, in my view, heavily intoxicated and there is are reports of Dr Walton that I will refer to in a moment.  As I have indicated, your offending started when you were very young.  By the age of 19 you were receiving custodial sentences and you have received a number of them.  Your counsel was able to obtain the Corrections material relating to you.  It says that you have been six times previously, as I said, as a voluntary or involuntary patient. 

19You are regarded as having a psychotic disorder, personality disorder and other problems.  You have been to Flynn Ward a number of times, you have been to the psychiatric unit in the gaols.  There is no doubt that whatever the problem is it is certainly a serious one.               The reports from Dr Walton indicate that he is uncertain as to what your exact circumstances are.  He said in a report back in March of this year,

20"It's usually the case I'm able to give a definitive opinion in relation to psychiatric diagnosis and its implications but this case is one of the few exceptions.  There are some suggestions that Mr Westhorp may be seriously mentally ill, albeit in a rather quiescent fashion.  The most likely candidates would be drug induced psychosis or schizophrenia, perhaps aggravated by drug use, but I simply could not exclude the possibility that Mr Westhorp may be somewhat odd but remain within the bounds of normality". 

21A subsequent report was obtained where the background material is somewhat different.  In that report Dr Walton was of the view that there was a probability that by reason of the alcohol that you had consumed, that you may have been in a state of alcohol induced psychosis when this offending took place, although that is a relatively uncommon situation.  He says, "However, he does seem to be a man prone to adverse reactions to intoxication with alcohol, significant mood disturbance, distorted paranoid thinking and possible visual hallucinations, such that it seems probable that at least at times he does suffer from alcohol induced psychosis". 

22The conduct that you have exhibited over the years, clearly in my view, reveals a pretty paranoid perception of the world around you.  I note that you do not seem to be receiving any psychiatric assistance in the gaol.  You have obviously detoxed and whilst you are in protection, which as your counsel pretty fairly indicated is probably for personality reasons, you do not seem to be a problem.  This problem seems to arise when you are released and your personality takes over and illicit substances, or even legal substances, change your perception of what is going on around you.

23The prospects of your rehabilitation cannot be said to have been finally extinguished but they are becoming a worry.  The risk of your reoffending, unless you are under supervision and receiving assistance, is I think certainly not low.  The sentence is reduced obviously by the matters I have referred to, so far as Verdins are concerned. 

24In your favour, during the course of this prison sentence you have done every course that has been available to you, which is not an easy thing to do when you are on remand.  Those courses were outlined to me by your counsel.  You also have a 16-year-old child of whom you are proud, who plays sport.  He is now in Year 11.  That is something which you regard very seriously and is something which should assist you in endeavouring to rehabilitate yourself and became a proper father to him.

25Yours is a very difficult sentencing situation.  When one looks at the circumstances surrounding it, it is hard not to feel a certain degree of sympathy for the position in which you find yourself in this world.  But the fact of the matter is, Mr Westhorp, something has got to be done about it or you will end up killing somebody. 

26Taking all those matters into account:

27On Charge 1, six months;

28On Charge 2, three months;

29On Charge 3, 36 months;

30On Charge 4, one month;

31On Charge 5, three months;

32On Charge 6, 60 months. 

33I direct that two months of the sentence imposed on Charge 1, nine months of the sentence imposed on Charge 3, and one month of the sentence imposed on Charge 5 be served cumulatively upon each other, and upon the sentence imposed upon Charge 6.  That gives an effective head sentence of six years. 

34In your particular situation, because of your plea of guilty, as I indicated to your counsel, and because of your determination to try and sort your life out, I have decided as Judge King did years ago, that I will give the opportunity of a longer period of parole than might otherwise have been the case.  Accordingly, in these circumstances, I direct that you serve a minimum term of three years before becoming eligible for parole, and I direct that 448 days be reckoned as having been served under this sentence. 

35Just so you fully appreciate the benefits of your plea of guilty, and the fact that you have shown a lot of common sense in dealing with this matter and finalising it, I will tell you that but for your plea of guilty I would have given you nine years with a minimum of six. 

36No other orders I have to make?  Thanks, Mr Westhorp, good luck with it. 

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