Director of Public Prosecutions v Whitehead
[2023] VCC 1597
•6 September 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00300
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN WHITEHEAD |
---
JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Horsham | |
DATE OF HEARING: | 28 August 2023 | |
DATE OF SENTENCE: | 6 September 2023 | |
CASE MAY BE CITED AS: | DPP v Whitehead | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1597 | |
REASONS FOR SENTENCE
---
Catchwords:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Grant | Office of Public Prosecutions |
| For the Accused | Mr J. Barreriro | Adrian Paull Criminal Law |
HIS HONOUR:
1Steven Whitehead, you have pleaded guilty to one charge of aggravated burglary, one charge of intentionally causing injury, one charge of recklessly causing injury and one summary charge of committing an indictable offence on bail. The relevant maximum penalties were set out in the prosecution opening.
Circumstances of the offending
2The offending in this matter took place at a unit in Horsham around 8.30 pm on 12 February 2022. The complainants in this matter are Sue Isbel, aged 64 and her daughter Emily, aged 39 who were living in the unit along with Emily's 10 year old son. It was a one bedroom unit, where the back door leads in to the lounge and dining room. You and Emily were known to each other through Emily's boyfriend. That evening you entered the unit through an unlocked closed wire security door. The wooden back door was open to let the air in. Emily was sitting on the couch facing the back door and her son was lying on a mattress between her and the back door.
3You were carrying a green army hunting knife with a 20 centimetre blade. You approached Emily and swung the knife towards her causing a small laceration to the side of her neck. You took a second swing and she put her hand in front of her to protect her and you cut the little finger of her left hand. These events constitute the charge of aggravated burglary, and recklessly causing injury to Emily. She grabbed her son and took him into the bathroom and locked him there for safety.
4Sue Isbel had been in the bedroom. She emerged into the living area saw you standing with a knife. You swung the knife at her and she sustained a deep laceration to her right forearm. Emily came from the bathroom. Her mother yelled at you to get out. You ran to the back door and slammed the wire door behind you. Sue followed you to near the back door. You opened the door and came back and swung the knife again causing Sue to sustain a deep laceration to her left forearm. You then left the unit and went back to your nearby address.
5Sue Isbel called 000. Police attended at your address and you were seen standing in the front yard approaching the police. You were directed to put the knife down which you did. The police then had to deploy OC spray to subdue you, and you were arrested. You smelt strongly of alcohol and were unsteady on your feet. You had a cut to the middle of your head, a cut to your right ear and a graze to your shoulder.
6You were taken to the local hospital. A preliminary breath test was taken a couple of hours later and you registered .122. You later declined to participate in a record of interview. Sue Isbel was conveyed to the local hospital and required surgery. Emily did not require any further medical treatment. At the time of the offending, you were on bail, having been bailed for other offending on 31 December 2021 to attend court of 4 May 2022.
Victim impact statements
7Sue Isbel gave a victim impact statement indicating that as a result of your offending she struggles everyday with daily activities. She keeps replaying the details. She lost trust. She makes sure she locks all the doors and windows. She has found her son has become very insecure and reluctant to go to school. Her left hand is still sore and she struggles at work.
8Emily Isbel has been shocked at what happened. She will never forget what happened to her mother. She is startled easily and has been unable to go out and is socially isolated. She is on alert wherever she goes. She has trouble sleeping. She finds her son will not leave her side and he has required therapy. She is trying to stay strong for him.
9It is clear from the two victim impact statements and their reference to the child, that your offending, not surprisingly, has had a major and continuing impact on the two complainants. This goes to increase the seriousness of your offending and must be taken into account in sentencing.
Seriousness of the offences and culpability
10The offence of aggravated burglary which carries a maximum penalty of 25 years' imprisonment has been described as a “nasty offence” by the Court of Appeal. That description applies here, where the aggravating features of persons being present and you carrying a weapon when you entered the unit, are both alleged against you.
11You were on bail at the time. You have significant prior convictions. The two complainants were innocent victims. Your animus apparently was drug-related against a friend of Emily. You entered a private home carrying a very significant weapon, which itself goes to the seriousness of your conduct. While other features sometimes seen in these cases of entry in company, entry at night, forceable entry, and the use of disguise do not apply, but the matters I referred to still make this a serious example of this serious offence.
12The offending against Sue Isbel was serious. To wield this type of weapon against an innocent woman was shocking conduct for which you are to be utterly condemned. The injury to Emily was minor but it clearly had a psychological impact on her and her son Declan. Overall, this was serious offending as was conceded by your counsel and it has continuing consequences.
Prior convictions
13
You are now aged nearly 44 and have relevant prior convictions going back
20 years. A feature of your prior offending is that you have been the subject of non-custodial orders that you have breached resulting in the imposition of terms of imprisonment. Thus, in May 2003 on two charges of criminal damage and assaulting police, you were placed on a 12 months' Community Corrections Order. You failed to comply and in September 2004, you were sentenced to a three month suspended sentence. You breached that sentence and it was restored in
July 2005.
14At the same time, you were also sentenced to 14 days' imprisonment on charges of criminal damage, assaulting police and use indecent language. This was your first term of imprisonment.
15In March 2007 in the Nhill Magistrates' Court, you were placed on a three month suspended sentence for criminal damage and breach of an intervention order.
16On 8 January 2009 you were found to have breached that suspended sentence, and it was restored. You were placed on another 14 day suspended sentence in February 2009 on charges of criminal damage.
17On 26 October 2010, on a charge of recklessly causing injury, you were sentenced to a three month intensive corrections order.
18On 5 June 2012 on a charge of burglary and theft, you were placed on a 12 months' Community Corrections Order.
19On 26 June 2013, you were breached for that order and sentenced to three months imprisonment. On the same day you were sentenced to two years' imprisonment, on a charge of intentionally causing injury with a non-parole period of 16 months. The matter was appealed to this court on 19 August 2013 and the two year sentence was confirmed with a new non-parole period of 12 months.
20On 13 April 2016, on charges of intentionally damaging property, entering a private place and breaching a conduct condition, you were sentenced to a 12 months' Community Corrections Order.
21On 22 March 2017, you were sentenced to a sentence of three months' imprisonment on charges of recklessly causing injury, intentionally damaging property and you were also sentenced for stalking and contravention of a family violence order. The total effective sentence was four months' imprisonment. You were again placed on a Community Corrections Order.
22On 6 April 2018, you were charged with contravening an earlier Community Corrections Order and a family violence order and intentionally causing injury and carrying a dangerous item in a public place and sentenced to nine months' imprisonment.
23On 31 May 2019, you were sentenced to six months' imprisonment for persistent contravention of a family violence order. I have not included all the details of your criminal offending, which includes other offences.
24Thus, your criminal record includes a number of offences for recklessly or intentionally causing injury, possession of a weapon and contravention of family violence orders and being unlawfully on premises. You do not have any prior convictions for aggravated burglary, but have two for burglary. Your record indicates however that you have not in the past responded to sentences.
Personal circumstances
25Your personal circumstances were set out in your plea submission and in the report of the psychologic Ms Kocic. You are now nearly 44. You were born in the Maidstone area of Melbourne, and have an older sister. Your parents separated when you were young and your father was not a figure in your life as a child. You were raised by your mother who was an alcoholic. She re-partnered a number of times with violent men and your home life was characterised by excessive drinking, arguments and consequential violence. This atmosphere is confirmed in a reference from your father, who regrets his failure as a parent.
26You were diagnosed with autism and struggled at school and were bullied. Not surprisingly, you were not a high achiever at school and completed Year 9 and left during Year 10. Leaving school early and without proper parental supervision you then commenced consuming alcohol and later were introduced to illicit drugs and prescribed medication.
27You developed a heroin addiction in your 20's and still used heroin sporadically until about six months before this offending. You have also used methylamphetamine. You have led an itinerant adult life moving regularly, including working in South Australia, but you have not worked for about 15 years.
28You have fathered five children from three different partners. In 2016 you lost a daughter to SIDS and this led to an unstable period in your life using methylamphetamine and being in and out of prison as I have indicated.
29The explanation for the offending here was that it followed a period of grief and instability following the death by suicide of an ex-partner in December 2021 and being prevented from seeing another daughter. As well as excessive consumption of alcohol and an attempt to recover an alleged debt, when interviewed by the psychologist, you were an unable to provide any real explanation for your conduct.
30References were tendered on the plea. One was from your father who accepts that he failed his parental responsibility following his early divorce from your mother and his occupation which prevented him from being involved in your early childhood. He confirmed the difficult circumstances of your upbringing. He also confirmed your difficult adult life and losses that I have referred to. He indicates that in recent times since your remand you have evidenced an intention to turn around your life and he is prepared to support you.
31A further reference from a Mr Jarrod Lee of Ballarat, also provides a reference that indicates that you have evidence remorse and insight into your conduct. He found that you have been supportive of him and he confirms the impact of loss of parental and other support on you. He is also of the view that you are ready to become a productive and contributing member of society if given a chance.
32Another reference from a Ms Parfett, says that in the event that you have given proper supports, you now understand that you need help to move on.
Report of a psychologist
33
I have been provided with a comprehensive report from Ms Kocic, a psychologist, experienced in forensic psychology. On the basis of her analysis, and your
self-report, she confirms the impact of your deprived childhood as well as your alcohol and drug use dependency. Further she indicates a disposition to mental health issues. She finds that you have symptoms of post-traumatic stress disorder and further you have a major depressive disorder as well as alcohol use, stimulant use, cannabis use, and opioid use, disorders.
34Her conclusions are set out in paragraphs 112 and 113 of her report:
Mr Whitehead is a 43-year-old male presenting with a history of trauma, distress, and maladjustment. He experienced a prejudicial childhood with exposure to paternal substance use, and family violence, and displayed poor behaviour at school. There is a history of impairment in functioning and in personal relationships organising and maintaining a stable life and psychological distress with a history of suicidal ideation.
Mr Whitehead's predisposition to his mental health issues was inferred to have arisen from considerable personal, social and occupational impairment characterised by unemployment, transiency and childhood instability. This has been perpetuated by maladaptive responses in distressing symptoms in the form of polysubstance use. For instance, a death of his infant daughter resulted in an increase in methylamphetamine use.
35She indicates that you find imprisonment weighing more heavily on you due to your mental health conditions and there is a risk of institutionalisation. She notes that there is a risk of reoffending due to ongoing substance use, absence of appropriate mental health intervention, affiliation with anti-social peers and a longstanding history of unemployment and transiency. She indicates that on her view you require mental health treatment, bereavement counselling and alcohol and drug dependency counselling. She opines that she considers you in a moderate risk of re-offending.
36I found her report as providing a cogent explanation for your downward spiral and criminality. In paragraphs 123 and 124, she indicates,
'In the lead up to the offending, Mr Whitehall described feeling depressed, upset and low. Negative effective states can alter cognition and behaviour by impairing impulse control and decision making and inhibiting an individual's ability to consider alternative responses. Mr Whitehead's poor management of his mental health was apparent. He was not compliant with anti-depressant medication, and lacked adequate coping resources to manage his emotions and unresolved grief in a pro-social manner. Instead, he resorted to excessive alcohol and methylamphetamine use. Substance use likely contributed to disinhibition, impulsivity and aggression'.
She says,
'Mr Whitehead's risk of reoffending will be perpetuated by ongoing substance use, the absence of appropriate mental health intervention, affiliations with anti-social peers and a lack of routine or structure due to his long history of unemployment and transiency'.
Prospects of rehabilitation
37In a realistic submission your counsel accepted that your prospects of rehabilitation are necessarily guarded. Given your occupational history, history of polysubstance abuse and chronic homelessness, this is a realistic assessment. Your counsel noted however, that during your current period of custody, you have achieved some insight into your behaviour. You have the support of your father who will support you upon your release and you are attempting to re-engage with your children.
38Your sentence will be the longest sentence of imprisonment that you have served. At your age there is a reasonable prospect that you may burn out of your criminality. This is supported by the conclusion of Ms Kocic's that there is no evidence of entrenched personality traits. As I indicated she is of the view that you are a moderate risk of re-offending.
Sentencing submissions
39One matter raised on the plea was whether there was to be a reduction in your moral culpability due to your dysfunctional upbringing. Your counsel accepted that the significant matters of dysfunctional upbringing set out in the report of Ms Kocic, did not quite rise to the level required in Bugmy.[1] I accept that, particularly given that you were intoxicated during the offending.
[1]R v Bugmy [2013] HCA 37
40Your chronic dysfunctional upbringing is set out in the report of Ms Kocic's is however a relevant matter in sentencing you, although I do not accept that it rises to the level requiring a reduction in your moral culpability under the principles of Verdins. Your dysfunctional background as set out in the psychological report including continuing clinical disorders are, however, relevant to the burden of imprisonment and an appropriate sentence in this matter. And in particular, a need for a longer than usual period of parole eligibility.
Purposes of sentencing
41The basic purposes for which a court may impose a sentence of punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims. I am required to rebalance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure that as far as possible, offenders are rehabilitated and reintegrated into society.
Sentencing issues
42The aggravating features here include the fact that you were on bail at the time and your extensive prior convictions for offences of violence, but as I have noted you do not have any prior convictions for aggravated burglary.
43Turning to the offending itself, the entry, although not forcible entry into the unit, occurred in the early evening, when you must have been taken to have known that the occupants would be present. The most aggravating feature of the offending here, is entering the property and possessing a large hunting knife. Your intent at the time of the entry, when the offence itself of aggravated burglary is complete, your intent can be inferred back from your subsequent conduct after entry when you struck out at the two females with the knife.
44Matters that I give weight to in your favour are your early plea of guilty. You have facilitated the course of justice and the complainants did not have to relive this event, either at committal or at trial. I accept also that your early plea of guilty is evidence of remorse. There is also considerable evidence of remorse in the references and in the report of Ms Kokic's. I regard that as significant.
45Delay is a further factor in your favour. You have had this matter hanging over your head now for nearly 20 months. You have been remanded for the entire period, which particularly last year was during the pandemic. During this time many programs within prisons have been curtailed and you have been disadvantaged in any event by being on remand. This makes the period on remand more burdensome than had you been sentenced.
46Your chronic depression is also a matter that I take into account, making both your remand and any sentence more burdensome. You are also entitled to a perceptible amelioration in sentence by pleading guilty in the course of the pandemic when the justice system is suffering a significant backlog.
47As I have indicated, you spent a period of four months during your period of remand serving a sentence on other offending. I have regard to this as a matter of totality. In crafting a sentence, I have also taken into account the issue of totality and not imposing double punishment.
Comparable cases
48The parties referred the court to a number of cases involving offending with some similarities. Sentences imposed in other cases are not precedent. In relation to this particular offence, it has been emphasised in cases such as Hogarth v The Queen (2012) 37 VR 658, DPP v Meyers (2014) 44 VR 486 and DPP v Bowden [2016] VSCA 283 that sentences imposed in the past have not reflected the seriousness of the offending and the maximum penalty set out by the Parliament.
49General deterrence and denunciation are significant considerations for this offence. Given your prior criminal record, specific deterrence and protection of the community are also relevant sentencing considerations.
50Mr Whitehead, your conduct on that day was absolutely unacceptable. You have had a difficult background but nothing justifies attending that unit in an intoxicated state with a dangerous weapon and then proceeding to attack two vulnerable females in the presence of a 10 year old child. Your conduct must be utterly condemned.
Sentencing
51I have taken into account all the matters urged on your behalf and sentence you as follows. Could you please stand?
52On the charge of aggravated burglary, you are sentenced to four years' imprisonment. That is the base sentence.
53
On the charge of recklessly causing injury to Emily Isbel, you are sentenced to
six months' imprisonment.
54On the charge of intentionally causing injury to Sue Isbel, you are sentenced to two and a half years' imprisonment.
55On the charge of committing an indictable offence on bail you are sentenced to one month imprisonment.
56I order that two months of the sentence imposed on Charge 2, and 12 months of the sentence imposed on Charge 3, be served cumulatively on the base sentence, making a total effective sentence of five years and two months' imprisonment.
57I order that you serve three years' imprisonment before being eligible for parole.
58I declare the sentences are otherwise concurrent.
59I declare that you have served 468 days pre-sentence detention.
60I declare that had you not pleaded guilty, I would have imposed a total effective sentence of eight years' imprisonment with a non-parole period of five years and three months'.
61I make the disposal order that's sought in relation to the knife.
62I want to thank you Ms Lyons who appears for the defence today, Mr Grant, and Mr Barreiro who appeared on the plea, and wish you all the best in the future Mr Whitehead.
- - -
0
4
0