Director of Public Prosecutions v Whitthall
[2019] VCC 634
•7 May 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR 18-01058
Indictment No. H12880497.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER JAMES WHITTHALL |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 2 May 2019 | |
DATE OF SENTENCE: | 7 May 2019 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Whitthall | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 634 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Common law assault – Theft – Drug affected at time of offending – Offending of brief duration - Extensive criminal history - Long history of substance abuse – Complex mental health issues – Lack of rehabilitative protective factors including no family supports
Sentence: Convicted and sentenced to an aggregate term of 12 months’ imprisonment which had already been served – Pre-sentence detention declared as being 568 days – Licence cancellation for one month – s.6AAA Sentencing Act declaration
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Duckett | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms V. Drago | Papa Hughes Lawyers |
HER HONOUR:
1 Peter James Whitthall, you have pleaded guilty to one charge of common law assault, which has a maximum penalty of five years’ imprisonment and two charges of theft. Theft has a maximum penalty of 10 years’ imprisonment.
2 I have taken into account the maximum penalties for the offences, as these reflect the seriousness with which Parliament regards them.
3 You were 31 at the time of the offending and the complainant, Shaun Shill, was 34. At the relevant time, you were living at your mother’s house in Budgie Court, Werribee and the victim was living at an address in Werribee. The complainant knew you, as your mother’s house is next door to the complainant's in-laws. You and the complainant had had some interaction before the day of the offending, in the context of drug and/or alcohol interactions. I was told that you could be described as associates.
4 On Sunday, 15 October 2017 at about 12 pm, the complainant returned to his home in Werribee and found you sitting on a chair on his front lawn. The complainant asked you what you were doing there, and you 'flipped' and started telling the complainant that the police and 'everyone' were after you. You then used a police card, and rang the number on it asking, 'What do you want? You came to my house, you want me to turn it on? I'll turn it on.' The complainant had no idea what you were talking about and went into the house.
5 You also went into the complainant’s house and grabbed the complainant by the throat, accusing him of being part of a conspiracy theory and saying that you were 'here about [your] car'. You were squeezing the complainant’s throat while walking away. This forced the complainant to walk backwards and trip over some boxes in the hallway. Your conduct in relation to this incident gives rise to Charge 1 – common law assault.
6 You then apologised to the complainant. The complainant asked you, 'What the fuck was all that about?' and you said that you thought that he was 'in on it'.
7 You then opened the front door of the complainant’s house and the complainant’s dogs ran outside. The complainant went out to look for them and you followed him out onto the street, still behaving in an aggressive fashion. The complainant was asking people whether they had seen his dogs, without success. He then returned to the house and you went with him. On the way back, you and the complainant both stopped at a bottle shop where you purchased some alcohol. The complainant then waited while you went to a fish and chip shop next door.
8 You both returned to the complainant’s home and sat on the couch.
9 Your behaviour was alternating between being aggressive and then apologising for the aggression. The complainant said to police that your behaviour was like you were two people or something and that you were not making any sense, as you kept insisting that the complainant’s car was yours and that the complainant had bought some car parts from your mother. However, this was not the case.
10 Eventually, the complainant fell asleep on the couch and awoke at about 8.30 am to find that his green Holden Commodore was missing. This gives rise to Charge 2, theft of a motor vehicle.
11 The complainant went next door to ask his neighbour whether they had seen anything and then called the police.
12 The prosecution opening records details of police intercepting you on 16 October 2017, albeit that the police were not aware that you had stolen the motor vehicle that you were then in. You had been observed by witnesses to be behaving in an erratic manner at that stage. At about 4.25 am on 16 October, a Trevor White received a call from you, where you said that the police had pulled you over but you were not in your car. You asked Mr White to come and collect you, but he refused saying that he did not know you and he was in bed. Mr White had met you a week ago in the context of you purchasing an engine mount from him for a VS Commodore.
13 Subsequently, you admitted to a Susan Carrigan that you had stolen the car that she found you in, which you had parked in her driveway. You subsequently removed the car and put it in your mother’s driveway.
14 Police were contacted and found you and the car at your mother’s premises. When they conducted a search of your bedroom they found the complainant’s wallet on your bed, giving rise to Charge 3 – theft.
15 Subsequently, you were placed under arrest but were found unfit to be interviewed by a forensic medical officer. As you were not cooperative during the examination, it was not formally determined as to the cause of your unfitness.
16 Mr Whitthall, your offending is serious and deserving of a punishment which is just in all of the circumstances, and your conduct must be denounced. Although of a brief nature, the assault which you perpetrated on Mr Whitthall was a most frightening one, especially in the context of you behaving in such an erratic manner. Further, you deprived him of his car and his wallet. In response to a matter put by your counsel at the plea hearing, I was told that you had damaged the car to the point where it had become worthless which is a matter of further concern. You were affected by drugs on the occasion of this offending, and I was told by your counsel that you had an awareness that taking methamphetamine caused you to behave in such an erratic and paranoid fashion. You are most fortunate that the prosecution did not seek to press this aspect, as an aggravating feature of your offending.
17 I put you on notice, Mr Whitthall, if you need to be, that there is a definite connection between your drug abuse and committing criminal offences, such that if you choose to imbibe substances in the future and then commit criminal offences, your substance abuse may well be treated as an aggravating feature in any future sentence. Do you understand that?
18 OFFENDER: Yes, Your Honour.
19 HER HONOUR: There is no victim impact statement in this matter, but it takes little imagination to find that the victim would have found your conduct towards him as most disturbing and somewhat frightening.
20 You have a lengthy and concerning criminal history dating back to April 2004. Your criminal history contains a number of offences for violence over the years, as well as dishonesty offences, and a number of driving matters. As the learned prosecutor pointed out, you have breached community corrections dispositions on five occasions and suspended sentences on two occasions. I was told that this was your twenty-first appearance before a court in relation to your criminal offending, not including appeals or breach hearings. Your prior convictions give me grave concern for your prospects of rehabilitation. I note that you committed the offences for which I now sentence you only three months after you were released from custody in relation to other offending.
21 Your history of illicit substance abuse dates back to when you were aged twelve, and you commenced abusing alcohol from when you were 15. You commenced using cannabis when you were 12 and went on to use heavier substances when you turned 17. You have struggled with drug use ever since your teenage years. I was told that upon your release from custody in the three months before you committed the offences now before me, you had decreased your drug use, as you appreciated that there was a connection between using methamphetamine and your erratic paranoid behaviour. However, on the day of the offending, you had used methamphetamine, as previously mentioned.
22 I take into account your background. You are 32 years old and you are a single Koori man of the Wiradjuri tribe. You have no children.
23 You were born in New South Wales. You have never had any contact with your biological father.
24 You were only learnt about when you were 12 years old. You have two younger sisters although none of you share the same father. You learned that your stepfather was not your natural father when your mother’s relationship with your stepfather broke down. You have had, and continue to have, a dysfunctional relationship with your mother who also has a history of drug abuse, which you were exposed to from an early age.
25 When your stepfather and mother broke up, you lived with your stepfather for about two years, then returned to your mother when your stepfather re-partnered, as the household became strained.
26 You have lived with your mother for various periods throughout your adult life, but you have no family support nowadays. Due to your struggle with drugs and mental health issues, you have found it difficult to maintain any intimate relationships.
27 You completed primary school and commenced high school but left during Year 8. You commenced an apprenticeship in commercial carpentry when you were 15 and completed two years of this. You have held a variety of positions for fairly short periods. The jobs included forklift driving, bricklaying, domestic roofing and factory work, as well as labouring and excavating. Again, your difficulties with drug abuse, poor mental health and family issues have interfered with your ability to sustain employment.
28 I received some material in relation to your mental health, although the expert report from Ms Mynard, psychologist, is rather dated. However, at the time that she assessed you, in February and March 2011, she found that you suffer from generalised anxiety disorder, major depression (with psychotic features), substance dependence and attention deficit hyperactivity disorder. You experienced symptoms of anxiety, episodes of paranoia, and sometimes hallucinations. It is not clear as to the extent to which these symptoms are attributable to drug abuse.
29 Consultant clinical psychologist, Dr Paul Grech, provided a letter on 12 October 2016 evidently in relation to other matters. Dr Grech indicated that you had been a patient of his at the Gathering Place in Werribee from mid-2016 and had attended on several occasions up to 4 July 2016. He said that you had been referred to him in relation to generalised anxiety and indicated that you had a history of mood instability. He had recommended that you consider mood-stabilising medication 'in relation to the obvious cycling of [your] mood'. Dr Grech was of the view that you had been making some progress in relation to several areas of your life prior to being imprisoned on the occasion that he referred to. He said that you had engaged well and presented as a genuine and suitable candidate for ongoing therapy and that he would be very happy to stay involved in providing you some help, with cognitive behavioural and relapse prevention therapy, when you are released from custody.
30 Your counsel told me that you had some plans to return to the Gathering Place upon your release from custody on this occasion. I really do hope that you follow through with that.
31 I have also taken into account the letters from Jesuit Social Services which refer to your efforts in the past to rehabilitate and to obtain employment. Mr Lovelock from Jesuit Social Services said that he had worked with you from 16 July 2017 until 16 January 2018.
32 I was told that when you are released from custody on this occasion, you intend to engage with the Salvation Army in a bid to obtain accommodation, and also perhaps with Jesuit Social Services, as well as the Gathering Place in a bid to get your life back on the rails. You do not propose to reunite with your mother, as you see the relationship with her as being a toxic one which does not assist you to live a productive life in the community.
33 I allow for a fairly significant discount to the sentence you would otherwise receive because of your pleas of guilty to these matters in circumstances where you were prepared to plead guilty to a suitably framed indictment from a stage of committal mention onwards.
34 You conducted a contested committal hearing where the complainant was subjected to cross-examination, as was another witness. However, at that stage you were facing far more serious charges, which is also a relevant matter. Your preparedness to plead guilty to the matters now before me has meant that you have saved the witnesses, especially the complainant, the time and trouble of giving evidence at trial, and you have saved the community the time and expense of running a trial albeit that you entered pleas of guilty to the offences at a time where the trial was listed to proceed. However, it must also be borne in mind that it took a warrant of arrest to compel the attendance of the complainant in this matter, such that your preparedness to plead guilty to the offences now before me, has facilitated justice considerably in my view. I understand that the first charge, however, was not a matter that you were always prepared to plead guilty to. But in all of the circumstances, I am prepared to allow for a not insignificant discount in the sentence you would otherwise receive because of all of the matters to which I have just referred.
35 Although you have been prepared to plead guilty to an appropriately framed indictment for some time, I am not satisfied in all of the circumstances that you have much in the way of heartfelt remorse for your actions. Your ability to feel remorse is somewhat compromised by your mental health issues and drug issues, but in circumstances where you have repeatedly offended in the past and where you were not prepared to take responsibility for assaulting the complainant until a rather late stage, having conducted a contested committal hearing, which involved cross‑examining him, I am unable to find that you have much in the way of heartfelt remorse, insofar as the complainant is concerned. I do hope that in time, when you are appropriately treated, you will develop a greater degree of remorse for your actions. However, I accept that you have a level of insight in relation to the connection between taking methamphetamine and committing offences which is a very good start, but you have a way to go in sustaining that insight to the point where you no longer take drugs and commit offences when in the community.
36 Unfortunately, you do not have good family or friendship support in the community and protective factors such as this, as well as stable accommodation and employment, and appropriate treatment for drug abuse and your mental health, are all important matters which you must attend to as soon as you are released from gaol. In the course of these proceedings, when I noted that you had started to wear a form of head dress, I was told that you were of the Islamic faith. It is to be hoped that you are able to look to your faith as well as a support in your rehabilitation. It is to be hoped that you are also assisted in this with the various agencies that you have previously connected with. I suggest that as soon as you are released, you engage with these agencies. If you fail to deal with your drug issues and properly address your mental health issues, you risk spending ever increasing periods in gaol, in the event that you live long enough to do so.
37 Your counsel submitted that the offending for which I sentence you is a de-escalation in the history of your offending. As I am not aware of the circumstances of many of your priors matters for violence, I am unable to say whether this is true or not, albeit that the offence of common law assault is a less serious offence than a number of your prior matters for violence. I accept that the offending on this occasion was not premeditated and lacked any sophistication or deliberation. As I said at the plea hearing, the way in which you behaved was rather alarming and apparently reflects the way you can behave when affected by methamphetamine. However, the offending in which you engaged, insofar as the assault was concerned, was of a brief duration as I have said, and the theft of the car and the wallet lacked sophistication.
38 I was told that you had been without a licence for some time at the time of the offending, and on the day before you commenced offending, you had been at court in order to attempt to have your licence restored, having done a drug driving course. Unfortunately, the matter had been adjourned and therefore at the time of you driving the stolen car, you were unlicensed.
39 As this aspect may well be dealt with in the Magistrates’ Court, I do not propose to treat it as an aggravating feature. I accept your counsel’s submission that in order to obtain employment, it will be necessary for you to have a licence, and note that you had taken positive steps in this direction before committing these offences. Your counsel submitted that any disqualification period that I impose, in relation to the theft of the motor vehicle charge, ought be kept to a minimum in a bid to maximise your chances of obtaining employment.
40 In view of the offending on this occasion, your struggles with drug abuse and your mental health issues as well as your significant criminal history, I regard your prospects of rehabilitation as being rather bleak I am afraid. I also make this assessment in view of the lack of community supports that you have but I do hope that you make the most of the positive connections you made in the past in order to avoid re-offending. I place strong weight on specific deterrence and general deterrence, as well as protection of the community.
41 Your counsel submitted that the time you have already served in gaol is beyond the period warranted for the offending which is now before me. The prosecution submitted that a head sentence with a non-parole period was warranted in your case, because of the prosecution’s concern about protection of the community. I, too, Mr Whitthall, am concerned about protection of the community, but this is one factor that I must take into account in sentencing you and I am unable to impose a sentence which is disproportionate to the offending now before me, in order to effectively warehouse you and protect the community in this way.
42 As at the time of the plea hearing, you had been in custody for 564 days, more than one year and six and a half months. Although in your case it would be ideal for you to have the benefit of supervision by way of parole, I cannot justify this in view of the offences you have committed and all of the other relevant circumstances, including the weight which I must give upon sentencing considerations. Therefore, I intend to impose a sentence which reflects the weight which I must give to all appropriate sentencing principles as I am required to do. In the circumstances, it is appropriate, in my view, to impose an aggregate sentence which will see you released immediately. Would you please stand up?
43 You are convicted of each of the offences.
44 In relation to the charge of theft of a motor vehicle, all licences are cancelled and you are disqualified from driving for a period of one month from today.
45 In relation to the charges on the indictment, you are sentenced to an aggregate term of 12 months’ imprisonment. I declare that you have already served that term and I declare that the pre-sentence detention overall in relation to these matters is 568 days.
46 If not for your pleas of guilty, I would have sentenced you to a total effective sentence of three years’ imprisonment with a non-parole period of two years’ imprisonment. Take a seat for a moment please. sir. Is there anything arising from those sentencing remarks?
47 MS DRAGO: No, no.
48 MS DUCKETT: No. No, Your Honour. Nothing arising.
49 HER HONOUR: Did I get Mr Whitthall's current age correct?
50 MS DRAGO: No, Your Honour, 32, - - -
51 HER HONOUR: Yes, he is - - -
52 MS DRAGO: - - - turning 33 shortly.
53 HER HONOUR: I am sorry about that, 32. I will amend my remarks in that regard.
54 MS DRAGO: Thank you, Your Honour.
55 HER HONOUR: Ms Drago, I really do hope Mr Whitthall is put in touch - - -
56 MS DRAGO: Yes.
57 HER HONOUR: - - - straight away with support services. He obviously needs that.
58 MS DRAGO: Certainly, Your Honour.
59 HER HONOUR: Yes.
60 MS DRAGO: Agreed.
61 HER HONOUR: All right.
62 MS DRAGO: Thank you.
63 HER HONOUR: Yes, thank you. Mr Whitthall, I understand that there will need to be paperwork completed and the like before you are released, but you are to be released today and I have made that clear in my remarks. So I will ask you to be removed at this stage, but you will be released I think a little later on once all those requirements are fulfilled, all right?
64 OFFENDER: Thanks for suspending my licence one month, Your Honour, cause that is going to help me a great deal, yeah.
65 HER HONOUR: I know. Good luck.
66 OFFENDER: Thank you.
67 HER HONOUR: All right. Yes, we will now adjourn.
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