Director of Public Prosecutions v Wicks
[2022] VCC 1329
•12 August 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
CR-22-00251
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEE WICKS |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 July 2022 | |
DATE OF SENTENCE: | 12 August 2022 | |
CASE MAY BE CITED AS: | DPP v Wicks | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1329 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Home Invasion – Causing Injury Intentionally – Intentionally Damage Property – Persistent Contravention of Family Violence Intervention Order
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: Worboyes v R [2021] VSCA 169
Sentence: Convicted and sentenced to a total effective sentence of five years and nine months’ imprisonment, with a non-parole period of three years and nine months .
Section 6AAA declaration: Conviction and total effective sentence of seven years and nine months’ imprisonment, with a non-parole period of five years and nine months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Roper with Ms A. Sakar | Office of Public Prosecutions |
| For the Accused | Ms E. Bryt | Tony Hannebery Lawyers |
HER HONOUR:
1Lee Wicks you have pleaded guilty to charges of home invasion, intentionally causing injury, intentionally damaging property and persistent breaches of a family violence intervention order.
Summary of Offending
December 2020 Offending
2You took part in a home invasion and related offending on 2 December 2020. At that time, you were 30 years old and in an intimate relationship with Ms Parker, with whom you committed these offences. Ms Parker was 18 at the time.
3Around two weeks before the offending victim Cameron Davies had liked some Facebook comments by Ms Parker. This led to a short exchange of Facebook messages, after which Mr Davies blocked Ms Parker on Facebook and Messenger. This occurred on a background of Mr Davies and Ms Parker having been in a relationship when she was 12 or 13, and he had later been charged and sentenced for sexual offending against her.
4
Mr Davies had been living in a garage which he had set up as a bedroom, at the rear of his mother's property. On the night of the offending his girlfriend,
Ms Shilton, was staying over. At around 4.00 am on 2 December 2020 Mr Davies and Ms Shilton were asleep in bed. You, armed with a baseball bat, and
Ms Parker, armed with a knife, entered Mr Davies' bedroom, that is Charge 1, home invasion.
5
You began to strike Mr Davies to the face and head, as he lay sleeping. You hit him multiple times, to the head, face, upper body, and legs. You said to Davies something to the effect of 'Do you like hitting on girls?' or 'Do you like hitting on my girl?' and then you said, 'Why don't we hit your girl then'. Ms Parker punched
Ms Shilton, who was still in bed, striking her to the left side of her head. You do not face a charge in respect to that conduct by Ms Parker.
6Davies tried to protect Ms Shilton by lying on top of her. You and Ms Parker continued to strike him. At some point a glass bong was broken over Mr Davies.
7Mr Davies managed to take hold of the baseball bat and get it away from you. He hit Ms Parker with it but was disarmed and then kicked by you. Mr Davies may have lost consciousness.
8You and Ms Parker ransacked Mr Davies’ room, and damaged a computer screen by striking it and that relates to Charge 3, intentionally damaging property. You left with Ms Parker, one of you taking another bong, but leaving behind the baseball bat which had been used in the attack, and Ms Parker’s knife.
9Mr Davies was taken to Frankston Hospital where he was treated for a 4 centimetre long laceration on the top of his head and bruising on his back. The photos indicate that there was copious bleeding from his injury or injuries, and significant bruising to his left upper back. Your acts against Mr Davies and those injuries relate to Charge 2, intentionally causing injury.
Police investigation
10The police investigation included obtaining CCTV footage, phone records, and follow up of the fingerprints found on the bat. You were arrested for this offending on 28 September 2021.
August 2021 Offending
11On 27 July 2021, a Family Violence Interim Intervention Order was issued against you at the Ringwood Magistrates' Court. There were two people protected under the order. The order prohibited you from contacting or communicating with the protected persons, approaching or remaining within 5 metres of a protected person and you were not to go or remain within 200 metres of where a protected person lived, worked or attended school or childcare.
12On 28 September 2021, investigators found you hiding in a walk-in closet in the home of a protected person. Subsequently, you were arrested and transported to the Frankston police station where you were interviewed by the police.
13During your interview you stated that you understood the conditions of the intervention order and acknowledged that you were aware of the people protected by it.[1] You said that you were at the home to care for the protected person, who had been unwell, and had attended the address on multiple occasions.[2]
[1] Summary of Prosecution Opening on Plea dated 22 June 2022, paragraph 33
[2] Summary of Prosecution Opening on Plea dated 22 June 2022, paragraph 34
14
On numerous separate occasions you had breached the order by contacting the protected persons via phone calls and text messages.[3] Charge 4 relates to
258 calls and two text messages sent by you between 11th and 30 August 2021. Charge 5 relates to 200 calls, and 1,145 text messages between 10th and
28 September 2021.
[3] Summary of Prosecution Opening on Plea dated 22 June 2022
15
When interviewed, you denied taking part in the home invasion on
2 December 2020. You said that your relationship with Ms Parker ended around October 2020. Furthermore, you denied ever having contact with Mr Davies via Facebook, and you said that you had Facebook accounts that had been hacked thus any communication could not have been from you.[4]
[4] Summary of Prosecution Opening on Plea dated 22 June 2022, paragraph 31
Gravity of Offending
16Home invasion carries a maximum penalty of 25 years' imprisonment, reflecting the seriousness with which Parliament views that offence. It is a Category 2 offence so that a term of imprisonment, not combined with a CCO, must be imposed unless one of the exceptions is made out. Your counsel did not seek to persuade me that any of those exceptions applied in your case.
17You told Ms Cidoni, who assessed you for this plea hearing, that the man who raped Ms Parker when she was 13 contacted you and you decided to visit his home while you were high on drugs.[5] The motivation for this home invasion was thus to punish Mr Davies for a past wrong against Ms Parker or for the more recent online contacts.
[5] Psychological Report by Ms Gina Cidoni, psychologist, dated 27 June 2022, paragraph 7; see also Defence Outline of Submissions for Plea Hearing dated 15 July 2022 [6]-[8]
18
I can make no finding as to which of you or Ms Parker came up with the idea, but both of you carried it out, each of you armed with an offence weapon. That
Mr Davies had offended against Ms Parker in the past does not lessen your culpability.
19Your barrister properly conceded that the offending would have been terrifying for the victims. This is evident from their victim impact statements. Ms Shilton has written of the loss of her sense of safety, loss of trust in others, and the impact on her social life. She says:
'It has changed my whole personality and made me question everything about myself. I will never be the young, trusting and carefree girl I used to be, and I will forever be looking over my shoulder, paranoid that someone will come back for me.'
20Mr Davies also feels less safe and trusting.
21As to the injury charge, you inflicted multiple blows on Mr Davies, with a weapon, and kicking him. The injuries he suffered required medical attention. You attacked him as he lay sleeping in bed.
22Regarding the breaches of the Family Violence Interim Intervention Order, I accept that these breaches, whilst persistent and numerous, did not involve offensive behaviour.
Personal Circumstances
23At the time of the offending, you were 30 years old.
24After your parents separated, when you were still a toddler, you lived with your mother in Melbourne.[6] Your mother re-partnered when you were around four, and you had a good relationship with your stepfather and you referred to him as a 'great father figure'.[7] Your home life was stable and supportive.[8] You had and have a good relationship with your mother who is a strong support in your life.
[6] Psychological Report by Ms Gina Cidoni, psychologist, dated 27 June 2022 , paragraph 17
[7] Defence Outline of Submissions for Plea Hearing dated 15 July 2022, paragraph 13
[8] Reference by Elizabeth Wicks para 2
25When you were 12 years old your mother and stepfather separated as a result of his infidelity. This upset you as you were fond of him and regarded him as your father. For a short period at age 13, you attempted to live with your biological father, however this was fraught with difficulty and your relationship with your father has been estranged ever since.[9]
[9] Defence Outline of Submissions for Plea Hearing dated 15 July 2022
26Your mother reports that you were a good student until you started taking drugs at age 14 which eventually led to you being expelled from school.[10] Your time at school was made more difficult by you being the victim of bullying, both physical and verbal. After your stepfather had left the family, you struggled with your mental health, and you began to disengage from school, and associate with bad company.
[10] Reference by Ms Elizabeth Wicks dated 3 June 2022
27You have worked in a variety of jobs, including landscape gardening, retail and as a labourer.
28When you were interviewed by Ms Cidoni you told her that you began to use cannabis at age 13. This escalated to the use of amphetamines, methylamphetamine and ecstasy at age 17. At age 19 you experimented with GHB and continued to abuse this drug into your late twenties. You report using methylamphetamine daily between the ages of 17 to 30 and had begun to use heroin two years ago.[11] You trafficked drugs to fund your addiction.[12]
[11] Psychological Report by Ms Gina Cidoni, psychologist, dated 27 June, paragraph, 44
[12] Defence Outline of Submissions for Plea Hearing dated 15 July 2022, [23]
29You reported three accidental overdoses, two of which led you to being hospitalised. You currently suffer from carpal tunnel syndrome, and are awaiting surgery for this condition. You have kidneys stones and have had at least two surgeries whilst in custody and you are waiting for further surgery to deal with that.
30In 2019, you attended the Dayhab addiction treatment centre and Tarson Health. You reportedly ceased all drug use for approximately two months after attending those programs. [13] You then lapsed back into drug use and had sporadic periods of sobriety after you met your current partner in 2021.
[13] Psychological Report by Ms Gina Cidoni, psychologist, dated 27 June, paragraph 46
31Ms Cidoni reports that prison has had a sobering effect on you as it has allowed you to become abstinent from drugs and reflect on your situation and life.[14] Whilst in custody you completed the tuning into respectful relationships program and have commenced the methadone program, which you report finding helpful.[15]
[14] Psychological Report by Ms Gina Cidoni, psychologist, dated 27 June, paragraph 79
[15] Psychological Report by Ms Gina Cidoni, psychologist, dated 27 June [45] – [47]
32Ms Cidoni reported that you were well engaged and that you highlighted your intention to abstain from drugs and that you expressed remorse for your actions.[16]
[16] Psychological Report by Ms Gina Cidoni, psychologist, dated 27 June paragraph 48
33In your relationship with Ms Parker one of the principal areas of commonality was drug abuse. More recently you formed a relationship with the woman who was one of the protected people under the Family Violence Intervention Order.
34Since that offending the order has been revoked.[17] You say that that relationship was stabilising for you, and you wanted to provide care for her and her son.
[17] Following the sentencing hearing the court was apprised that the Order was varied, but not revoked.
35Ms Cidoni considers that you have average to low average cognitive ability, that you have no mental health concerns other than drug abuse and some unhelpful personality traits.
References
36A letter from your mother was tendered on the plea. She considered that the offending was out of character for you, and described you as a caring and empathetic person. Your mother has assisted you in repaying debts which you accrued whilst taking illicit substances. You are fortunate to have a supportive mother, who has taken away the burden of your unpaid debts.
37Ms Theodore, with whom you had a relationship for four years, expressed shock over your offending. She considered that your negative behaviour was exacerbated by your peers, and that you reported that you had ceased contact with them.
Factors in mitigation
38Your counsel raised the following matters in mitigation, which I accept and take into account:
(a) First, the plea of guilty. You pleaded guilty early at the committal mention, which is at the earliest reasonable stage. Your plea of guilty carries considerable weight in mitigation by reflecting the utilitarian benefits, which are significant, particularly in the context of the pandemic.
(b) I also note your plea of guilty Is a reflection of your remorse and your willingness to facilitate the administration of justice.[18] As the Court of Appeal has said,
[18] Worboyes v R [2021] VSCA 169
'The weight given to your plea of guilty in the time of a pandemic is much greater than it would otherwise have been, absent the pandemic.'
(c) I also take into account that you pleaded guilty knowing that you would be serving a further period in imprisonment and that period of imprisonment would be more difficult by reference to your physical ailments and the pandemic.
(d) Whilst you have been on remand your ability to engage in activities and to have visitors or even see people over an internet link has been reduced and I take all of those factors into account.
(e)
Secondly, your remorse. You told Ms Cidoni that you were grateful that
Mr Davies had not been seriously injured and expressed regret for having committed the offences on that occasion. As I have already said, I also take into account your pleas of guilty as an indicator of your remorse.
(f)
Third, your physical health issues make your time in custody more onerous for you than would be the case for a person who does not have those conditions. Furthermore, you have been or will be in protection whilst you are under treatment for the kidney stones. Your counsel also stated that you were the victim of an assault whilst you were at Fulham, and you suffered an injury to your larynx. You are concerned for your safety whilst in custody.
I will mitigate your sentence to a degree for all these reasons.
Totality
39You were sentenced to 12 months' imprisonment whilst on remand for these matters. Whilst I was not provided with information regarding those offences, I take into account in a broad way the fact that approximately half of your time on remand for the offences for which I am sentencing you, cannot be counted as pre-sentence detention days.
Prospects in Rehabilitation
40Ms Cidoni assessed you as presenting a medium risk of further violent offending, noting the risk factors of drug use and anti-social associates. As Ms Cidoni said, if you stop taking drugs, your risk of reoffending will reduce markedly.[19] Your counsel noted the protective factors of your ability to work, and the absence of serious mental illness. You also have the support of your mother, and the desire to get out of prison to spend time with your aged grandmother. Your mother is willing to have you live with her upon your eventual release.
[19]Psychological Report by Ms Gina Cidoni, psychologist, dated 27 June [72]
41Your past efforts at residential rehabilitation enabled you to remain abstinent from drugs for two months. It is to your credit that you undertook such a program. Relapse is not uncommon in addressing drug addiction, and it is to be hoped that you will make further efforts in this area. Your future depends on it.
42It is notable that your criminal history, whilst extensive, is largely related to your addiction. It does not include any offence as serious as the home invasion. I note that you have two prior convictions for persistent breach of a Family Violence Intervention Order which were dealt with in the Magistrates' Court.
Other Sentencing Factors
43General deterrence, denunciation and just punishment are all relevant sentencing considerations. The home invasion you committed was far from a low level instance of that serious offence.
44Whilst I consider that you do retain prospects of rehabilitation, specific deterrence remains a relevant factor of some weight in sentencing you.
45The sentences that I will impose are:
46Charge 1, home invasion, five years imprisonment.
47Charge 2, intentionally causing injury, two years imprisonment.
48Charge 3, intentionally damaging property, six months imprisonment.
49Charge 4, persistent contravention of a Family Violence Intervention Order, six months imprisonment.
50Charge 5, persistent contravention of a Family Violence Intervention Order, nine months imprisonment.
51The sentence on Charge 1, is the base sentence. I direct that six months of the sentence on Charge 2, one month of the sentence on Charge 3, one month of the sentence on Charge 4, and one month of the sentence on Charge 5, be served cumulatively upon each other and upon the base.
52This results in a total effective sentence of five years and nine months, with a non-parole period that I will set of three years and nine months.
53Regarding pre-sentence detention, you were arrested on 28 September 2021. Whilst you were on remand for the offences you received a sentence of 12 months, imposed on 27 October 2021; 180 days of pre-sentence detention were declared on that sentence, based upon a previous period on remand. Thus, your pre-sentence detention for the offending for which I am sentencing you is the period between 28 September 2021 and today, which is 318 days, less the balance of the sentence you received in October 2020, which is 185 days. I will declare therefore 133 days of pre-sentence detention today.
54Pursuant to 6AAA of the Sentencing Act, I state that if you had not pleaded guilty, I would have sentenced you to 7 years and 9 months with a non-parole period of five years and nine months.
55I will make the forfeiture and disposal orders as have been agreed upon by the parties.
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