Director of Public Prosecutions v Wicthiel
[2022] VCC 1794
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00607
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAGUSTO WICTHIEL |
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JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 October 2022 |
DATE OF SENTENCE: | 21 October 2022 |
CASE MAY BE CITED AS: | DPP v Wicthiel |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1794 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Aggravated burglary – damage property – unlawful assault – limited application of Bugmy
Legislation Cited: Sentencing Act 1991; s5C(4C)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen [2014] VSCA 342; Bugmy v The Queen [2013] HCA 37
Sentence: Convicted and sentenced to one year and 10 months imprisonment with a two year community corrections order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Peek (Plea) Ms D. Caruso (Sentence) | Director of Public Prosecutions |
For the Accused | Mr D. De Witt | Michael J. Gleesons & Associates |
HIS HONOUR:
1Magusto Wicthiel, your case was originally listed before me as a sentencing indication hearing. At the conclusion of that proceeding you decided to finalise the matters before the court.
2On 18 October 2022 at County Court of Victoria at Melbourne you pleaded guilty to the following charges on indictment No.10436190.
Charge 1, destroying or damaging property. This charge has a maximum sentence of 10 years' imprisonment.
Charge 2, aggravated burglary at MacGowan Avenue in Glenhuntly, with persons present and carrying an offensive weapon, in your case it was a baseball bat. This charge has a maximum penalty of 25 years' imprisonment.
3You consented to three related summary charges being heard at the time of your plea hearing. You pleaded guilty to the following related summary charges.
Charge 5, unlawful assault of Joshua Davis-Bechaz. This charge has a maximum penalty of three months' imprisonment.
Charge 7, unlawful assault of Jade Lyons. This charge has a maximum penalty of three months' imprisonment.
Charge 12, commit an indictable offence whilst on bail. This charge has a maximum penalty of six months' imprisonment.
4I note in the submissions by the prosecution that if I find aggravating circumstances of the assault, the maximums in each of those cases, that is Charges 5 and 7 will be six months. I do not find aggravating circumstances in either Charge 5 or 7.
5You admitted your prior criminal history involving four separate court hearings between June 2018 and May 2019. You have prior convictions for dishonesty including burglary, violence including recklessly cause injury, and weapons charges. You have breached Community Corrections Order (“CCO”) dispositions on three occasions. You have successfully completed two CCO’s. At first blush the current offending appears to be an escalation from your past offending.
6On my calculation you have spent 598 days pre-sentence detention not including this day.
7The prosecutor advised the court that the victims of your offending have declined the opportunity to make and file victim impact statements in this case.
Circumstances of your offending
8The prosecutor tendered the Summary of Agreed Facts dated 13 October 2022 that is Exhibit “A”. The summary was read into the record of the court.
9At the time of the offending you were 26 years old. You are now 28. You have been in custody for 598 days on remand. You knew
Davis-Bechaz from the party scene. You had purchased cannabis from him from time to time. You live in units nearby Mr Davis-Bechaz's house on MacGowan Avenue in Glenhuntly.10On 28 February 2021, Davis-Bechaz and yourself were having conversations via text message about money that Mr Davis-Bechaz owed to you. You had that afternoon transferred via electronic means to Mr Davis-Bechaz some funds for the purchase of cannabis from him.
11You became agitated when Mr Davis-Bechaz was not going to either return your $150 nor give you the cannabis.
12At approximately 11 pm on that day, you have approached the house on MacGowan Avenue in Glenhuntly and you were banging on the door yelling out about your money.
13One of the housemates heard you at the door and dialled Triple zero and told you to leave. You then smashed the front door window. You said ‘you would return’ and you left the scene.
14Later, you sent Mr Davis-Bechaz two further text messages, one saying, 'You're walking away with my money', and the second one saying, 'You stole my money, remember this'.
15The police attended to the premises at MacGowan Avenue, Glenhuntly. The scene was photographed, no statements were taken from the residents of the house at that time. The police advised the residents of the house that if you returned, they were to ring the police. That is the basis of Charge 1.
16The next day, 1 March 2021, there are further text messages between yourself and Mr Davis-Bechaz about the money and drugs. You then decided to go and visit Mr Davis-Bechaz at his home. At about 10 pm that night you had been at your home in Rosedale Avenue in Glenhuntly with unknown associates. You were seen leaving the premises with them on CCTV which was stored on your own mobile phone.
17At about 10.30 pm you have attended at MacGowan Avenue in Glenhuntly. You were armed with a baseball bat and you had with you the two unknown male associates. You have entered the premises from the front door. Your two associates remained outside of the house. It is unknown how you got into the house but it is anticipated that you reached in through the broken window and opened the door.
18You have then gone to the first bedroom on the left, which was Mr Davis-Bechaz's bedroom. You have entered that bedroom, pointed the bat at him whilst he was lying on his bed watching TV. You kept yelling at him, 'Where's my money?', whilst pointing the bat at him.
19Davis-Bechaz then told you he did not have your money. One of the other people in the premises heard this commotion and came into the bedroom and observed you with the baseball bat. You then shut the door on that person, who then again reopened the door and grabbed you by the clothes behind the neck to get you out of the house. A scuffle ensued.
20Whilst all of this was happening other members of the house all heard the commotion. You were now in the hallway and they observed you with the baseball bat. It was basically a tug-of-war over the bat, pushing and shoving until such time as a result of the wrestle over the bat, Ms Lyons managed to take the bat from you and hit you with it twice to the back of your head. You then turned around to face her and grabbed her around the throat and have taken the bat back. You pushed her up against the wall and said you did not want to hurt her and let her go.
21During the altercation, the two unknown males who had been standing outside the house, have entered the home. They have effectively come into the home to get you out of there. In the process, there was a scuffle between all present that lasted for about 20 seconds.
22You left the premises with your mates after one of the other house members, a Mr Dimmick, offered to pay you the money. He gave you $150 and you left. Mr Dimmick then called the police.
23About 15 minutes later, incredibly, you returned to the house and calmly asked to look for your keys. Mr Dimmick told you the police were on their way. You then left after you were unable to find your keys.
24In the early hours of 2 March 2022 you were arrested by police near your home. You denied any knowledge of the offending or knowing anyone who lived at MacGowan Avenue in Glenhuntly. You have been in custody since the day of your arrest.
Personal Circumstances
25You have just turned 28 years of age. You have many experiences before coming to this court for sentence. You were born in South Sudan. Your parents and three older siblings fled to Egypt to escape the civil war in South Sudan. For three years your family lived in cramped conditions in a refugee camp in Egypt. The conditions in the camp were extremely difficult and extremely dangerous. Such is the case that those conditions are notorious in this community. We know about it.
26You travelled to Australia with your father in 2003. At that stage you were eight years of age. Fortunately, you became an Australian citizen later that same year. Your mother did not arrive in Australia until some three years after you did. Your father settled in Geelong, your father was a violent man directed to you and to your siblings. Your father was also violent to your mother when she joined the family.
27At the age of 15 you intervened to protect your mother from your father's violence, taking up a much smaller piece of wood, a broom handle. The police came to the house. You have not seen your father since that day.
28You initially struggled with your education, but you got through Year 12, but ultimately baulked at the Year 12 exams. And I just note here, your brother has a different history of your education level. You however describe not attending your Year 12 exams as the biggest mistake of your life.
29After your school, you worked to help your mother support the family. You were working as well whilst you were at school. There are six younger siblings who live with your mother. Predominantly, you have worked in warehousing and the hospitality industry.
30You commenced using cannabis and methylamphetamine when you were between the ages of 18 and 19 years old. Around that time you moved out of home and mixed in what is described as the “wrong crowd”. The victims of your crime I suspect are also part of the wrong crowd.
31Whilst in prison you have been diagnosed with depression, anxiety and Post Traumatic Stress Disorder (“PTSD”) as a result of your upbringing and your refugee camp experiences. I accept that you have experienced a substantially disadvantaged upbringing where violence was all around you.
Sentencing Considerations
32The basic purposes for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
33I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society.
34I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly but not exhaustively, to the kinds of sentences imposed in comparable cases and the statistics for those sentences. I have considered both the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and as many of the cases would be distinguishable from your case, as indeed they are from one another.
35I am mindful of the provisions of the Sentencing Act 1991 and in particular s5(4C) which directs the sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed.
36I have also reviewed the case of Boulton in considering if a CCO would be appropriate in your case and I have also had you assessed for a CCO. You have been assessed as suitable for one of those orders. That of course is not the end of the matter.
37You have pleaded guilty to these charges. Your plea of guilty was indicated after a sentencing indication hearing. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of the court and police resources to deal with other matters. Your plea vindicates the public confidence in the legal process set up to protect the community.
38Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on these occasions. Your plea also recognises you are willing to facilitate the course of justice in the community, and I accept that your plea of guilty to these charges indicates and demonstrates remorse on your part.
39Your plea of guilty is entered at a time when the backlog of cases for trials here has expanded due to the COVID-19 pandemic. The Court of Appeal in Worboyes case clearly stated that a plea of guilty in the times of COVID-19 has a further utilitarian value, and a plea of guilty should attract a perceptible amelioration of sentence. The Worboyes discount is applicable in your case.
40The objective seriousness of your offending is, in my assessment, at the lower end of offending despite the presence of features of the offending. The indicators are:
(1), the offending occurred late at night;
(2), you were armed with a baseball bat;
(3), you attended the premises in company with others, however they only entered the premises to extract you from the house;
(4), you were well known to the occupants of the house and always identifiable by them;
(5), the two summary assault charges did not result in any injury to your victims;
(6), the occupants challenged you physically despite you having the baseball bat, this indicates the lack of fear they held for you on this occasion, even though you were armed;
(7), you were there to regain your money from Mr Davis-Bechaz and left when one of the other housemates gave you the $150;
(8), you returned to the premises to recover your keys;
(9), you were on bail at the time of the offending; and
(10), the initial incident of breaking a window was out of frustration at being ignored by Mr Davis-Bechaz for the return of your $150.
41The finalisation of this prosecution comes after a long delay. Whilst in custody you have engaged in many courses to advance your rehabilitation. Exhibit 2 is a bundle of 15 certificates indicating your efforts at rehabilitation. You have been away from the freedom of being able to obtain drugs in the community. Your protected status in custody from the drug business needs reinforcement upon your release from custody.
42The delay has meant that you have done the entire remand period under the harsh Corrections regime imposed to protect the prisoner population from COVID-19. The lack of family contact and the normal prison routine has made your time in custody to date more burdensome than it would have been in normal times.
43You have been assessed by Mr Gina Cidoni, a forensic psychologist, for the purpose of this proceeding. Her report dated 17 October 2022 was Exhibit 3. Ms Cidoni notes that you have been diagnosed with anxiety, depression and PTSD. You have been prescribed Effexor in the past as an antidepressant and Fluoxetine.
44Ms Cidoni also diagnoses you as having an alcohol and stimulant use disorder. Ms Cidoni's opinion was that your chronic mental illness would have been active and present when you offended and as such, she would reduce your moral culpability for the offending.
45Your background and personal circumstances give a proper basis for finding that you come from a deprived background, which arises from the profound disadvantage you experienced in your formative years. I accept that the principles of Bugmy has application to your sentencing process in a limited way, it reduces your moral culpability for the offending in this case.
46You report that you had been drinking alcohol prior to your aggravated burglary offending. You were also suffering from cannabis withdrawal due to the lack of supply by Mr Davis-Bechaz. The fact of your self-induced intoxication does not excuse or mitigate your criminality in these offences.
47I assess your prospects of rehabilitation as guarded. You have had a number of chances on CCO’s in the past. You have a known drug habit. Nevertheless, you have now had the experience of imprisonment and started rehabilitation whilst in custody. You have support from your mother on release from custody.
48Prior to your incarceration you had a consistent work record, most recently in the hospitality industry.
49The sentencing principles of specific and general deterrence, just punishment, denunciation of your actions, protection of the community, including your rehabilitation, dictate that a combination sentence – as it is referred to – of further imprisonment from now including your time on remand in combination with a therapeutic CCO upon your release from prison, in order to enhance your prospects of rehabilitation, is the appropriate just sentence.
50You can stay seated whilst I announce your sentence.
51On Charge 1, which is the criminal damage charge, you are convicted and placed on a two year community corrections order with the following conditions:
·You are to be supervised;
·You are to be assessed and have treatment for drug rehabilitation.
·You are to be assessed and have treatment for alcohol rehabilitation.
·You are to be assessed and treated for mental health.
·You are to undergo offender reduction courses.
·You are to attend at a judicial monitoring, some six weeks after your release from custody. Now that is a date in the future that will be organised with your community corrections people.
·That you have to report to the Cranbourne CCS, Community Corrections Service, within two days of your release from prison.
52Now this is the bit that really hurts.
53On the aggravated burglary charge you are convicted and sentenced to 22 months imprisonment.
54On the related unlawful assault Charge 5, you are convicted and sentenced to one month imprisonment.
55On the unlawful assault Charge 7, you are convicted and sentenced to one month imprisonment.
56And in respect of the related summary Charge 12, committing an indictable offence on bail, you are convicted and sentenced to one month imprisonment.
57That is a total effective sentence of 22 months imprisonment.
58I declare that you have served – let me check this - 598 days?
59COUNSEL: Yes, Your Honour.
60HIS HONOUR: 598 days of that sentence of the 22 months, you have already served them, not including today.
61And but for your plea of guilty I would have sentenced you to a straight term of imprisonment of four years and six months with a three year non-parole period.
62So Mr Wicthiel, what that all means is you have got a head sentence of 22 months, minus the 598 days you have already served. When you get out, you have got a two years CCO to do after that after your release from custody, and judicial monitoring. What that means is you will come back before me regularly over that period of two years. If you muck up, that is if you reoffend or do not comply with the conditions of the CCO, you will have to come back before me on a breach proceeding, and there is only one result that is going to happen.
63Now, the community corrections order, that is an order you have to sign, will be facilitated to the prison so that you can sign it, then it will be sent back to me.
64Have I covered all matters?
65MS CARUSO: Your Honour, I think Mr Wicthiel is consenting. It is a requirement that he officially consents to the order.
66HIS HONOUR: Yes. Yes, I will just make sure he understands. Mr Wicthiel, in order for me to impose on you a community corrections order you have to consent to that. Do you consent to me imposing a community corrections order on you?
67OFFENDER: Yes, Your Honour.
68HIS HONOUR: Thanks. Otherwise, everything covered.
69MS CARUSO: Yes, Your Honour.
70HIS HONOUR: Thanks very much.
71MS CARUSO: Your Honour, it doesn't make any large difference, but if Your Honour is amending your reasons, Your Honour indicated that the commit indictable offence on bail maximum penalty was six months, it is three.
72HIS HONOUR: Right.
73MS CARUSO: So if Your Honour publishes, it is three. And then the summary offence five, the prosecution could not argue the aggravating feature because it is a male victim, so it is only three months.
74HIS HONOUR: Yes.
75MS CARUSO: And then the second victim could be six if Your Honour found, but given your sentences it does not change, but if Your Honour does publish ‑ ‑ ‑
76HIS HONOUR: Yes. When I publish - I can tell you what I am going to do, because I do not find the aggravating circumstances, I do not ‑ ‑ ‑
77MS CARUSO: Three months then, Your Honour, for the summary offences.
78HIS HONOUR: ‑ ‑ ‑ three months in each of them. Yes.
79MS CARUSO: And then the commit indictable offence on bail, it's six months, it should be three or the fine.
80HIS HONOUR: Right, I thought I said three, but anyway, it is what I have written here but thank you. Always good to get it right. Nothing further, Mr De Witt?
81MR DE WITT: Nothing further, Your Honour, thank you.
82HIS HONOUR: Mr Wicthiel, keep your head down in there until you have finished your term. When you come out, I will see you.
83OFFENDER: Yes, Your Honour.
84HIS HONOUR: Very well.
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