Director of Public Prosecutions v Wight

[2015] VCC 326

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-02175

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL WIGHT

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 March 2015
CASE MAY BE CITED AS:	DPP v Wight
MEDIUM NEUTRAL CITATION:	[2015] VCC 326

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr I Gwynn
For the Director of Public Prosecutions	Ms C Parkes

HIS HONOUR: 

1Michael John Wight, you have pleaded guilty to one charge of aggravated burglary. That crime carries a maximum penalty of 25 years' imprisonment.  You are 25 years of age now and you were 24 years of age at the time of the offending.  You have pleaded guilty to a settled indictment and in those circumstances I accept that there is appropriate remorse and you must of course get the utilitarian benefit of that plea of guilty.

2I have previously sentenced a co-accused and made the observation there that I will make here, that this a matter where I could easily see how it could have been fought out before a jury and therefore the plea of guilty in my view has added weight in terms of displaying remorse as well as the acceptance of responsibility for the conduct.

3You do have, for one so young, an unfortunate prior history.  You have been incarcerated both in youth justice and in adult prison previously for not dissimilar types of offending.  The situation has been reached, Michael John Wight, where if you re-offend again in this way, you are going to get a very significant gaol sentence, whether it would be off me or off another County Court judge.

4

The circumstances of the offending are that in September of 2013 a

Mr Hellman as who as I have indicated I've already sentenced was having a dispute with a Mr Campbell over various matters including a firearm.  He had determined that he would go around and use force if necessary to recover his stolen property.  He rang you, made it clear that it could well get violent and asked you to help and you said to him, "Sweet brother."  The two of you went round to the house where Campbell was at home in Traralgon watching TV with his partner I assume, and their children were asleep in the bedrooms.

5You walked into the house through the closed but unlocked front door and said to Campbell that Mr Hellman was outside and wanted to speak with him.  Campbell walked outside and essentially a fracas started there.

6There was an argument between Hellman and Campbell about the gun and Campbell was punched, and punched back.  At that point in time you produced a weapon which is the basis of the aggravated burglary as I understand it.

7During the course of this altercation Mr Campbell moved into the house being apparently being pushed by you two.  You followed him into the house with the intention of assaulting him.  That gives rise to the charge of aggravated burglary.

8Inside there was then violence involving a knife from Hellman and violence involving what appears to be a tomahawk handle, minus, fortunately I suspect, the blade and that is not the subject of a charge but indicates what the aggravated burglary was all about.  You were eventually arrested sometime later, denied the allegations and have been now in custody since April of last year.

9The situation with Mr Hellman was that he was convicted of more charges than you.  He had also an extortion, weapons charges and all sorts of things that had been brought up from the Magistrates' Court.  He was sentenced to be imprisoned for an aggregate period of 235 days with a significant CCO to follow. That of course was with conviction.

10Your role in this was clearly as back-up, it was Hellman's fight, he instigated it and he was convicted of and sentenced for a significant number of matters, more than you have been.

11On the other hand, you do have worrying prior convictions for matters such as robbery, armed robbery and aggravated burglary.  In your particular situation a custodial sentence I think is inevitable.  Crimes such as this, whilst they can vary considerably in terms of their gravity, always have the risk that extreme violence will flow, if people endeavour to defend themselves. These such matters can end up with very serious injury being caused.  A sentence for an aggravated burglary is not for what happens after the entry, it is essentially for what could have happened and what is creating a very, very dangerous situation.

12In your particular situation, I think specific deterrence is important and that can done by a Community Corrections Order.  General deterrence in such a circumstance is always of importance and even in a circumstance where the milieu is one of criminality, there must still also be an appropriate punishment.

13I then look to you the matters personal to ascertain what that appropriate sentence should be, your counsel has filed very helpfully a outline of submissions on your behalf and they can be put quite succinctly.

14You went to school till about Year 8. The level of your education I accept what your counsel says and from my own observations of you, that that is the indication of some of the struggles that you may have.  From a young age you were brought up in a loving and caring family, and you have obviously very strong family support and I accept that totally.

15You at an early age, in your early teens it would seem, began the use of drugs, amphetamine, cannabis, and from that point of time on your conduct became extremely unreliable and clearly from the nature of your prior history, somewhat dangerous.  It was in those circumstances that you were given a very significant youth justice detention order and also you have been sentenced in the County Court to do 15 months for robbery.

16You, as I said, were brought up in a loving family, your parents are both clearly hard-working people.  You are still young but I would not regard your prospects of rehabilitation as being extinguished at all.  I am told from the Bar table and accept that your mother who is present in court and your girlfriend who is also present in court, have said that this time in custody has been different for you, in that you seem to have grasped the nettle and realised that this has got to stop.

17You upon your release you will be able to live with your partner of some two years in Yinnar, well known to me.  You will have your parents living relatively close by.  Your partner is employed, has no prior convictions and does not use drugs.  Those matters all speak to the prospects of your rehabilitation being good.  The problem is, as you will understand Mr Wight that you have been through all of this before.

18In this particular situation looking particularly at parity, I think that you have done enough gaol, probably a little bit too much.  I have had you assessed for a Community Corrections Order and you have been found to be acceptable.  A Community Corrections Order in your particular situation will be used in lieu of an opportunity for parole.  That gives this court control to a large degree over what occurs in the future and brings you back if you do breach it to be re-sentenced.

19Accordingly if you agree you will be sentenced to be imprisoned for 253 days and I also indicate that I am conscious of the fact that there is 91 days of Renzella time on top of that, and I direct that 253 days be reckoned as having being served as under this sentence.

20If you agree you will then be placed on a Community Corrections Order of 18 months' duration.  The conditions will be supervision, treatment and rehabilitation for drugs, and treatment and rehabilitation for programs to reduce re-offending.  That will be with conviction obviously. 

21MR GWYNN:  Yes Your Honour.

22HIS HONOUR:  So if we can produce that, were there any other orders I have to make?

23MS PARKES:  No Your Honour.

24MR GWYNN:  No Your Honour.

25HIS HONOUR:  Obviously the length of that is significantly higher than what a non-parole - what a parole period would have been just so that is clear.

26MR GWYNN:  Yes.

27HIS HONOUR:  (Indistinct) Sorry?  They can always drop it if they do not - it is not needed, yes.  It will be Morwell, Morwell is the nearest Corrections wouldn’t it?

28MR GWYNN:  Yes.

29HIS HONOUR:  There is probably no Corrections in Mirboo North, there would be Morwell, yes.

30MR GWYNN:  There is only Morwell.

31HIS HONOUR:  Yes.  Your mum and your partner will hear this, what I want you to do while this is being prepared, when - you have to report to Morwell in the next couple of days, you will get released today.

32THE ACCUSED:  Yeah Your Honour (indistinct) is that right Your Honour?

33HIS HONOUR:  I will just explain it to you for a second, when you sign this in a moment you have to be taken downstairs, you do not walk out of the dock.  You will be taken downstairs they do the paperwork, they make sure that there is no warrants out for you and stuff like that, and then you are released, you can go home with your mum, all right?  You will have to report to Morwell, it is a working day, so it will be by Monday, to Morwell Corrections and the address will be given you to about that.

34THE ACCUSED:  I know where it is Your Honour.

35HIS HONOUR:  I am sure you do.  This time I want you to keep going there not take off after about a week all right.  But what I want you to do, and your mum will remember this name, there is a man associated with Morwell Corrections called Tony Carson, I want you to make sure that you get contact with him.  He is no pussy cat, but he is a good man.

36THE ACCUSED: Yep.

37HIS HONOUR:  If you tell him, that I was specifically asked by Judge Smallwood for him to take an interest in you, he undoubtedly will.  That is Tony Carson.  No John will do that yes.

38MR GWYNN:  I've got a pen Your Honour.

39HIS HONOUR:  Yes, no he is.

40MR GWYNN:  Just while that is being done Your Honour.  Just so everyone knows and is aware as well, I think his mother and his girlfriend have been ‑ ‑ ‑

41HIS HONOUR:  Sorry, sorry. Yes. Sorry Mr Gwynn.  We will just get that signed.  Sorry Mr Gwynn.

42MR GWYNN:  Not at all Your Honour I was just going to fill Your Honour in relation to that they have been - the family made enquiries this afternoon just in relation to what they are going to do about medication in the interim and that is in hand as well transferring methadone to Valium and those sort of things, and other medication and get on to the GP straight away so there is something in place immediately.

43HIS HONOUR:  Did you know that this court - I cannot make an order now unless it has got a watermark on it?  The County Court watermark on it?  That is the level we have got ‑ ‑ ‑

44MR GWYNN:  More than just one of the jugs has been knocked over too I am sure Your Honour.

45HIS HONOUR:  That is the level we got.

46MR GWYNN:  Electronic signature?

47HIS HONOUR:  Something like that.  Yeah, all right.  You will go down with her Mr Gwynn, just to make sure he understands what he is signing?

48MR GWYNN:  Yes, I will Your Honour.

49HIS HONOUR:  Thank you.  All right that will just make - just stand up for me just for a second.  Look, I know you are keen to get out and all sort of things like that.  But you have just to hear what I am saying to you.  Ag burgs are serious stuff, right you know you have done whacks for it before.  If you breach this CCO and you are brought back before me, which you would be, for an ag burg or an armed robbery or something like that.  We are talking years.  Do you understand that?

50The ACCUSED:  Yes, Your Honour, I do Your Honour.

51HIS HONOUR:  If you are tempted to take drugs or do something like that, I want you to have a mental picture of me, sitting here wig and beard, saying "Try five years or four years for size son."  That is what's got to be, that is what I do in Koori Court.  Whenever they pick up a stubbie they think of me and four years all right.  That is what you have got to do, because realistically, you are 26 now, you get a four year whack you will not get parole, okay, and you are heading for all over so I know it is easy now it is all exciting we are going home and we are going to do this and going to do that, but you have got to remember this and you have got to start this the moment they let you go downstairs.

52THE ACCUSED:  Yes.

53HIS HONOUR:  All right.  I do not want to see you again Michael, okay?

54THE ACCUSED:  Thank you Your Honour.

55HIS HONOUR:  Thanks Mr Gwynn, thanks Ms Parkes I appreciate it.

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