Director of Public Prosecutions v Wighton

[2015] VCC 1362

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00764

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES WIGHTON

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 September 2015
CASE MAY BE CITED AS:	DPP v Wighton
MEDIUM NEUTRAL CITATION:	[2015] VCC 1362

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Goodfellow	Office of Public Prosecutions
For the Accused	Mr D. Gibson	Victorian Legal Aid

HIS HONOUR:

1James Wighton on 30 March 2014 you went to your mother's premises in the early hours of the morning.  There had been significant difficulties between you a your mother and your younger sister.  You had a particular set against your younger sister's partner.  You went into their house and into the bedroom where your sister and partner were sleeping with their young children.  They tried to keep you out of the room by leaning against the door.  You were trying to open the door.  In doing so, you made threats to your sister's partner, in effect saying you were going to kill him.  You were banging on the door trying to get in during this frightening event.  All of a sudden you put a sharp object that you had carried through the door about five times and on one occasion grazing your sister's right hip.  All the time you were yelling and pushing against the door.  You then left.  The police were called and later in the day you were arrested.  You told police that you were going around to your mother's to scare your sister's boyfriend because you do not like him.  You said that you knew the two children were there and that you had used a piece of wood to pierce the door.  You expressed remorse regarding the injury to your sister and generally. 

2Mr Wighton, this was frightening conduct.  Your sister and her boyfriend were entitled to remain safe from your threats and violent behaviour in your mother's premises.  You were not meant to be there.  There were children, thereby making the whole event that much more serious.  To keep well in mind, the charges you face are threat to kill, criminal damage and recklessly causing injury.  You are to be punished for these offences alone and no more.

3You have pleaded guilty at an early point, that is, that you have indicated a plea at an early point, although there were complications.  But in the end your sentence will be significantly less than it otherwise would have been.  Indeed, the sentence will be of a different kind than would have been imposed had you pleaded not guilty to this offending. 

4You have in fact spent 17 days in custody prior to getting bail.  It was bail that was onerous to you but had a rehabilitative purpose to it and it seems you have taken up that avenue.  You have been in trouble before and been before the courts from the age of about 18, although your last offending was the contravention or failure to comply with a Family Violence Intervention Order concerning June 2002 whereupon you, with conviction, had the matter adjourned for a year, you did not breach that undertaking.

5You are now 29 years old.  Plainly, you have a problem with your anger and this is compounded by your use of the drug ice.  You have had work on and off in the past.  Mr Wighton, you need now once again to focus on getting steady work.  You have a solid relationship with a partner.  You have support from your family, though you need to do more work to improve all your relationships within the family. 

6You have been attending drug and alcohol counselling and that is to your credit.  You have a mental health plan.  You are medicated for depression and anxiety, as I understand it.  You now abstain from alcohol.  All these things are positive and give me some confidence that you might turn the corner. 

7In recent times the Court of Appeal has given guidance to sentencing judges relating to sentencing, particularly as to the use of Community Corrections Orders.  Parliament has also made it clear by amendments to the Sentencing Act that sentences of imprisonment are truly to be considered punishments of last resort.  In taking into account all that was said in the decision of Boulton & Ors v The Queen and the cases that have applied Boulton subsequently, I am of the view that a properly tailored Community Corrections Order is a just and appropriate sentence in this matter.  What I intend to do is impose an aggregate term for the crime of threat to kill, recklessly cause injury and criminal damage. 

8Mr Wighton, you are convicted and placed on a 12 month Community Corrections Order.  In addition to all the mandatory conditions, the special conditions that apply to you is that you must do 120 hours of unpaid community work and you must participate in programs relating to treatment and assessment for drug use, mental health and other programs to reduce your risk of re-offending. 

9A document will be produced shortly, Mr Wighton, and it will set out these things and I will repeat them to you.  So take a seat for the moment while that document is produced.  I will say that compliance with what I told you earlier that your sentence is significantly less than it otherwise would have been,
I indicate to you and the community had you pleaded not guilty to these offences and been found guilty of it, I would have imposed a sentence of four months' imprisonment with an 18 month Community Corrections Order. 

10I think there's a document relating to forfeiture of something, isn't there?

11MR GOODFELLOW:  Yes, the disposal order.

12MR GIBSON:  It's not opposed, Your Honour.

13HIS HONOUR:  Disposal of shoes or something.  You're losing your shoes,
Mr Wighton.  There's a whole blank page in here, Mr Goodfellow.  What's that there for?

14MR GOODFELLOW:  I'm not sure, Your Honour.  Sorry, I'm not sure.

15HIS HONOUR:  Just a slip, I'm sure.  But I get a bit nervous about ‑ ‑ ‑

16MR GOODFELLOW:  Yes I appreciate that, Your Honour.

17HIS HONOUR:  So maybe have a look at it before you staple it next time, in any event. 

18MR GOODFELLOW:  Yes, Your Honour.  Thank you, Your Honour.

19HIS HONOUR:  Mr Wighton, the conditions apply to everyone with a Community Corrections Order are these; they're important especially the one I'm about to emphasise as the first one.  You must not commit another offence for which you could be imprisoned during the time this order is in force.  It goes for 12 months, from today to 24 September 2016, meaning you cannot commit any offence for which you could be punished by imprisonment during that time.  It does not mean the magistrate will give you imprisonment, it is just that if the offence is capable of being punished by imprisonment.  Almost every offence you can think of is punishable by imprisonment.  So the way forward is do not commit further offences of any kind for the next 12 months and of course do not commit any further offences ever.  But if you do within the next 12 months you will come back before me and the mercy that has been shown will not be repeated.  Do you follow?

20OFFENDER:  Yes, Your Honour.

21HIS HONOUR:  You have got to comply with obligations under the Sentencing Regulations.  I am told that means they will take your photograph so they know who you are when you are sent out on work programs and so on.  You have got to comply with that.

22You must report to and receive visits from the Office of Corrections.  You must report to the Community Corrections Centre within two clear working days.  The centre that you have to go to is at Werribee Community Corrections Service at 87 Synnot Street in Werribee.  So go there Monday or at least by Tuesday.  You must let the Community Corrections officer know within two clear working days if you change your address or your job.  You must not leave Victoria without first getting permission to do so from the Secretary and you must obey all lawful instructions and directions from the Office of Corrections.  So all of those last ones mean just keep them in touch with what is going on.  Listen to what they say and do what they tell you to do. 

23The conditions that apply especially to you are that you must do 120 hours of unpaid work in the period of 12 months.  You must undergo assessment and treatment for drug abuse and tendency.  You are doing a bit of that but keep at it.  You must undergo assessment and treatment for alcohol abuse and dependency and you must participate in programs and courses that address your offending behaviour.  You are already on a mental health plan so keep going with that.  That is not mandated; I am not ordering you to keep going under this CCO but that is pretty important that you keep going with your doctor on the mental health plan.  But you must participate in programs that the Office of Corrections might ask you to do that deal with your offending, maybe anger management or something like that.  They will know what is best for you. 

24Mr Wighton, you have got to do all these things, including particularly the 120 hours.  It is not voluntarily.  You do not sort of wake up and think will I go to work today?  I have got some community work but I will fudge that a bit and ring him and tell him I am late.  You just have to go on time every time, stay until it is over and go home.  Maybe not everyone that is on these community work orders or who you will come across at the Corrections Centre is as interested in getting away from crimes and courts as you have to be.  Do not get sucked in by them.  Do you follow that?

25ACCUSED:  Yes, Your Honour.

26HIS HONOUR:  Because if you do, you will be back here and there will be just one place that you will be going inevitably and that is not out back into the street; it will be with the Corrections people.  You have not done well on your last Community Corrections Order some time ago but this is different.  If you do not do it here then you will go into the prison.  Can I just assure you no one is ever the same after they come out of prison.  You do not want to go there; not someone like you.  All right, if you sign that, that will be the end of the matter.  

27Is there anything further required?

28COUNSEL:  No, Your Honour.

29HIS HONOUR:  You will note, Mr Gibson and Mr Goodfellow, I have not declared any pre-sentence detention as part of anything because a prison sentence for the crimes that he ultimately pleaded guilty to is not just and appropriate in any way.  Of course, I would consider upon a breach the fact that he has done some time in jail but he should be assured that that is hardly likely to be enough if he breaches.

30MR GIBSON:  Yes, Your Honour.

31MR GOODFELLOW:  As Your Honour pleases.

32HIS HONOUR:  I thank counsel for their considerable assistance and written submissions that enable these matters to go much speedier than they once used to.  If there is nothing further I will stand down. 

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