Director of Public Prosecutions v Wild
[2022] VCC 2114
•25 November 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-22-01066
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAYNE WILD |
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JUDGE: | KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 25 November 2022 | |
DATE OF SENTENCE: | 25 November 2022 | |
CASE MAY BE CITED AS: | DPP v Wild | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2114 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Home invasion – Armed robbery – Covid-19 pandemic – Worboyes – Bugmy – Youth – Verdins.
Legislation Cited: ss 6AAA, 14, 15, 18 Sentencing Act 1991 (Vic).
Cases Cited:Azzopardi v The Queen (2011) 35 VR 43; Bugmy v The Queen [2013] HCA 27; GAS v The Queen [2004] HCA 22; Jackson v The Queen [2020] VSCA 95; Mohamed v The Queen [2022] VSCA 136; R v Rossi (1988) 142 LSJS 451; R v Verdins [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169.
Sentence:Two years and four months’ imprisonment with a non-parole period of ten months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms V. Jones | The Office of Public Prosecutions |
| For the Accused | Ms L. Dubroja | Slades & Parsons Solicitors |
HER HONOUR:
1You have pleaded guilty to an indictment which contains one charge of home invasion and one charge of armed robbery. Both of these offences took place on 26 November last year.
Circumstances of the offending
2The full circumstances of your offending is contained in the prosecution opening, dated 17 November 2022.
3In brief, on the night of Friday 26 November 2021,the victim of your offending, Michael Seitz, was at home with his wife and children. He was in his living area when he was alerted to outside activity. He approached the front door and saw a man, your co-accused Isaiha Jones, walk towards his car parked in the driveway. Prior to Mr Seitz opening the door, the footage shows Mr Jones first approach the front door.
4Mr Seitz opened the door and said, ‘is there a problem?’ Mr Seitz then noticed you, Mr Wild, standing on the footpath. Audio from the door camera captured the following conversation:
Wild: Is there a problem?
Seitz: No, why are you looking in here?
Wild: Is there a fucking problem?
Seitz: Yeah, why are you looking in here?
Wild: Give me your fucking keys.
Seitz: Huh?
Wild: Give me your keys to your car right now.
Seitz: Why?
5You then started running towards Mr Seitz, who saw a knife in your hand. Mr Seitz retreated into the house, closing and locking the door. You then began kicking the door. Mr Seitz held the door, trying to prevent entry. After four kicks, both you and Mr Jones gained entry through the door (Charge 1 – Home invasion). This was also captured by the door camera and Exhibit B is the footage that was played in Court.
6Mr Seitz stepped aside to let you and Mr Jones pass. The family dog ran towards you and Mr Seitz said, ‘don’t hurt my dog’. One of you said, ‘don’t worry I won’t hurt your dog’. That man held a knife up, pointing it at Mr Seitz and said, ‘keys and wallet’.
7Mr Seitz couldn’t find his keys, so he went to the garage. You and Mr Jones followed Mr Seitz into the garage. By this stage, Jessica Seitz had been woken by the noise and she saw you and Mr Jones walking downstairs. She heard some of the conversation and then she went to the children’s bedroom and saw nothing further of the incident.
8Mr Seitz found the car key in the garage and gave it to Mr Jones. He said, ‘your wallet’. Mr Seitz said, ‘it’s in the car’. You and Mr Jones moved back to the front door. On the way out, you passed a bowl containing keys and jewellery on the counter near the garage door. One of you grabbed the bowl, tipped it over, and grabbed the contents, which included the children’s jewellery.
9You and Mr Jones left the house and moved to the car. Mr Jones was holding the car key and got into the driver’s seat. As you entered the car, Mr Seitz asked for his work identification badge, which was in the car. The driver threw it towards him and left. Mr Seitz then returned to the house and called 000 (Charge 2 – Armed robbery). The stolen car was a black 2017 BMW X3, registration 1RA5TF.
10Over the following two days, police conducted a door-knock in the area and obtained relevant CCTV footage.
11On Sunday 28 November 2021, you were arrested in Brookfield, twenty minutes after committing an attempted aggravated carjacking. At the time you had in your possession a key to Mr Seitz’s BMW.
Victim impact
12Today, we heard victim impact statements from first, Mr Seitz. Mr Wild, he speaks in a pretty measured and yet powerful manner as to how your offending has impacted him and his family. What he said in that statement is clear and it is easy to understand. He speaks of his frustration and anger. He states:
The violence experienced by myself and witnessed by my family from my perspective was immense and not something we're accustomed to. Loss of sleep, anxiety, anger, fear, frustration and constant concern for the safety of my family are only a few descriptors
13He speaks also of how it has intruded into his professional responsibilities and impacted his daily activities such as walking his dog each night which was important to his well-being.
14Jessica Seitz speaks of no longer feeling safe in her home and of the lasting and ongoing effect that your crimes have had on her. She states:
Every loud noise has me jumping and every person or vehicle near the house after dark has me feeling suspicious and afraid.
15In sentencing you, Mr Wild, as I am required to, I take into account the impact that your offending has had on your victims.
Gravity of the offending
16The seriousness of your offending is reflected in the maximum penalty set by Parliament on both counts. Your offending is serious. There is no dispute between the parties that it warrants a term of imprisonment and that there are no exceptions to displace the applicable mandatory sentencing regime.
17In the late evening, you invaded the home of your victim, Mr Seitz. A place where he, along with his wife and children, were entitled to feel safe and secure. You confronted him aggressively and as he retreated into his home, closing and locking the door, you charged towards him with a knife in your hand. As he held the door, you managed to forcibly kick your way in with your co-offender, Mr Jones, right behind you. Your entry was forced and confrontational and this is clear from the footage. I accept that there appears to have been limited pre-planning to the home invasion and that you were not disguised. I also accept that there are more serious examples of a home invasion. However, when assessed against all relevant factors, this remains a serious example of the offence. Once inside, you made repeated demands for Mr Seitz’s property and at times a knife was brandished. After Mr Seitz managed to locate his car key and wallet, you both drove off in his BMW.
18Both offences are serious and require weight to be given to the sentencing purposes of general deterrence, denunciation and just punishment. Those who might be minded to commit such offences must understand that imprisonment will usually be imposed and for substantial periods, even in the case of relatively young offenders.[1]
[1] Jackson v The Queen [2020] VSCA 95.
19Two days after this offending, on 28 November, you committed an attempted aggravated carjacking and you were remanded in custody where you have since remained. You entered a plea to this charge before me and on 15 July this year. I sentenced you to a total effective sentence of 22 months with a non-parole period of 11. I am therefore very familiar with this offending and also your circumstances. I accept the totality principle is of importance in your case. As the prosecution submit, these two lots of offending ‘form part of the continuing crime spree'.
20You report being homeless at around the time of the offending, using drugs every day and associating with other drug users. Upon your last release from custody in September 2021, your mother had apparently tried to find housing to accommodate you both. However, you were robbed in the first accommodation and evicted from the second. While I consider your moral culpability for the present offending to be high, I do accept that it is reduced or moderated by reason of the application of what is known as the Bugmy[2] principles which I will return to shortly.
[2] Bugmy v The Queen [2013] HCA 27.
Plea of guilty
21You entered a plea of guilty, Mr Wild, following the sentence indication that I provided and you were formally arraigned today. There was a contested committal hearing in your case but I note that police witnesses only were questioned as to the investigation. In all the circumstances, I accept that your plea has been entered at a relatively early opportunity and entitles you to an important sentencing discount. By your plea of guilty, you have accepted responsibility and you have facilitated the course of justice. Your plea is also of important utilitarian value which is heightened by reason of the Worboyes[3] considerations.
[3] Worboyes v The Queen [2021] VSCA 169.
Personal circumstances
22Your personal circumstances, Mr Wild, were canvassed by your counsel, Ms Dubroja and in the reports of Ms Gina Cidoni and Dr Nicholas Owens. They were also outlined in my recent sentence and given its currency and continuing application, I have adopted portions of this sentence where appropriate.
23Briefly, you are 21 years of age. Your parents separated when you were very young. You have one older maternal half-brother, two younger paternal half‑sisters with whom you have limited contact. You witnessed family violence committed by your father against your mother. When you were young, both your parents were reportedly drug users. Your mother raised you as a single mother and still remains supportive of you as I understand it. You had no contact with your father for some years following their separation.
24During your childhood, you experienced significant instability and upheaval. You and your mum moved around a lot. At one stage, living with your grandparents, then a rental property before being evicted. Next, a warehouse where she worked and then in your mum's car, and subsequently in crisis accommodation. When you were around 15, you spent a short time living with your estranged father and it was through him that you were introduced to cannabis.
25Given your instability and regular movement, you attended a range of different schools before leaving partway through Year 10. It seems you struggled to transition between the various schools and were also the victim of persistent bullying.
26You have a limited work history. You completed one month of a pre‑apprenticeship in carpentry at Swinbourne University at 18. You also worked for a couple of months as a butcher.
27Drug use and behavioural issues have been an unfortunate feature of your young life. As a teenager, you were prescribed anti-depressants to calm your anger which you have had ongoing difficulties in managing. From a very young age, you have abused various substances such as cannabis, methylamphetamine, prescription medication, including Seroquel, an antipsychotic. Prior to your remand, you were smoking ice, using small amounts of cannabis, GHB daily and sleeping minimally. At the time of the current offending, you told Dr Owens that you had been taking methamphetamine and GHB throughout that period.
28In sentencing you, Mr Wild, I take into account your history of disadvantage and, in particular, your exposure during your formative years to the destabilising effects of domestic violence, unstable housing and drug use. Though only briefly summarised here, your history includes a great deal of trauma, disruption and disturbances, including a history of suicide attempts dating back to when you were only a 12-year old boy.
29As Dr Owens states in his report, your childhood and upbringing has been marked by early attachment rupture and traumatisation, leading to the onset of substance and alcohol abuse as a young person. This is probably thwarted the development of more mature coping skills and limited your capacity to manage your emotions. On the material before me, I am satisfied as was submitted on your behalf that the Bugmy principles apply in your case. I accept your early years have been marked by profound disadvantage which warrants the reduction of your moral culpability for the offending and it is also relevant to an assessment of your prior criminal history. I consider, however, that these complex issues do elevate the importance of community protection.
Prior criminal history
30Your prior history dates back to 2018. It is mostly in the Children's Court and largely relates to dishonesty and drug-related offending, including an armed robbery for which you received a probation period. Most relevantly, you appeared in this court on 3 March 2021 for the principal charges of armed robbery and burglary. You were sentenced to a total effective term of 12 and a half months in a Youth Justice facility after serving a period of adult remand.
31While you served a brief period of youth parole in the community you effectively served out your sentence in custody. You were released in September 2021 and back in custody, as I have already referred to, in November 2021.
Factors in mitigation
32I take into account further, Mr Wild, the additional factors in mitigation that have been advanced on your behalf by Ms Dubroja.
Youth
33You have only recently turned 21 in custody. You were 20 at the time of the offending. Your youth is a primary consideration in sentencing. It is recognised that young offenders are immature and may not fully appreciate the nature, seriousness and consequences of their criminal conduct.[4] In her report, Ms Cidoni describes you as immature, gullible and as easily influenced. Courts also recognise the increased potential for young offenders to be rehabilitated and that incarceration can impair rather than enhance a young offender's prospects. I accept that prison is not conducive to your ongoing rehabilitation.
[4] Azzopardi v The Queen (2011) 35 VR 43, [34].
34While it is not in dispute between the parties that a term of imprisonment is required, it is submitted on your behalf that your rehabilitation remains an important sentencing factor and should be fostered.
35In your case, Mr Wild, as I stated on the last occasion when I sentenced you, it is of concern to this court that you report enjoying the structure of the prison environment. You have stated: ‘in gaol, I don’t have to worry about getting three meals a day, a roof over my head.’
36On the material before me, I accept that you are at risk of becoming institutionalised. In sentencing you, I am mindful of preventing recidivism and institutionalisation and facilitating your reintegration into the community. Ms Cidoni expressed a concern that continued incarceration may:
Pull you deeper into a criminal lifestyle with the possible emergence of other maladaptive behaviours and will worsen your mental state.
Mental health
37In relation to your mental state, while no Verdins[5] principles are relied upon in your case, it is clear that you do present with complex mental health issues that remain relevant to my sentencing task. In her first report in 2021, Ms Cidoni opined that you have problems with emotional regulation, you presented with symptoms of depression, hypomania, affective disorder, intermittent explosive disorder and substance use disorder. She also states that you are of low average intelligence. In her more recent report of April 2022, she observed a severe decline in your mental health between the two assessments.
[5] R v Verdins [2007] VSCA 102.
38You were later assessed by forensic psychiatrist, Dr Owens, who provided a report of 5 June 2022 and an addendum report. In his first report, he provides a detailed history of your personal circumstances and conducts a comprehensive mental state examination. He provides the following opinion in his report:
I think the most likely diagnosis is borderline personality disorder. Mr Wild has a history of (i) transient, stress-related paranoid ideation or severe dissociative symptoms (‘zoning out’, feeling like he is unable to recall certain actions, like he is not mentally present); (ii) inappropriate, intense anger or difficulty controlling anger (as self-reported and reported by his mother); (iii) affective instability due to a marked reactivity of mood (he described his mood veering between extremes many times throughout the day); (iv) recurrent suicidal behaviour, gestures, or threats, or self-mutilating behaviour; (v) impulsivity (substance use, violent crime). He may also meet the criterion of a pattern of unstable and intense interpersonal relationships characterised by alternating between extremes of idealization and devaluation, on the basis of multiple short-term relationships as well as his descriptions of his idealization and then devaluation of his father, but this is less certain. Presence of five criteria is enough to meet the threshold for DSM-5 diagnosis.
39Dr Owens considers that you need, and would benefit, from treatment for your depressive and anxiety symptoms. He also opines that your borderline personality disorder is treatable and the best approach is a multidisciplinary one involving a psychiatrist, a treating psychologist and potentially other clinicians, including mental health nurses.
Time in custody
40You have been in custody now, Mr Wild, since your arrest on 28 November of last year. In my previous sentence, I set a non-parole period of 11 months and you are now entering your 12th month in custody. In fact, you were eligible for parole on 22 September 2022. You have served your time in custody during the current Covid-19 pandemic. I accept that you have been subjected to greater restrictions and deprivations than in normal times and I take this matter into account in your favour.
Prospects of rehabilitation
41I adopt what I said during my previous sentence in respect of your prospects of rehabilitation. Your prospects are guarded and they are largely dependent on you remaining drug-free and receiving appropriate treatment for your mental health. You appear to have the continuing support of your mum and it is intended, as I was told on the previous occasion, that you will live with her upon your eventual release. It is also hoped and expected, Mr Wild, that as you mature you will develop greater insights and a greater capacity to reason and reflect upon your actions. You need to recognise the benefit of engaging in appropriate supports and in receiving treatment for what is likely to be a borderline personality disorder.
Sentencing principles
42The relevant sentencing principles of general deterrence, specific deterrence, denunciation, community protection and rehabilitation. Given your youth, I consider that general deterrence and denunciation must give way to the promotion of your rehabilitation as the primary purpose of sentencing. I also regard the protection of the community to be best achieved by your ongoing rehabilitation.
43I take into account the sentencing guidelines where relevant to your case as provided for in s5 of the Sentencing Act 1991 (Vic). I have also had regard to the general landscape of sentencing for the charge of home invasion and armed robbery.
44I agree that the only appropriate and just sentence in your case is a term of imprisonment. I propose, however, to significantly moderate the sentence to reflect the various mitigatory factors raised on your behalf and, in particular, your youth.
45I have also had regard to the parity principle. Your co-accused, Mr Jones, was sentenced on 11 October of this year. The sentencing principle of parity is an aspect of equal justice. It requires that like should be treated alike but that due allowance must be made for relevant differences between co-offenders. I accept that your role was more prominent in that you first engaged in an aggressive verbal exchange with the victim, charged at him while holding the knife and kicked in his door. However, Mr Jones was not far behind and joined you at the door at the time of entry and appears to have been the first one to enter.
46As discussed at the indication hearing, an assessment of respective roles and objective seriousness depends on the circumstances. Here, you both forced entry into the property and committed the relevant acts underpinning the offences together. You appear to have played a greater role in the home invasion and you were the one armed with the knife and this reflects on your culpability. While it renders you more culpable in all the circumstances of this case, I do not consider it warrants a significant difference.[6]
[6] GAS v The Queen [2004] HCA 22.
47Your co-accused, it appears, was also able to call in aid many of the mitigating factors available to you, such as: youth (though he was 21); mental health considerations; and the Bugmy principles. In addition, he participated in the Koori Court process. He was also dealt with for other offending including a home invasion a few days after this matter. While he has a similar criminal history to yours, it is more extensive and serious. The prosecution submission was that weighing up all relevant matters, including your greater role in the offending and his more extensive criminal history, the case between the two of you does not call for disparate sentences. Overall, I accept this submission.
48However, on the face of it, there will be a degree of disparity in your sentence. This is only so as to give effect to the totality principle in your case. As previously noted, I regard totality to be an important sentencing consideration.
49The Court of Appeal observed in Mohamed[7], although dealing with very different circumstances than in your case, applying the principle of totality is almost always a task of real difficulty. There is no easy method of deciding that a certain term of imprisonment is proportionate to the offender's criminal conduct. The totality principle requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. The principle applies not just to an evaluation of the overall criminality involved in the charged offences for which the person is being sentenced, but also takes into account sentences being served at the time of sentence.
[7] Mohamed v The Queen [2022] VSCA 136.
50As discussed previously with counsel, your case does not involve the application of s14 of the Sentencing Act 1991 (Vic) or the fixing of a single non-parole period, as initially considered. You are not presently serving your non‑parole period. Where a person is subject to several terms of imprisonment, some of which carry non-parole terms while others do not, the question of the order in which the sentences are to be served is determined by s15(1) of Sentencing Act 1991 (Vic)[8]. The effect of that provision is that an accused must first serve any non-parole period of any sentence before commencing to serve the balance of any other term or terms. To ensure that sentences imposed by the court are served in the correct order, s15(2) provides that if, during the service of a sentence, a further sentence is imposed, service of the first mentioned sentence must, if necessary, be suspended in order that the sentences may be served in the correct order.
[8] See R v Bradley [2010] VSCA 70, [16], [21].
51At the initial indication hearing, I had originally indicated my intention was to impose a global sentence pursuant to s.14. That is, a sentence covering all of the offending of three years and three months with a generous non-parole period. Upon further reflection as to the application of s.14 and before your arraignment, a further indication was provided. At that hearing, it was discussed that individual sentences, orders for concurrency and the setting of a parole period would be moderated so as to give effect to to the totality principle and the intended result.
52Mr Wild, this involves legal technicality and language but totality is an important consideration in your case, along with the relevant legislative provisions, and it is important that I spell this out.
53As was referred to and held in the case of R v Rossi[9], the totality principle enables a court ‘to mitigate what strict justice would otherwise indicate’, and enable it in circumstances which call for merciful intervention to reduce the total effective sentencing of the offender'.
[9] R v Rossi (1988) 142 LSJS 451.
Sentence
54Arriving at sentence, taking into account all of these considerations and the submissions of counsel, both at the previous indication hearings and the plea hearing and all the material filed in this matter, you are convicted and sentenced as follows:
55On Charge 1, home invasion, you are convicted and sentenced to a term of two years and four months’ imprisonment. On Charge 2, which is the armed robbery, you are convicted and sentenced to a term of one year and ten months’ imprisonment.
56Charge 1 is the base sentence and I make no orders for culmination. Both sentences are to be served concurrently. The total effective sentence, therefore, is two years and four months imprisonment on these charges.
57I set a minimum non-parole period of ten months, which, as I understand it, will commence today. This non-parole period falls outside of the common proportional range. It is set, taking into account that you have already served an 11-month non-parole period on the sentence I imposed in July of this year. It is designed to give effect to the totality principle as discussed. I have also fixed this non-parole period for the reasons I gave earlier, which concern your youth and the importance of maximising your prospects of rehabilitation and in the long term, better protecting the community.
58I order that the current sentence be served concurrently with other state sentences that you are presently undergoing.
59For the avoidance of doubt, my intention, therefore, is that you serve a further ten months in custody before being eligible parole. As both sentences are to be served concurrently, this should leave you with a total parole period of 18 months.
60You have no pre‑sentence detention on this matter and there is, therefore, no s18 declaration to be made.
61As for a s6AAA declaration it is complicated in your case, given the issues that I have canvassed. But I can indicate that but for your plea of guilty, the court would have imposed a sentence on the current charges of some three years and 10 months imprisonment with a non-parole period. You can see that by entering your plea of guilty you have saved yourself considerable time in custody.
62HER HONOUR: All right. Ms Jones, thank you very much. Ms Dubroja, thank you. We'll leave the link on so that you can just have a moment to speak to Mr Wild again.
63OFFENDER: Yep.
64HER HONOUR: All right. Thank you very much. We'll adjourn the court.
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