Director of Public Prosecutions v Wileman
[2018] VCC 2014
•30 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 17-02272
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZACHARY WILEMAN |
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| JUDGE: | HIS HONOUR JUDGE MULLALY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 30 November 2018 |
| CASE MAY BE CITED AS: | DPP v Wileman |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 2014 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Duckett | |
| For the Accused | Ms A. Hancock |
HIS HONOUR:
1Zachary Wileman, on 10 June 2017, you were planning to attend a birthday celebration with your partner. You went separately. When she had not arrived, you went to see where she was. You found that she was home but her father and his girlfriend had arrived unplanned. Pre-existing disputes with those two re-erupted. You threw a bin at their car breaking the rear windscreen.
2After that, you returned to the party which you had been at earlier. You were drinking heavily. At the house next-door, there was also a social gathering. That is the house next to the one where you were having a party.
3There were good social interactions it seems between the two groups at first. However, one of your friends reported back to your group something that caused you to become angry. You went over to the premises and then inside the premises uninvited.
4You were asked to leave but in response, you pushed one of the victims over and you punched the other victim to the eye. You were pushed out by the occupants. Once outside, you aggressively caused damage to the rear door and a car door of a car that belonged to one of the occupants.
5When the police came, you resisted the three police who tried to arrest you. Your resistance continued even after you were subjected to capsicum spray.
6These aggressive crimes are deplorable. You simply cannot damage the property of others. You should not get into aggressive arguments but if you do, your resort to breaking or damaging property belonging to others must stop.
7However, your worst offending is that you pushed into a house uninvited and then punched and assaulted the occupants. They were entitled to have their party without aggression from you, that is without being attacked in the safety of their house.
8That said, this aggravated burglary which occurred because you went inside the house though not by much, is not the most serious of aggravated burglaries. I point out that had you acted in the way you did in the backyard itself, then you would not have been before this court pleading guilty to an offence with a maximum term of 25 years.
9So in assessing the gravity of this offence, a task that I am compelled to undertake by the Sentencing Act, I place it in the lower end of what is always a serious and concerning crime. The victim impact statements make it clear that it was frightening to them. The assaults, once you were in the house, were concerning but again were not sustained or particularly vicious. Your resistance to the police did not elevate to actual physical assault.
10You pleaded guilty after a sentence indication hearing. I accept your plea of guilty is of value in that you did not require the prosecution to prove the technical aspects of the crime of aggravated burglary that being that you were a trespasser with a specific intent.
11Your plea of guilty relieved the victims of giving evidence at a trial though there was cross-examination at a committal. Most importantly, your plea of guilty is evidence of your remorse. It is not the only evidence of remorse. It is important to note that you have been in custody for the first time on remand for now 202 days.
12You seem to have woken up to yourself and become determined never to be at risk of going back to gaol. Your remorse is an important factor in and of itself and it is also a solid foundation for your future reform.
13In custody, you have done all you could to learn about and be able to overcome problems with drugs and alcohol. That is a good start. You have done what courses you could to add to your skills and employability. All that is to your credit. You express in your letter to the court, your steely determination to establish a solid working man's life once you are released.
14As to other matters personal to you, I note first that you have a concerning history of offending which saw you before the Children's Court too often in 2010 and 2011. Despite the number of appearances and breach of orders, you were never subjected to a conviction. In 2013, there were three further appearances in the Children's Court which saw you placed on youth supervision orders in some instances again, though, without conviction.
15There was one occasion in each of 2014, 2015 and 2016 when you were before the Magistrates' Court which resulted again in without conviction penalties. What was put was that when you are occupied with work, you are able to stay out of trouble.
16In recent times, it seems there are offences before the Magistrates' Court relating to a breakdown in your first relationship. You met that partner when it seems you were a teenager and too early you had the responsibility of being a father. You do want eventually to build a better relationship with your daughter.
17Your upbringing was in a dysfunctional family, mainly due to your mother's aggression and unpredictable parenting. You were often kicked out of the house with nothing much more than the clothes that you were in but happily you established and have maintained a supportive relationship with an aunt. It is proposed that you live with her in Ballarat on release. As it turns out, you were living with her on bail for a period of time.
18She wrote a letter to the court and it was very helpful and I will quote from it at some length. She said you were placed in her care for 12 months as part of your bail conditions where you lived in her home with her and her daughter and during that time, she had the opportunity to observe you as a young man, "Trying to turn his life around for the better".
19She says that during this time, she has watched you work hard to extract yourself from the culture of your upbringing to turn your life around for the better. With a combination of professional counselling and safe and supported environment, she says that is crucial for changing your mind-set into the future.
20She says that your mind-set or better mind-set was due to a 16-week carpentry pre-apprenticeship that you undertook at the Ballarat TAFE. She said that you were considered to be hardworking and that you possessed good potential to build a career in carpentry.
21She said that she saw you with your daughter and your parenting was irreproachable despite the poor parenting models that you had for yourself. She says that she thinks you are in essence a good person, one worth saving and that you can rise above your circumstances to become a functioning member of the community.
22She said the time that you have spent in custody has been the most challenging part of your life and she believes that you have learned from your mistake and desperately want to turn your life around to be a better father and provider for your daughter. She visits you, she says, weekly in Ravenhall and considers that things have remarkably improved if I summarise it.
23So your schooling was unproductive it seems as you grew up. You left at Year 9 to mix thereafter with greater idleness with others who were taking drugs and offending but as mentioned, when you got some work in hospitality or in cleaning, things went better. As mentioned by your aunt, in recent times you have had a start to an apprenticeship. It was interrupted by being returned to custody but you hope to recommence in that field on release.
24You want to take up, you said in your own letter, programs to help you manage temptations that might come upon you to use drugs again and drink to excess. Those types of program in my view are essential for you. You cannot do it on your own. You must understand that you should attend and accept the help that is going to be provided to you.
25In all of this, what is an overriding concern of mine is your young age. You are only 22; 21 at the time of the offending. Accordingly, I must do what I can to facilitate and reclaim you, that is to use some words of your aunt.
26The sentencing regime that applies in this State now allows for a combined sentence of imprisonment and community corrections orders. It was urged that I sentence you to such a penalty so as to simultaneously punish you and provide conditions to enable you to reform. This submission was out of both the defence and in my view the very fair and commendable approach of the prosecution in this case.
27Thus I gave a sentence indication to you that I would not impose any further gaol if you pleaded guilty and you then did. The assessment conducted by the Community Corrections Office thereafter was favourable but let there be no doubt, Mr Wileman, that the sentencing purposes of denunciation and general deterrence still play an important role and I am not entirely subservient to facilitating your reform.
28To that end, you should understand that even though you have done 202 days in custody, any breach of the community corrections order that I will impose will inevitably see you return for further gaol.
29Doing the best I can in respect of endeavouring to facilitate your reform and thereby to the advantage of the community keep you away from further offending. As I indicated, this is the time to seize the most or words to that effect that I used in the sentence indication. Thus I intend to impose a sentence of imprisonment no longer than what you have already done and a community corrections order.
30Thus for all the charges, I impose one aggregate penalty. It is a sentence of imprisonment of 202 days together with a community corrections order with conviction that will be for two years. You will have to undergo supervision throughout that time. You will have to do 120 hours of unpaid community work. You must undergo treatment and assessment for drug abuse or drug use, treatment and assessment for alcohol abuse and you must undergo programs that you are ordered to do. They are intended to reduce your risk of reoffending. All of the time that you spend doing those programs can be subtracted from your unpaid community work or can be seen as part of unpaid community work.
31So that is the penalty. I make clear that you have already served 202 days in custody and that figure having been reckoned, I declare that it is part of the sentence that I have just imposed. I will ensure that that declaration is entered in the records of the court. The reason for that is so that prison authorities are left in no doubt that you have served each and every day of the sentence that I have just imposed.
32As it turns out, you will be before a magistrate on Monday and remain in custody until that occurs. Whatever the magistrate does will be what the magistrate does but you have completed the term of imprisonment that I have imposed and when you are released from custody, you are to commence the community corrections order that I have just imposed.
33Had you pleaded not guilty to the offences and been found guilty of them, I would have imposed a penalty of 27 months with a non-parole period of 18 months.
34Other orders that are sought I intend to grant. One is that there be a retention of the forensic sample obtained from you. That retention or the order allowing for that retention is on the basis of the seriousness of the offending together with it being in the interests of justice that the forensic sample be retained.
35Also I propose to order that you pay $420 in compensation to those that are named on the compensation order. That is because you caused them damage and you should pay them back.
36Is there anything else required?
37MS HANCOCK: No, Your Honour.
38MS DUCKETT: They are the matters, Your Honour.
39HIS HONOUR: Thank you. A document will be produced and if you sign that, that will bring these in the County Court to an end and it will be a matter what happens in the Magistrates' Court.
40I did not mention the report that Mr Bold and I have read it all but it seemed to me to say the same things that his aunt was saying in more authentic terms.
41Mr Wileman, can you please stand so that you absorb all this? So this community corrections order, it goes for two years. Insofar as it can, it says here it starts on 30 November 2018 and ends on 29 November 2020. I will just pause there for a moment as to whether that should be when he is released from custody.
42In any event, we will sort that out. The terms that apply to all those people on community corrections orders are; you must not commit another offence for which you could be imprisoned during the time the order is in force.
43Now, you should understand that almost every offence you can think of is punishable by imprisonment even if you do not get it from the magistrate but you commit an offence that is punishable by imprisonment during the time the order is in force, well you come back before me and I resentence you for these things. Do you follow?
44So it is straightforward. Do not commit another offence during that time, do not commit another offence. If you do within this time, you will back here.
45You must comply with any obligations and requirements under the Sentencing Regulations. They will need to take a photograph of you and make sure that they who you are so just cooperate with that. In fact most of the rest of the things I am going to mention to you are about cooperation, if not all of them.
46So you must report to and receive visits from the Office of Corrections. 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 getting permission to do so and you must obey all lawful instructions and directions form them.
47You also have to report to the Community Corrections Centre. That is in Ballarat. The address is here and you must do that within two clear working days of the order starting which will be on the completion of your imprisonment. Do you follow? So as soon as you get out, go and see them.
48Now the conditions that apply just to you, not the ones that apply to everyone and you but the ones that apply to you. You have got to do 120 hours of unpaid community work over two years. All the hours of treatment and rehabilitation that are satisfactorily undertaken can be counted as hours of unpaid community work.
49Now, in terms of treatment and rehabilitation, you must undergo assessment and treatment for drug abuse and for alcohol abuse and dependency. In addition, you must participate in any programs or courses that address factors relating to your offending and finally you must be under the supervision of the Community Corrections Office of two years. Do you understand that? All right.
50If you sign that, that will bring this matter to an end.
51I have just been given orders ‑ ‑ ‑
52MS DUCKETT: Your Honour, the reality is that it is automatically retention ‑ ‑ ‑
53HIS HONOUR: Yes.
54MS DUCKETT: ‑ ‑ ‑ but we need the order signed because of the age.
55HIS HONOUR: His age?
56MS DUCKETT: Yes. Because of the age of ‑ ‑ ‑
57HIS HONOUR: So which one do I sign? The one that is in custody? They will not do it overnight, will they?
58MS DUCKETT: No, they will not do it overnight. I would ‑ ‑ ‑
59HIS HONOUR: All right.
60MS DUCKETT: ‑ ‑ ‑ yes, sign the non-custodial.
61HIS HONOUR: I will do that.
62MS DUCKETT: Actually, no. They will do it overnight because the samples have already been taken.
63HIS HONOUR: All right. Well, I can ‑ ‑ ‑
64MS DUCKETT: So it is just that the order needs to be signed because of the age ‑ ‑ ‑
65HIS HONOUR: His age.
66MS DUCKETT: ‑ ‑ ‑ of the offender.
67HIS HONOUR: Is that right?
68MS DUCKETT: Yes.
69HIS HONOUR: Interesting.
70MS DUCKETT: Automatically these days all samples are automatically retained the minute you actually commit an offence that is an indictable offence.
71HIS HONOUR: Right.
72MS DUCKETT: So that happens automatically.
73HIS HONOUR: All right. But ‑ ‑ ‑
74MS DUCKETT: But because of the age of Mr Wileman, we ‑ ‑ ‑
75HIS HONOUR: He was 21 so it means - what is the age that takes him out?
76MS DUCKETT: Twenty one.
77HIS HONOUR: Twenty one? All right.
78MS DUCKETT: Because he was 21 years of age ‑ ‑ ‑
79HIS HONOUR: All right. All right.
80MS DUCKETT: ‑ ‑ ‑ when the sample was taken ‑ ‑ ‑
81HIS HONOUR: All right.
82MS DUCKETT: ‑ ‑ ‑ an order needs to be made ‑ ‑ ‑
83HIS HONOUR: Yes. All right.
84MS DUCKETT: ‑ ‑ ‑ so that it can formally be retained and custodial should be fine because ‑ ‑ ‑
85HIS HONOUR: All right.
86MS DUCKETT: ‑ ‑ ‑ it was taken during the ‑ ‑ ‑
87HIS HONOUR: I will do that.
88MS DUCKETT: ‑ ‑ ‑ conducting of the record of interview.
89HIS HONOUR: Thank you. So this has got on it an order with someone's name and address. I know we have to have that but how is it - operates so he does not - that the person does not think that we are providing private information to. How does it work?
90MS DUCKETT: Because the order itself will go - yes, will go to the police.
91HIS HONOUR: Yes. He does not give it.
92MS DUCKETT: No.
93HIS HONOUR: Thank you. Thank you. So you have signed this, Mr Wileman, and I will sign it as well. All I need to explain to you is that because you are 21 at the time of the offending, it is necessary that I sign an order that the forensic sample be taken but it is really not to be taken, it is already taken. It will just be retained apparently. That is the way it is done. Do you understand all that?
94OFFENDER: I do, yes.
95HIS HONOUR: Thank you. Is there anything further?
96MS HANCOCK: No, Your Honour.
97MS DUCKETT: They are the matters, Your Honour.
98HIS HONOUR: All right.
99MS DUCKETT: Thank you.
100HIS HONOUR: Thank you very much for all your assistance and Mr Wileman you go with the prison people and they will take you off to whichever Magistrates' Court you are heading to on Monday. Thank you.
101OFFENDER: Thank you.
102HIS HONOUR: Thank you for your assistance.
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