Director of Public Prosecutions v Willday
[2025] VCC 548
•1 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR 24-00464
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN WILLDAY |
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JUDGE: | HER HONOUR JUDGE BLAIR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 March 2025 |
DATE OF SENTENCE: | 1 May 2025 |
CASE MAY BE CITED AS: | DPP v Willday |
MEDIUM NEUTRAL CITATION: | [2025] VCC 548 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW: Sentencing
Catchwords: Aggravated burglary - rolled-up charge of criminal damage – summary offences – contravene family violence order – resist emergency worker –– occupant of premises absent - victim impact –– attempted suicide – longstanding mental health issues -Verdins - decreased moral culpability – no relevant prior convictions – otherwise good character – Community Corrections Order
Legislation Cited: Sentencing Act 1991 (Vic), Mental Health Act 2014 (Vic)
Cases Cited:Boulton v The Queen [2014] VSCA 342, R v Verdins [2007] VSCA 102
Sentence: Community Corrections Order of 2 years with conviction.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr David O’Doherty (plea) Ms E. Failla (sentence) | Office of Public Prosecutions |
For the Accused | Ms T. McWilliam | Adrian Paull Criminal Lawyers |
HER HONOUR:
1Nathan Willday, on 30 January 2025 you pleaded guilty before Judicial Registrar Phillips to one charge of aggravated burglary and one rolled-up charge of criminal damage.
2On 26 March 2025, at your plea hearing, you consented to this court dealing with two summary related offences and pleaded guilty to one charge of contravene family violence order and also one charge of resist emergency worker.
3Your counsel submitted the court should impose a community correction order by way of penalty. I have had you assessed for such an order, and you have been assessed as suitable.
Circumstances of offending
4You and the victim, Maria Marlow, had been in an intimate relationship for approximately 11 years and married in February 2022. During the relationship, you and Ms Marlow purchased an investment property at Mintern Crescent in Horsham.
5Shortly after purchasing the investment property, you and Ms Marlow rented the property to Ms Marlow's employer friend and now partner, Timothy Bachelor.
6In October 2022, Ms Marlow ended the intimate relationship with you. A family violence intervention order was put in place on 26 October 2022 and this intervention order prohibited you from residing at the family home. Since the intervention order was put in place, you lived at various locations in a caravan.
7On 11 May 2023, Ms Marlow commenced an intimate relationship with
Mr Bachelor. At the time of offending, Ms Marlow resided in the former family home with her two children, one of whom is your child.8On 27 May 2023, you attended the Dooen Hotel with Megan Wilde, who is a friend, and she was the owner of the property where you had your caravan at that time. While you were at the hotel, someone told you that Mr Bachelor's vehicle was seen in the driveway of your former family home, and you were upset and angry about this as you had suspected that Ms Marlow was having an affair with Mr Bachelor for some time before you separated.
9You remained at the hotel where you consumed at least six alcoholic drinks before being driven home by Ms Wilde at approximately 10.30PM.
10Between 1:00am and 3:00am, you had Facebook Messenger conversation with your friend, Francis Dyer, and during the messages you expressed anger and resentment towards Mr Bachelor. You claimed, 'he had been weaselling his way into our lives for years, including as a tenant in the investment property.' You expressed displeasure in the fact Ms Marlow had confided in Mr Bachelor.
11At around 2:30am, you sent a series of text messages via Facebook Messenger, to Ms Wilde expressing exasperation and indicating you would not answer anymore phone calls. Shortly afterwards, you left your caravan, taking with you a large hunting knife and scabbard and you drove into Horsham.
12At approximately 2.30am, you drove to the former family home and parked your vehicle across the roadway with your headlights shining towards the driveway, illuminating Mr Bachelor's vehicle. You exited your vehicle, walked to the fence line of the home and took a picture of Mr Bachelor's vehicle before driving away.
13Approximately 20 minutes later, you phoned Ms Wilde and told her you had come to Horsham to confront Mr Bachelor, you could not locate him at Mintern Crescent, so you went to Wawunna Road where you saw Mr Bachelor's vehicle in the driveway. During this phone call, you drove back to Mintern Crescent, you parked your vehicle and entered the back yard in possession of the knife.
14While in the back yard and still on the phone to Ms Wilde, you used the knife to slash a tyre of Mr Bachelor's caravan. You then used the knife to slash the mat of Mr Bachelor's trampoline and slashed an outdoor window blind of the home that belonged to both you and Ms Marlow. Next, you smashed the laundry window. You reached inside, unlocked the rear door and entered the house. You still had the knife in your possession.
15Ms Wilde was on the phone to you and heard the glass smashing and loud banging. You told Ms Wilde that you were bleeding. This prompted Ms Wilde to end the call and at 3.20am, she called Triple 0 and requested emergency services. Also, at 3.20am, Laura Clarke who lives nearby and heard glass smash, called Triple 000 to request emergency services, and while inside the house you used the knife to strike the loungeroom wall which caused minor damage. You took two cans of Canadian Club from the fridge. You drank one and started on the second. You also took a number of prescription pills that you had brought with you. At 3.20am, you called Triple 000. You told the operator that you were smashing up the joint and wanted to suicide by cop.
16At approximately 3.38am, you called Mr Bachelor. He was asleep in bed with Ms Marlow. The call woke them both. Mr Bachelor answered the call and placed the call on loudspeaker. Ms Marlow audio recorded the conversation on her phone, and you told Mr Bachelor that you were inside his house and there was going to be a bloodbath. You went on to berate Mr Bachelor for being in a relationship with Ms Marlow. At approximately 3.37am, police attended Mintern Crescent and activated their body worn cameras. They observed an open door and called out to you.
17You came to the doorway while still on the phone to Mr Bachelor and still holding the knife and the can of Canadian Club. You dropped the knife on request and walked to the carport area. You spoke with police. You glanced down at the taser located on the officer's vest and you placed both hands on the taser in an attempt to commit suicide by police. You were brought to the ground by police. During the struggle, you still had hold of the officer's clothing. You were struck by police five or six times to the face by the officer who was trying to get free.
18Upon release of the officer's clothing, you were handcuffed and formally arrested. At this time, Ambulance Victoria assessed your injuries. During the interaction, police made an assessment to place you under arrest under
s351 of the Mental Health Act[1] and you were transported to Horsham hospital where you were further assessed before being transported to Ballarat hospital where you were triaged and released. On 27 May 2023, you participated in a record of interview with police where you made admissions reflecting the facts of your offending.[1]Mental Health Act 2014 (Vic), s 351.
Victim Impact Statements
19There were two victim impact statements that were read to the court and tendered on your plea.
20The first of those was from Maria Marlow. Ms Marlow described that she was absolutely terrified when the crime happened and did not know what to do. She has struggled to eat and sleep and function since. Ms Marlow was concerned for the safety of her children and organised their safety at school. She has constantly looked over her shoulder, is on fulltime alert and is constantly worried that you would turn up at her house or work. Ms Marlow says that she lost all her independence and freedom to live a normal life. She did not shop alone for eight months and carried a duress alarm with her at all times. Ms Marlow has taken time off work to attend counselling appointments and has been anxious throughout the court process. It is hoped now that this matter is finalised, that she can move on and enjoy a happier future with her children and Mr Bachelor.
21Timothy Bachelor described that he was shocked and very angry about what happened to his home. He felt ongoing fear for his safety and the safety of his children, particularly when he was at the house. This incident led to him resigning from his work of 25 years as a locksmith, because when he got a call out, he was unsure what he would be called to, that you could be involved, and he would be seriously hurt. He now struggles to sleep at night, is jumpy at noises and has engaged in counselling to assist him with his emotions.
22I have taken the contents of these victim impact statements into account in formulating the sentence I will impose shortly.
Nature and gravity of offending
23The offence of aggravated burglary is very serious, as evidenced by the maximum penalty of 25 years imprisonment and the Court of Appeal has repeatedly stated that offending of this nature, that occurs in a family violence context, is inherently more serious and usually warrants condign punishment.
24Your counsel, Ms McWilliam, accepted that you attended at the house you
co-owned with Ms Marlow that was rented by her new partner, Mr Bachelor, in possession of a knife, in the early hours of the morning. However, she contended that seen in its proper context, your offending was an active and serious attempt at suicide. This she submitted was borne out by the evidence of the phone conversations with your friends at the time of your offending, your ingestion of prescription medication, your request to the Triple 000 operator that you wanted suicide by cop and your dangerous behaviour upon police arrival.25Your poor mental state at the time was further exemplified by the fact you were arrested pursuant to s351 of the Mental Health Act[2] and transferred to hospital for mental health assessment. Police notes detailed that you had a long-standing mental health history, including an involuntary admission to the Ballarat Adult Acute Unit between December 2022 and January 2023 after you attempted suicide by hanging.
[2] Ibid.
26Ms McWilliam relied on a number of factors that she submitted reduced the seriousness of your offending. These included the fact that you knew the house was vacant at the time you attended as you had photographed Mr Bachelor's car at your former family home, that you acted alone, that your offending was not protracted, the damage you caused was relatively minor in nature and at least some of the property damage was partly yours. Correctly categorised,
Ms McWilliam submitted this was not a confrontational aggravated burglary.27Mr O'Doherty, who appeared to prosecute, did not take issue with any of the personal matters relied upon by your defence. However, he submitted your offending was serious and warranted a term of imprisonment with a head sentence and a non-parole period.
28In my view, notwithstanding that your offending occurred in a family violence context, there are critical factors that reduce the overall objective gravity of what you did. This includes each of the points raised by Ms McWilliam. You were in an extremely parlous mental state, and you knew Mr Bachelor was not at the address. You acted alone. You caused relatively minor damage and, importantly, your true purpose in offending was to effectively end your life. In these unusual circumstances, I do not consider this to be a serious example of the offence of aggravated burglary.
Personal Circumstances
29In terms of your personal circumstances, you are now 36 years old. You grew up in Western in Australia. You have one older sister and have a younger half-brother. You are close to your half-brother but have no contact with your sister.
30Your parents separated when you were around six years old. Before they separated, your father was abusive towards your mother and had problems with alcohol. After they separated, your mother became your primary carer. She entered into a relationship with your stepfather with whom you remain in contact.
31You attended two or three primary schools growing up. You were capable of completing schoolwork, but you were disruptive. You were assessed as being on the ADHD spectrum but were not offered any treatment. At around the age of 13, you were diagnosed with major depressive disorder and have been medicated since. You attended Mandurah and Pinjarra high schools until part-way through Year 11. You did not experience any difficulties in secondary school, nor any social or behavioural problems that contributed to low moods.
32After leaving school, you worked in a fruit and vegetable store for 2-3 years and you moved to Queensland where your mother had relocated. You worked in Cairns for a lobster export company for about 12 months which you really enjoyed, and you then moved to Victoria to support your father who was undergoing shoulder surgery. Here you obtained employment in Horsham, and you met your partner, Maria Marlow, as you worked for her at a timber and furniture store. When the business closed, you worked as a delivery driver for Mitre 10, then in traffic management. You have also worked in civil construction, doing highway maintenance and earth moving.
33You were in a relationship with Ms Marlow for 11 years. You married in February 2022 and separated in October of the same year. You have a 12-year-old son together and you currently have no contact with your son on account of an Intervention Order.
34You are currently not employed, but you take on small jobs and you are not able to access any Centrelink payments on account of your name being on the properties jointly owned by you and your ex-wife and you are financial assisted by your parents and are currently living at your aunt and uncle's home in Rushworth.
Mental health and application of Verdins
35You have experienced long-standing mental health issues. You were diagnosed with major depressive disorder at 13 or 14 years old and have been medicated since. At your plea, your counsel, Ms McWilliam, tendered a psychological report from Ms Carla Lechner, a letter from your GP of 10 years, Dr Syed Ashali, and hospital records that detail aspects of your past mental health treatment.
36Ms Lechner detailed that you have previously been diagnosed with generalised anxiety, major depressive disorder and complex post-traumatic stress disorder. In Ms Lechner's opinion, you presented with symptoms of borderline personality disorder and major depressive disorder and in the past 5-6 years you have found it difficult to maintain a stable mind. You have experienced ups and downs with your mood, where during 'up' periods, you feel euphoric, high energy and motivated, whilst your 'down' periods are severe and at times you can feel suicidal. You have felt suicidal many times and have engaged in self-harm in the past and you have made four suicide attempts.
37Subject to the Mental Health Act[3], you underwent three periods of mental health intervention and were admitted for immediate inpatient psychiatric treatment in October 2022, December 2022 and May 2023. Of particular relevance, you were released in early January 2023 and re-admitted in May 2023, soon after your offending.
[3]Mental Health Act 2014 (Vic).
38In the context of your separation with Ms Marlow, and subsequently finding out about her new relationship, you experienced triggering and strong feelings of abandonment that resulted in emotional and behavioural instability and suicidal ideation.
39At the time of your offending, you had consumed a significant amount of both prescribed and over the counter medication. You were feeling angry, distraught and suicidal. In Ms Lechner's opinion, you did not appear to have been in a rational state of mind with your judgment and decision-making severely undermined by the pills that you had taken together with the high level of emotional arousal. Your counsel, Ms McWilliam, submitted that your mental ill-health moderates the requirement for general and specific deterrence and reduces your moral culpability in line with the application of the principles enunciated in Verdins.[4] Ms McWilliam further submitted that punishment out to be mitigated as your mental ill-health at the date of sentence may mean that a sentence will weigh more heavily upon you than on a person of normal mental health and that there is a serious risk of adverse effect upon your mental health if imprisoned, citing concerns that you would not receive adequate mental health treatment and medication in custody.
[4]R v Verdins [2007] VSCA 102.
40Currently, you are experiencing symptoms of severe psychological distress and extreme depression and your effective instability is often triggered by fears of abandonment, chronically low self-esteem and feelings of failure and worthlessness, in addition to intense anger that you can turn onto yourself in a self-destructive manner and characteristics consistent with Borderline Personality diagnosis.
41In her report, Ms Lechner anticipated that your mental health would further deteriorate in a custodial setting, and you lack the skills to cope in a conflictual and threatening environment. You would not have access to the type of treatment recommended for your mental health and you would require ongoing monitoring in respect of suicide risk.
42Mr O'Doherty accepted that the case or Verdins had application in your case and in my view, this is an appropriate concession.
43It is clear you suffer from considerable mental health difficulties and were not in your right mind at the time you offended. Further, you have ongoing mental health difficulties that are relevant to sentence. I find on balance that all limbs of Verdins are enlivened in your case and that the sentencing principles of general and specific deterrence should be appropriately moderated.
Matters in mitigation
44Ms McWilliam relied on a number of powerful mitigatory matters in your favour. Importantly, you have no Victorian prior convictions and the prior conviction you have from Western Australia is both dated and irrelevant. In addition, a number of character references were tendered on your behalf that attest to the fact that you are a kind and caring person who has acted out of character.
45I take into account that you are a person of otherwise good character as a significant matter in your favour.
46Further, your counsel relied upon the significant utilitarian value of your plea of guilty. I accept that through your plea you have saved the court considerable time and expense. Importantly, you have spared the witnesses from reliving what was a traumatic incident and further I consider that your plea of guilty is evidence of your remorse. Other evidence of your remorse was detailed by the character witnesses in their references to which I have already referred., and the report of Ms Lechner. In my view, your remorse is genuine and together with your plea of guilty, warrants a considerable sentencing discount.
Sentencing Principles
47The basic purposes for which a court may impose a sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In your case, each of these sentencing principles are applicable although I have substantially moderated general and specific deterrence in light of my findings as to your decreased moral culpability pursuant to the principles in Verdins. Protection of the community in the circumstances of your lack of prior history and the supports you have is of limited relevance. I consider at this time protection of the community is best achieved by a sentence with supports and interventions to assist in your rehabilitation in the community
48It is noteworthy that you accept the relationship with Ms Marlow is over and that during your time at liberty you have not breached the intervention order that is in place and have moved to Rushworth which is a considerable distance from Horsham.
49I take into account the sentencing guidelines referred to in s 5 of the Sentencing Act[5] where relevant to your case. In particular, I have had regard to the sentencing landscape for the offending before me, particularly the charge of aggravated burglary. Ultimately, the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.
[5]Sentencing Act 1991 (Vic) s 5.
50The principles of totality, proportionality and parsimony are also very important considerations here. They require me to make sure the total sentence is appropriate for the total criminality, and I have taken these principles into account in fixing the sentence I will now impose.
51Weighing up all relevant matters, I am mindful of the guidance given by the Court of Appeal in Boulton v The Queen,[6] that a Community Correction Order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment. As I said at the outset of my reasons, you have been assessed as suitable for a community correction order.
[6]Boulton v The Queen [2014] VSCA 342.
52Mr Willday, you are convicted in relation to each of the offences before the court, including the summary related offences to which you have pleaded guilty. I order that you serve a community correction order for a period of two years.
53The conditions of this community correction order include that:
a) you must submit for assessment and treatment for alcohol abuse.
b) you must submit for assessment and treatment for mental health issues
c) you must participate in programs to reduce offending:
d) you are to perform 150 hours of unpaid community work, and
e) You are also to attend for supervision.
54I intend to order that 75 hours of unpaid community work can be offset against the hours I have ordered. So I have done this to encourage you to participate in counselling that will be provided to you.
55In addition to the conditions that I have imposed, there are standard conditions that you must comply with and probably the most important of these is that you do not commit another offence punishable by imprisonment for the period of the order, so for the next two years. You need to report within two working days to your near corrections office, which I understand will be Echuca corrections centre and you are required to advise your supervising corrections officer of any change of address where you are living or working within two clear working days.
56It is also a term of all community correction orders that you must submit to visits as directed and obey the instructions and directions of the corrections officer and you cannot leave the State of Victoria without prior permission.
57So, Mr Willday, if you reoffend, you will breach the correction order, and if you do not comply with either the special conditions or the standard conditions, you will also breach the order. If you breach the order, the matter gets brought back before me and it may be that you would be resentenced in relation to those original charges.
58Now I can only place you on a correction order if you agree. So, first of all, do you understand what is involved in the order?
59OFFENDER: Yes, Your Honour, I do.
60HER HONOUR: And do you consent to such an order?
61OFFENDER: Yes, I do, Your Honour.
62HER HONOUR: Pursuant to s6AAA of the Sentencing Act,[7] but for your plea of guilty, I would have imposed a sentence of six months' imprisonment and a community correction order in the same terms as that which I have imposed today. Is there anything else?
[7]Sentencing Act 1991 (Vic) s 6AAA.
63MS FAILLA: Your Honour, a disposal order is sought in relation to the knife and a draft has been filed.
64MS McWILLIAM: It's not opposed, Your Honour.
65HER HONOUR: Okay, so I will make the disposal order that is sought.
66HER HONOUR: Okay. So I understand that Ms Marlow and Mr Bachelor are online and observing and I just wanted to say to them I hope that now that this matter is finalised, that they can move forward and put it behind them. There are probably still some outstanding matters that need to be wound up from a family law point of view, but at least this part of the proceedings is over and I know it is something that has caused considerable anxiety and it has been quite protracted, so hopefully as things continue to resolve, it will make any suffering and upset better. So I hope that people can move forward from here.
67Mr Willday, this is a serious order. It will be hanging over your head for two years. Community correction orders have replaced suspended sentences, intensive correction orders, and in some ways, it is like a suspended sentence because it is hanging there for two years. So I really want you to apply yourself to it and continue treatment and get yourself well and do the unpaid work. That is the punitive component to it, but the focus of this is to help you to be better. Because I see if your mental state is stable and you are better, then you will go on to live a productive life and there will not be any more of this kind of behaviour. So put it behind you and go forward. Ms McWilliam, thanks for a very thorough plea and very thorough submissions. They were of a high standard well done. And can you pass on my thanks to Mr O'Doherty, Ms Failla, for all his assistance in this matter.
68MS FAILLA: Will do. Thank you, Your Honour.
69HER HONOUR: Thank you. Okay. We will adjourn the court.
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