Director of Public Prosecutions v Willett, Jesse James
[2013] VCC 667
•19 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01671
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JESSE JAMES WILLETT |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 19 April 2013 | |
CASE MAY BE CITED AS: | DPP v Willett, Jesse James | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 667 | |
REASONS FOR JUDGMENTSENTENCERULING
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms T. Saville | Office of Public Prosecutions |
| For the Accused | Ms D. McCann |
HIS HONOUR:
1 Jesse James Willett, on Indictment No.B10569165, which I will refer to hereafter as Indictment No.1. You have pleaded guilty to two charges of recklessly causing serious injury, one charge of making a threat to kill, one count of reckless conduct endangering a person and two charges of common law assault. Those charges carry maximum penalties of 15 years, 10 years, five years and five years respectively.
2 You also pleaded guilty on that Indictment to one count of possess a drug of dependence, being a small quantity of cannabis. That carries a monetary penalty only which cannot be the subject of a community corrections order. Accordingly, insofar as that charge is concerned you are convicted and discharged.
3 You have subsequently to that, in respect of Indictment No.B11122955 pleaded guilty to one count of robbery, one count of possession of a drug of dependence being a prescription drug, one count of aggravated burglary and one count of theft. Those crimes carry maximum penalties of 15 years, one year, 25 years and ten years respectively.
4 In relation to that Indictment you have also pleaded guilty to uplifted charges of assault police and obstruct police. Each of those carries a maximum penalty of six months. You have also pleaded guilty to two charges of fail to answer bail, the maximum penalty for that being 12 months.
5 You have pleaded guilty at the earliest reasonable opportunities. You are still 24 years of age and I accept there has been a consistent attempt to resolve these matters over the last year or so. You are still a relatively young offender. I accept that despite your difficulties with paranoia that your plea of guilty is accompanied by a degree of remorse and you must also, of course, get the utilitarian benefit of those pleas of guilty.
6 You do have a significant criminal history although I point out that, as I often do in these matters, the practice these days of putting on the criminal record can be misleading. When one goes through yours there is a significant number of what, in effect, are double ups because of breaches. It is not as bad as it looks. However it is a history which involves dishonesty and violence and commenced in the Children's Court. Although there would appear to be, other than the matters I have to deal with, somewhat of a slackening off later. It could certainly not be said that you are a person without prior convictions.
7 Pursuant to s.464 of the Crimes Act I make an Order that you provide a saliva sample for DNA purposes. That Order having being made I must advise you that should you refuse to supply such a sample police may use reasonable force to take it from you. The sample will be for the scraping from the mouth, that is, a saliva sample only. That Order is made and handed down and I will let your counsel explain to you how you complete that.
8 The history of the matter is a complicated one and has now been back before me on something in the order of eight occasions.
9 The first indictment relates to matters that occurred when you were 20 years of age. The complainants in the matter are one John Oakford, one Jamie Downs, Corey Oakford, Milliton Foreman, Rowan Ford and Stephanie Free.
10 On 9 January 2010 Mr Oakford and his wife were hosting a birthday party for their daughter in Werribee. At that time you were temporarily living at the home and had been there for about two weeks. The party began at seven o'clock. You shortly afterwards left it for a while and came back with some cannabis. Mr Oakford and his wife went into the shed where you had been living and an argument began. I am pointing out at this stage I am doing the bare bones of this summary. There was some disputation as to what actually occurred. I am not going to buy into that, I think, in the overall circumstances. There would be no point in me doing so.
11
After Mr Oakford and his wife left the shed you located a machete. You walked out of the roller door in the direction of the street. Near midnight
Mr Oakford saw you in the driveway waving what he thought was a plastic knife around in an attempt to scare people. He jumped in to protect his wife and you swung the weapon at him. In an attempt to block the weapon he put his left hand out and it struck his left hand. There was a dull pain and bleeding.
12 On 10 January at 2.10 am he was examined at the Western Hospital and the following injuries were identified: a laceration seven centimetres in deep at the base of the fourth and fifth fingers on the left hand, a cut tendon and a fractured bone. That gives rise to a charge of recklessly causing serious injury to Mr Oakford.
13 So far as Mr Downs is concerned he thought that you had a plastic kiddysword in your hand. You had it raised above your head. He saw other people at the party trying to calm you down. You then started hacking at a fence with the weapon. The complainant remained in the backyard and was looking over a fence into the street and he observed you push somebody. That was Sharnee Pearson. Sharnee Pearson is the ex-girlfriend of Jamie Downs and at the time of this offending, was your girlfriend.
14 Mr Downs then jumped over the fence and ran after you in anger. When he was in your vicinity he walked up to you. You swung the weapon at him and he raised his left arm to protect himself and was struck on the left elbow. This caused pain and bleeding. His injuries were a ten centimetre deep laceration over the left elbow and a fracture of the elbow.
15 Shortly after the argument that I have referred to earlier Corey Oakford went into the shed. You observed that person in the shed. You had the machete and said "Do youse wanna die?" After you left the shed and entered the driveway in Mortimer Street, Coney, climbed onto a fence to see what you were doing. You then put the machete up against her throat and said "Do you want to die?" repeatedly. I make the comment that is a fairly ugly threat to kill.
16 Charge 4 is a reckless conduct endangering relating to Milliton Foreman who was 17 years of age. She had been at the party earlier in the evening and was walking back towards the party when she heard a noise coming from the address. Her younger brother was at the party. Out of concern for her brother she ran towards the house. As she got there she saw you swing a shiny object towards her. She was pushed out of the way by her boyfriend and hit the ground. She said the impact basically knocked her out, she could not remember anything for a few minutes. It caused her to be disorientated and have a sore head. Her brother believed that had she not been pushed out of the way she would have been hit in the head with the weapon. That is the reckless conduct endangering.
17 Common law assault involved Rowan Ford. He heard a loud noise at this party and observed you standing in the garage door. He then observed you swinging what he thought to be a pole at the fence and heard you yelling and screaming. He realised it was not a pole as it was slicing through a fence. He said to his girlfriend "I think that's a machete, call the coppers".
18 In an attempt to stop you he started to circle you to try and catch you off guard. When he was approximately two metres behind you another person yelled. You then turned to the complainant and took two steps towards him and swung the machete. This time he slipped on leaves and fell to the ground. He said the machete sliced above his head, missing him but if he had been standing up it would have hit him.
19 The second charge of common law assault relates to Stephanie Free. Again she heard the loud crashing against the side of the fence. She observed a lot of people from the party come outside to see what was happening. She initially saw about ten to 15 people yelling then the yelling stopped and the group began to back away from one person. That person was you. She found herself standing by herself with you holding the machete. You put the machete against the right side of her neck and said "Don't move". You did not cut her. She was terrified and could feel how sharp it was against her neck.
20 You were then apprehended by people at the party. I accept, for the purposes of this sentencing, that you undoubtedly then received a hiding. I also accept that you thoroughly deserved it.
21 You were found, when police arrested you, with 0.8 gram of cannabis and I have already indicated the penalty in relation to that. You essentially indicated, when talking to the police, that you perceived yourself as being under threat. As will be brought out by the neuro-psychological material that I will be referring to shortly it is quite clear that you have a significant degree of paranoia for a number of reasons and that you can be very quick to blame other people for things that are occurring and to take offence and feel threatened. That is a psychological state which would be a total disaster in a prison environment.
22 Two of the victims in relation to that first indictment have made victim impact statements. Mr Oakford, who has lost more than half the strength in his hand. has difficulty when trying to lift or hold anything. He still has pain in his left hand, which he has to learn to live with as there is nothing more that can be done for him. That pain on his victim impact statement will last for life.
23 I think this summarises exactly how he feels and how serious the offending is. He said: "I have had to suffer every day since I was attacked. The pain is at time so bad that I sometimes wish they would just cut my whole hand off". He has nightmares about the attack and even though this is now some 18 months old insofar as his victim impact statement is concerned it is quite clearly very serious consequences indeed for this unfortunate gentleman who had nothing wrong.
24 There is also a victim impact statement from Mr Downs who received a fracture to his left elbow. He says in his victim impact statement that he could not work for a year after the crime as he could not move his arm or lift heavy objects. He had to have a second surgery to get metal taken out of his arm once it had healed which, I assumed, is either a bolt or a pin. The consequences for him have also been obviously very serious.
25 That indictment and that summary indicate serious offending indeed. In the normal course of events it would call for the application of general and specific deterrence as well as denunciation and appropriate punishment. When one looks at that indictment and then looks at the summary and then looks at the victim impact statement it would seem that a significant active custodial sentence is inevitable.
26 However this matter has now proceeded over an extended period of time and a lot more information has come to pass and certain courses have been taken in relation to you which ended up with a submission being made that a community corrections order would be ultimately within range although patently lenient.
27 The second indictment relates to matters of a number of informants and I will simply go through those in the order that they appear on the indictment. The first matter involves one Ms King, who was 21 years of age at the time of the offence. She was walking down Pratt Street towards Holmes Road in Moonee Ponds. She crossed the road, had her house keys in her right hand and a canvas bag on her left shoulder which contained a number of items. She turned in reaction to noise coming from behind her. She then felt her bag being flung around her. She was still holding the bag and you were also holding and pulling the bag. There was a struggle and she fell to the ground. She was screaming at the time and the bag came free of her hands and you ran towards Holmes Road with the bag.
28 That gives rise to the charge of robbery. You were bailed in respect of that matter. On 9 June you failed to appear - I do not propose to go into detail here about the summary matters, they are all part and parcel of this. On 13 October 2011 you failed to appear again. On 10 August 2011 you and your sister were at the Melbourne Children's Court at approximately 12.30 in the afternoon.
29 A duress alarm alerted the protective services officers to your sister and another female fighting. Intervention came from those PSO's and a fight involving you continued. You bent a PSO's fingers and basically said to them "Fuck off, you're not the police, you can't arrest anyone so fuck you". You then moved away and you were subsequently arrested and found with some tablets. That gives rise to the obstructing and the second lot of possess drugs and I do not need to go into any great detail about all that.
30
On 8 November 2011 Mr Paul Bearup was working at the Flagstaff Crisis Accommodation in Roden Street in West Melbourne. At approximately 6.00 am in the morning you approached the counter and asked him to re-print the keycard to your room as you had lost it. You pretended to be one
Daniel Smith of Room 51. The keycard was re-printed and you were directed to Room 47 as Mr Bearup thought that you were confused.
31 Shortly after that you and another male used the re-printed keycard to gain access to Room 47. That gives rise to aggravated burglary and a count of theft. Part of a building I assume. You and the other person were calling the victims names and you said to him "You're going to help me out with a drink". You then picked up his wallet, cigarettes and lighter and left the room with his property.
32 Shortly after that the victim approached Mr Bearup to tell him what had happened. You were approached and denied having the wallet. None of the items that were taken have been recovered. Again I am not going to go through the trial matters and summary matters.
33 Again, as with the first indictment, that has got to be regarded as serious, particularly handbag snatching. That is a crime which the community loathes to be quite frank. The other matter of the aggravated burglary within the boarding house is perhaps more a description of the milieu in which you existed at that time and have existed for a long time . You have been itinerant, homeless and have had great difficulties, obviously, with accommodation over a very long period of time. You have been alcoholic for a very long period of time and it is within those scenarios that those matters must be looked at.
34 I make it clear that those matters were brought up from the Magistrates' Court so that everything you faced could be dealt with and consolidated into one concerted action as to what was to be done with you.
35 In the end, as I have indicated, the defence submission was that a community corrections order, albeit lenient, would be within range. The Crown submission was that it was not.
36 In a matter such as this I think that it can be easy just to, as I have indicated at one stage, warehouse somebody like yourself. I think that it is important to bear in mind the comments of the Court of Appeal in the DPP v Leech:
"It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance or opportunity for reformation of an offender ought be grasped. That, after all, may be the decision which rebounds very much to the community".
37 The president of the Court of Appeal, President Maxwell, said in DPP v Tokava:
"a sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred even in a case of serious offence if, in the long term, the community's interests will be best served by that course. This court should seek to promote public understanding of the fact that apart from the interest of the individual, even if it is sought to rehabilitate, an important interest in itself, there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime".
38 Community corrections orders are an invention of fairly recent origin. The second reading speech when the legislation was brought in included a number of comments as to where this was to fit within the hierarchy. It clearly fits between a fine and active imprisonment. The Attorney also said that
"the CCO will be available for any offence punishable by more than five penalty units. The CCO will also provide an alternative sentencing option for offenders who are at risk of being sent to gaol. These offenders may not yet deserve a gaol sentence which should be subject to significant restrictions and supervision if they are going to live with the rest of the community.
The broad range of the new powers under the CCO will allow courts wide flexibility to tailor their response to address the needs of offenders and set appropriate punishments".
39 He also indicated there would need to be a flexible approach to them. It is clear in the statements that have been made by government, and as recently as 24 February this year, that community corrections orders are designed 1) to be transparent and 2) to simply keep offenders out of gaol wherever possible. That is the purpose behind them.
40 I might say it has certainly been my experience in the last year or so that these orders have been in existence that they are far more effective than were community-based orders and it has been my experience that there has been greater leeway shown to accused people and the success rate in terms of their rehabilitation and their desire to be rehabilitated is greater than it has been in the past.
41 One would often give community-based orders just waiting for them to be breached. I think CCO's, because of the discretions that now exist, can be used to manage a person and try to save them, if you like, from their previous lifestyle. I think that is something that is going to be borne out more and more often as time goes past.
42 You have never, other than a couple of short remands, as I understand it, undergone a gaol or a YTC sentence.
43 The matter first came on before me on 8 December 2011. On that day I was given a brief outline of your history and I had explained to me by counsel the problems that you had had since a very early age. At that point in time you were in emergency housing and you had left a house you had been residing in with your sister. You wished to get away from her drug taking habits. I will deal with that again in a moment.
44 As a result of moving out of that house, this is back in December of 2011, you had re-established a connection with your father which had been non-existent for some period of time. I have noted and it give me some confidence that in virtually every, if not every occasion, this matter has been brought back before me your father has been here in court to assist you and endeavour to repair some of the damage that has been done.
45 At the present time you are living with him and it is to be hoped that bearing in mind the material that I have been given as to your background that that is a very positive start. Not only for you but for him. He has not been well of recent times but as I say with the background that you have got, to have his support over the last 16 to 18 months is, I think, an important matter. I have no doubt that there are difficulties associated with that and that here will undoubtedly be hiccups involved but it is a start.
46 At that time I was given a report by Mr Warren Simmonds, a psychologist. I think, bearing in mind the difference in submission in this matter, I will need to go through that in a little bit of detail. Normally I just regard these as matters as which can remain on the court file and anyone with a genuine interest can refer to them but I think it is important, in this scenario, that it be made clear where you have come from.
47 You came under the notice of the Department of Human Services when you were two. You were formally taken into care at the age of eight. You indicated that whilst you were growing up your father was always at work and there were many arguments when he got home. There was lots of yelling with you indicating that you heard the violence often but there are only some occasions when you saw your father hitting your mother. It would appear that your father had significant difficulties with alcohol abuse. You indicated there were times when your mother would tie you to the bed so she could get out of the house to go and use drugs. In addition it seems that your mother may also have had mental health issues.
48 When interviewed and to his credit later on by a neuro-psychologist your father confirmed the violence and confirmed the alcoholism, which I have indicated is a good start with all of this.
49 When you were younger your step-brother molested your sisters and also touched you. It would appear that it never progressed beyond touching with your step-brother performing oral sex on you. You say that that brother is a paedophile. You have indicated to Mr Simmonds that you have never been close to your parents saying that your closest friend was a dog. It was a German shepherd that had worked in the prison where your father had worked and you stated, at least to Mr Simmonds on one occasion, you came home and your mother had killed the dog.
50 You said that you had always had food and clothing and that you never went without. You said that you went to see a paternal grandmother and she was a very positive person in your life who you tried to keep contact with. You were going into respite care from early childhood on the weekends before being taken into formal care. You indicated that your father would belt you a lot and he seems to have confirmed that to the neuro-psychologist.
51 You were particularly close to your sister although she has very serious problems of her own. I notice in this matter that she was somehow tied up with the handbag snatching and she is clearly a co-accused, if you like, with the matters that occurred at the Melbourne Children's Court.
52 At the age of eight you were placed on a custody order of the Secretary and spent the next six to seven years moving about. You estimate that you lived in 20 or so places including residential units and in foster care. You stayed at most places for about six months but despite this, this felt more positive than home and you reported outings and having being well cared for.
53 You got your own accommodation at the age of 17 in a transitional unit and at 18 had accommodations through Ministry of Housing. During some of the time in care you said that you did not see your sisters or your father. The consequences to young persons of having so many placements and obviously going to so many different schools during that part of their adolescent is one of dislocation and it is a common thing that we see in these courts with people who have been homeless, drug addicted and have other emotional difficulties.
54 It is a bit difficult to work out from the material what level of schooling you went to but it would appear to be that you completed Year 9. You did all right at school but were assaulted and eventually dropped out. Since leaving school you had small jobs. In recent times doing labouring work in the construction industry and you did landscaping for a week.
55 You tried to do a diesel mechanics course at TAFE before trying to obtain a position at the Bendigo mines but drugs brought an end to that. You have told Mr Simmonds, and I have got no doubt that it is true, that you have lost jobs over the years because your drug use and your, I have no doubt, alcoholism.
56 You have lived in crisis accommodation on many occasions. When you saw the psychologist for the previous two nights you have been living at the Hanover Centre. Before that you had been at your father's house for a while and before that you spent a few nights in your car. Your last stable accommodation had been in Bendigo, now quite some time ago.
57 You have had relationship, which I do not need to go into at this point in time. Your drug and alcohol history is unfortunate to say the least. Your started smoking cannabis when you were about 12 and began it regularly when you were about 14. Your cannabis use peaked at that point although you still continued to smoke.
58 Before you met your girlfriend of about a year you began chroming, saying that that went on for about 12 months. Again the effects of chroming can be devastating and that plays a part in what subsequently occurred during this plea process. You tried other drugs and it would appear that ecstasy, heroin and mushrooms were involved in that. You were drinking almost daily over the last few years and anything up to a bottle of whiskey. It is clear from the nature of the aggravated burglary that you were actually seeking alcohol.
59 You were unable to provide Mr Simmonds with significant details about your childhood and when certain things were achieved but it gets worse than that. In more recent times you have diagnosed with epilepsy and you first started experiencing seizures what is now about five years ago. You were treated with Epilum but it did not have any affect. You indeed had a seizure and were taken to hospital during the course of this process that we have been going through. On one day you were unable to attend because you had been admitted overnight. This is obviously a real concern. You also suffer from anxiety attacks but Mr Simmonds say it is not clear that they are consistent.
60
Because of your background, because of your drug use and because of essentially, I think, who you are you have never been able to trust anyone other than yourself and have not been able to come close to anyone. When you do meet people you lack confidence and do not know what to say.
Mr Simmonds described your presentation at the interview as erratic and that the answers were sometimes off topic and that you wandered in response to questions.
61 When he went through the current offences with you it is exactly what you had said to the police. He said, that is Mr Simmonds;
"It was unclear whether this was a threat for which there was any basis in reality of whether it was a construction of his mind. Mr Willett has paranoid personality traits and seems to struggle in relating with others. His lack of ability to trust others results in his perceiving potential threats where in fact there may be none.
This combined with his use of cannabis may have led to an increase in his paranoid thought patterns thereby contributing to his actions on that night."
62 That does not give rise to Verdins in my view but certainly puts all this in a context.
63 In simple terms, relationships that you have had would appear to have been dysfunctional. He goes on to say, this is back in 2011:
"Mr Willett has had significant problems maintaining accommodation and he has had period of homelessness living in his car or living in questionable accommodations such as the Hanover Centre despite its good intention. In fact this appears to be a continuation of his experiences after being taken into care".
64 That is certainly, in my experience, not an unusual situation.
"The overriding impression with regarding to Mr Willett's life is that of one of chaos, instability of shifting relationships, episodes of irritability, lashing out at the general community and towards the world. He does not appear to be able to meet obligations or maintain a great deal of stability in his life.
There was no overt psychotic phenomena although there was some suggestion of a depressive disorder at the time of the interview. Certainly there may well have been a history of depression and although Mr Willett did not indicate this it appears that attempts were made to treat this order when younger in his previous juvenile justice reports."
65 He felt that Mr Willett's difficulties are related to a personality disorder with borderline anti-social and paranoid traits.
"This no doubt had had a genesis in his disturbed early childhood where he did not form any significant attachments to the adults in his life. Rather his history is replete with violence and abuse at the hands of his significant carers, that is his mother and father who were weekly abusive towards him, although for different reasons.
In care, despite having numerous positive experiences there was not enough time to undo the damage that had already resulted in his early developmental phase. His ongoing substance use and subsequent chaotic lifestyle has only reinforced the dysfunction that developed early on in life."
66 He was then concerned about the potential of an acquired brain injury and suggested that a referral to a neuro-psychologist would be useful. He was also concerned about what effect the chroming may have had on your cognitive skills. That was an eloquent and very descriptive report of you.
67 I have no doubt, and this is referred to in other materials, that you would find gaol an extraordinarily difficult proposition. I do not know what they would do with you. Because of what Mr Simmonds describes, you could not behave like that. You would continuously be in fights. Whether you would need to be put in protection, I do not know.
68 I have no difficulty in accepting that gaol would be harder for you than a normal prisoner and I would also have, on the material before me, no doubt that living as a paranoid in those circumstances would cause your condition to deteriorate. I do however make it clear, as I trust I already have, that the principles of Verdins insofar as moral culpability is concerned, I do not think are applicable.
69 I think also that specific deterrence with you has probably reached a point where it is something of a waste of time. Although I hear the Crown's submission on that and I will refer to that again in a moment. People in your condition I do not think general deterrence is going to have a great deal of effect. I doubt that you have ever read a newspaper. Be that as it may.
70 Specific deterrence may well reach a point - as I have indicated I will be going through more material in a moment. I ultimately reached the conclusion that a community corrections order was appropriate. It may well come about, and I really hope that it does not, where custody becomes the only potential consequence.
71 In any event the matter was then adjourned off for that neuro-psychological report and a community corrections order assessment, which was obtained at that time, which was a brief one, but which said that you were acceptable.
72 The first neuro-psychological report and again these will remain on file, confirmed what Mr Simmonds had found about your background. You indicated to him and this would appear to be correct that you had two paternal uncles who suffered from mental illness and a maternal grandmother who had apparently, as you said to him "abandoned her children".
73 Your father, in terms of talking to the neuro-psychologist, Professor Brewer, indicated that he had found you tied up. He also said that as a child you had suffered multiple head injuries. He confirmed the sexual assaults that had taken place upon you. What effect these had I have got no idea and I doubt that anybody else does. He confirms your cannabis use at an early age and have you drinking from that time. He also confirmed the seizures beginning about five years ago.
74 You told the neuro-psychologist basically what you told Mr Simmonds. Your intelligence is low-average so there should not be a real difficulty in that regard. The neuro-psychologist said:
"Mr Willett's response has also revealed significant levels of paranoid ideation which he attempts to regulate and contain by obsessive style (rigid and repetitive) defence structures. He nevertheless remains highly sensitive interpersonally. Some attenuated risk of psychosis was also indicated including hearing voices. Likely related more to substance abuse and possibility this associative response is consistent with post traumatic trauma rather than a more insidious schizo-effective process per se".
75 Further on he said, this is at the time of the interview:
"He currently suffers attenuated psychosis, paranoid ideation and auditory hallucinations in the context of moderate depression (including suicidal ideation), anxiety and cannabis and alcohol dependence. None of which are effectively treated.
Moreover he suffers seizures with unreliable medication compliance. His personality development is immature and likely remains arrested to a significant extent. He has an extensive forensic history stemming from early mid-adolescence. Currently his function across relationship, accommodation and employment capacity reflect chaotic and impulsive disorganisation and instability".
76 That diagnosis is chillingly similar to Mr Simmonds sometime earlier. He again attributes these dreadful problems that you have to your childhood and having being placed in care. He pointed out, I have indicated already, that so far as gaol is concerned, you are highly vulnerable for disinhibitive and impulsive behaviour. He also said that that vulnerability would be exacerbated by substance abuse.
77 He went on to say that you would be expected to understand the wrongfulness of your actions including when impacted by substances. Most certainly you have difficulty thinking clearly and making calm, reasonable decisions and appropriate judgments or to control your emotions or faculties when sober and significantly less so when substance affected. He said
"Generally Mr Willet's comprised emotional development leave him somewhat egocentric and likely to instinctively attribute blame and triggers for his dysfunctional behaviour to others as he appears to have limited functional role models from which to learn from up to now".
78 I will repeat that because of what I have said about Verdins. I have taken that into account.
"Should Mr Willett be imprisoned he will find it more difficult than the average prisoner, especially if his seizures and psychiatric disturbance remain untreated. His diagnosis of likely post traumatic distress associated with childhood sexual abuse and violence will impact him more in a prison environment relative to the average prisoner who has not suffered post traumatic distress.
On the other hand - "
79 Hopefully it will never come to this but it may one day: "He would benefit from firm, containing structure and reduced opportunity for access to substances". He indicated strongly that treatment was crucial.
80 The matter then came back on another - there was then an occasion when you, as I recollect, had had a seizure and could not be present. There was then a further plea, as I have indicated, on 29 March and it then came back on 20 June. Then again on 29 August 2012, 30 January 2013, 12 February 2013 and finally on 15 April 2013.
81 What occurred during that period of time was that you were able to make contact with a lady, Kate Williams. She has been present on virtually every occasion since you were before me back in March and has been able to describe to me the various programs that people have endeavoured to provide for you. She works for Creating Connections which is a sub-branch of the Salvation Army. It has funding through the government to assist people with multiple and complex needs.
82 She told me back in March of last year that she was proposing to support and assist you in whatever way she could for a period of six months initially and from there in for whatever period as required. She indicated the various attempts that have been made at rehabilitation and that there had been very little success with those. The matter, from that point, was adjourned off and essentially as a very unusual course, see how you went basically.
83 On 20 June Ms Williams was able to give sworn evidence before me as to what had taken place. She, at that stage, said that she was with the Salvation Army, she was the care crisis manager for Creating Connections and the ICMS team, that is the Intensive Case Management Initiative for, as I understand it, special funding can be given.
84 She has been in the area of youth/social work for 25 years and with this particular organisation for 15 years. She described the nature of the homeless and chronically homeless young people that she had dealt with. She pointed out that none of her clients ever utilised private rental because they basically do not know how to do it. She is a person who endeavours to teach people life and living skills, housing and support and her task is to work with high risk, vulnerable, multiple and complex young people with needs of that nature.
85 She described meeting you and your determination to endeavour, at least, to turn your life around and get yourself somewhere. She pointed out it was obvious that stable accommodation was, and had always been, a real problem with you. She said at that point in time that you were living in a boarding house and there was a lady there who managed it on a regular basis and that you were essentially doing all right.
86 She was trying to teach you, or people were trying to teach you, how to actually use money, how to pay rent, not to take it out and use it on other matters. There were understandings of how you just function in a society that you could not work out. She said, however, that you worked quite proactively in trying to make yourself stable and build a relationship at that time with the lady who ran the boarding house. She did not want you to be put in the Office of Housing because she was concerned you would stay there for the rest of your life. Her view was that you were actually a young man who would like to work.
87 She pointed out that at that point you were involved in detox trying to reduce your alcohol use and to maintain your accommodation. She, at that point, had a program for you where she was going to try and get you involved. A Day program just get you on the way. She indicated also that you would like to improve your literacy, which is to your credit. She told me then that she really needed another ten to 12 weeks before she was in a position to know what was really going to happen with you. I acceded to that and as I have indicated the matter was adjourned off again.
88 I am not going to go through all the things that can go wrong in this particular situation because that is just what happens to you, I think. In any event problems arose with accommodation and when you came back on 29 August Ms Williams again gave evidence and said:
"Jess' progress has been quite steady for a young man with multiple and complex needs as Jess has got. He lost his placement at one boarding house and was moved into another where he's managed to keep it. With identifying and assessing Jess continually I found there's probably some multiple and complex needs like memory loss, significant memory loss, so Jess would turn up to appointments on the same day but he mightn't remember the time. Or he would ring to make sure because like every day, and even on the weekends, he forgets. So the complexities have been, sort of, heightened."
89 At that point in time she was talking about Arbias case management and Intellectual Disability Services. She was very concerned that your cognitive capacities and particularly your memory loss, during the time she had been working with you, had diminished.
90 There was a lot of conversation taking place about what sort of sentencing disposition could be put in place in these circumstances and it speaks for itself and I will leave it for others if it ever comes to that.
91 In any event the matter was again adjourned so that further neuro-psychological testing could be done and again it went to Mr Brewer. In short Mr Brewer's report was something of both a blessing and a curse. He indicated that upon presentation you were significantly more settled than you had been when he had seen you the previous March. He indicated that you understood the reason for the referral was that you needed an update assessment for your court hearing which had been adjourned until January this year.
92 Since his last presentation he said you had been - yes this is right. January 2013. I think I said 2012, that is clearly wrong. He noted that in that period of time you had been engaged with a social worker by the Salvation Army, a GP and a psychiatrist although you could not recall their names. You had been involved for one session only with a Salvation Army drug and alcohol worker, Mr Moran and I have read his report obviously and completed an eight day detox over Christmas at the end of 2012.
93 At that point you were still using cannabis and still drinking. You had used ice sporadically. He went through the tests that you had been put through and said:
"In terms of general verbal memory Mr Willett's capacity reflected significant reduction from last year. That is from index 63 down from 76. Mr Willett's current cognitive profile was summarised in his previous report, that is in March 2012. Since then there is evidence of reduced attention, verbal learning and in the organisational (the executive) aspects of germane to efficient verbal memory is likely the ongoing impact of seizure activity exacerbated by substance abuse is contributing to his decline".
94 So basically he confirms the observation of the very experienced Ms Williams. What he then said, and I find this relatively compelling actually. Speaking of himself in the third person:
"This clinician remains concerned at the apparent lack of primary care of
Mr Willett. In view of the significantly comprised relationship and traumatic experiences experienced by Mr Willett during his development and as summarised in my report in March 2012 it remains crucial that Mr Willett be supported to engage in a highly structure (same time and length) regular (weekly) and predictable therapeutic relationship for the purpose of him learning a functional attachment.
A key goal for the therapist (preferably female) would involve assisting
Mr Willett to collect his relevant Department of Health or Department of Human Services and hospital records. Further the focus on substance abuse treatment appears to be a distraction and is not likely to result in significant sustained improvement if the underlying triggers for his distress (which Mr Willett essentially numbs with substances) are not addressed first.
He deals with the ongoing distress associated with his erratic accommodation and its associated risks. It appears that an initial increased investment in this regard would result in significant improvement. Not only in his mental state but in outweighing the long term projected costs should this remain unaddressed. Mr Willett's mental state is particularly sensitive to comprise of a structured and safe environment. My initial recommendation cannot be stressed as being more important regarding ongoing management."
95 A further community corrections order report was obtained because of the age of the earlier one and again he was found to be acceptable.
"I am aware from those reports that in earlier days you failed, as I read it, to basically comply with any of the community type orders that were given to you. There are breaches throughout your criminal history and when you understand his background and the circumstances in which he found himself, or has found himself, obviously through no fault of his own from his childhood, that is understandable".
96 On 12 February again - as I recollect I do not have the transcript of this but as I recollect evidence was given again.
"You had been placed in accommodation. At that period in time you were having problems. He was stabbed in the neck, he had been talking to himself in the accommodation and other people residing there thought he was mad or could not work out what was going on and had been having real difficulties with that. He then being moved to Blackburn and was having treatment insofar as anger management was concerned."
97 You have been hearing voices.
98 There have been no psychiatric admissions since August of last year but I was told that you had come close to it a couple of times. You were having difficulty coping. You always looked for work with absolutely no success and you had applied for numerous jobs. You have a real interest in obtaining employment but that would seem to be a secondary consideration bearing in mind all your other difficulties.
99 It is intended that you have a connection with Arbias and I will be asking that Corrections do what they can to achieve that. If you remain living in the same area you will be able to continue with Ms Williams and the people who are treating you. I think that that stability, as indicated by the neuro-psychologist is crucial. You now are being assisted in terms of the intensive case management initiative by Mr Peter Fadawtra, who has also been at court here on the last couple of occasions. There has been discussion in terms of what should occur and it is clear that the contact can be retained through the Office of Corrections.
100 You have been, since I have been hearing this matter, involved in some offending which would appear, on what I have been told, to be relatively minor and it is offending which one would almost expect bearing in mind your problems.
101 It is clear, I think, that you are still in a situation where you are going to have real difficulty maintaining any part of your life without significant assistance. You have lived a street life and life, I think, has really come down to, bearing in mind what I said about those cases Tokava and Leech is that it is very much a crisis point in your existence.
102 It is very serious offending, and I make no bones about that, which in the normal course of events would involve years of custody. But taking into account all the material I have mentioned here as well as a great wealth of material that I have not even referred to I think that, for people to endeavour to assist you in the way that they have, there must be something about you. It is probably based part on my own experience of being a criminal barrister when people become attached to someone in your situation. They see the potential in you. Whether it can be realised is another matter but one thing I know is it would never be realised in a prison.
103 There may be an element of mercy involved in all this. If there is, so be it. I think bearing in mind what has happened to you since you were a little child you are entitled to it.
104 Taking all those matters into account I think that it has not reached a point where a custodial sentence is the only sentencing option available. I think that the new disposition of a community corrections order may well assist you and I really hope that it does. That is done on the clear understanding that, I anticipate, there will be difficulties and I anticipate that problems will arise because of that.
105 What I am going to do is, which I have started to do more often recently because it does seem to work, that the community corrections order will be with the psychiatric component, the drug and alcohol components and supervision and also judicial monitoring. Why? I think it is important and I am sure Mr Willett understands this, is that if things go wrong I want the matter brought back before me before it becomes inoperable, to use a medical expression, and we will see what we can do about it.
106 If, and I am very hopeful that it can be, the programs that have been applied in the last year or so and what can be applied in the future are successful then the risk of you re-offending, though it is obviously significant at the moment, should be reduced. Your rehabilitation, I think, is in everybody's interest not just yours. What I cam really concerned about is that in a person of your position to now put you into custody at this point in time, assuming you survived such a sentence, would simply be putting you on the scrap heap. Very unusual as the situation is I am not prepared to do that. Not at this time anyway.
107 All right so CCO four years. It will be a long one, with conviction obviously. With no work hours because I just do not think you can cope with a work group. There would be a punch up five minutes in I suspect. Psychiatric, drug and alcohol, risk of re-offending and supervision.
108 MS McCANN: In terms of the judicial monitoring - - -
109 HIS HONOUR: Yes I was about to ask you that. I can do this a couple of ways. It's - I mean I know magistrates do this but it's different, you actually get - I've got about three people doing it at the moment and none of them have re-offending. It's been quite astonishing. What I've found and I'm very much open to counsel to suggest on this, they may have more experience than I have but what I've found is that there's a certain degree of pride in being able to come back and say "I'm doing okay". Which reinforces the good aspects of what's occurred.
110 What I've been doing is bringing them back on about a three monthly basis.
111 MS McCANN: Yes.
112 HIS HONOUR: I'll be on leave from July until September. I'm going to watch Australia get a hiding in the Ashes but we'll worry about that later. So what I'm proposing to do is see him again towards the end of June, see how he's travelling and then at that point we'll probably then see him again, because I'll keep this up, we'd then see him again probably end of September.
113 MS McCANN: Yes.
114 HIS HONOUR: All right. I don't want to make the end of September order at the moment but we'll pick a day late June, all right, and we'll how he's going but I make it clear, for Mr Willett's benefit namely, I think Corrections - I don't expect great long detailed reports. I don't expect the Crown to be here unless they want to be, unless there's some concern or something. I know that's a waste of Crown resources to be doing that so I've got no trouble with that. I don't need War and Peace. I just want to know what's happening.
115 MS McCANN: Yes.
116 HIS HONOUR: All right and that can be done either from you from the Bar table. If Ms Williams wants to come along with him or whatever. All right. Bearing in mind his capacity, as an historian, I'd prefer that there was somebody with him - - -
117 MS McCANN: Yes.
118 HIS HONOUR: - - - rather than come along by himself because you might get nowhere if that was the case.
119 MS McCANN: Yes. If I could - it's something that I had spoke to Ms Williams about, with the fact that he's now moved out of a geographical area where she would necessarily be the worker and she had been talking about handover if ultimately he were to be released today so there may be an issue in respect of that.
120 MS WILLIAMS: We would look at - - -
121 HIS HONOUR: Sorry, if you just come - just so it gets recorded, Ms Williams, if you wouldn't mind. Just come in forward so it gets on transcript.
122 MS WILLIAMS: We would look at the best options for Jess.
123 HIS HONOUR: Yes.
124 MS WILLIAMS: Whether it was the Salvation Army but it'll be clear and it'll be a clear and large handover because of his complexities.
125 HIS HONOUR: Yes.
126 MS WILLIAMS: It just wouldn't be short term so it would very well be we could still be involved in the June period anyway during the - - -
127 HIS HONOUR: All right that's - over that period of time, all right.
128 MS WILLIAMS: Yes, he might bounce back to our area as well so - - -
129 HIS HONOUR: Yes all right. What we'll do is we'll see how it's all travelling in June.
130 MS McCANN: Yes.
131 HIS HONOUR: And go from there.
132 MS McCANN: Yes. Sorry, I just wanted to flag that.
133 HIS HONOUR: No, no, I appreciate that.
134 MS McCANN: So there weren't any surprises if she wasn't here on the next occasion.
135 HIS HONOUR: You've also got to be - I was trying to do it in general terms with that because I mean I've obviously had to do with young people like him many times. Especially when they've been homeless, they go all over the place.
136 MS McCANN: Yes.
137 HIS HONOUR: All I really want, and that's one of the purposes of the CCO is that there be a continuity of - and I'm hoping he, you know, gets a compatible worker, that there's a continuity of assistance
138 MS McCANN: Yes. Well - - -
139 HIS HONOUR: I'll say this openly: I've found with the CCO's that seems to far, far better than it did with the old CBO's. Why that is I don't know.
140 MS McCANN: Well it's pleasing in any event.
141 HIS HONOUR: No, no it is and I think there seems - I'm not going to go to the transcript, there seems to be less opportunity for falling out with individuals. Where you could get individual conflicts and the whole thing becomes a disaster, which seemed to occur with CBO's.
142 MS McCANN: Yes.
143 HIS HONOUR: With the CCO there seem to be a much more even spread of people involved so if there's a personal conflict with one person it doesn't mean they're put in with everybody.
144 MS McCANN: Yes.
145 HIS HONOUR: I suspect that's right. Most of the ones I've given it to are the Koori's. If you want to have a blue with anybody it's a Koori with a few beers on board so they've done really with that too so that's been very encouraging.
146 MS McCANN: Okay so I wouldn't take any issue with the date in June. I may struggle with a date in September myself.
147 HIS HONOUR: We'll worry about it when we get there.
148 MS McCANN: Yes.
149 HIS HONOUR: Look, it's - and I'll talk to him direct in a moment, all right. How much he takes on board is another matter but he's got to understand that, in terms of the difficulties with appointments and perhaps lapsing in use and things like that is one thing. But if he sticks somebody up this is just all over. He's doing years.
150 MS McCANN: Yes.
151 HIS HONOUR: All right? I've got a massive sympathy for it but there reaches a point where community protection overrides that need for that desire to assist an individual person. Now I don't think he's reached that yet but he's awful close. All right? So we'll just see how we go with this one step at a time. I'm not expecting to hear nothing for the next four years I think. It'd be foolish to think that.
152 MS McCANN: It certainly would.
153 HIS HONOUR: But the start can be, if he is going to re-offend as long as it's minor and not of this nature at least that's a start.
154 MS McCANN: We seem to be at that start.
155 HIS HONOUR: Hopefully, yes. What's it about now? It's about - - -
156 MS McCANN: Eighteen months.
157 HIS HONOUR: Eighteen months since he's done anything dramatic. Apart from getting into scraps with people and a bit of shop stealing and stuff like that.
158 MS McCANN: Yes.
159 HIS HONOUR: That's, in one sense, encouraging. In a lot of sense it's encouraging - - -
160 MS McCANN: Yes, yes.
161 HIS HONOUR: Yes. So we'll just - but as I say I want to - and I'll repeat that to him too but I just don't want it to be thought that this is, you know, it's not so - it's not my (indistinct) - I couldn't deal with him in perpetuity. I tell him that in a minute.
162 MS McCANN: Yes.
163 HIS HONOUR: All right now are there any other orders I need to make? I don't think there are; are there?
164 MS SAVILLE: Your Honour - - -
165 HIS HONOUR: 464 I've made.
166
MS SAVILLE: The disposal from the first indictment I'm not sure if
Your Honour - - -
167 HIS HONOUR: Signed it already I should have. I usually do.
168 MS SAVILLE: I beg your pardon?
169 HIS HONOUR: I signed those on the spot to avoid this problem. I haven't seen it since so I think your instructor's already got.
170 MS SAVILLE: No she tells me she hasn't.
171 HIS HONOUR: Check the file.
172 MS SAVILLE: Thank you, Your Honour.
173 HIS HONOUR: Yes.
174 MS SAVILLE: Section 6AAA?
175 HIS HONOUR: No, not with a CCO.
176 MS SAVILLE: Of course.
177 HIS HONOUR: And this is Commonwealth.
178 MS SAVILLE: I just wanted to confirm with Your Honour that the sentence was in relation to two charges of obstruct police because Your Honour referred to one.
179 HIS HONOUR: It's two. I thought I - I accept that. I'll just read that out again just so there's no - - -
180 MS SAVILLE: Thank you, Your Honour.
181 HIS HONOUR: - - - no misunderstandings. Insofar as the uplifted charges are concerned each of those carries a potential custodial sentence so it can be within a community corrections order. Those charges were - hang on, I've immediately lost the - two fail to answer bails, one assault police and two obstruct police.
182 MS SAVILLE: Thank you, Your Honour.
183 HIS HONOUR: All right. Also nearest Corrections would be where? Reservoir?
184 MS WILLIAMS: To Coburg? No. There's one in Heidelberg which would be easier.
185 HIS HONOUR: Bell Street, yes, all right, yes. Heidelberg.
186 MS WILLIAMS: Especially if he comes back up to the (indistinct) we can - - -
187 HIS HONOUR: He can get the bus up Bell Street. Right, we'll make it Heidelberg. The date for judicial monitoring. They usually make them 9.30, hopefully you can do that. Any date? Late June.
188 MS SAVILLE: Your Honour, I'm not sure if the Crown will want anyone to appear.
189 HIS HONOUR: No, no, that's what I'm saying. The Crown are certainly excused but I just want you to know when it is because if he's charged again someone may want to turn up.
190 MS SAVILLE: Yes, Your Honour.
191 HIS HONOUR: I'm not pinning you to a date. I'm just - - -
192 MS SAVILLE: No that's okay. I just wanted to let Your Honour know - - -
193 HIS HONOUR: No, no I realise that. It's a waste of Crown - the ones I've had so far I haven't had to - the Crown was (indistinct) for one but they just sit there and say nothing so it's a waste of resources.
194 MS SAVILLE: As Your Honour pleases..
195 HIS HONOUR: 19 June and we'll make that 9.30?
196 MS McCANN: I have something in my diary for that day. The - sorry what was the - - -
197 HIS HONOUR: The 26th.
198 MS McCANN: The 26th is - I'm free.
199 HIS HONOUR: All right we'll make it 26 June. That's Wednesday which is fine.
200 MS McCANN: Sorry Your Honour - - -
201 HIS HONOUR: That's Wednesday, the 26th.
202 MS McCANN: And the time was 9.30?
203 HIS HONOUR: 9.30, yes. So if you can get - it'll only take five minutes or so assuming everything's okay. I just want to know what's been happening and where's at and where's he living and things like that.
204 MS McCANN: Yes.
205 HIS HONOUR: Yes all right. I'll just talk to him. Just stand up for us for a second, Jess. This has been going on for ages, right, going for a long time. Now the reason that so much time has been put into it: it is clear to me that there are people out there who reckon you are worthwhile, all right, and you should feel that you are worthwhile too.
206 What you have got to really understand is that with offending you have reached the end of the line, my friend. Something like an agg-burg, or a stick up or a servo or a 7-Eleven, you are really going to get a whack.
207 OFFENDER: I won't do that at all.
208 HIS HONOUR: No I understand. I am not asking you to promise me anything. I am just simply making sure you really do understand that if you are ever tempted to go into someone else's room and pinch something or get into a punch up or fire up you have got to walk away. You heard the range the Crown gave the other day: a couple of years worth. Now if you do something like that again you are going to be doing three, four, five years. Something like that.
209 Now you are not going to like gaol. All right? I was tempted to put you in for a few months just so you would know what it was like but I did not want to break up the continuity of the assistance you were getting. Gaol for someone with your problems is a shocker. You cannot risk it. As one of the people I have got on the judicial supervision, the other black fellows that I have been dealing with, came in the other week and I said "How is it going?" and he reckons he treats me like a parrot sitting on his shoulder. That means I am an old parrot. Every time he looks in the mirror it' is going "Don't do that, don't do that". It is not a bad analogy so you do the same. You would perhaps regard me as an old kookaburra or something rather than a parrot but you know what I mean.
210 Just think about what you are doing. Do not react in a hurry. You have got plenty of people who can help you and want to help you. All right?
211 OFFENDER: I'm already scared about - not to re-offend.
212 HIS HONOUR: That is good. You have got to maintain the rage; all right? Maintain the fear as they say. No good getting relaxed and it is not going to be for a month or two, it is a long time.
213 OFFENDER: Yep.
214 HIS HONOUR: But this could be a real turn around for you.
215 OFFENDER: Yep.
216 HIS HONOUR: You can sit down now, Jess, we'll just get this typed up. Yes I'll just get you to have a look at that, Ms McCann. What I've put in there, the testing for the drugs and like, I indicate this that, bearing in mind what's in the neuro-psychological reports no-one's expecting wonders. What I have found with the CCOs is that rather than what used to happen years ago when someone came up with cannabis in their system and they can drag them back and breach them - - -
217 MS McCANN: Yes.
218 HIS HONOUR: - - - they'll now put them into programs. I'll try and do something about it.
219 MS McCANN: Yes.
220 HIS HONOUR: It's only if something really serious happens that they get brought back but if you can just make sure he understands that we don't need any positives; all right?
221 MS McCANN: No.
222 HIS HONOUR: That's all right.
223 MS McCANN: I understand there's another order to be printed out but - - -
224 HIS HONOUR: Yes I've got to do two.
225 MS McCANN: - - - Your Honour I might approach him in respect of - - -
226 HIS HONOUR: Yes, yes, take that to him. The other one can be just be brought down to you, yes. All right those orders are made. Yes thanks very much, ladies, it's been a very long and drawn out process. Hopefully it all works.
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