Director of Public Prosecutions v William Gardner
[2022] VCC 1284
•9 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01455 & CR-20-01456
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM GARDNER |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 July 2022 | |
DATE OF SENTENCE: | 9 August 2022 | |
CASE MAY BE CITED AS: | DPP v WILLIAM GARDNER | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1284 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE
Catchwords: Recklessly causing serious injury – threats to kill – attempt to pervert course of justice – Serious episode of violence on vulnerable victim – Serious facial injuries – Serious victim impact – Threat to kill her partner in same episode – Prolonged efforts to pervert the course of justice by having statements recanted – Use of then partner to assist in doing so – Mature, indigenous man – childhood of deprivation – relevant and recent prior history – late plea – extensive period on remand – hardship of remand during Covid – plea of guilty during pandemic not accompanied by remorse – parity – totality.
Legislation Cited: Crimes Act 1958, Sentencing Act 1991
Cases Cited:Worboyes v The Queen [2021] VSCA 169, [39], DPP v Bourke [2020] VSC 130 at [32]; Chenhall v The Queen [2021] VSCA 175, at [34]-[35], Bugmy v The Queen [2013] HCA 37; Marrah v R [2014] VSCA 119
Sentence: TES – 7 years with non parole period of 5 years. S6AAA – 9 years with non parole period of 7 years. 1002 days PSD.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F. Holmes | Office of Public Prosecutions |
| For the Accused | Mr M. Page | Leanne Warren & Associates |
HIS HONOUR:
Introduction[1]
[1] Taken from Exhibit A - SPO.
1William Gardner, you have pleaded guilty to two indictments, namely:
(a) The first indictment (K12920986.2) alleging violent and threatening behaviour essentially containing one charge of recklessly causing serious injury to Justine Havik on 11 November 2019 which has a maximum penalty of 15 years' imprisonment and one charge of threat to kill Raymond Bodsworth on the same date. That offence has a maximum penalty of level 5 imprisonment.
(b) The second indictment (C2013617A) regarding offences against the administration of justice, namely, two charges of attempting to pervert the course of justice between 14 November 2019 and 5 March 2020 was also admitted. That offence has a maximum penalty of 25 years' imprisonment.
2In November 2019, you were residing in Bindall Avenue, Wangaratta. You lived there with your de facto partner, Sarah Adams, and her children.
3Bodsworth lived next door to you in Bindall Avenue, Wangaratta. His de facto partner was Ms Havik then aged 48.
4On 11 November 2019, you violently and unjustifiably assaulted her and then threatened to kill Mr Bodsworth. After you were arrested and remanded in custody, you directed and encouraged Adams, not only to change her own statement to police about your offending, but directed and encouraged her to approach Bodsworth to do the same in order for you to avoid criminal responsibility.
5For this offending you will be sentenced to a substantial term of imprisonment, with a non-parole period.
The Violent and Threatening Offending
6I will commence with the offending that is violent and threatening. On Monday 11 November 2019 at 4:00 pm, Bodsworth and Havik attended your home to visit Adams. All adults, including you, consumed alcohol at the premises. From the observation of your neighbours, this type of gathering appeared to be a regular occurrence at your house. Havik was the exception; she was not drinking that evening.
7Later in the evening, Bodsworth returned to his home and asked Paul Giggliotti who was living there at the time, to drive him to a bottle shop in your vehicle. Giggliotti then drove Bodsworth to the local Bottlemart.
8At approximately 8:13 pm, Bodsworth returned to your home, with Giggliotti returning to his home.
9At approximately 8:19 pm, an altercation occurred between Havik and Bodsworth whilst they were sitting in the carport area of your house.
10Bodsworth wanted to go home, however, Havik would not give him the keys to the house. As he got up to leave, Havik pushed him backwards onto the couch. She then went to leave with him. The altercation between Bodsworth and Havik then became physical.
11Once this occurred, you then verbally abused Havik and grabbed her with both hands and threw her forcefully against the iron and wooden gate located between the driveway and the carport in an attempt to remove her from the property. She fell to the concrete driveway. She moved away from you. You then proceeded to pick her up and throw her back down onto the concrete driveway, verbally abusing her as you went.
12While Havik was still laying on the concrete driveway, you punched her once to the left-hand side of her face causing a deep laceration and bleeding. She lost consciousness. It is those series of acts[2] the Crown relies on in support of Charge 1 that you have pleaded to, recklessly causing serious injury. (INDICTMENT K12920986.2 – CHARGE 1 – Recklessly causing serious injury)
[2] Depicted on CCTV from neighbour’s house.
13Next, while Havik was in the condition I have just described, you dragged her by the feet from the carport area, up the concrete driveway towards the footpath. Her head dragged along the driveway and her arms flayed behind her. She was bleeding by this stage and left a trail of her own blood along the driveway as you dragged her.
14During the time that the assault was occurring, Bodsworth told you to stop but you responded by saying, 'If you get involved, I'll kill you.' It is that utterance in those circumstances that forms the basis of Charge 2, threat to kill. (INDICTMENT K12920986.2 – Charge 2 – threat to kill).
15At approximately 8:24 pm, you walked back into the front yard followed by Bodsworth and picked up a garden hose, turned it on and proceeded to hose down the complainant and the driveway of your house.
16Having regained consciousness by then, rather than assist her or exhibit any concern for her obviously grave injuries, you said, 'Get your DNA off my fuckin' property you slut.'
17An obviously badly injured Havik then got onto her hands and knees and slowly crawled across the nature strip in the direction of her home. She sat up for a period of time before collapsing, unable to move.
18Bodsworth attempted to pick Havik up but he could not, and so went next door to obtain assistance from Giggliotti. Both Bodsworth and Giggliotti returned and they carried Havik by her hands and feet to their home, where they laid her on the couch in the living room.
19During this time, you simply watched, fairly unperturbed, from your front yard and continued to hose the lawn and pathways of your victim's blood.
20Bodsworth spoke to triple zero and provided first aid to his partner.
21At approximately 9:22 pm, police and ambulance attended the address where Havik's injuries were treated and she was subsequently transferred to the Northeast Health in Wangaratta.
22Police arrived and despite your fixation on cleaning up after your brutality, police noticed blood on the driveway and wet areas on the driveway and footpath.
The Complainant’s Injuries
23I will deal with the complainant's injuries now. Within seven hours of being assaulted in the way I described, at 4:45 am on 12 November 2019, Ms Havik was transferred to the Royal Melbourne Hospital due to the serious nature of the injuries she had sustained.
24Dr Rahul Bhattacharjee at the Northeast Health Wangaratta detailed the following injuries incurred by Ms Havik:
(a) Fractured jaw, fractured nose, fractured eye socket (right side);
(b) Severe and extensive facial fractures; and
(c) Deep laceration to her head.
25Dr Michael Bozin at Royal Melbourne Hospital Melbourne detailed the following injuries incurred by her as well:
(a) A moderately displaced fracture right mandibular body,
(b) Depressed right maxillary,
(c) Depressed right orbital floor fracture,
(d) Right lateral pterygoid,
(e) Right lateral orbit,
(f) Left maxillary fracture, and
(g) Minimally displaced nasal bone fractures.
26Photos of her injuries taken at the time that she is lying prone in Bodsworth's loungeroom and later in hospital are nothing short of horrific.[3] That you could cause such injuries with your bare hands is frightening, as well as being instructive as to the sheer amount of force you used on a vulnerable victim.
[3] Depositions, 81; 87-90.
27
Havik's recovery, such has as it was, was slow and painful. In a statement of
15 January 2020[4], describes her horrendous physical pain and suffering as a result of what you did to her. She understandably thought she was going to die as she crawled out of your yard. She remained terrified of you long after the offending and even while you were in custody. She had wires, plates and screws placed in her face. She existed on a liquid diet for a period of time. She required heavy medication. Because of the damage to her right eye, it continually wept and made her not want to undertake simple tasks like driving a car.
[4] Ibid, 27.1.
28Ms Havik passed away 19 months later, not as a result of the injuries you caused her, but I can safely infer the last year of her life was diminished in every way because of what you did. I will come to the suffering of her family, so eloquently expressed in their victim impact statements, in due course.
Arrest and Interview
29
By way of arrest and interview, at approximately 9:30 pm, police attended
your home, arrested you and took you to the Wangaratta police station for interview. You were apparently intoxicated. You exercised your rights and declined to comment. You were charged with a number of offences, including intentionally causing serious injury in circumstances of gross violence and you remanded in custody, where you have remained ever since.
Attempts to Pervert the Course of Justice
30Whilst on remand in Fulham Prison in Victoria between the 14 November 2019 and 5 March 2020, you then committed a series of acts with express intention of perverting the course of justice.
31These included:
(a) In telephone conversations with Sarah Adams, you directed and encouraged her to persuade Raymond Bodsworth to change his statement made to police dated 12 November 2019 concerning your assault of Havik.
(b) You had personal letter sent to Ms Adams. You directed and encouraged her to persuade Bodsworth to change his statement made to police dated 12 November 2019 concerning the assault.
(c) You directed Ms Adams to give Bodsworth the personal letter on your behalf which sought to encourage Bodsworth to retract his statement made to police of the 12 of November 2019. (INDICTMENT C2013617A – CHARGE 1 Attempting to pervert course of justice)
(d) The next charge on that same indictment alleges, and you acknowledge, that you encouraged Adams to change her own statement made to police dated 11 day of November 2019 concerning your assault on Havik. (INDICTMENT C2013617A – CHARGE 2 Attempting to pervert course of justice).
32I can summarise the calls and other correspondence relevant to the above here.
33By 14 November 2019, you became aware Bodsworth had made a statement implicating you. You then communicated to Adams that Bodsworth should change his statement to create a version of events whereby Havik attacked you and Bodsworth. You suggested to Adams that she might have to, 'do one to'[5] You did this more than once. Many of your conversations between you and Adams contain references regarding how much you miss your family and how important it is that you be released and join with them. To that end, you were singularly focussed on getting Bodsworth to retract his statement.
[5] Ibid, 257.
34You sent a letter to Ms Adams on 15 November 2019 containing a false narrative of what had transpired. You said:
'So tell everyone what happened. They started fighting over crack, punching the shit out of each other. We told them to keep it down but they didn't listen and when I tried to help her she said, 'Fuck you,' and tried kicking and screaming and spitting on us. Tell them it looked like a junkie when it came over had cuts and scabs over its neck and chin and chest. Fight started over Scott buying ice and she didn't know about it.'
35And the next quote is:
'If he doesn't help you, tell them she hit you Scott, just watches, she was kicking trying to scratch us and spitting at us that's when I threw her out.'
36I pause to note that self-evidently, none of these things were true.
37Further calls concerning the attitude of Bodsworth occurred on 17 November and a number more on the 22 November 2019.
38On the 26 November 2019, you discussed the letter you had sent that was to be shown to Bodsworth but importantly, not for him to keep. That letter commenced with, 'can't believe you dogged me,' followed by not so subtle instructions as to what account he should give to the police and later included the words, 'retract your statement.' Adams showed that letter to Bodsworth (but did not give it to him, especially given you knew precisely how wrong it was to make such an approach such as that). Adams did exactly as you instructed her to do. [6]
[6] Ibid, 1701.
39After further efforts to ascertain Bodsworth's attitude on 27 November 2019, in a call Adams indicates that she is now going to change her statement and is told by you to say:
'Yeah, just say they were fighting over ice. Bodzie punched the cunt out of her and I dragged her off the property and he fucken watched as I dragged her off and blamed it all on me.' [7]
[7] Ibid, 365.
40I pause to add once more, none of that was true.
41Adams did change her statement on 4 February 2020, furthering the false narrative that you had created.
42Discussions in a similar vein take place between you and Adams until the very committal mention of this matter on 5 March 2020. That constitutes the end dates of both charges on the second indictment.
43Consistent with your single purpose when engaging in the forgoing, the fiction that Havik had somehow brought this upon herself and Bodsworth was actually the offender, was later explored at a contested committal in November 2020. This facet of the proceedings is beyond the scope of the attempt to pervert the course of justice conduct that you have pleaded to. I do not sentence you for it but it simply confirms the underlying purpose of your earlier acts.
44Not only did you play a dominant role in recruiting and directing your de facto, the mother of your child no less, who was desperate to have you home who had no criminal pedigree of any kind at the time that she was with you, but there was a real level of calculated menace in what you did. You were not intoxicated as you were during the episode of violence. You purposively, doggedly and methodically set about to attempt to pervert the course of justice over a period of months.
45Further, the way in which you sought to distort the truth of what had actually occurred was to cruelly and falsely inculpate Bodsworth as the man responsible, rather than the truth, which was he was a victim of your threats and a witness to the aftermath of your assault on his partner
Matters Personal to You [8]
[8] Taken from Exhibit 1 – Defence Outline of Submissions on the Plea.
46I will turn now to matters personal to you. In a very carefully presented well-crafted plea that served you particularly well, Mr Gardner, your counsel, Mr Page set out your personal history, one that can only be described as being defined by conflict, abuse and neglect.
47You were born on 27 September 1981. You are now 40. You were born in Bourke, New South Wales. Your mother is indigenous and your father is of Scottish/Irish heritage. They had a volatile relationship and both drank heavily. To put it in a most understated way, you were raised in a highly dysfunctional family environment.
48You have two older brothers, none of whom survive. They frequented the Redfern area but they passed away some time ago. You describe them as being hot shotted; that is, injected with heroin, causing their death, one in 2014 and the other brother in 2000. You have an older sister who is still in Redfern, who apparently has substance abuse issues. You have other half siblings located interstate. You have no contact with your parents.
49Your father was a jackaroo and ran a cotton farm in New South Wales. Your parents fought so badly that when you were aged about three, your father dumped you and your mother in Milawa. Not long after, your mother decided that she had had enough and left you and your siblings, returning to New South Wales. You and your siblings were left in the care of community elders at this time.
50From a young age, as early as 6, you drank nightly and were encouraged to get into fights. You describe abuse of a different kind at the hands of your cousin. You describe being particularly protective of your younger half-sister and did everything you could to stop her from suffering a similar fate. You were never counselled for this, certainly not in any meaningful or timely way.
51Alcohol was always around in your formative years. You drank more after the incident I have just referred to above.
52By the age of 8, you had your front teeth knocked out by an older cousin during one of the street fights I just mentioned.
53To elaborate slightly on that particular facet of your background, on weekends you and the younger boys would get into fights, with the adults watching on. This was both some kind of perverse, cruel, entertaining spectacle for the observers and also apparently designed to make its participants stronger and more 'manly'.
54You did not attend prep, or years 1, 2 and 3. You ran amok, living off the land, sleeping in humpies just up from the riverbank.
55By the age of about 9, you and your siblings then lived with your paternal grandfather and grandmother. They were racist towards you. At this time, you were enrolled in the local catholic school. You were put into mainstream schooling, despite obviously not being up to the requisite academic level.
56There you were picked on, not only because you were Aboriginal, but you were perceived to be stupid, which was far from the truth. You would constantly get into fights. You clashed with the nuns who ran the school and could not understand why they followed a religion that encouraged violent punishment such as getting the strap. You left school after being disciplined one day and simply never returned. You were functionally illiterate and innumerate when you left.
57Your father re-appeared when you were 9 and took you back to work on the farm. You remained there for years and you actually ended formal education by the age of just 11.
58When you were 15, your father arranged for you to live and work with an uncle on a different farm on the Victoria/New South Wales border. This uncle was apparently the first person to teach you any semblance of respect and self-restraint. There is a caveat to that. His advice was along the lines that you were not to hit someone unless they attacked you first. Obviously, at the heart of even this guidance was that it was still acceptable to resolve conflict with violence. Whatever lesson your uncle provided, it certainly was not one that you headed or applied when it came to your dealings with Ms Havik or other domestic partners for that matter.
59You are shaped in your formative years by the circumstances of deprivation, neglect and abuse. As a result of being immersed in and shaped by violence, you now, to me, seem disturbingly comfortable threatening to use it, implying to use it or actually using it.
60You are essentially self-educated. In spite of this, you have normally been employed in such jobs as tobacco picking and other manual jobs.
61You are described by Bodsworth and Adams as a big, strong man.[9] Prior to this remand, you were employed as a removalist. I will return to your physical characteristics when I deal later with the offending.
[9] Depositions, 29 and 37 respectively.
Forensic History
62Your prior criminal history, background of deprivation and alcohol abuse are all intertwined.
63You did not come to the attention of police until you were about 19. When first arrested, you told officers that you were Aboriginal and, since that time, were targeted. Every time you went out of the house you would be searched or pulled up for something often trivial. This accords with the prior criminal history that starts in 2003 for the most part, involving drunk and disorderly, to style offences, public order offences or offences, relatively speaking, minor matter involving police.
64As I said, much of your history is enmeshed and intertwined with drunkenness, (described by your counsel as binge drinking).
65
The majority of your early appearances in Victoria involve public
disorder-type offences for which you were initially fined, but once they persisted, you were placed on Community Corrections Orders (CCO’s) from 2010 onwards. Conditions were imposed for you to undergo treatment and rehabilitation, with a focus on your anger. Your history of complying with same appears to be poor.
66At the time you were committing offences against public order in Victoria, you were committing offences over the border New South Wales that were dealt with in 2009-2010. Those offences are far more troubling. They involve repeated instances of interpersonal violence, domestic assault, stalking, assault occasioning bodily harm and breaching intervention orders against women. You received supervisory orders there.
67By 2015, you had served your first term of imprisonment, being 182 days, plus a 12-month CCO. That sentence was imposed for offences of assault with a weapon, intentionally causing injury, assault, threats to kill (2 charges), breach intervention order and other offences. [10]
[10] As you were not sentenced to imprisonment for those threats to kill matters, you are not a Serious Violent Offender for the purposes of imposing sentence on Charge 2 on the first indictment.
68In 2016, you were dealt with contravene CCO, recklessly causing injury, breach family violence order (2 charges) and sentenced to 3 months' imprisonment.
69Just over a year later in August 2017, you were sentenced to 329 days for intentionally causing injury with 248 days reckoned as having already been served, suggesting that you had not been out of custody for terribly long from the previous appearance before these offences happened. The term of imprisonment was coupled with a 12-month CCO, again, with a raft of therapeutic conditions attached.
70You breached that CCO too. In 2019, you were placed on yet another CCO for 12 months for the breach and another assault charge dating back to October 2018. By the time the offending that is the subject of this indictment occurred, you had breach that later CCO within eight months of receiving it.
71Your history does not disclose a single event of the magnitude of the matters before me. You have no prior convictions for causing serious injury for instance. You have never been charged on indictment. Your history though evidences persistent violent and threatening behaviour committed regularly over years. Despite being given an opportunity to reform under supervision, having been directed to attend treatment on many occasions, your counsel was sadly unable to point to a single supervisory order in the past that you have not breached. It paints a particularly bleak picture of your capacity to change.
Relationships
72You have had two significant relationships. You partnered with Kerry Oats in the 2000s and have three children who are currently aged between 13 and 9 years. When you are out of custody, you have contact with them, albeit that they are in foster care with a family in Wangaratta.
73Your second relationship of significance is with Ms Adams, with whom you have a daughter, Katie. You have since separated from her, but not before she was drawn into your scheme to avoid criminal responsibility for what you did. She has an intervention order out against you. I am told you have no contact.
74I am further told, no-one has visited you in custody for more than two and half years that you have been there.
Offence gravity
75I will turn now to the offence gravity. I consider this to be a serious example of the offence of recklessly causing serious injury. The offence has a maximum penalty of 15 years, reflective of just how seriously Parliament views assaults of this kind. You threw a woman who posed no physical threat to you whilst standing across your yard into a fence. When she was prone and even less of threat to her you, you punched her to a vulnerable part of her body; her head.
76In those circumstances, there was a high degree of probability that serious injury would result by what you did and the seriousness of the probable injury foreseen by you must have been high.
77I am mindful that the Crown have not pursued a charge of causing serious injury in circumstances of gross violence against you and I do not sentence you as though you did so. This does not mean I totally ignore the vulnerability of your victim.
78To emphasise the difference between you and your victim; you had been accustomed to fighting with your hands since the age of six. You are bigger and physically larger and stronger than most men. You were in no way threatened by Havik's presence or by anything that she did or said to you. I infer that she simply irritated you by fighting with Bodsworth in your presence. She paid an unjustifiably high price for your irritation. You behaved spontaneously but with sickening violence against her and, as far as I can tell, were utterly indifferent to what you did to her.
79Intoxicated or not, you exhibited a high degree of recklessness and later, callousness. You pulled her by the feet along the driveway, letting her head simply drag along the drive. You were more concerned that she had bled on your driveway than her welfare. She was so obviously and immediately seriously injured. Her injuries were later determined to be severe.
80Your next victim did no more than try and make you stop being so brutal to his partner so he could help her. For his vocalised concern, you threatened to kill him. The timing of this threat, the manner in which it was delivered and the purpose in uttering it are serious. It is unquestionably worthy of the imposition of a term of imprisonment, especially with your history.
81Then, in a sober, determined, prolonged and purposive way, you set about directing the mother of your child to fabricate an account to exonerate you. This went further, as you wrote to the man that you had earlier threatened to kill, the man who was dealing with the aftermath of your offending, requiring him to do the same. His unwillingness to exonerate you gave rise to a version that was a false version of events being peddled where he was in fact being accused of committing or causing the injuries you did. All of the forgoing was designed and promoted by you for your benefit and your benefit alone. I consider this to be a serious example of the offences of attempt to pervert the course of justice, an offence which I note carries the highest maximum penalty of any charge on the indictment.
Victim Impact
82I have already dealt with the impact of your crime on Ms Havik. There is, of course, another direct victim and others who suffer as a result foy or actions.
83Bodsworth was himself, not only a victim of your threat to kill, but also a carer of Havik. He was presented with a letter, authored by you, that strongly suggested he ought to recant the allegations against you. He dealt with the immediate and long term aftermath of your offending. He was, at times, unable to work. He abused alcohol and at times was suicidal. He stopped socialising because he was anxious and depressed. He still lives in fear of you. [11]
[11] Exhibit B - Victim Impact Statement (VIS) of Ray BODSWORTH dated 11 June 2022.
84Ms Havik's daughter Amie was worried her mother would not even survive her injuries. She blames herself, unjustifiably I might add, for not being there to maybe stop this. I query if you were capable of being stopped, Mr Gardner. She has mental health issues. She cries just thinking about what happened to her mother, even years later. [12]
[12] Exhibit C - VIS of Amie HAVIK dated 11 Jun 2022.
85Her father William Hedgecock, recalls the shock of seeing his daughter in hospital. Her head was badly lacerated and bruised. He was shocked and angry how this could occur. He needlessly but understandably felt useless as a father. He is astounded that a six-foot tall, 120 kilogram man could and would brutalise a woman the way you did. I entirely understand that sentiment.
86Those are the consequences of your brutality, Mr Gardner. They are far reaching, profound and enduring.
COVID-19 Pandemic
87You have served the bulk of more than your two and half years on remand during the COVID-19 Pandemic. This has been a difficult time for all persons in custody. It has involved quarantines, it has involved longer periods in cells, it has limited the availability of courses and activities to those who need it. It has meant family and friends who would otherwise visit people have been unable to do so, but in your case, as I note, you have not had a single visit.
88COVID-19 has created anxiety within the community generally and in prisons where persons cannot make autonomous choices and that, understandably, has been particularly difficult.
89The circumstances of your incarceration so far have been extremely punitive already. The weight to be given to the sentencing purpose of just punishment will need to be reduced accordingly in my sentence and I have done so.
Plea of Guilty
90
A contested committal was conducted in 2020 where witnesses were
cross-examined. As I said, the committal was conducted in a way where the drug use of Havik and Bodsworth was explored, as well as any conflict or violence between them. The committal appears to have been conducted in a way where the groundwork for a defence at trial where the false implication of Bodsworth being the actual offender was advanced a little further down the road.
91Your matter finally resolved after a pre-trial ruling by me that permitted the Crown to lead evidence of the attempt to pervert justice in your trial for the violent offending by way of incriminating conduct.
92The Prosecution agreed to withdraw the charge of intentionally cause serious injury in circumstances of gross violence in exchange for the present plea arrangement.
93This was a case that had already had a very difficult history. The case was delayed by the impact of COVID, and the trial date had to be vacated at least once; with reasons including Bodsworth being hospitalised for mental health.
94By resolving this matter, you have spared the witnesses, one of them being particularly vulnerable, from giving evidence and being cross-examined at a trial. This is no small matter. There is a human saving implicit in pleas of offending of this kind. You have demonstrated a willingness at least to facilitate the course of justice.
95
Though late, your plea of guilty in this matter was offered at a time when
COVID-19 was prevalent in the community, and I note, still is.[13] Accordingly, the plea offer real utilitarian value to the Court and I am obliged to follow the observations made in our Court of Appeal in the case of Worboyes, an extract of which I will quote:[14]
'A plea of guilty entered during the currency of the COVID pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at any other time. [The sentencing judge] must ensure that the plea of guilty results in a perceptible amelioration of sentence.'
[13] It still is. At the time of sentence there was increased concern about the resurgence of the virus.
[14] [2021] VSCA 169, [39]. See also DPP v Bourke [2020] VSC 130 at [32]; Chenhall v The Queen [2021] VSCA 175, at [34]-[35].
96Your sentence will be perceptibly ameliorated because of your plea. It is, indeed, one of the few matters that tempers the sentence I am about to impose.
97Consistent with the sensible way the plea was conducted, Mr Page did not go as far as to invite me that your plea was, in any way, accompanied by the notion of remorse. Such a finding would be untenable and utterly unavailable to me.
Deprivation
98It was submitted that in the background, as set out earlier in my sentencing remarks, gives rise to the application of the principles in Bugmy and they should be given their full weight. This is true and Ms Holmes, who appeared for the Crown, did not try and persuade me otherwise.
99I will not repeat the entire quote in my oral reasons of Bugmy, but they will appear in my written reasons. I will turn though to the specific quote from Marrah[15], on which your counsel addressed when addressing an appeal that was pleaded, the learned sentencing judge failed to take into account that applicant's deprived upbringing. The Court adopted Bugmy in the following passage:
'Circumstances of deprivation, abuse and other social disadvantage occurring during an offender's formative years are more than just matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime and often explains and contributes to an offender's criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. They do not provide an excuse for offending behaviour. They must be given due weight in the sentencing calculus.'
[15] Marrah v R [2014] VSCA 119.
100I pause there and agree with everything that was just said but I wish to place emphasis on the following passage:
'That is not to say that an offender's social disadvantage has the same mitigatory relevance for all purposes of punishment. It may so explain the offender's conduct, that the offender's moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender. It will not diminish the need of the sentence to vindicate the dignity of a victim and reflect the community's disapproval of the offending.'[16]
[16] Ibid at [16].
101In this case, Mr Gardner, the truly bleak, pitiable way in which you were raised, creates the very kind of tension to which the court referred to in Marrah. There are twin edges to the Bugmy principles; on the one hand, a reduction in moral culpability, but on the other, a heightened need for community protection, particularly if an accused's criminal history and the circumstances of their present offending compel such a finding.
102In your case, your culpability is reduced because of your deprived childhood and adolescence. Sadly though, that childhood has shaped a man who the community requires protection from, given your dangerous propensity for violence and the demonstrable efforts made to help you change have thus far failed.
Parity
103
It is now appropriate to deal with the issue of parity with your former partner
Ms Adams. Parity is an aspect of equal justice. There should be no unjustifiable difference in sentences imposed upon similar offenders for similar offending. The key words here are, 'Unjustifiable difference.' That is because parity takes into account consideration of the offending and your roles but must also take into account personal circumstances at the time and since. In that sense, equal justice might require different outcomes.
104In this case, there is so much to differentiate you from Adams. She pleaded guilty to one charge of attempt to pervert the course of justice before Judge Gamble at this court at a very early stage. Her involvement in the offence was to converse with Bodsworth and attempt to have him change his statement about you, as well as to show him the letter that you wrote. She was in her late 30's with no prior criminal history of any kind. She was the mother of four and the sole carer of three children under 13. She was your partner and you had a child together and, in many ways, she was dependent on you. You called her, a total of 144 times over the charged period; often instructing her to act as your intermediary. She pleaded guilty early, as I said, and exhibited remorse. Judge Gamble described her offending in this way at [43] – [44] of his remarks:
'It is clear that the idea to approach Mr Bodsworth was Mr Gardener's and not yours. He had much more to gain from getting Bodsworth to change his statement than you did. Whilst you agreed to assist him in that regard, you did so reluctantly and in a context where he was bombarding you with calls which persistently raised the matter. You no doubt felt trapped, under personal and financial pressure, and anxious for the family to be re-united. I also think it very likely you did not fully appreciate the seriousness of the conduct in which you were engaging. Unlike some incidents of this type of offending, there were no direct assaults or threats made to the victim.
That said, the matter to which this offence was directed involved a serious alleged assault on a female victim with an accompanying threat to her male partner and there were multiple approaches, rather than a single approach, made to that male victim with a view to getting him to change his statement. In my view, things were escalated somewhat once the letter from Mr Gardner was produced and shown to the victim. I note this seems to have been the catalyst for him deciding to come forward.'
105For the forgoing reasons, Ms Adams was placed on a Community Corrections Order.
106I have dealt with your personal circumstances and your role in this offending elsewhere. You are different from Adams in almost every way. Your role in the offending is different by many degrees. Disparate sentences are so obviously warranted and justified.
Totality
107I will turn now to the principle of totality. I am mindful of the significance in this case of the application of totality principle, which requires a court in sentencing an offender for multiple offences to ensure the aggregate term it imposes is a just and appropriate measure of the total criminality involved. There must be appropriate relativity between the totality of all criminality and the totality of the effective length of the sentences. This is true when I consider the interaction between both counts on both indictments. I pause to note, I intend to impose an aggregate sentence on the charges, the subject of the second indictment, as they are 'two or more offences which are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.
108To comply with totality here, I have:
(a) Determined an appropriate term for each charge, taking the applicable sentencing considerations into account and designate the highest term as the base sentence;
(b) Determined the extent to which there should be cumulation regarding each count; and
(c) 'Stood back' and considered, in light of totality , what is an appropriate total effective sentence.
109The totality of your serious offending encompasses an act of gratuitous violence, threatening to kill another, followed by extensive efforts to cover that offending up. Though they are interconnected, they involve different harms to different victims, each being worthy of degrees of cumulation to reflect your overall criminality.
110I have noted elsewhere, your prospects are poor. It is difficult to assess what effect this long prison term will have you, if and when you are eventually released on licence under auspices of parole. You have already spent a significant time in prison. One would hope that it has, in part, cured your appetite for violence somewhat, but I am not particularly optimistic in that regard.
Purposes of Sentence
111In formulating an appropriate sentence in your case, I have had regard only to the purposes for which sentences must be imposed.
112I am satisfied in the circumstances of your case the need for specific deterrence and community protection; both assume real prominence. Further, your serious offending must be denounced on behalf of the community, and you must be justly punished for your crimes.
113There is a need for any sentence to facilitate your rehabilitation as appropriate, but as I have indicated, I find that at your age, with your entrenched disposition towards violence, your failure to seize previous opportunities to reform, your prosects are regrettably poor.
114Finally, in fixing an appropriate sentence and allowing for a parole eligibility component, I have had regard to the principle of parsimony; that is, the requirement not to impose a sentence more severe than that which is necessary to achieve the purposes for which sentence is imposed.
115The purpose of parole is to provide for mitigation of punishment in favour of rehabilitation through conditional release when appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances.
116In your case I concluded it is appropriate to impose a long non-parole component to your sentence. The non-parole period, that is, the period of imprisonment to be served before which you become eligible for parole, will be longer than perhaps it might be in other cases on account of the very few mitigatory factors in your matter. It is set in a way that is reflective of your poor prospects as I have already described. Nonetheless, it is hoped that the period I have allowed for in terms of release on licence may facilitate your reintegration into the community and hopeful your ultimate rehabilitation.
Sentence
117I sentence you as follows:[17]
[17] The sentence also appears in chart form at page 24 of these Reasons.
118On Indictment K12920986.2, Charge 1, recklessly causing serious injury, you are convicted and sentenced to five years' and nine months' imprisonment. That will be the base sentence.
119On Charge 2, threat to kill, you are convicted and sentenced to one year imprisonment.
120On Indictment C2013617A, on Charges 1 and 2 I will impose an aggregate of two years and six months' imprisonment.
121Three months on Charge 2, being the treat to kill charge, will be served on the base sentence, bringing a total of six years, 12 months of the aggregate sentence imposed on the second indictment will be served cumulatively on both of those matters.
122This brings about a total effective sentence of seven years.
123I declare that you have served not less than five years before you are eligible for parole.
124I declare that you have served 1002 days by way of pre-sentence detention and such a declaration will be entered into the records of the court.
Section 6AAA declaration
125Pursuant to s6AAA of the Sentencing Act, I am required to tell you what sentence I would impose had you not pleaded guilty. In your case, had you not pleaded guilty, I would have sentenced you to a period nine years' imprisonment with a non-parole period of seven years.
126Does anyone require me to clarify the sentence imposed and the way that it is structured?
127MR PAGE: No, Your Honour.
128MR MARSHALL: No, Your Honour.
129HIS HONOUR: Can I thank counsel, particularly you, Mr Page, for your considerable diligence and efforts in this case. I will ask that the link remain open so that you can discuss the penalty imposed with your client. I thank the victim's families for the very dignified way in which they conducted themselves during these proceedings. If there are no other matters, I will adjourn the court.
130MR PAGE: Thank you, Your Honour.
131HIS HONOUR: Thank you.
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Chart of Sentence Imposed
Charge Offence Maximum Sentence Cumulation*
On base and each otherIndictment K12920986.2 1 RCSI 15 years’ imprisonment 5 years
9 monthsBase 2 TTK 10 years’ imprisonment 1 year 3 m Indictment C2013617A 1 APCOJ 25 years’ imprisonment 2 years
6 months12 m 2 APCOJ 25 years’
ImprisonmentPart of aggregate Total Effective Sentence: 7 years Non-Parole Period 5 years PSD 1002 days
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