Director of Public Prosecutions v Wilson
[2022] VCC 1520
•31 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR 21-00456
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEX WILSON |
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JUDGE: | HIS HONOUR JUDGE CHETTLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 August 2022, 18 August 2022 | |
DATE OF SENTENCE: | 31 August 2022 | |
CASE MAY BE CITED AS: | DPP v Wilson | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1520 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation cited:
Cases cited;
Sentence:Imprisonment, Total Effective Sentence five years, three-year non-parole period. $750 fine, Licence cancelled and disqualified for 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms V. Katotas | Mr J Coulter |
| For the Accused | Mr N. Rudston | Ms K Sheridan |
HIS HONOUR:
1 Alex Daniel Wilson, you have pleaded guilty to one charge of handling stolen goods, one charge of damaging an emergency vehicle by reckless driving, five charges of aggravated offence of intentionally exposing an emergency worker to risk by driving, one charge of reckless conduct endangering life, one charge of criminal damage with intent, and one charge of theft of a motor vehicle. In addition, you pleaded guilty to summary offences of driving while disqualified, and drive a vehicle whilst exceeding the prescribed concentration of drugs - in this case, methylamphetamine.
2 The facts of your offending are set out in Exhibit A: the prosecution opening for plea. I incorporate that document into these reasons for sentence and sentence you on the basis of the facts set out therein.
3 Very briefly stated, on 21 October 2021, you drove a stolen motor in an extraordinarily dangerous and reckless manner. When police attempted to arrest you at your home in Kidds Road, Doveton, you got into a stolen Nissan four-wheel drive, drove it through the side gates, and repeatedly crashed into police vehicles parked behind the gate. Police officers were calling for you to stop. Two other police officers were within a metre of your battering vehicle as it hit the police vehicles. Still other police attended to stop you, but you ignored directions and continued to ram into the police vehicle. This is the basis of Charge 2, damaging an emergency vehicle, a rolled-up charge for the two vehicles.
4 Charges 3, 4, 5: aggravated offence of intentionally exposing three police officers to risk by your driving. Your driving back and forwards saw you collide with items that have threatened two officers in your backyard. They were forced to climb to safety into a neighbouring property. And they are Charges 6 and 7 of intentionally exposing those two police officers to risk by your driving. Charges 3 to 7 are very serious offence. Each carries a maximum penalty of 20 years' imprisonment. You could not get out of your driveway, so you rammed your stolen vehicle through the side boundary fence. Your neighbour came out of his front door as you crashed into his property. You hit the verandah of his house about 6 feet from him, and this conduct constitutes Charge 8: reckless conduct endangering life, and Charge 9: criminal damage.
5
You managed to drive out of the property, crossing an immobilisation device that punctured two of your tyres. You nonetheless backed into the street, forcing another vehicle to take evasive action before driving away. A police helicopter followed you until your car you were driving stopped about
3 kilometres away, and you attempted to escape on foot, but police located and arrested you.
6 You had consumed illicit drugs that day. You told police you took juice, probably 1,4-Butanediol. You were taken the police station, where blood samples were taken that, when analysed, revealed methylamphetamine in your blood. This is the basis of Charge 16. The other summary charge, Charge 12, relates to you being disqualified from driving at the time of these offences. You apologised to police for your actions when they arrested you. Charge 10 relates to the theft of the Nissan four-wheel drive you were driving. That vehicle was stolen. And Charge 1 - handling stolen goods - relates to the stolen number plates you had attached to a Suzuki motorcycle, which apparently did belong to you.
7 The maximum penalties for all your offences are set out in paragraph 35 and following of Exhibit A.
8 As I previously stated, Charges 3 to 7 are the most serious offences and are Category 2 offences under the Sentencing Act. Issue has arisen as to whether circumstances exist that mean a term of imprisonment with a non-parole period must be imposed upon you for these offences.
9
Exhibit 1 - the submissions of your counsel - outline your personal history, your drug use, and mental health issues. Reports from Forensicare, Exhibit 2; neuropsychologist Martin Jackson, Exhibit 3; and psychologist
Aaron Cunningham, Exhibit 4 were tendered by your counsel. Based on these reports, your counsel submitted, at paragraph 54 and 55 of his submissions:
10 'It is submitted that the court is not required to make a custodial under Division 2, Part 3 on the basis of s5(2H)(c)(i) of the Sentencing Act 1991. It is submitted that Mr Wilson has impaired mental functioning that is causally linked to the commission of the offences which substantially and materially reduce Mr Wilson's culpability'.
11 Ms Scott outlines that Mr Wilson's symptoms of mild intellectual disability, mental illness and trauma were mostly significant factors influencing his behaviour in the current matter, the mental illness being his PTSD, schizophrenia, and trauma. It is submitted that this meets the definition of an impaired mental functioning under s10(A) on the balance of probabilities in that Mr Wilson's mental illness and intellectual disability are causally linked to the commission of the offence and substantially and materially reduces his culpability. It is submitted that Verdins also applies in this way and Mr Wilson's moral culpability should be balanced when weighed up with just punishment and denunciation.
12 It is submitted that s5(2H)(a) does not apply in that the impaired mental functioning was not caused substantially by self-induced intoxication. It is noted that his cognitive impairments would also have been exacerbated by the acute effect of intoxication. However, the impaired mental functioning was not caused substantially by the intoxication.
13 Further, it is submitted, in the alternative, that the court is not required to make a custodial order under Division 2 of Part 3 on the basis of s5(2H)(c)(ii) of the Sentencing Act 1991. It is submitted that Mr Wilson has impaired mental functioning, as discussed, and this would result in Mr Wilson being subject to substantially and materially greater than ordinary burden and risk of imprisonment.
14 The prosecution replied to these submissions in Exhibit G and, at paragraph 9 of those submissions, submitted:
15 'Ms Scott, clinical psychologist, provided a report dated 1 July 2022, and, in her report, she diagnosed with Mr Wilson with mild intellectual disability and opines that Mr Wilson's symptoms of mild intellectual disability, mental illness and trauma were likely significant factors influencing his behaviour in the current matter.
16 There are, however, other matters that the court is required to consider, that being the self-induced intoxication and how that applies under s2(H)(c)(i). Mr Wilson was under the influence of methylamphetamine at the time of his offending, and his schizophrenia might be directly linked to a long history of substance abuse. Dr Cunningham, a psychologist, opines that the offence may not have occurred were it not for his significant drug use'.
17 The prosecution sought to cross-examine Ms Scott and Dr Cunningham. However, the witnesses were unavailable at the return of the plea. There are issues with both reports. It appears that the so-called past diagnosis of schizophrenia is based on self-report by Mr Wilson and is not supported by any evidence. Further, the role illicit drugs played in his offending is uncertain.
18 On balance, I accept that the defence have established an intellectual disability that provides an exception to the mandatory requirements of s5(2H) of the Sentencing Act. Ms Scott's report that you have an IQ of 60 probably establishes that you have a significant sub-average general intellectual functioning and that significant defects in adaptive behaviour manifested before you turned 18. Self-intoxication with illicit probably exacerbated, not caused, your various issues.
19 However, even if I, as I do, find that the mandatory requirements of s5(2H) do not apply to you, that does not mean that the court is required to impose a combined sentence of imprisonment and a community corrections order. I will sentence you in accordance with established sentencing principles.
20 Turning to your personal circumstances, you are now 33 years of age, and you were born in Frankston. You had three siblings, one of whom was murdered two years ago. Your childhood was deprived and traumatic, with domestic violence, sexual abuse, alcoholism, and drug use regularly present. Your parents separated when you were five. You experienced difficulties at school and required a special aid teacher. You repeated grades and exhibited behavioural problems. You left school after repeating Grade 7. You found some work labouring, but it appears to have been limited.
21 Drugs and alcohol have been an integral part of your life. You started drinking alcohol at the age of 13, using cannabis at 16, amphetamines, ecstasy, cocaine, heroin, benzodiazepines, methylamphetamine, and GHB since. You have been assisted by methadone since being remanded in custody. You had mental health subsequent to your mother's death in your presence when she died from cancer when you were 19. You have nightmares, depression, and anxiety.
22 Neuropsychologist Ms Scott reported in Exhibit 3 at pp 11 and 12:
23 'In summary, Mr Wilson presents with a globally impaired level of intellectual function with a full-scale IQ score of 60. Mr Wilson's neuropsychological profile is consistent with mild intellectual disability. There is a history of early academic delay and behaviour, problems requiring intervention at school. His IQ of 60 is more than two standard deviations below the mean, which is consistent with most definitions of an intellectual disability.
24 Mr Wilson also presents with a complex mental health profile. He has previously been diagnosed with PTSD, schizophrenia, and substance use disorder. He presents with severe depressive symptoms and anxiety on current testing. Mr Wilson's mental health is likely to have significant impact on his cognitive function, and the severity of his cognitive impairment is likely to fluctuate in response to the acuity of mental health symptoms.
25 On a day-to-day level, Mr Wilson's cognitive-behavioural impairments would result in the following difficulties: he struggles to sustain focus; he is easy overwhelmed; his thinking is rigid and inflexible; he is slow to process information; he struggles to read and comprehend information, and he is slow to learn new information; his memory is very unreliable; he is impulsive; he struggles to plan his approach to a new or complex task; and his thinking and behaviour is disorganised.
26 Mr Wilson's symptoms, on mild intellectual disability, mental illness and trauma, were likely significant factors influencing his behaviour in the current matter. He has an impulse control disorder of a high-level anxiety, which can result in rapid escalation in response to relatively mild provocation. His reduced additional capacity and slow processing means he is easily overwhelmed. He struggles to learn from past mistakes because of his reduced rate of learning. Mr Wilson's cognitive impairment would also have been exacerbated by the acute effects of intoxication on the day of the offending.
27 Mr Wilson was unlikely to be able to think through the risks of his actions during the period of his offending. On reflection, once the state of panic had passed, he was able to identify that his behaviour was wrong and highly dangerous. He was remorseful and able to appreciate the actual and potential harms caused by his actions. He was open to receiving formal support to reduce the risks of future offending. His partner was also supporting of this and engaged to support him'.
28 I take the contents of that report into account in sentencing you.
29 You have a significant prior criminal history. In 2008, you received a community corrections order for offences including theft of motor vehicle, driving whilst disqualified, burglary, and theft. The community corrections order that was imposed had alcohol, drug, and mental health conditions. You received another community corrections order that year for the offence of going equipped to steal.
30 In 2013, you were before the Frankston Magistrates' Court on driving offences, theft of motor vehicles, handling stolen goods, driving whilst your authorisation was suspended.
31 In 2014, you were imprisoned for driving whilst disqualified; theft; theft of motor vehicles; dealing with proceeds of crime; burglary; and handling stolen goods. You were separately dealt with the for the offence which included possession of a controlled weapon, failing to stop a vehicle on police request, driving in a manner dangerous, and driving whilst disqualified.
32 On 5 April 2016, you were sentenced to imprisonment and a community corrections order for 11 charges of drive while disqualified, two charges of theft of a motor vehicle, three charges of failing to stop on police direction, theft, and criminal damage.
33 On 5 June 2017, you were before Frankston Magistrates' Court on six charges of burglary, eight charges of theft of a motor vehicle, retention of stolen goods, theft, two counts of recklessly engaging in conduct placing others in danger of serious injury, intentionally damaging property, failing to stop a motor vehicle on request, driving whilst disqualified, and firearm and drugs offences. You were sentenced to 18 months' imprisonment.
34 On 10 April 2019, you were sentenced to time served, which was 84 days, and a community corrections order on four charges of theft of a motor vehicle and driving whilst disqualified and handling stolen goods.
35 I have outlined only some of your prior criminal history; you have numerous relevant prior offences. You regularly drive from police and have placed others in danger. You often drive whilst disqualified. The offences for which I am to sentence you are serious offences: you put the safety of five police officers at risk; you endangered the lives of your neighbour. You are just fortunate that no one was seriously hurt - or worse.
36 Police officers were doing their job. They attempted to safely execute warrants at your premises. They clearly were alert to your propensity to seek to evade police. You had multiple opportunities to stop and surrender yourself. On each such occasion, you elected to use the stolen vehicle you were driving as a battering ram and a weapon. Anyone in your vicinity was at risk.
37 The seriousness of the offences is demonstrated by the maximum penalty set out by Parliament. There is clear parliamentary to intent to protect emergency workers. Tragically, police officers have been killed by careless and dangerous driving.
38 I regard your offending in Charges 2 to 7 as mid-level examples of a very serious offence. Your offending was short, frenetic, and dangerous. It was stupid and totally avoidable. You should not have been driving at all, much less in a stolen vehicle.
39 There is a presumption in the Sentencing Act that sentences for these offences should be served cumulatively on any other term of imprisonment imposed on you. Because the incident was one of frenetic course of conduct involving what could have been a rolled-up charge, but it was not, I do not propose to make the orders for imprisonment cumulative. Principles of totality mean that I must impose substantial concurrency for the offending you have committed.
40 The victim impact statement, Exhibit D, made by the officer in charge of the man who attempted you arrest demonstrates that he was significantly affected by your offending. He is angry about what could have happened to those involved. He does not feel safe at work. I take the victim impact statement into account in sentencing you.
41 I take into account your pleas of guilty. Those pleas of guilty were entered at an early stage. They demonstrate what I accept is remorse for your conduct. You are entitled to and will receive a significant reduction to the sentence I would otherwise impose for your offending. Because of the effect of COVID-19 on our legal system, your pleas of guilty have even greater utilitarian value and the reduction in sentence is greater.
42 I take into account your disadvantage and traumatic childhood and youth. I accept that it provides some explanation for your explosive and reactive responses to police confrontation.
43 On the other hand, I must protect the community from you and the danger you impose, especially in a motor car.
44 Your time in custody has been and will continue to be more onerous for you because of COVID-19. You have endured greater restrictions in custody, had reduced opportunities with programs and courses, and visits have been reduced. I take that effect into account in sentencing you.
45 I take into account the reports of Ms Scott and Dr Cunningham, as I said.
46 Your counsel submitted that all limbs of the principle stated in Verdins were enlivened in this case. The prosecution dispute this submission. Your history of drug abuse and your use of methylamphetamine and 1,4-Butanediol on the day of your offending complicate this issue. I do accept that your moral culpability is somewhat reduced because of your poor cognitive function and your poor impulse control. Drugs, however, exacerbated these problems.
47 I do not believe that your condition is relevant to the type of sentence that will be imposed for your offending. I accept that there should be some moderation of principles of both general and specific deterrence because of your cognitive impairment. Again, the effect of self-induced drug intoxication is relevant and reduces any such moderation.
48 I also accept that your mental health and cognitive issues will make your time in custody more onerous for you than it would be for someone without your issues. You may have difficulties reacting appropriately to confrontations that can arise in prison.
49 Finally, I do not accept that imprisonment will or may impact upon your mental health and cognitive issues. Your conditions are chronic and permanent. There is no material to support the proposition that imprisonment will significantly affect your mental health. Indeed, it seems likely to me that you will cope well in prison.
50 Turning to your prospects of rehabilitation, I regard your future prospects as poor. Your prior history, your failure to avail yourself of the assistance many CCOS have offered you, and your continued abuse of illicit drugs make your future look bleak. If you use your time in custody to break your addiction to drugs, then your prospects will be enhanced.
51 Your counsel submits that I should impose a combination sentence of imprisonment and a community corrections order. I cannot accede to that submission. Your offending is simply too serious and your prior criminal history far too extensive and too similar to the offending for which I am sentencing you for such a disposition. I must protect the community and emergency workers from the risk you represent. Nothing but a term of imprisonment is appropriate for all the offences save for the drug driving offence. I do believe that there should be substantial concurrency for most charges to reflect the fact that your offending was, in most respects, one short and continuous burst of offending by someone with mental health issues. On all charges, you are convicted. Could you stand up, please?
52 One Charge 1, the charge of handling stolen goods, you are sentenced to be imprisoned for one month.
53 On Charge 2, damaging an emergency vehicle, you are sentenced to be imprisoned for six months.
54 On each of Charges 3, 4, 5, 6, and 7, the aggravated offences of exposing an emergency worker to risk by driving, you are sentenced to a term of imprisonment of three years.
55 On Charge 8, reckless conduct endangering life, you are sentenced to 12 months' imprisonment.
56 On Charge 9, criminal damage with intent, you are sentenced to three months' imprisonment.
57 On Charge 10, theft of a motor vehicle, you are sentenced to 12 months' imprisonment.
58 On driving whilst disqualified, Summary Charge 12, you are sentenced to 12 months imprisonment.
59 On Charge 16, driving with a prescribed drug, you are fined $750.
60 Having regard to principles of totality and cumulation, I order that three months of the sentence imposed on Charge 2, three months of each of the sentences imposed on Charge 4, 5, 6, and 7, three months of the sentence imposed on Charge 8, three months of the sentence imposed on Charge 10, and three months of the summary offence of drive while disqualified be served cumulatively upon the sentences imposed on Charge 3, which I declared to be the base sentence. That is an effective head sentence of five years, and I order that you serve three years before being eligible for parole.
61 What is the PSD as of today? Does anyone know?
62 MS KATOTAS: I know, as of today - let me just - I included it in the submissions in the last - - -
63 HIS HONOUR: Yes, I know. It has changed, though. Do you know, Mr Rudston?
64 MS KATOTAS: I will just wait for my instructor to get me that information. While that is taking place - - -
65 HIS HONOUR: Before you do, I will go on. Pursuant to s6AAA, I indicate that but for your pleas of guilty, I would have imposed an effective term of imprisonment of six years and nine months with a non-parole period of four years and six months. Yes, you had something you wanted to raise?
66 MS KATOTAS: Sorry, Your Honour. In the prosecution opening at paragraph 49 and 50, there are some ancillary orders in relation to licence.
67 HIS HONOUR: Yes. Sorry, I had forgotten all of those. On the theft of the motor vehicle charge, which is Charge 10, I cancel any licence he might have and disqualify him from obtaining any such licence for two years. On exposing an aggravated worker to risk by driving, on each of those charges, he is disqualified from obtaining a licence for three years from today's date. And on the drive while - no, I do not make an order on the drive while disqualified. That covers them, does it not?
68 MS KATOTAS: There is the summary charge for prescribed concentration of drugs.
69 HIS HONOUR: Yes. The alcohol charge, I cancel his licence for 12 months as well. They are all academic.
70 MS KATOTAS: (Indistinct). Yes. I think it is not less than 12 months.
71 HIS HONOUR: Yes, 12 months. I have cancelled him for two years - - -
72 MS KATOTAS: Yes.
73 HIS HONOUR: - - - and three years on the aggravated driving offences. They are completely academic orders.
74 MS KATOTAS: On 4 August, the PSD was 287 days.
75 HIS HONOUR: My associate believes the PSD is 313 days, not including today.
76 MS KATOTAS: It is 314 days, yes.
77 HIS HONOUR: Counting today; 313 not including today?
78 MS KATOTAS: Yes.
79 HIS HONOUR: All right. I declare that 313 days of the sentence I have just imposed has already been served by way of pre-sentence detention. Any other orders?
80 MS KATOTAS: No, Your Honour. As Your Honour pleases.
81 HIS HONOUR: All right, thank you. I will terminate the links.
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