Director of Public Prosecutions v Wilson
[2022] VCC 630
•10 May 2022
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON CRIMINAL DIVISION | Revised Suitable for Publication |
General List
Case No. CR-20-00151
CR-20-00153
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RHYKAH WILSON & KHALE SCOTT |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 10 May 2022 | |
DATE OF SENTENCE: | 10 May 2022 | |
CASE MAY BE CITED AS: | DPP v Wilson & Anor | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 630 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Planned luring and attack on man with knife – causing injury – breaches of bail – serious offending – significant delay – plea of guilty during pandemic – signs of demonstrated reform – parity.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Boulton v The Queen (2014) VR 308; Worboyes v The Queen [2021] VSCA 169, R v Merrett and others (2007) 14 VR 392; Col Thornton v The Queen [2021] VSCA 325; Re Diab [2020] VSC 196; DPP (Cth) v Stanley (a pseudonym) 2020 VCC 898
Sentence: WILSON – 18 month CCO with conditions (s.6AAA 3 years with non-parole period of 2 years)
SCOTT – combination sentence of 540 days (reckoned as served) plus 9 month CCO with conditions (s.6AAA 4 years with non-parole period of 2 years 8 months)
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Teo | Office of Public Prosecutions |
| For the Accused Wilson | Ms K. Ballard | Balmer and Associates |
| For Accused Scott | Mr A. Pyne | Slater and King |
HIS HONOUR:
Introduction
1Rhykah Wilson has pleaded guilty to one charge of Causing Injury Intentionally to Jonathan Kanter on 4 May 2019, the maximum penalty being 10 years’ imprisonment, and to one summary charge of Commit Indictable Offence Whilst on Bail, with a maximum penalty of three months or 30 penalty units.
2Khale Scott has also pleaded following a sentencing indication to one charge of Causing Injury Intentionally to Mr Kanter on 4 May 2019, and to one summary charge of Commit Indictable Offence Whilst on Bail.
The Offending[1]
[1] Taken from Exhibit A: Summary of Prosecution Opening for Plea, dated 5 May 2022.
3The factual background is as follows. Wilson and Scott were friends who lived in Shepparton. In April 2019, now three years ago when each were in their late 20s, they were involved in the following acts of violence. Wilson and the complainant Mr Kanter were known to each other and had had disputes and physical confrontations in the then recent past but none of these had been reported to the police. Kanter lived in Shepparton.
4During the early hours of Saturday 4 May 2019, Wilson and Scott were at the Tudor House Motor Inn with a friend of Scott’s, namely Megan Travaskis. The co-accused walked into the gaming room of the Sherbourne Terrace Hotel before returning to the Motor Inn. Scott then asked Travaskis to drive him and Wilson to meet with Kanter and she agreed to do so. She drove both Scott and Wilson to Kanter’s home in her car. En route, Scott made it clear that he and Wilson were intent on assaulting Kanter and threatened to harm Travaskis and her family if she did not help them.
5Travaskis obliged and dropped them off at a vacant block of land near Kanter’s home. There, they hid behind a fence. Travaskis collected Kanter from his home, drove him to the vacant block and parked her vehicle in the driveway. As she did so, Wilson and Scott opened the front passenger door and began to assault Kanter as he was sitting in the car. Travaskis fled. Both punched Kanter repeatedly all over his body and Wilson said, ‘I told you I was going to get you.’
6While they were both punching Kanter, Wilson used a pocketknife to stab Kanter to the left side of his chest and to his leg. Scott got into the driver’s seat of the vehicle and told Kanter to get out.
WILSON and SCOTT
Charge 1 – Causing Injury Intentionally
WILSON RSO – Charge 5 – Commit Indictable Offence Whilst on Bail
SCOTT RSO – Charge 3 – Commit Indictable Offence Whilst on Bail
7Kanter got out of the vehicle. Wilson followed Kanter a part of the way home and threatened to kill him if he went to the Police. This is an uncharged act. Kanter left a significant blood trail all the way to his home, approximately 400 metres. When he arrived home, three of his friends were at the address. The friends provided first aid and Adams called triple zero.
8Police and ambulance members arrived a short time later and the victim was airlifted to The Royal Melbourne Hospital where he was stabilised and was found to have puncture wounds to the left side of his chest and his leg. His wounds were at least 3 centimetres deep and he was estimated by ambulance members to have lost about a litre of blood. He was discharged from hospital the following day, being 5 May 2019.
9Travaskis’ vehicle was located by Police later that afternoon and was towed away for examination.
Victim Impact
10There is no victim impact statement filed, though I can readily infer it would have been a terrifying and painful ordeal for him.
Arrest and Interview
11By way of arrest and interview, Scott was arrested at his home address in Shepparton on 6 May 2019 in relation to the assault. At that time, a search warrant was also executed at the address. He was interviewed under caution and declined to make any comment on the allegations. He was charged with armed robbery and injury charges. The armed robbery charge did not ultimately proceed.
12Months later, on 19 October 2019, Wilson was arrested in Melbourne in relation to the assault. He must have then known that there was a likelihood Police wished to speak to him. He was interviewed at the Melbourne West Police Station where he denied the allegations. Moreover, he stated he did not know either Scott or Kanter and was not present at the time of the assault of the latter. He too was charged with armed robbery and injury charges with the former allegations not persisted with by the Crown.
Case History
13The case history of this matter is of note. Wilson was remanded in custody on the date of his arrest. Following a committal hearing in early February 2020 when he was committed to stand trial, he made an offer to plead guilty to the present indictment as early as 24 February 2020. That is to say, more than two years ago. That offer was rejected. The matter was further case managed for more than a year and Wilson was ultimately granted bail on conditions on 9 April 2021 after serving 540 days in custody or just short of 18 months, most of which was during the pandemic.
14He demonstrated a capacity for and a commitment to reform on bail. The significance of this will be dealt with later in my reasons. Between the time he was bailed and the day of the plea, the matter had not been reached as a trial in the October 2021 circuit and was listed in the April 2022 circuit. The complainant moved overseas in the interim which created some difficulties for the prosecution advancing their case in this circuit.
15Finally, Wilson’s offer to plead was ultimately accepted. The matter proceeded before me as a plea on 10 May 2022.
16Scott on the other hand was remanded briefly for only 15 days before being bailed on 20 May 2019. He too was the subject of restrictive bail conditions. I will come to his conduct on bail in due course. It is sufficient to say here he has not only remained offence-free for close to three years, he has actually prospered.
17Scott too had offered to plead guilty to the charges he is presently facing some time ago. At the case conference on 16 March 2021, there were impediments to the matter resolving before now as the Crown was simply unwilling to move on the armed robbery allegation.
Matters Personal to the Accused
Wilson
18I will turn now to matters personal to each accused. With respect to Wilson, Ms Ballard on Mr Wilson’s behalf provided written submissions of a very high quality and spoke to them both articulately and persuasively.[2] Those submissions contain a comprehensive account of his personal history which I will summarise here. The submissions, I note, were also accompanied by a raft of materials in support of the plea which I have read and carefully considered.
[2] Exhibit RW-1: Defence Outline of Plea Submissions.
19Wilson was born in March of 1991. He was 28 at the time of the offending and is now 31. He is the only child of Rosemary Hutchinson and Raymond Wilson who separated when the accused was about 12 months old. His father was a drinker and was violent to the accused’s mother. Raymond Wilson died from cancer when Wilson was only eight years old. The pair were never close though. Mr Wilson used to visit his father on weekends.
20Rosemary Hutchinson raised her son in Shepparton and still lives in the area. She works in aged care. The accused speaks warmly of his mother and is close to her. She has continued to support him throughout these proceedings including by securing rental accommodation for him in Melbourne when he was granted bail. I note her presence in Court today at the time of the plea but not sentence. Her letter tendered in support of her son is genuine and meaningful. [3] Her presence in his life speaks well of his capacity to be reclaimed.
[3] Exhibit RW-7: Reference of Rosemary Hutchinson dated 9 May 2022.
21When Mr Wilson was young, his mother re-partnered first with Noel who also drank too much and was violent, and then with Rodney with whom she stayed with for many years. The pair separated about two years ago. Mr Wilson has a good relationship with Rodney and says he always treated his mother well.
Education and Employment
22Wilson attended Bourchier Street Primary School in Shepparton. He recalls that he was smart but lacked focus and did not enjoy school. He was suspended more than once for behavioural issues. He was a quiet child and says he did not know how to talk to people.
23Mr Wilson attended high school at Wanganui Park Secondary College. He excelled at maths and also did well in other subjects but struggled generally with motivation and academic pursuits. He had difficulty making connections and did not enjoy his education. As with primary school, he was suspended multiple times after getting into fights and eventually left school after finishing Year 10.
24After school, he completed a pre-apprenticeship in building and construction at the William Orr TAFE campus in Shepparton. He found he took to work quickly and was good at it. Since then, he has worked in that industry though there have been periods of interruption because of drug use and incarceration.
Substance Abuse and Forensic History
25Wilson experimented with cannabis as a teenager but the worst of his drug abuse did not take hold until he was in his early 20s after he had moved out of home. Over the years, methylamphetamine has marred his life. His substance abuse is reflected in his criminal history. He admits a number of prior Court appearances.
26At 28 years of age, he had accumulated an unenviable number of prior convictions. His prior history amounted to nine Court appearances in the 10 years between 2010 and 2020. That disclosed he had troubling history, a bit of personal violence, possession of illicit firearms or other weapons, drug use, drug trafficking, dishonesty matters and driving matters. He has twice been the recipient of sentences that involved a head sentence and a non-parole period as well as Community Corrections Orders (CCOs) and fines. He has previously breached parole, breached CCOs and breached bail.
27I note that the present offending was also committed while on bail for matters that were ultimately dealt with in a fairly benign manner in the Magistrates’ Court while he was remanded for this case. After the offending, Wilson travelled to Melbourne and stayed there working. He was apprehended by Police in 2019 and no doubt due in part to his prior criminal history, remanded in custody for a significant period of time.
Relevant Matters Post Offence
28Post-offence events take a real prominence in this case. At the heart of the matters relied on in mitigation for Wilson is the remarkable progress he has made since being bailed. Having spent close to 18 months in custody in the onerous conditions of custody during the pandemic, he was bailed on conditions in April 2021 and enjoyed the support and guidance of the CISP program. He engaged in a genuine and determined manner and formed a good relationship with his case worker. [4]
[4] Exhibit RW-2: Combined Document of CISP Reports (April – September 2021).
29He was assessed by Neuropsychologist Dr Loretta Evans in 2021. This referral was made through the CISP program. While Evans recommends mental health intervention in the future, she noted his excellent reasoning and insight and opined that his level of awareness and insight together with realistic goals for change and alleged willingness to access supports impressed as positive factors for change. [5]
[5] Exhibit RW-3: Neuropsychological Report of Dr Loretta Evans, dated 14 September 2021 at [21] and [23].
30He was successfully exited from CISP in September 2021. He is now living in St Kilda in a private rental apartment. His mother secured this rental for him on his release, and he pays the rent. He has worked as much as possible while on bail including spending a period working in South Australia. [6]
[6] Exhibit RW-5: Urathane Solutions Letter dated 23 June 2021.
31Most recently, he secured an apprenticeship with Keon Constructions.[7] He is working full-time and focused on moving forward with his career in the building industry. He has remained abstinent from drugs since his release in 2021. He has developed insight into drug use and offending behaviour.
[7] Exhibit RW-4: Keon Construction Letter of Offer dated 11 March 2022.
32These pro-social matters are more than encouraging. The community is best protected in the long term by the reclamation and reform of offenders. I will turn to this important feature of both accused’s circumstances later.
Scott
33With respect to Mr Scott, I was greatly assisted by the written outlined furnished by Mr Pyne on the sentencing indication application[8] supplemented by oral submissions.
[8] Exhibit KS-1: Defence Outline of Submissions dated 6 May 2022.
34The accused is now 31 years of age and was 28 at the time of the offending. He is an Indigenous man raised locally for a time until his family had to move interstate to avoid the violence visited upon his mother by his father. He endured a childhood and adolescence of dislocation and unease because of this. He is educated to a Year 9 level. He had a number of starts by way of courses preparing him for trades but did not appear to complete any. It was around at this time in his late teens and early 20s that he came to the attention of Police for street level disruptive and anti-social offending before committing more serious offences.
35He currently lives with his partner, Coby, and their two children. He has two children from a previous relationship to whom he now has access. I emphasise that this is a recent phenomenon achieved by him demonstrating that he is free of illicit substances and otherwise stable in his life. This is a testament to his efforts to reform. To add to this, he has taken a young nephew who is impressionable and vulnerable under his wing and into his home. These are real signs of maturation and progress.
36He attends the gym regularly. He continues to train with his grandfather Gary Scott. There is a real significance to this. I will come to the sporting achievement that resulted from this training in a moment. But more importantly though, this activity evidences a measure of self-care, an interest in self-improvement and discipline. These are necessary qualities for an individual to possess in order to reform.
37He is currently employed full-time at Dahlsens in Shepparton. This work gives him purpose, structure, personal pride and an income. The brief reference from his employer speaks of his work ethic and ability to get along with others as part of the team.[9]
[9] Exhibit KS-6: Reference of Charlie Goodger, Dahlsens Building Centres.
38At the time of the offending, I am told he was caught in a cycle of drug use, breaching Court orders and offending. He too was on bail at the time of the present matter before me.
39Scott, though close to the same age as Wilson, does not admit the same kind of prior criminal history as his co-offender. He has comparatively minor matters in 2013 for violence for which he was fined and placed on a modest CCO which he breached. He had later matters that were criminal damage, handling, driving and drug-related matters. He has breached a number of orders but had never been imprisoned before, let alone had sentences of the magnitude Wilson had endured before.
40As I remarked to his counsel during the plea, at the time of this offending, he was a particularly poor candidate for a supervisory order of any kind. Nothing could be further from the truth now.
Relevant Matters Post Offence
41It is fair to say that being placed on bail with the assistance of both CISP and Rumbalara for alcohol and other drug supports changed his life for the better. His final CISP report dated 6 September 2019 indicates he attended all appointments and presented as motivated to change and proactive in his recovery.[10] He engaged positively with all aspects of the Rumbalara program.[11]
[10] Exhibit KS-2: CISP Final Report, dated 6 September 2019.
[11] Exhibit KS-5: Reference from Lynne MacDougall.
42The accused is an amateur boxer and during the time that he was training, he returned to train with Dale Murphy in Shepparton.[12] On 28 March 2021, the accused won the Lionel Rose Cup.[13] He obtained employment in July 2019 at KB Chippery[14] and he is now employed in the manner I noted above at Dahlsens.
[12] Exhibit KS-3: Reference of Dale Murphy dated 16 February 2021.
[13] Exhibit KS-7: Shepparton News Article dated 8 April 2021.
[14] Exhibit KS-4: Reference of Kylie and Brendan Wileman dated 9 September 2019.
43The accused’s outstanding matters were dealt with in the Koori Magistrates’ Court at Shepparton on 14 May 2021. He was released on a CCO which he has completed which involved 50 hours of community work, an episode of drug counselling, a psychoeducational workshop called Links, and urine screening throughout the order all of which were negative.
44The accused has one outstanding matter which I am told I contested and is listed for mention at the Shepparton Magistrates’ Court on 24 June 2022. This allegation arises from around the same period as the present matter before me. He has no other pending matters. No matters have arisen since he was granted bail except for minor matters that were dealt with by way of infringement notices.
45I will turn now to this serious offending. Counsel for both Wilson and Scott conceded it was as much. Conduct of both of you is deplorable and worthy of strong condemnation. It is said that this matter could have been dealt with in a court of summary jurisdiction. That much is arguable. It has obvious aspects of planning and was a serious episode of unjustified violence using a weapon. Two men, one of them armed, attacked one man who was neither armed or prepared for the confrontation. They lay in wait for him to attack him as he was vulnerable, alone and at night.
46I accept it was Wilson’s grievance with Kanter that drove this offending. And it was of course Wilson that stabbed Kanter in the way after I have described. But Scott was the one who asked Trevaskis to drive he and Wilson to Kanter’s, and it was Scott who made it clear to Trevaskis why they were driving to Kanter’s – namely to assault him. And it was Scott who threatened that Trevaskis would be harmed if she did not help him and Wilson.
47Both men physically attacked him. Wilson stabbed Kanter not just in the leg but in the chest cavity. This is self-evidently an inherently dangerous thing to do. The victim lost close to a litre of blood.
48The plea against Scott is put in the following way. He had an intention to assault the victim but this intention did not extend to an agreement to use a knife. It is accepted that the co-accused namely Wilson’s use of the knife elevates the seriousness of the matter significantly. Scott was ‘involved in the commission of the offence of intentionally causing injury within the meaning of s323(1) of the Crimes Act’. That is the co-accused Wilson stabbed the complainant and caused the injury. The accused was present and assisted in the commission of the offence, namely the assault, aware of a probability that Wilson would intentionally injure the complainant.
49Unsatisfied with causing injury to him, Wilson told an injured Kanter he would be followed home and killed if he went to the police. That the physical injuries were not more severe is miraculous. The victim required medical attention in Melbourne. His wounds were sutured, and he was prescribed anti-biotics. He was released after an overnight stay in hospital and was expected to make a full recovery.
50I can as I have already said readily infer this was a terrifying episode and it would be a remarkably resilient individual who did not have some ongoing sense of fear and upset following such an attack.
Matters of Principle
The Offending
51I will turn now to matters of principle. To be clear and to reinforce what I have just said, I wish to emphasise the gravity of the offending and the culpability of both accused by noting that:
(a) the offender’s plan was to inflict injury on the victim;
(b) one was armed in order to do so;
(c) the injuries combined were caused by the use of a knife, an item which is extremely dangerous and capable of causing both serious injury or death;
(d) the victim was vulnerable;
(e) the accused were in company with one another;
(f) the weapon was actually used more than once with one stab wound in a particularly vulnerable part of the body;
(g) once injured and bleeding, he was not assisted by an ambulance being called or any other matter, rather he was further threatened;
(h) all of this occurred in a public place.
52Offending such as this strikes fear in the minds and hearts of not just the immediate victims but the community more generally. Members of the community should not have to worry that they might be assaulted in an episode of mindless violence like this. The community has a justifiable expectation that such offending will be triggered very seriously.
53The consequence for engaging in such serious criminality must be that any like-minded members of the community who are contemplating behaving this way, or in a similar fashion, will pause to contemplate whether the potential satisfaction in settling grievances like this are worth the risks of being caught and punished. By appropriately punishing such conduct, the Court is, on behalf of the community, seeking to denounce it and in doing so it vindicates the values of that community.
54It is rightly conceded by both counsel that general deterrence, denunciation and just punishment all have significance in the formulation of an appropriate sentence. These principles are relevant in that the sentence must convey to others that violence of this nature will simply not be tolerated.
55You must be justly punished for the criminal conduct in which you engaged. Punishment though takes different forms. Prison is an obvious means though one of last resort. In other circumstances, especially after a significant delay between offence and sentence, there are other punitive dispositions available to this court to achieve this sentencing objective. Indeed, had this matter been dealt with at a time closer to the offending itself, the outcome would have involved long prison sentences for both of you.
56The community needs to be protected from offenders who engage in this kind of behaviour. In a similar vein to what I have just said, that protection can sometimes involve the confinement of a person for a significant period of time. In other cases, the protection of the community may be best achieved by lengthy supervision and fostering conditions whereby an offender can be reformed. Sometimes protection is achieved by way of a combination of both.
57Allied of course to the importance of protecting the community are sentencing considerations such as specific deterrence and prospects for reform. In this case, I have been presented with undeniable evidence of reform for both accused over substantial periods of time that is impossible to ignore.
58None of that means that these accused can offend with impunity but rather the sentences imposed by me are required to reflect each man’s capacity to be reclaimed and consider, in one case, the punishment already endured and in another, a means to punish him without recourse to the extreme measure of prison.
59As far as Wilson is concerned, the following matters in mitigation are highlighted in support of the proposition that his prospects for reform are excellent:
(a) the length of time since the offending;
(b) the lack of subsequent matters;
(c) compliance with bail conditions;
(d) positive engagement with CISP;
(e) ongoing employment;
(f) stable accommodation; and
(g) supportive family.
60I cannot necessarily agree with the categorisation of his prospects as excellent. They are strong, perhaps even quite strong. But in the course of his life, these positive gains are relatively recent, occurring as they have over the past 12 months or so. I consider there is still work to be done by Wilson in this regard.
61In a similar vein, I am urged by Mr Pyne to give significant weight to the delay in this case, producing as it has nothing but reform, namely:
(a) the accused is drug-free;
(b) he has been at large for three years;
(c) he is meaningfully employed;
(d) he is well-involved in pro-social activities;
(e) he is family-oriented;
(f) he is receptive to and amenable to treatment as evidenced by his progress both on bail and his completion of a CCO.
62The accused submits that this is powerful evidence of rehabilitation. The accused has substantially rehabilitated himself. He submits that in this context, the accused has used the delay very productively. He submits the court should treat it as a powerful mitigating factor in the context of this case. I agree.
63The Court of Appeal considered the impact of delay in R v Merrett.[15] The Court held there that delay could be a powerful mitigating factor particularly as it focused attention on rehabilitation and fairness.[16] The delay in that case between offending and sentence was five years. The mitigating does not apply mechanically. The weight to be given to delay depends on the context of the case.[17]
[15] (2007) 14 VR 392.
[16] Ibid, 400 [35]-[36] (Maxwell P, Chernov JA and Habersberger AJA agreeing).
[17]Col Thornton v The Queen [2021] VSCA 325, [20].
64This accused would be sentenced almost exactly three years after the date of the offence. It is not submitted that there is the unfairness in the way that the matter has been prosecuted in the same way that that was alleged in Merrett. Although this matter proceeded to a contested committal, it is submitted on behalf of both accused that this is a plea at the earliest reasonable opportunity.
65I have noted the different stages at which each accused offered to plead guilty. Wilson offered to plead guilty as early as February 2020 where Scott first raised that issue a full year later.
66More than that, Wilson never wavered from his plea offer even after it became clear that the Crown might have an issue securing the complainant Kanter’s attendance at court. Scott sought a sentencing indication before committing to a course. While it is important that this matter resolve, I do not necessarily give the pleas equal weight.
67Scott claims the plea would be in the face of a weak prosecution case that depended mostly on a compromised witness. He submits the complainant Kanter gave poor quality, often self-serving, evidence at committal. He has a substantial criminal history and, by his own admission, was dealing drugs at the time of the alleged offending. His additional statement regarding whether he withdrew money from an ATM (about which he was questioned at committal) or got the money from ‘playing the pokies’ is unconvincing.[18] The statement of Jade Ponting to the effect that Mr Kanter admitted lying to the police about a robbery further damages the credibility of his statutory declarations and committal evidence.[19] Put simply, Counsel for Scott says this is a case about which a jury might be likely to have a doubt. I take this in account.
[18] Statement of Jonathan Kanter dated 9 October 2020 (Notice of Additional Evidence 7 December 2020).
[19] Statement of Jade Ponting dated 26 September 2020.
68The complainant was overseas by the time this matter was to be heard as a trial and might have presented some obstacles for the Crown in proving their case against both accused. His importance as a witness though was diminished once Wilson pleaded guilty and was technically available to give evidence against Scott.
69Each accused was facing more serious charges and the prosecution’s bottom line involved a plea of guilty to armed robbery in addition to the charge of intentionally causing injury. Each accused has long maintained he would enter a plea of guilty to the precise charges now before the Court.
70By resolving this matter, the accused has spared the complainant, who has since left the jurisdiction, and other witnesses from giving evidence and being cross-examined at trial. This is no small matter.
71By their pleas, each have acknowledged their wrongdoing and demonstrated a willingness to facilitate the course of justice. The pleas plea is of real utilitarian value to the Court – especially in the context of the COVID-19 pandemic, as observed in Worboyes v The Queen:[20]
A plea of guilty entered during the currency of the COVID-19 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 another time… [the sentencing judge] must ensure that the plea of guilty results in a perceptible amelioration of sentence.
[20] [2021] VSCA 169, [39]. See also DPP v Bourke [2020] VSC 130 at [32]; Chenhall v The Queen [2021] VSCA 175, at [34]–[35].
72Each plea in my view warrants a significant moderation of the sentence to be imposed, though I repeat I do not value the pleas in quite the same way.
73In the case of Wilson, he spent nearly 18 months in custody, the bulk of which was during the pandemic. By March 2020, Corrections took steps to protect the prison system from the outbreaks of the disease. Those protective measures negatively impacted detainees and increased the burden of imprisonment.
74As Ms Ballard notes in her submissions examples of the impact of the pandemic on correctional facilities include:
(a) generally making time in custody very difficult and/or significantly more difficult than usual for all prisoners;[21]
[21]Re Diab [2020] VSC 196, [38] (Diab); DPP(Cth) v Stanley (a pseudonym) 2020 VCC 898, [63] (Stanley).
(b) creating greater isolation for prisoners by restrictions on face-to-face visits;[22]
(c) reducing access to education and programs for prisoners;[23]
(d) the increased burden caused by lockdowns;[24]
(e) infection ‘scares’ occurring at various prisons;[25]
(f) the increased anxiety arising from concern as to contracting the virus in prison;[26]
(g) the inability of prisoners to protect themselves from exposure by avoiding areas of concern or distancing themselves from others;[27]
(h) the fact that the risk in prison of contracting the virus is far higher than in a person’s home;[28]
(i) the fact of the 14 day period of isolation for all new prisoners;[29]
(j) increasing the fear and concern, both for family members and by them;[30] and
(k) making the plea of guilty of greater utilitarian benefit.[31]
[22] Diab, [38]; Stanley, [63]; DPP v Sulieman & Mahmoud [2020] VCC 454, [81]–[88] (Sulieman); DPP v Teplin [2020] VCC 846, [44] (Teplin); DPP v Williams & Anor [2020] VCC 739, [75] (Williams); DPP v Barnfield [2020] VCC 631, [42]; DPP v Hoblos [2020] VCC 720, [121] (Hoblos).
[23]Diab, [38]; Stanley, [63]; Teplin, [44]; DPP v Vu [2020] VCC 775, [27]; Hoblos, [121].
[24] DPP v Zampatti [2020] VCC 628, [59]-[67] (Zampatti); DPP v Bietman [2020] VCC 894, [63]; Teplin, [44]; Williams, [75].
[25]Stanley, [63]; DPP v Danci [2020] VCC 575, [55].
[26]Zampatti, [59]–[67]; Teplin, [44].
[27] Zampatti, [59]–[67]; DPP v Noble [2020] VCC 600, [50] (Noble); Hoblos, [121].
[28]DPP v Lang [2020] VCC 759, [117]; Noble, [51].
[29]Zampatti, [59]–[67]; Sulieman, [81]–[88].
[30] DPP v Osman [2020] VCC 638, [87]; Sulieman, [81]–[88]; DPP v McInnes [2020] VSC 799, [35]; DPP v Vu [2020] VCC 775, [27].
[31]Teplin, [43]; DPP v Barnfield [2020] VCC 631, [41].
75Specifically, Wilson was unbale to receive visits from his family for most of the time on remand. He is very close to his mother and she would have otherwise visited him face to face.
76The pandemic operated to make Wilson’s time in custody more burdensome than it otherwise would have been. I accept that there has not been a more difficult time to be a prisoner or remandee in this State than it has been in the last two years. Mr Wilson experienced 18 months of this. I query the utility of returning him to there now. The sentence I impose will reflect this additional burden of imprisonment that he has already served.
Bail Breaches
77The breach of bail charge is troubling for each accused. The charges the subject of the indictment were committed whilst they were on bail for other offences. The fact that each of you committed those matters on bail is relevant although care must be taken to avoid any risk of double punishment as between these offences and the related summary offence of commit indictable offence on bail.
78The summary offences for current sentencing purposes essentially involves your preparedness to willingly defy a court order which granted you conditional liberty on the basis you would not commit any further offences. Additionally, pursuant to s16(3)(c) of the Sentencing Act, any term of imprisonment imposed for an offence committed on bail must be unless otherwise ordered served cumulatively upon any other sentence of imprisonment imposed on you.
79In the context of this offence, I repeat you are not to be punished twice or additionally for the conduct the subject of the indictment and I do not propose to fall into that error. I propose to give you a sentence that is to run concurrently with other sentences on this charge, particularly given I have treated your offending on bail as a feature that elevates the seriousness of that other offending.
Parity
80The accused played different roles in this offending, and although Wilson stabbed the victim, Scott was nothing other than a willing accomplice in the general plan to assault him and cause him injury. There is a basis to distinguish the sentences I impose for the reasons I have just articulated.
81Each accused had a different path through the criminal justice system, largely reflective of their respective prior criminal histories I suspect. Wilson remained in custody for 18 months in extremely punitive conditions whereas Scott did not. The punitive aspects of a sentence have effectively been met in Wilson’s case though they have not yet been made in Scott’s.
82Scott seized his opportunity to reform on bail for three years now. This is an astonishingly long period of time to wait for finality in a case and during that extended time, he has not put a foot wrong. Wilson demonstrated real promise once he was given that same opportunity.
83As far as I am concerned, I can properly balance all sentencing considerations noting that they often pull in different directions by acquiescing to the sentencing submissions so sensibly and forcefully made by counsel on behalf of each accused.
Submissions on Disposition
Wilson
84On behalf of Wilson, it was accepted that he faces a term of imprisonment for this offending, however, it was submitted that the matters set out above must operate to significantly operate the sentence imposed.
85There is good reason to be optimistic that Mr Wilson can permanently reform and lead a productive life in the community. His rehabilitation thus far is to his credit and must inform this sentencing exercise. To that end, it was submitted I need not progress to enforce ongoing supervision of him by way of a CCO.
86I query if Wilson is really out of the woods yet. After a decade of serious and persistent offending, his progress on bail is still in its relatively early stages. I am not inclined to impose a straight sentence, nor am I inclined to burden him with an undue number of programs and employment. I simply want him to be supervised for a further period of time to monitor his progress. I have specific regard to the comments made by Ms Evans when she very sensibly advocates for mental health treatment in his future.
Scott
87Scott says this offending though clearly serious can be dealt with by a disposition other than a term of imprisonment. The matters in mitigation are powerful. The accused is simply not the person he was when this incident took place. He is free from drugs. He has a stable residence. He is employed. He has personal goals toward which he is working. He has completed two rehabilitative court orders, CISP bail and a CCO since this offending. It is difficult in that context to see what a further therapeutic CCO would achieve.
88The accused submits that this matter can be dealt with by way of a work-only CCO. The court can have a reasonable expectation that the work will be completed because that is what has happened on the last occasion. The accused has the stability in his life to juggle the demands of his job, his training, his family and his obligations to this court. In the unique circumstances of this case including the different role of the accused, delay and his uncommonly successful efforts at rehabilitation, he submits that such a disposition can achieve the purposes of sentencing.
Crown Position
89Mr Teo says that I am required to impose a head sentence and non-parole period on Wilson. That is understandably said because of the gravity of the offending, and the accused’s prior convictions. I would find this a more compelling submission if Wilson was still in custody and had not yet had a year’s worth of genuine reform under his belt now, by the time of sentence.
90The forensic reality is now that he is out leading a productive and industrious life which would inevitably require him to return to prison before being assessed as suitable or otherwise for parole is not an attractive prospect. I am not convinced that such a course would legitimately further the required sentencing purposes to which I am to have regard. The Crown submit that the appropriate penalty is a combination sentence. For Scott, that is some time to be served in custody followed by a CCO.
Conclusion and Sentence
Wilson
91I have come to the following conclusions in this case. I am of the view because of the mitigating factors in the case I am justified in posing a combination sentence involving time served in the CCO to commence immediately for Wilson. The quality and cumulative effects of the matters relied on in the plea fortify my conclusion that such a penalty is both open and appropriate. A CCO whether standalone or in combination with a term of imprisonment can in certain circumstances be an appropriate sentence to impose, even for serious offending.
92In my view, having regard to the principles established in Boulton, this is such a case provided the right scaffolding can be placed around the accused to continue and guide his reform. To that end, I had Wilson assessed for a CCO. I have received that report. He was assessed as a person who presented still as a medium risk of reoffending but who was motivated to improve their life and very much amenable to supervision and treatment.
93He was assessed as suitable for a CCO with the types of conditions that I am about to outline. It is worth emphasising as part of the CCO process he was assessed as being a candidate for offender specific programs. There was also perceived need to maintain a condition for him to receive assessment and treatment for drug use given his history. Finally, he was suitable for mental health assistance. I will deal with the conditions in a moment.
94Balancing and weighing all sentencing considerations, I arrive at the following conclusion. Can you please stand up, Mr Wilson?
95On all charges, you are convicted and sentenced to one year and five months in custody followed by a nine-month community corrections order. That community corrections order will only have supervision and mental health treatment as the specific conditions I impose.
96I declare 540 days, namely one year, five months and 23 days, as having been reckoned as served as the custodial component of this custodial sentence.
97Every community corrections order including this one contains certain conditions. They are:
(a) you must not commit another offence punishable by imprisonment during the period of the order;
(b) you must comply with any obligation or requirement prescribed by the regulations;
(c) you must report to or receive visits from the Secretary during the period of the order;
(d) you must report to the Melbourne Community Corrections Services within two working days of the commencement of the order;
(e) you must notify the Secretary of any change of address or employment within two working days of that change;
(f) you must not leave the State of Victoria except with the permission of the Secretary; and
(g) you must comply with any direction given the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
98There are conditions that impose in addition to those core conditions and there are only two:
(a) you are to be the subject of supervision by the officers of Corrections and
(b) you must accept and receive mental health treatment as directed.
99You need to understand, Mr Wilson, if you were to breach this order in any way by committing any further offences or not complying with any of the core conditions or special conditions, you could be charged with breaching the order. The offence of breaching a CCO itself carries a maximum penalty of three months’ imprisonment. So were you to breach the order, you would need to come back to court and be sentenced for the breach offence. You would also then be re-sentenced by me for these offences that I have just dealt with.
100Mr Wilson, I strongly advise that you would not want that to happen.
101Pursuant to s18 of the Sentencing Act, I declare that you have served a total of 540 days’ pre-sentence detention not including today’s date in respect of the sentence that I have just imposed. I order that such period is reckoned as already served under the sentence and I further add that the declaration and its details be entered into the records of the court.
102Before I impose the community corrections order aspect of this combination sentence, I can only do so if your client consents, Ms Ballard. I can give you this indication, Mr Wilson. Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty to the charges before me I would have sentenced you to a total effective sentence of four years and I would have set a non-parole period of two years and eight months. You can take a seat.
Scott
103In the case of Scott, it is inescapable that as a matter of common sense, you would have considered the remarkable progress made under the auspices of CISP and Rumbalara to stand in place of a therapeutic component of the CCO. I will accede to the request made by counsel to this extent, but there will be a substantial work component and supervision component of a CCO that I impose.
104The CCO assessment report confirms that you are still a medium risk of reoffending but you are familiar with your obligations on a CCO and are amenable to such an order. The assessor makes the following recommendation though. You may still benefit from supervision or programs designed to reduce the risk of reoffending.
105After carefully considering, balancing and weighing the relevant sentencing considerations as best I can, I have decided to convict you on each charge and providing you consent, I will place on you an 18-month community corrections order. Can you please stand up, Mr Scott? The core conditions are like those imposed on Mr Wilson:
(a) you must not commit another offence punishable by imprisonment during the period of the order;
(b) you must comply with any obligation or requirement prescribed by the regulations;
(c) you must report to or receive visits from, the Secretary during the period of the order;
(d) you must report to Shepparton Community Correctional Services within two working days of the commencement of this order;
(e) you must notify the Secretary of any change of address or employment within two working days after that change;
(f) you must not leave the state of Victoria, except with the permission of the Secretary; and
(g) you must comply with any direction given by the Secretary that is necessary for the Secretary to give, to ensure that you comply with the order.
106There are special conditions in your case too:
(a) you are to be the subject of supervision by the Office of Corrections;
(b) you are to engage in programs designed to reduce your risk of reoffending;
(c) you are required to complete 150 hours of community work over the duration of that order.
107But I add this, I am prepared to incentivise your engagement in programs by deducting 30 hours of treatment from the community work component. That is if you engage in 30 hours of courses, that comes off the 150 hours of community work.
108You too need to understand that if you were to breach this order in any way, you would be brought back before me to be resentenced. If I were you, I would do everything humanly possible to avoid that possibility. Take a seat.
109Mr Pyne, I am declining to make a declaration of the 15 days that your client already served. I have not imposed a combination sentence and I have used those 15 days to inform the penalty that I ultimately impose.
110MR PYNE: As the Court pleases.
111HIS HONOUR: Pursuant to s6AAA of the Sentencing Act, I can give the following indication to Mr Scott. But for his plea, I would have sentenced him to a total effective sentence of three years and I would have set a non-parole period of 20 months. If I have missed something or overstated or not made something clear, please tell me now.
112MR TEO: Just to confirm, Your Honour, those are both aggregate sentences for both the indictable charge and the related summary offence?
113HIS HONOUR: Correct. Ms Ballard?
114MS BALLARD: Nothing from me, Your Honour.
115HIS HONOUR: Mr Pyne?
116MR PYNE: Nothing, Your Honour. As the Court pleases.
117HIS HONOUR: I just want to let it be known this is an unusual case and in other circumstances, people who commit offences of this kind would not expect to receive the kind of sentences that you have just received, gentlemen. That being said, I wish you all the luck that your recent history suggests that you are capable of real reform. And I genuinely hope I do not need to see you again. I will remain on the Bench then if you need me to sign the orders. Otherwise, the orders will be provided to you to review. I will just leave the Bench while you print the orders out. Just bear with us. Thanks.
(Short adjournment.)
118HIS HONOUR: Are counsel satisfied that the orders reflect my reasons and my intention?
119MS BALLARD: Yes, Your Honour.
120HIS HONOUR: I am too. Just wanted to ‑ ‑ ‑
121MR PYNE: Yes, Your Honour.
122HIS HONOUR: All right. Yes, that is signed. Thanks for your considerable assistance and patience today. I am glad that it is concluded for all parties. If there are no other orders to be made, I will leave the Bench.
123MS BALLARD: As Your Honour pleases.
124MR PYNE: As Your Honour pleases.
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