Director of Public Prosecutions v Wilson
[2018] VCC 205
•2 March 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTIONCR 17-02536
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRAVIS WILSON |
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| JUDGE: | HIS HONOUR JUDGE HICKS |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 2 March 2018 |
| CASE MAY BE CITED AS: | DPP v Wilson |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 205 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Moran | |
| For the Accused | Ms M. Foley |
1HIS HONOUR:
2 Travis James Wilson, you have pleaded guilty to two charges of false imprisonment and one summary charge of contravene a Family Violence Interim Intervention Order.
3 The maximum penalty for false imprisonment is 10 years’ imprisonment and the maximum penalty for contravene a Family Violence Interim Intervention Order (the Intervention Order) is two years’ imprisonment.
4 You have admitted prior convictions.
5 The circumstances surrounding these offences are set out in the Crown Opening tendered before me (Exhibit 1), and I shall not repeat those facts here.
6 Suffice to say that you had been in a de facto relationship with the victim in this matter since 2014. You had a child from this relationship, Mason Wilson, born on 5 December 2015.
7 At the time of this incident, you had separated from your victim.
8 Your victim had made an application to the Geelong Magistrates’ Court for a Family Violence Intervention Order against you, which was granted on 11 April 2017 with the condition that you must not attend at your victim’s address.
9 On 9 June 2017, approximately only two months after the granting of the intervention order against you, you breached such order by attending at your victim’s address.
10 On 9 June 2017 at approximately 11:30am your victim had just pulled into her driveway and was fiddling around in her car getting her phone from the charger. The keys to her car were still in the ignition, the radio was playing and the engine was turned off. Your young son, Mason, was in the rear seat in a child restraint.
11 Your victim suddenly noticed you appear from nowhere and get into the front passenger seat of her car. Your victim became scared. You told your victim to start the car and drive. You appeared angry.
12 Charge 1, your de facto partner and Charge 2, your young son, Mason.
13 Your victim asked you to calm down due, in particular, to the presence of your son. Your victim did not want her son to become scared.
14 You then demanded that your victim drive to the Geelong Ring Road and then go to Werribee. You were in an agitated state and took your victim’s phone and wallet from her.
15 Your victim did as you directed. However as the victim drove her car along the Princess Highway towards Melbourne she came to the Lara exit. Your victim turned off at that exit and towards Lara, as she was of the view that as her family resided in the area she may be able to get help.
16 As soon as your victim took the Lara exit, you pulled out a knife and said to her “I’m going to slash your face up”. Your victim became extremely scared, as your behaviour was becoming more erratic.
17 Your victim then drove into an APCO Service Station to get help. She attempted to flee the vehicle, but you got hold of the collar of her jumper and held her tightly, pulled her back and made her close the door of the vehicle. The whole time you were yelling at your victim.
18 You demanded that she drive away from the APCO Service Station and drive to a different location.
19 Your victim then drove out of the APCO Service Station and drove into the Lara Shopping Centre. She parked the car in the carpark of the shopping centre and tried to get help and flee, but you grabbed hold of her jumper and ripped it.
20 Your victim though was able to get out of the car, and then open the back driver’s door in an attempt to get Mason out of his car seat. She then unbuckled Mason’s safety seat.
21 You, at this stage, got out of the vehicle and pulled your victim away from the back door by her jumper. You then got back into the vehicle and drove it out of the carpark at a fast rate of speed, with Mason unrestrained in the back seat.
22 At this stage it was approximately a little after 12.15 pm. You had initially attended your victim’s premises at approximately 11:30 am.
23 Your victim was able to get help and police were notified.
24 Police Air Wing were able to track you in your partner’s vehicle travelling on the Princes Highway and a highway patrol unit was then organised to intercept you. You were subsequently arrested by police. You were taken out of the car by police who noticed that Mason was now restrained. The car was searched and the knife was found.
25 You made a “no comment” record of interview with the police.
26 I state to you that I have taken into account the following matters in your favour in mitigation of sentence:
27 1. Your pleas of guilty.I n my opinion, you are entitled to a significant discount by way of mitigation of sentence due to your early pleas of guilty, including their utilitarian impact.
28 2. Remorse. You do have a number of relevant prior convictions for assaults and breaching intervention orders. However, I am prepared to find that you have shown, by your pleas of guilty, some remorse for your actions.
29 3. Your personal circumstances. Your personal circumstances are largely set out in the report of Mr Jeffrey Cummins, consultant clinical and forensic psychologist, dated 12 February 2018, and also contained within defence counsel’s written submissions. I shall not repeat those facts here.
30 Suffice to say you are now 29 years of age. You live with your father and are currently unemployed. You have four children: three from a previous relationship and one with the victim in this matter.
31 When you were five years of age your parents separated, and you continued to live with your mother and sister.
32 During your childhood you would see your father several times a week, and have maintained an amicable relationship with him.
33 When you were approximately 13 to 14 years of age you started using cannabis, and were regularly using cannabis by the age of 15.
34 You made two attempts to complete Year 11, but due to your cannabis use you were unable to complete Year 11. After leaving school you were unemployed for a period of approximately two years, but eventually obtained work at an abattoir in Corio where you worked until you were approximately 25 years of age. During this time you formed a relationship with your previous partner, Tamika Marks and had three children from this relationship.
35 After several years that relationship broke down and your partner took out an intervention order out against you, which you breached.
36 After leaving your employment at the abattoir you got some work as a truck driver.
37 In approximately 2013 you made significant efforts to get yourself off cannabis, which to your credit you successfully did.
38 In approximately 2014 you formed a relationship with the victim in this matter. The relationship with your victim was a troubled one though and was somewhat of an on and off relationship.
39 When it ended, your victim took out an intervention order against you. The intervention order was made on 11 April 2017 at the Geelong Magistrates’ Court.
40 I accept, by way of background, that you had a falling out with your mother and sister involving a matter of inheritance, but that matter has now been resolved.
41 You are currently unemployed.
42 You are hopeful that you may get work with a friend of yours who is a plaster hanger.
43 You have reached an arrangement with your victim that you are still allowed, with supervision from other family members, to see your son Mason. It is an ad hoc arrangement.
44 I note in Mr Cummins’ report that you stated to him that you would agree to attend anger management. I note, however, from previous community corrections orders that you have been ordered to participate in programs relating to your offending behaviour. You expressed to Mr Cummins remorse for your offending. Mr Cummins was of the opinion that you have unresolved attachment issues reflective of your parents’ separation when you were aged five. Mr Cummins was of the opinion that at the time of your offending you were suffering from a recurrent major depressive disorder, moderate in type, and associated with anxious distress.
45 I note that your counsel, Mr Fitzgerald, in a thorough and professional plea before me, stated he was not relying upon any principles in the well-known case of Verdins.
46 4. Your prospects of rehabilitation. In my opinion your prospects of rehabilitation are somewhat cloudy. You have significant relevant prior convictions. You have three prior convictions for unlawful assault. You have five prior convictions for breaching previous intervention orders made against you. These include a wide range of victims, from your mother, to your first partner and to the victim before me.
47 You have a history of breaching intervention orders made by the courts.
48 You have received community correction orders in the past. You still though continue to offend as is the case in the offences before me.
49 I note you do have support of family and friends, but as Mr Fitzgerald, your counsel, acknowledged, despite such support you have gone out and committed the offences before me.
50 I accept as a credit to yourself that you managed to get yourself off cannabis, but, again, despite that, you have committed the offences before me.
51 As I said, you have now committed five breaches of intervention orders made by the courts and this is the second time now that you have breached an intervention order that has concerned a domestic partner.
52 I note a friend of yours was in court to support you and provided a letter of support for you.
53 Though your prospects of rehabilitation are somewhat cloudy, I am still prepared to find that you still do possess some prospects of rehabilitation. You are still relatively young.
54 Against these matters in mitigation however is that you committed serious crimes. False imprisonment carries a maximum penalty of 10 years’ imprisonment, and contravene a Family Violence Interim Intervention Order carries a maximum penalty of two years’ imprisonment.
55 In my opinion, denunciation, general deterrence, and specific deterrence, all have their part to play in this sentencing exercise.
56 As the courts have stressed time and again that where domestic violence is involved, general deterrence must have a real part to play in the sentencing exercise. Due to your continual breaching of court intervention orders, specific deterrence must also have its part to play in the sentencing exercise.
57 I am satisfied beyond reasonable doubt that there are two aggravating factors present in sentencing you with respect to Charges 1 and 2 on the indictment. Your defence Counsel agreed with such a finding.
58 First, you used a weapon during this episode: namely, a knife and secondly, it is an aggravating circumstance that you committed the offences before me in breach of an intervention order granted by the Magistrates’ Court in Geelong on 11 April 2017.
59 A victim impact statement was read out to the court. It speaks eloquently and powerfully of the ongoing trauma that you have caused your victim in this matter.
60 I am satisfied beyond reasonable doubt that your victim would have been put in great fear, not only by fear for her own safety but for that of her young child, during this episode.
61 Though the three charges before me, being the two on the indictment and the one summary charge evolve out of the one incident, in my opinion it is appropriate to at least recognise in the sentencing process that two people, not just one, were falsely imprisoned, and that you breached also an intervention order.
62 I state however that in arriving at a just and appropriate sentence I have given careful consideration to the principles of totality, and also to the question of double punishment.
63 As to the question of double punishment, the summary charge of contravene a Family Violence Intervention Order is an aggravating circumstance with respect to Charges 1 and 2.
64 I state that I have been mindful not to impose double punishment upon you.
65 I asked counsel whether I should differentiate in terms of the seriousness of the offences between Charges 1 and 2. One could pose a number of arguments concerning such an issue, such as the fear and concern obviously apparent in your former partner, the victim in this matter, not only for her safety but for her son’s safety, compared perhaps to the fear of her young son.
66 On the other hand, it may be said that your young son, being a minor, was even more vulnerable. He was unrestrained when you took off in your victim’s vehicle. His false imprisonment lasted longer than that of your victim in Charge 1. In the end though, both counsel agreed that so far as the seriousness of Charges 1 and 2 are concerned I should treat them equally, and I state that I have done so in arriving at an appropriate and just sentence.
67 The circumstances that can constitute false imprisonment can vary greatly, with no two cases often comparable. Neither counsel sought to put comparable cases before me.
68 I stated that I have looked at the question of comparable cases, and found it difficult to discern any range comparable to the facts and circumstances before me.
69 In my opinion, as your counsel agreed, the objective gravity of your offending with respect to the offences before me is serious. It involved you falsely imprisoning your partner, threatening her with a knife, and where she was distraught enough to try and seek help and flee on at least on two occasions and you then tried to restrain her on each occasion.
70 Your counsel, Mr Fitzgerald, submitted that I should impose a community correction order, or at the very least a combined sentence and community correction order. As I pointed out to Mr Fitzgerald during your plea, you have had two previous community correction orders in the past involving domestic partners but still went ahead and breached those orders. Further, as I said, you have a history of breaching intervention orders, some five in total. You have three prior convictions for unlawful assault.
71 I state I have had regard to s.5(4C) of the Sentencing Act 1991, and state I consider that the purpose for which the sentence is to be imposed in this case cannot be achieved by a community correction order, whether it be a straight community correction order or a combination of a community correction order combined with imprisonment.
72 Considering all the circumstances of this case, including your prior criminal history, antecedents and background, and prospects of rehabilitation and the nature and circumstances of the offence I am of the view that a sentence of imprisonment is the only appropriate one in all the circumstances.
73 I raised with the parties as to whether an aggregate sentence would be appropriate in the circumstances before me if I was to impose a term of imprisonment. Both counsel agreed that it would be an appropriate option if I was to sentence you to a term of imprisonment.
74 In my opinion this is a case well-suited to the imposition of an aggregate sentence, as all offences arose out of the one incident, and Charges 1 and 2 of are of similar character.
75 Accordingly, as to the sentence, in all the circumstances, in respect of Charges 1 and 2 on the indictment and the summary charge, I convict and sentence you to an aggregate sentence of 18 months’ imprisonment, with a minimum of 12 months to serve before being eligible for parole.
76 I state pursuant to the provisions of s18 of the Sentencing Act 1991 that you have served 36 days by way of pre-sentence detention.
77 I make the following ancillary orders: A forensic sample order pursuant to s.464ZF(2) of the Sentencing Act 1991 and a Forfeiture Order. I advise you that if you do not provide the forensic sample, that reasonable force may be used against you.
78 Pursuant to the provisions of s.6AAA of the Sentencing Act 1991, I state the sentence you would have received but for your plea of guilty would be a sentence of 23 months with a non-parole period of 15 months.
79 Any matters, counsel?
80 MS MORAN: No, Your Honour.
81 MS FOLEY: No, Your Honour.
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