Director of Public Prosecutions v Wilson

[2017] VCC 1492

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT HORSHAM
CRIMINAL JURISDICTION

CR 17-01737

DIRECTOR OF PUBLIC PROSECUTIONS

v

GRAHAM WILSON

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JUDGE:	HIS HONOUR JUDGE RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2017
DATE OF SENTENCE:	13 October 2017
CASE MAY BE CITED AS:	DPP v Wilson
MEDIUM NEUTRAL CITATION:	[2017] VCC 1492

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Criminal damage – Burglary – Riotous behaviour – Plea of guilty

Legislation Cited:     Sentencing Act 1991

Sentence:12 months imprisonment; Community Correction Order for a period of 2 years with supervisions and treatment and rehabilitation conditions in respect of, drug abuse, alcohol abuse, medical conditions, mental health and risk of reoffending; 139 days pre-sentence detention; Section 6AAA declaration: 3 years imprisonment with a non-parole period of 2 years imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Accused	Ms J. Woodburn
For the Director of Public Prosecutions	Mr G. Hevey	Alexander Foster Office of Public Prosecutions

Pages 1 - 7

 

 

HIS HONOUR:

1Graham Wilson; on 9 October you pleaded guilty to Charge 1, criminal damage, and Charge 2, burglary.  As well you pleaded guilty to the related summary offence of riotous behaviour.  The maximum penalty for Charges 1 and 2 is ten years' imprisonment, whilst the maximum penalty for riotous behaviour, in your case, is 25 penalty units, or six months' imprisonment.

2You admitted your criminal record that reveals that between April 1991, when you were aged 20 years, and August 1997, when you were aged 26 years, you accumulated 48 convictions from eight court appearances.  You have prior convictions for violent, property damage, dishonesty, drug traffic and street offences.  You have been sentenced to youth training centre, imprisonment - both suspended and actual - as well as some community based dispositions and fines.  However, until the commission of the instant offending you had been crime free for 20 years.

3Tendered as Exhibit A on the plea, and read aloud in court, was the summary of prosecution opening.  In summary, in the early hours of Saturday 27 May this year police observed you in Kings Avenue, St Arnaud.  The police stopped to talk to you but you ran away from them, and to your mother's address, where you were living.  On being tracked to your mother's home by the police you became verbally aggressive towards them.  Once the police established that you were at home they left you in peace.

4By the time you came into contact with the police you had consumed, in the previous hours, 20 cans of Jim Beam and cola, and then had attended two hotels to top up.  Upon interview you could not recall what you had drunk at the two hotels, and this comes as no great surprise.

5Shortly after arriving at home you argued with your mother and left to attend at the police residences at St Arnaud.  There you ranted at the occupants, asking them to come out to fight you.  You woke the wife and children of one of the police officers and continued your ranting (related summary offence).

6Not content with your conduct at that point you wandered to the police station, where you smashed some of its windows, you then entered the station and set about to destroy anything you could in that place.  The effectiveness of your rampage increased when you found a hammer and took to anything of interest to you with it.  This included the windows of a police vehicle parked at the rear of the station.  Eventually you fell asleep in the police station (Charges 1 and 2).

7At about 4 am police attended at the station, found you asleep and took you to Stawell Police Station, where you were lodged in the cells.  You were interviewed under caution at 5 pm that day.  At interview you had but a sketchy recollection of your conduct at the police station at St Arnaud and were reassured and relieved that you had not hurt anyone.  I will not recount the items that you damaged - they are set out at paragraphs 14 and 15 of Exhibit A - suffice it to say that the amount of damage that you caused in dollar terms was at least $122,000, however your conduct put the St Arnaud Police Station out of action for to four to five weeks.  The police at St Arnaud during this period operated out of a portable building, with a consequent inconvenience of them having to mount duty at another police station for the storage of their weapons and accoutrements, reducing their effective working day at St Arnaud by two hours.  It took approximately six weeks until St Arnaud Police Station was up and running at 100 per cent efficiency.

8You are 46 years of age and were born and initially raised in Hastings.  At age 12 your father died of a heart attack in your presence.  Your father was known to be a prankster and initially you believed your father was playing a joke.  After some time you realised that your father was ill, but you did not have the presence of mind to call 000.  Your father's death, and its circumstances, have haunted you ever since.

9You are the oldest of six children, this fact also impacts on the feeling of guilt you experienced in respect to your father's death.  When you were about 16 your family relocated to St Arnaud to be near your maternal grandparents.  You completed Year 11 at St Arnaud High School.  You left school to take up an apprenticeship as a motor mechanic, but did not complete this training.  It is unclear the relationship between your offending and your leaving your apprenticeship, but it was about the time of your leaving your apprenticeship that you commenced to offend, and continued to do so until you left St Arnaud and moved to Melbourne, where you met your partner of 17 years.  You separated from her in 2014, when you were aged about 43 years.  During the period of time that you spent in Melbourne you maintained employment and remained crime free.

10Tendered as Exhibit 2 on the plea was the report of Dr Best, psychiatrist, dated 8 September 2017.  Dr Best met with you at the Melbourne Remand Centre.  You were on a management regime as a result of you covering yourself in faeces.  Despite being an alcoholic and having a history of recent psychiatric admission in or about 2013 and 2016, when seen by Dr Best you had not been seen by psychiatric services or received any assistance in detoxifying from alcohol.  Dr Best remedied the first gross deficiency in your treatment whilst in custody and you were prescribed an anti-psychotic medication.

11You have a long history of alcohol and cannabis abuse.  It is likely that your psychiatric admissions were due to drug induced psychosis, at first instance, and your alcoholism thereafter, however the fact that you are presently on anti-psychotic medication is indicative of more deeply seated mental illness.

12It was your alcoholism and drug abuse that brought about the breakdown of your longstanding relationship.  After the relationship breakdown you returned to St Arnaud and lived with your mother.  You worked intermittently as a farm labourer and picker.  You eventually found steady work at the Cobram Abattoirs and resided in Cobram for some months, however on the abattoir's closure you returned to St Arnaud and became reliant on Newstart Allowance and spent every cent you had at your disposal on alcohol.

13In her report Dr Best confirmed the guilt that you experience in respect to your father's death, and reported that shortly after your father’s death, in a depressed state, you attempted suicide by hanging.  On interview you presented in a depressed mental state.  Dr Best opines that a sentence of imprisonment will be more burdensome on you than a person not in a depressed mental state.

14In summary, you are currently in a depressed mental state; one which is likely to have been longstanding.  You are an alcoholic, but one who detoxified in prison without any medical assistance; a circumstance that could have been life-threatening.  You are treated with anti-psychotic medication.

15You have pleaded guilty at the earliest opportunity and are entitled to the benefit of that plea; being that it is some evidence of your remorse and that it has utilitarian benefit.  I accept that you were sorry for your actions.

16Upon being charged you were remanded in custody and have spent 139 days by way of pre-sentence detention.  Upon release from prison you will reside with your mother, although you have a desire to leave St Arnaud because of your offending.  Upon release from prison you will need treatment for your alcoholism and your mental health, and to that end I had you assessed for suitability for a community corrections order.  You have been assessed favourably.

17I discount your earlier offending because it concluded some 20 years ago.  I accept that you are remorseful, you will have family support when you are released from prison, and you will be in need of support when that occurs.  Your offending was serious.  Your cost to the community was great.

18Doing the best I can taking into account the objective circumstances of your offending and your personal circumstances, and applying the sentencing principle, I sentence you to an aggregate sentence of 12 months' imprisonment together, if you should consent, to a community corrections order for a period of two years with conditions.  Those conditions are that you undertake treatment and rehabilitation in respect to your drug abuse; that you undertake treatment and rehabilitation in respect of your alcohol abuse; that you undertake treatment and rehabilitation in respect to your medical condition; that you undertake treatment and rehabilitation in respect to your mental health; that you undertake treatment and rehabilitation by way of programs reducing the risk of your reoffending, and that you be subject to supervision.  Are you prepared to ‑ ‑ ‑ 

19ACCUSED:  Yes.

20HIS HONOUR:  ‑ ‑ ‑ serve that community corrections order?  I declare that you have spent 139 days by way of pre-sentence detention.

21Pursuant to s.6AAA of the Sentencing Act 1991 I declare that but for your pleas of guilty I would have sentenced you to three years' imprisonment with a non-parole period of two years.

22Now, whilst the document in respect to the community correction order is being prepared, the Crown made application under s.464ZF(2) for a forensic procedure.  That is by way of the taking of a buccal swab, or a scraping of your mouth.  I have granted that application because the seriousness of the circumstances of your offending warrant the making of the order, and that the granting of the order is in the public interest.  I must inform you that if, at the time of request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample, and police may use reasonable force to enable that forensic procedure to be conducted.  I hand down three copies of the order.

23Now, Mr Wilson, what I am going to read to you is the terms and conditions of the community corrections order that I will release you on.  It comes into operation at the end of the 12 month sentence that I have imposed upon you.  You have already served 139 days of that sentence, so, generally speaking, you have got about eight months or so to go.  Once you have been released from prison you are obliged to attend on the Horsham Community Correctional Services Centre at Level 2, 21 McLachlan Street, Horsham - the building behind this court - within two clear working days of your release.  Do you understand that?

24ACCUSED:  Yes, Your Honour.

25HIS HONOUR:  All right.  Then the terms and conditions that I have imposed upon you are that you must be under the supervision of a Community Corrections officer for a period of two years; you must undergo assessment and treatment, including testing for drug abuse, or dependency, as directed by the regional manager; you must undergo assessment and treatment, including testing for alcohol abuse, or dependency, as directed by the regional manager; you must undergo any medical assessment and treatment that may include general or specialist medical treatment, or treatment in a hospital or residential facility, as directed by the regional manager; you must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric, or treatment in a hospital or residential facility, as directed by the regional manager; you must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager.  This document will be brought to you for your signature and your counsel may assist you in signing this document.  Thank you,
Ms Woodburn.

26Now, Mr Wilson, once you are released from prison and undertake this community correction order, should you breach any of the conditions of the order then you breach this sentence and you come back to be sentenced by me.  I have the ability to sentence you afresh, and that may mean in the circumstances an immediate custodial disposition, so what you need to do for the purposes of this community corrections order is to comply with it, and more particularly, use it, because the terms and conditions that I have put on it are really therapeutic in nature, and you ought take every opportunity to use the therapeutic aspect of this order to assist you to come back to full health, if I can put it in those terms.  But be under no mistake; should you breach this order you come back to me for re-sentencing.  I do not recommend it to you.  This will be copied so that you can have a copy for your records in prison and your counsel and the Crown will have a copy of it as well.  Thanks, Matthew.  Distribute those documents please.

27ASSOCIATE:  Yes, Your Honour.

28HIS HONOUR:  Thank you for your attendance, Ms Woodburn.  Would you remove the prisoner please?

29MS WOODBURN:  I have no more matters before the court, Your Honour.

30HIS HONOUR:  Thank you.

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