Director of Public Prosecutions v Wilson

[2017] VCC 1237

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR -17-01217

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACOB AARON WILSON

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	1 September 2017
CASE MAY BE CITED AS:	DPP v Wilson
MEDIUM NEUTRAL CITATION:	[2017] VCC 1237

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Flynn	Office of Public Prosecutions
For the Accused	Ms N. Smith

HER HONOUR:

1Jacob Aaron Wilson, you have pleaded guilty before me to one charge of aggravated burglary, one charge of contravening a family violence order intending to cause harm or fear for safety and one charge of recklessly causing injury.

2The facts underlying your offending are as follows.  The offending involved an attack upon the home of your mother's then partner, Ronald James Jones. 
He had been a former drinking buddy of yours, as I understand it, but had been involved with your mother, Sharon Leigh Wilson, for some time.  At the time of this offending both Mr Jones and Ms Wilson, in particular your mother, had taken out a final family violence intervention order which had been taken out on 26 April 2016 for a 12 month period.  The IVO included a prohibition on you approaching or remaining within five metres of your mother or going within 200 metres of where you lived.  You were served this final IVO on 14 November 2016, that is, a matter of two weeks before this offending in fact occurred.

3On 28 November 2016 you and your then partner had bought some tawny port and basically had spent most of the afternoon and night drinking the flagon, as I understand it, that you had bought.  You later told police you had also consumed illegally purchased OxyContin pills which are a morphine based medication.

4When the tawny port was finished you asked a friend, Simon, who was also present with you and your girlfriend, if he had $15, which he did not have. 
You then told your girlfriend, Jane, you were going to go to your mother's house and she told you not to because of the intervention order that was in existence.  You then said you would not go to your mother's but, of course, went straight there, she living a short distance from the house that you were residing in with your girlfriend, Jane Oates at 2 Walls Crescent, Hamilton.

5You were wearing only a pair of tracksuit pants.  You got to your mother's at about 8.00 pm and Mr Jones, who was sharing the house with your mother saw you through the lounge room window approaching.  He told your mother of the fact that you were on the way. You were, at the time, unsteady on your feet and were probably obviously drunk to both Mr Jones and your mother.

6Your mother went to the door which was open but the security door locked and told you to go away.  You then asked her for $10.  Your mother said she did not have any money for you but you kept asking for it.  At this stage Ronald Jones, who had been standing out of the line of sight, stepped into your line of sight, told you that they did not have money and shut the wooden front door.  This made you angry and eventually Mr Jones told you through the door that if you did not "piss off" he would call police.  In fact Mr Jones had already started to call police whilst your mother was talking to you.  You were then heard by Mr Jones to say "I'm going to kill you, you rat dog" through the door and
Mr Jones moved to the lounge room window to see what you were doing. 

7At this stage Jane Oates arrived at the house and began telling you to stop because you would go to gaol.  You, however, began to kick the front lounge room windows next to the front door which caused them to break and then pulled the curtains through the broken window.  As a result Mr Jones then armed himself with a small wooden club called a bundi and brandished it through the window in an attempt to stop you entering the house,  hitting you in the process.

8Jane returned to her house to get Simon, and you dived through another broken lounge window towards Mr Jones.  Your actions in doing this underlie Charge 1 on the indictment, aggravated burglary.  You smashed a fish tank belong to Mr Jones on your way through the window and your actions placed your mother in fear for her safety and that of Mr Jones and she fled from the house through the back door.  Those actions, also underlie Charge 2, contravention of a family violence intervention order intending to cause harm or fear for safety.

9You and Mr Jones then began struggling in the lounge room during which time you got hold of the bundi and struck Mr Jones several times around the head and upper body.  Mr Jones fell on the coffee table, which broke, and he collapsed on the floor whilst on top of it and then you kicked him a number of times while he was lying on the floor.  Those actions underlie Charge 3 on the indictment, recklessly causing injury.

10You left the house through the front door and went to your home address on the way meeting Jane who had returned with your friend, Simon.  Simon went into Mr Jones' house to find him sitting in a pile of blood on the broken coffee table.  He called 000 and an ambulance arrived.  Eventually Mr Jones was taken by the ambulance to the Hamilton Base Hospital and then that night was airlifted to the Alfred Hospital for further treatment. 

11Ultimately he was treated for lacerations to his forehead which had to be stitched, a right eyebrow laceration, laceration around his eye sockets, scalp lacerations and a foreign body had lodged in his arm, (I am presuming glass from the fish tank).  He had bruising on his chest and left wrist tenderness although the x-ray did not reveal a fracture.  Mr Jones underwent surgery on 1 December where the wounds were explored and debrided by the plastic surgery team and he was discharged from hospital on 3 December 2016 to the care of his sister with a comprehensive plan around pain relief medication.  He had to continue taking antibiotics until a further review by the plastic surgical team.

12Your mother came back into the house once she saw that you had gone and assisted with Mr Jones until police arrived.  Unsurprisingly their relationship did not survive this attack upon Mr Jones and she has now gone to live in Queensland.

13Police followed you to your home where you abused them and told them that you were going to have a shower.  You were seen to be unsteady on your feet.  Police called for an ambulance.  You went into the kitchen of your home, came out with a number of kitchen knives and were sprayed by police with capsicum spray for your own safety.  You threatened to kill yourself holding the sharp edge of a knife or your throat.  Eventually went into a shower, collapsed and there police took you out.

14Ultimately you were arrested and taken back to the Hamilton Base Hospital where you were treated for a laceration to your forehead and right eyebrow and around your eye socket which was apparently the result of Mr Jones hitting you with the bundi.  You also had a foreign body in the right forearm (again, I am assuming glass from the fish tank).  You too had chest bruising and left wrist tenderness. 

15You were interviewed by police on 29 November 2016 at the Hamilton Base Hospital.  You said that you had no memory of these events.  You said you had drunk most of a two litre cask of tawny port and taken an OxyContin tablet together with a couple of unknown tablets in the afternoon.  You told police that you, "can't remember but I must have done it" in relation to the aggravated burglary.  You told police that you sometimes suffered blackouts when you drank too much and that you had been seeing a doctor in relation to anger issues.

16The maximum penalty for aggravated burglary is 25 years' imprisonment. 
The maximum penalty for contravening a family violence order intending to cause harm or fear or safety is five years' imprisonment and the maximum penalty for recklessly causing injury is five years' imprisonment. 

17A plea of guilty was entered at the third committal mention in this matter on
16 June 2017.  You have remained in custody since 28 November 2016. 
In that time in custody you have been dealt with on two occasions, the first being 24 May 2017 and the second, 14 June 2017, for breach of community corrections orders.  I note that on 9 November 2016 you were placed on an
18 months community corrections order with treatment conditions for threatening to inflict serious injury, criminal damage, unlawful assault and contravening a family violence order which actions  also apparently related to an attack upon your mother and Mr Jones.

18In any event on each of the occasions that you attended the Magistrates' Court in 2017 you were sentenced to three months' imprisonment, the second sentence being ordered to be served cumulatively to the first sentence so that you are currently undergoing sentence in relation to both of those and the expiry date for that sentencing is not until 25 November of this year.

19I received a psychological report which had been prepared.  The psychologist, Elizabeth Warren, detailed that you told her you were the sixth of ten children, that you reported not being able to remember anything particularly bad about your background so therefore it must have been a happy one but noted that there had been quite a bit of intervention by the Department of Human Services.

20Your mother, at some stage, had had substance abuse problems it appears but then decided she would give up and is now very anti-drinking.  This appears to have been quite a problem in terms of your relationship with her.  As a result of this offending you have no relationship with your mother who, as I said, has gone to Queensland.  Nor do you have any relationship of any worth with any of your other siblings apart from an older sister, Rani.

21In terms of your substance abuse you were diagnosed by Ms Warren as suffering from an alcohol use disorder which she said also had "associated lowered mood, anger and anxiety when alcohol affected".  You told Ms Warren that you began drinking when you were 12 and drank, more or less, steadily since then and she stated:

"But severe AUD has been in existence for around at least the five years with a typical daily alcohol consumption of two to three litres of cask port daily".

22You told Ms Warren you can stay off drinking alcohol for two to three days but then "I need to drink".  She stated:

"His craving is partially driven by avoidance of the withdrawal symptoms he knows will occur if he does not drink.  His level of alcohol consumption is severe.  His tolerance is pronounced to an extent that he cannot achieve desired levels of intoxication". 

23That is, it takes longer and longer and you have to drink more and more to get drunk.  You told Ms Warren that you did not have much problem with drugs otherwise.  You took Valium to excess sometimes and you said that you occasionally used "shard" or ice from time to time but were not habitual.  Your problem quite clearly is alcohol.

24You have not worked for many, many years and it appears you have just basically floated around, drinking and getting into trouble.  You have an extensive prior criminal history, unsurprisingly, beginning with apprehension for being drunk in a public place and I think that began back in 2008. 

25You have been arrested a number of times since that offending.  You have been arrested for burglary, for theft, for assaults, for using threatening words, you have breached a large number of community corrections orders, you have breached suspended sentences.  You have been through pretty much every sentence the courts can throw at you and it was conceded, very understandably by your counsel, that I can only deal with you today by way of a sentence of imprisonment to be immediately served.  You have just run through all other orders basically, Mr Wilson, and there is nothing left.

26Now you have to understand that what you did this day was extremely serious.  Aggravated burglary is an extremely serious charge.  The top sentence a person can get for it is 25 years.  That is the highest on the criminal calendar.  The fact that you cannot remember doing this is really concerning and should frighten you because it means that when you are drunk you can do really serious, violent things and you have just got no idea that you are doing them.  You could have seriously hurt your mother.  You could have much more seriously hurt Mr Jones.  You are extremely lucky not to be before this court on a recklessly cause serious injury or worse in which case you would be facing a far greater sentence than you would have today. 

27To your credit, since being moved to Fulham gaol four months ago you have undertaken work.  You are doing lunch boxes in the kitchen and you are off to the gym, which is probably a bit of a first for you, is that right?

28OFFENDER:  Yes.

29HER HONOUR:  You told me that you had made some contacts with Alcoholics Anonymous but stopped because you do not like opening up.  You have also told me you stopped talking to your sister, Rani, who you hope to go and live with in New South Wales when you get out, again because you do not like opening up and it is quite clear that you have only given limited information to Ms Warren in her report, again, because you do not like opening up.

30Can I tell you, you are not on your own there, Mr Wilson, with blokes of your age.  Most blokes do not like opening up, all right?  Not too many blokes go "Yay, therapy.  Here I go.  Fantastic, I'm going to talk about my feelings".  You are going to have to do it at some stage.  If you do not - you have heard what
I said.  I suspect that you have had a really difficult childhood.  I suspect you - I think you left school when you were about 12 or 13, is that correct?

31OFFENDER:  Yes.

32HER HONOUR:  According to the summary and that, really, your mother said "Fair enough, leave it up to you".  That is, in terms, what you did.  I do not want to be critical of your mother but most parents would say "No, you're staying at school until you're at least 15 and you've got a trade under your belt.” I suspect that there is a history of neglect.  I suspect there have been all sorts of problems with your background, that are underlying your need to drink and to blot everything out.  Most people who use substances, whether it is alcohol or ice or whatever do it because there is something in their life that makes them feel despairing and hopeless and they want to escape it. 

33Now unless you want to go into the revolving door of gaol, get out of gaol, get drunk, offend, back to gaol, get out of gaol, drunk, offended, go back to gaol, you are going to have to open up.  You are going to have explore what is making you do this.  You are going to have work out what you want to do.  You are going to have to, especially, avoid alcohol.  You have reached a stage now where you can still stagger around even though your head is basically blacked out.  You are in a different state of consciousness and you offend.  That is incredibly dangerous.  Your chances of hurting someone, of killing someone because of that have got to be much higher than the normal person in the community.

34One day, if you do not do something about this, you are going to come back on even more serious offending and you are going to end up - I cannot say it is definitely going to happen but the chances of you getting a big, long sentence because you have done something appalling and violent while you are off your head on grog is high.  I mean I am assuming that is not where you want your life to go.

35OFFENDER:  No (indistinct).

36HER HONOUR:  All right.  I want you to have a very good conversation with
Ms Smith after you have been taken down after I have sentenced you, all right?  That is because she needs to explain to you - I am going to put you - you will be doing parole and I am going to - I note I need to - just excuse me.  That is because the consequences of breaching parole these days are extremely serious for you. 

37It has been submitted that you are a relatively young and I agree.  I think it is tragic to see a young man in the position that you are in now.  However, you know, I have some hope in you.  I have to say in a formal sense my view of your prospects for rehabilitation must be guarded because you are the one that has got to initiate them and get moving.  But the fact that you have had the brains to get yourself a job in gaol says something for you, all right?  However unless you attend to the problems I have discussed with you today, there is going to be difficulties for you.  None of that is going to be easy but it is better than being where you are now, do you agree with that?

38All right, in sentencing you it was submitted by the prosecution I should have regard to the principles of general deterrence, specific deterrence, protection of the community and denunciation of your behaviour as being the principles which dominate the sentencing landscape before me.  That means they are things I have to talk about the most, attend to the most when I am sentencing you.

39General deterrence means I have to send a message out to the community that if you behave this way this is what is going to happen to you.  Specific deterrence means I have got to sentence you in a way that makes you realise that unless you do something about yourself, this is what is going to happen to you.  Protection of the community means I have to take into account, and I do take into account, that when you are drinking you are a menace.  Denunciation means I have to make it clear that no-one is going to put up with this behaviour.  They are all things that I have to take into account but again it gives the court no joy to see a young bloke in your position offending in this way and so much in the grip of alcohol. 

40You think about it.  You know, you are 26 and because it is a cask, it is not like, you know the old blokes you used to see in the park with the flask at McWilliams Court in the brown bag.  You know what I am talking about?

41OFFENDER:  Yes, Your Honour.

42HER HONOUR:  That is you.  The only difference is you have got a cask and you cannot drink it through a paper bag.  That is you.  All right, I do take those matters into account.  I do take the maximum terms into account and I therefore sentence you as follows.  Could you stand up please.

43On the charge of aggravated burglary I sentence you to 18 months' imprisonment.  On Charge 2 I sentence you to three months' imprisonment and on Charge 3 I sentence you to four months' imprisonment.

44I order that two months of the sentence on Charge 3 and one month of the sentence on Charge 2 be cumulative on the sentence imposed on Charge 1.  So that is 21 months.  I order that you serve a minimum term of 14 months' imprisonment, all right?

45I am going to order that the sentence starts today.  So there will be - I am not going to order any cumulation with the sentences undergoing.  What is the problem, Ms Flynn?

46MS FLYNN:  I have to think, Your Honour.  He's doing straight sentences at the moment.

47HER HONOUR:  Yes.  Very well.  I will just order - I mean unless I state that there is to be cumulation it will be served concurrently.

48MS FLYNN:  Yes, Your Honour.

49HER HONOUR:  All right? 

50MS FLYNN:  Sorry, I was just checking, Your Honour, I didn't mean to make a face at Your Honour.

51HER HONOUR:  That is quite all right.  I do not take it personally, Ms Flynn, but I am not going to make any order as to cumulation so it runs concurrent, all right?

52OFFENDER:  Yes, Your Honour.

53HER HONOUR:  It is only going to get worse, Mr Wilson.  That is big whack for someone like you, is it not?

54OFFENDER:  Yes.

55HER HONOUR:  It is just going to get worse.  Give it away, settle down, get on with it and work out what you are going to do when you come out, all right?

56OFFENDER:  A hundred percent.

57HER HONOUR:  Yes, 100 percent, all right?  Look it is not easy.  I have noticed - I have had a couple of blokes come in in front of me who have actually been on remand and, you know, at the MRC it is notorious that services are hard to come by.  But I have had a couple of blokes who have been very determined and they have actually had, because they have hassled people, they have got services.

58Now you know there is nothing stopping you.  Find out what services you can get.  Fulham is not too bad for that and AA is the start.  AA will give you that support when you will get out.  You will have a mentor when you get out.  You will have someone you can speak to.  You will not be all alone and you will not be able - unless the parole is transferred up to New South Wales, you are not going to be able to get straight out of gaol and go up to your sister, Rani, but you need to start talking to her again too, all right?

59OFFENDER:  Yes, Your Honour.

60HER HONOUR:  Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of 27 months and order that you serve a minimum term of 20 months, all right?

61OFFENDER:  Yes, Your Honour.

62HER HONOUR:  Good.  Now have we got the documentation there?

63MS FLYNN:  Pre-sentence detention too, Your Honour.\

64HER HONOUR:  Yes.  I declare that 177 days of this sentence has already been served by way of pre-sentence detention.  Yes, we need the - have we got the ‑ ‑ ‑ 

65MS FLYNN:  Your Honour, I withdraw my application.  We've confirmed he has been profiled.

66HER HONOUR:  Thank God for that I was just - all right, thank you, there is nothing else?

67MS FLYNN:  No, Your Honour.

68MS SMITH:  No, Your Honour.

69HER HONOUR:  All right and Ms Smith will talk to you again about parole or have you got Mr Agnew?

70MS SMITH:  I do, Your Honour, so it'll be in about - after that plea I'll speak to both of them.

71HER HONOUR:  You can have a joint conference with them both.  Has
Mr Agnew actually arrived?

72(At this stage the court proceeded with another matter.)

73All right thank you.  Good luck to you, sir, all right?

74OFFENDER:  Yes, Your Honour.

75HER HONOUR:  Try and make a difference.  Try and - you can do this.  Just kick on.  You do not have to be like this forever.  Thank you, off you go.

76I forgot to mention, which I should have mentioned, I have not referred to the victim impact statement.  I think Mr Jones obviously deserves that I do so.  Can I say that he reports that he longer feels safe in his home.  He is scared that
Mr Wilson will come back and attack him again.  He still has got frequent headaches, he has got lots of scars on his head, face and arms and most worryingly he has got a series of lower teeth that are loose that require dental attention that he cannot afford.  He also had a lot of possession broken and destroyed in the assault.  These are serious and unsurprising consequences to Mr Jones.

77MS SMITH:  I certainly did read the victim impact statement to my client.

78HER HONOUR:  Yes.  I think - I should have formally mentioned, however, his victim impact statement in my sentence and I do so now.

79Mr FLYNN:  Yes, Your Honour.

80HER HONOUR:  Part of the reason for my sentence is the serious impact it has had upon Mr Jones.  Thank you. 

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