Director of Public Prosecutions v Wilson
[2024] VCC 1475
•19 September 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WODONGA
CRIMINAL JURISDICTION
CR 23-00738
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SETH WILSON |
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JUDGE: | HIS HONOUR JUDGE M.P. BOURKE |
WHERE HELD: | Wodonga |
DATE OF HEARING: | 9 September 2024 |
DATE OF SENTENCE: | 19 September 2024 |
CASE MAY BE CITED AS: | DPP v WILSON |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1475 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr F. Cameron | Office of Public Prosecutions |
For the Accused | Mr G. Clancy |
HIS HONOUR:
1On Charge 2 on the trial presentment, that is the one that ends with .1 and I will properly identify it in my reasons, he is sentenced to 80 days' imprisonment, but I declare 80 days already served, bearing in mind his remand period. On all charges on both indictments, therefore including that charge, I convict and - I will convict and impose a community corrections order of 18 months duration, with the usual terms and these additional conditions; supervision, unpaid community work of 150 hours. But all hours of program work can be set off against that; as to the program work, mental health assessment and treatment and participation in programs specifically directed at this offending.
2Now you know what I am going to do, which is not something I always tell people, but I have told you out of courtesy to you, so you do know. I would ask you to return the courtesy by listening to what my reasons are for that sentence. It will take about 15 or so minutes to do that, all right?
3Seth Wilson, you are to be sentenced on Indictment N1193570, the plea indictment, for one charge of threatening to cause serious injury, one charge of common assault and two charges, under Commonwealth law, of using a carriage service to menace. On Indictment N119935.1, the trial indictment, sentenced for one charge of intentionally causing injury. The maximum sentences are 10 years' imprisonment for intentionally causing injury and five years' imprisonment for each of threatening to cause serious injury, assault and using a carriage service to menace.
4On the plea indictment, you pleaded guilty before me on 29 August 2024. On the other indictment, a trial ran from 29 August to 6 September, when that jury returned a verdict of guilty on intentionally causing injury, but acquitted on the charge of aggravated burglary. Essentially both indictments arose out of the same events, happening on 12 September 2022.
5When interviewed by police about them on 13 September 2022, you gave an account which I find admitted the conduct making out all offences, but for that on which you have been acquitted.
6Your trial ran on the same basis. On your behalf, on the relevant charges, there was challenge to whether an injury was caused by your assault and challenge on the requisite intention to cause injury. The most serious charge you faced should be seen as that of aggravated burglary, Charge 1 on that indictment. Your defence, successful before the jury, was that you did not have the requisite intention to assault when you entered the premises.
7You receive the benefit of your pleas of guilty on those charges and the level of cooperation shown in that short summary of the proceeding. Although you contested the charge of intentionally causing injury at trial, you have never stated that there was no assault. Your pleas of guilty have accepted responsibility, facilitated the interests of justice and expressed remorse. You expressed no remorse when interviewed by police soon after the offending. I accept that in the time since, you have developed some genuine remorse and insight.
8At your plea hearing on 9 September, Mr Cameron for the Crown tendered a written prosecution summary indicating which parts were relevant, given the jury verdicts. Mr Fitzpatrick for you tendered the forensic psychological report of Jeffrey Cummins dated 18 April 2024, the medical report of Albury Wodonga Mental Health Service dated 6 July 2022, the bail progress report of the Court Integrated Services Program, CISP, dated 12 April 2023 and a number of character and work references. Mr Fitzpatrick provided an outline of plea submissions.
9My summary of the circumstances of your offending is informed by the tendered prosecution opening, which is Exhibit A and by the evidence before me at trial. I seek to be consistent with the jury verdicts.
10As at mid-2022, you had separated from your partner, Rose Blythe.[1] There had been a relationship of about three and a half years. There were two young children. You were aged 21 and therefore 18 years when the relationship began and about that age when you and Rose Blythe had your first child. She was only a few years older. At the time of the separation, it is not absolutely clear, Rose Blythe began a relationship with another young man named Lucas Power.[2] There was an intervention order made against you, not based on violent conduct against Blythe. You committed Charge 1 on the plea presentment, threat to cause serious injury, by sending a text message to Blythe about Power as follows. I quote:
'Exactly, at least you admit it. I'm going to slit his fucking throat in fucking front of you.'
[1] A pseudonym.
[2] A pseudonym.
11Power gave evidence at the trial that he did not feel particularly threatened by this. In mid-August, the intervention order was varied, to allow contact between you and Blythe by agreement. Over the time and particularly from that point, you and Blythe saw each other often. There was affection between you and some intimacy. In September, she had become pregnant. There was some possibility, not certainty, that you were the father. It can be certainly said that as at 12 September, the date of the other offences on both indictments, you had strong hopes of reconciliation and return to your place in the family with Rose Blythe and your children. Her evidence at the trial was that she did not discourage this.
12You were living with your parents in Wodonga. There had been an arrangement that, on 12 September, you were to stay over at Blythe’s home, also in Wodonga and see the children. Blythe changed that (it would seem, on the day) lying about the reason. In fact, Power was coming over. On the evening of 12 September, you became aware of Facebook messaging on 11 September, between Blythe and Power, showing an ongoing romantic relationship between them. You were distressed and angry. You forced your mother to drive you to Blythe’s home. Power was there, which you may or may not have certainly known. You entered the house without knocking and immediately challenged Blythe about lying to you. It was then that you went to Power and punched him once or twice to the side of the head. He ran out. There was continuing confrontation between you and Blythe, during which you placed your hands around her neck for a short time. That is Charge 2 on the plea indictment, common assault. Your father had arrived. Your parents were able to get you to leave. The police were called.
13The two offences of using a carriage service to menace were committed later that night, when you were back at your parents' home. You rang Rose Blythe a number of times and sent messages. That included a message at 9.26 pm to her as follows. I quote.
'He's dead and I fucking mean it. Then you'll know how it feels to have things ripped from me. You only care about yourself. You don't care about the kids. You can't even take your daughter to her appointments. You know fucking nothing. You are nothing but a fucking liar. You lied to me. You lied to your mother and what - you lied to your kids as well. You are fucking pathetic. Enjoy it all while you can. Those kids deserve better than both of us. You know, all I can say is fuck you.'
14At 9.30 pm, you messaged Lucas Power as follows. I quote.
'Next time, you won't be so lucky, cunt.'
15You were arrested and interviewed the following day. It is clear that the jury acquitted on aggravated burglary in that it was not satisfied that you intended to assault at the time of entering the house. Consistent with that, I find that you went to Rose Blythe’s home, agitated and distressed about the discovery of
11 September messaging between her and Power and by feelings that Rose Blythe had lied to you about that relationship and your hopes of reconciliation. Seeing Power’s car in the driveway there likely added to your sense of anger and distress. You lost control when you saw Power on the mattress close to Blythe in the living room. Your children were also in the room.16I find, beyond reasonable doubt, that you punched Power hard, intending to injure. The injury caused him, on the basis of medical evidence at trial, was a combination of bruising to the ear and concussion, with such symptoms as some disorientation to time and date, unsteadiness when walking, retrograde and antegrade amnesia (on Power’s account) and some affected hearing in the left ear. These were symptoms at time of examination of hospital on the following day. There is no evidence of symptoms being more prolonged than that. No victim impact statement was tendered.
17Upon arrest on 13 September, you were remanded and spent 80 days in custody, before receiving bail.
18You are now 23 years of age. You have no criminal history, including subsequent to this offending. You still reside with your parents, who are very supportive of you. You have a brother about six years older and one 12 month younger. You were physically abused when young by your older brother, who was drug dependent. He has rehabilitated from that. You were raised and educated in the Albury Wodonga area, leaving school after Year 10 and then completing an apprenticeship as a boilermaker/fabricator. You worked for the same company from 2017 to 2024, when retrenched. The work reference evidence tendered speaks highly of you. You are presently studying a Certificate III and IV course in personal training.
19I find that your partnership breakdown and the months leading to this offending were for you times of very considerable emotional and mental health vulnerability. You attempted suicide in late June 2022. Subsequent, varying expert opinion tentatively diagnoses bipolar disorder, post-traumatic stress disorder (arising out of traumatic abuse by your brother) and/or mild borderline personality disorder. There was also, over time, recurrent depression. Importantly, your mental health has stabilised over the two years since the offending, with continuing treatment by mood stabilising and antidepressant medication. You are treated under the Albury Wodonga mental health service. Further, under the bail program CISP, there has been psychological and drug and alcohol counselling, and introduction to a men's behavioural program. You pursued this after completing the CISP program. Drug use played no role in your offending. You report past intermittent use of drugs, such as ecstasy, methylamphetamine and cocaine. It is clear that you have complied well with your bail conditions. You have reached a point at which you have regular unsupervised access to your children, now aged five and three. You see them weekly to twice a week.
20This was serious, violent offending. It was committed within Rose Blythe’s home, frightening her, and hurting Lucas Power. It happened in front of your two very young children, no doubt impacting them. To the extent that it matters, you should be sentenced on the basis of one punch. Nevertheless, that caused not insignificant injury, albeit not shown to be long or continuing. You were acquitted on the charge of aggravated burglary. However, relevant features remain that you entered the home without invitation, in an aggressive frame of mind and behaved violently very soon after. My sentencing remarks and summary of offending should in no way be seen as reflecting upon Rose Blythe. As I stated to the jury and at plea hearing, the breakdown of your relationship and its consequences no doubt meant considerable stress and difficulty for her. Your failure to manage those circumstances contained, in my view, an immature self-indulgent focus upon your own feelings and situation, one not uncommon in male offending against women.
21The circumstances of offending make relevant sentencing considerations and purposes of your moral culpability, deterrence, denunciation of what you did and proportionate punishment of it. Deterrence of others is important to protection of the community, particularly protection of a sense of security of people (often women) in their homes. Some period of imprisonment is necessary.
22However, there are also relevant moderating factors in your case, which should go to the length of sentence and the manner in which the sentence should be served. Those factors include the following.
231. Your plea of guilty and developing insight and remorse.
242. Your otherwise good character.
253. The circumstances of your mental health. It is relevant that you were not treated at the time, as you are now. This is not elevated to application of the Verdins principles, meaning lesser moral culpability, and that was not pressed. However, your circumstances and distress at being displaced from your family should be considered in the light of your mental health. That gives some explanation for the offending and is a proper part of the personal context for your sentence. Your record of interview showed, in my view, a high level of distress; but also, as I have said, still very evident anger and self-focus. I would also find that custody would have been and would be, to an extent, more difficult because of your mental health.
264. There is the matter of delay. That delay of two years is not unusually long in the range of things. It is no fault of the investigators or prosecution, nor of you. Its importance is the movement toward rehabilitation you have made in the ways I have earlier described.
275. At 21, when you offended and now at 23, you were and are still young. To become a father at 18 is at a very young age. As I have suggested, immaturity played a significant role in your failure to manage your circumstances in the time leading to and at the time of offending. Your prospects of rehabilitation should be seen as high; for example, given your prior good character and the steps you have made toward that rehabilitation.
28I have decided that the relevant sentencing purposes considered in the light of those moderating factors do not require return to prison; that is, after release on bail and such rehabilitation.
29The right sentence is a combination of imprisonment and a community corrections order, but not imprisonment beyond what you have served.
30The community corrections order should carry punitive features, such as its duration and some community work. Particularly it should contain therapeutic and program conditions to assist your further rehabilitation. I bear in mind the already served punishment of your months in remand in custody. I have received the community corrections order suitability assessment of Nathan Littel dated 11 September 2024. You are suitable for such an order.
31I sentence you as follows. For Charge 2 on the trial indictment N11993590.1, you are sentenced to 80 days' imprisonment. Under s18 of the Sentencing Act, I declare 80 days already served. On all charges on both indictments, including that charge, you are convicted and I impose a community corrections order of 18 months. The usual terms apply. The additional conditions are that you be under supervision, that there be unpaid community work of 150 hours over the 18 months. However, all hours of the following program and therapeutic work can be set off against those hours. Further conditions are that there be mental health assessment and treatment, as directed; that you participate in programs specifically directed at your offending.
32Under s6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to six months' imprisonment. Therefore, you would have returned to gaol; and you would have - would have been required to undertake a community corrections order after that sentence. Are there any other matters that I need to deal with?
33MR CAMERON: No, Your Honour.
34HIS HONOUR: All right. Now, what - take a seat now. In fact, you can come out of the dock and sit near Mr Clancy. Now, what do we need to do, so that the - so that the electronics can manage it? Three. Well, you're going to have to sign three bits of paper for the same order. Now, I've explained why, as I usually do. It should be addressed, but nobody seems to think it's important enough to do it. You need to bear in mind and I think you should courteously let the corrections - community corrections people know, that this is one order and the fact that you've signed three bits of paper for the same order is just something that has to be done, because the electronic recording system can't manage it otherwise. So, we'll now - I'll read out only one of them to you and I'll sign and I'll get you to sign all three.
35One's in relation to the intentionally cause injury. One document is in relation to the intentionally cause injury. A second document saying the same things is in relation to the Commonwealth offences of using a carriage service to menace and the third document again saying the same thing is in relation to the common law assault and the threat to inflict serious injury. As I said before, it looks on the face of it that you've got three community corrections order for three different sets of offending. That is not the case. It's one order for all of them.
36So and that order will last for 18 months. It commences on today, 19 September 2024 and ends on 18 March 2026. The usual terms are these. You must not commit another offence for which you could be imprisoned during the time. You must comply with a regulation that you don't attend any workplace appointment or program affected by alcohol or drugs, or in possession of illicit drugs. You must report to and receive visits from the community corrections people. You must report to the relevant community corrections centre. I think you must know where it is, it's at 9 Watson Street, Wodonga, within two days of the order starting, two days of today, within two days of today, yes, of today.
37You must let community corrections know within two days of a change of address or job. You must not leave Victoria without first getting permission to do so from them. Because we're so close to New South Wales, they're used to managing that in a way that doesn't unduly disadvantage people. You must obey all lawful instructions of community corrections. The additional terms are that you perform 150 hours of unpaid work over the 18 months. All hours of treatment and rehabilitation are to be counted as hours of work. You must - you will be under supervision of a community corrections officer. You must undergo mental health assessment and treatment, as you are directed and you must participate in programs relating to this offending as you are directed by community corrections.
38Now, do you understand all of that? Do you agree to it? All right, well, I'll get you to sign the three documents that state the one order and then I'll sign it. All right, then I'll sign it and then the documents can be given to you and the documents are going to be provided to Mr Clancy and Mr Cameron, is that right? They'll email them to me, okay. All right, well, there it is now.
39All right, so I'll hand those down. I think you've learned something. I'm not absolutely sure. You need to put this behind you and learn how to behave like a mature person when you confront life's problems. Otherwise, it'll all happen again, all right? All right, well, thank you. Mr Clancy, I might see you later today.
40MS CLANCY: Yes Your Honour.
41HIS HONOUR: All right and I'll stand down now and I'll return for the further plea and I hope - I hope to sentence Ms Coward-Royal today, but it probably won't be until, say, 1 o'clock or so.
42MR CAMERON: As Your Honour pleases.
43HIS HONOUR: All right, so we'll just - I'll stand down now.
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