Director of Public Prosecutions v Wilson, Damian
[2011] VCC 2123
•6 April 2011
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-01629
AP-11-0352
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAMIAN WILSON |
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JUDGE: | Her Honour Judge Cotterell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 April 2011 | |
DATE OF SENTENCE: | 6 April 2011 | |
CASE MAY BE CITED AS: | DPP v Wilson, Damian | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 2123 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A. Skinner | Office of Public Prosecutions |
| For the Accused | Ms M. Walker | Melinda Walker Criminal Law Solicitors |
HER HONOUR:
1 Damian Wilson, you have pleaded guilty before me to one charge of aggravated burglary, the maximum penalty for which is 25 years imprisonment; one charge of affray, the maximum penalty for which is five years imprisonment and to five individual charges of causing injury intentionally and the maximum penalty for that charge is 10 years imprisonment.
2 The facts of the matter were opened by the prosecution and a summary of the opening was tendered as Exhibit A on the plea. Your offending occurred in the following circumstances:
3 At about 4am on Sunday 2 November, together with your co-offenders, Luke Wilton, Jamie Lee and Lincoln Cox, you were at your home, Unit 2, 48 Frankston Flinders Road Frankston. Other males including Tien Tran were also at the premises and an altercation took place involving Cox, Lee and Tran.
4 Both Cox and Lee were then stabbed by Tran. Cox sustained a single stab wound to his upper left arm which did not require any stitches and Lee sustained a single stab wound to his abdomen which required medical treatment. They attended at the Frankston Hospital and both refused to make a statement of complaint to the police.
5 Later that evening, Wilton, Lee, Cox and two unknown males were again at your address. You discussed locating Tran and assaulting him in revenge for the stabbing of Cox and Lee.
6 You left the premises in two vehicles and went somewhere around the corner from Parwan Court Frankston. You then walked to 1 Parwan Court as you believed Tran may be inside.
7 Your co-offender, Cox, was known to the occupant of the premises, Benjamin Reid. Cox knocked on the front door and Reid's younger sister opened it. Cox asked if Ben was home and when he attended at the front door, Cox grabbed him with both hands and pulled him down into the garden bed. He then kicked and punched Reid to the head and upper body. You, Wilton and Lee also kicked and punched Reid numerous times. During this assault, you repeatedly asked where ‘Kenny the Chinaman,’ meaning Tran, was located.
8 The assault on Reid lasted for about a minute. He sustained bruising, abrasions and minor cuts to his face and forehead, bruising to the rear of his right ear and grazing to the right arm and lower back.
9 Sharon Reid, his mother, witnessed the assault and armed herself with a mini cricket bat. She stood over her son as he cowered on the front lawn and swung the bat around to prevent anyone from kicking and punching her son. She hit Cox on the head with the bat and you slapped her in the face.
10 Glen Leahy, a neighbour, on hearing yelling and voices went to investigate. As your group were walking away, Leahy yelled out you should leave and two of your group became aggressive. They walked over to him and he was punched to the right cheek. When Mr Leahy tried to return to his house, he was assaulted by the group of you who repeatedly punched him to the head and body. Mr Leahy was then dragged to the ground and kicked to the head and body. A fourth offender joined in the kicking as Mr Leahy cowered. He was feeling dizzy and was afraid of blacking out. Eventually the group stopped the assault and left.
11 Mr Leahy was treated by ambulance officers at his address. He sustained cuts to his right and left cheeks, a cut above his right ear and bruising to the head and lower back.
12 The four of you then drove to Fingal Drive Frankston. Wilton armed himself with a vehicle club lock and you attended at the front of the house. You entered the premises as a group and were yelling and threatening the occupants. You repeatedly asked for Kenny the Chinaman.
13 Duncan McCormack was a visitor to the premises and was seated at a table in front of a computer. Wilton and Cox approached him. Wilton raised the club lock and punched McCormack a number of times to the head whilst demanding the whereabouts of Kenny.
14 Zane McDonald had been in the rear yard fixing a car. He walked into the house asking what was happening. Wilton punched McDonald to the face, raised the club lock and threatened him. McDonald grabbed Wilton and they fell to the floor. You, Wilton, Lee and Cox began punching and kicking McDonald numerous times to the head and upper body. Wilton told McDonald to stay on the ground and not to look at him or he would be further assaulted.
15 Kerry Sherrin, the owner of the house arrived home and walked into the lounge room. Wilton was yelling "Where's the Chinaman, I know you know where he is." Cox lifted his t-shirt and displayed the injury to his right upper arm. A gauze patch fell to the floor. Lee was standing over Sherrin's daughter making verbal threats and Lee lifted his shirt and pointed to the injury on his stomach. Sherrin repeatedly told you to leave and eventually you all left.
16 As a result of the assaults, McCormack sustained a swollen and cut lip and minor bruising. McDonald sustained injuries to his face and a black and swollen left eye.
17 Later the same evening, you and Wilton entered a Foodie station on Frankston Flinders Road Frankston. Paul Lane was seated in his girlfriend's car parked near the entrance, together with his girlfriend, Rebecca Doyle.
18 An altercation started between yourself, Wilton and Lane. Lane was hit on the head with a stubby of beer, a window of the car was smashed and Lane was punched to the head. You and Wilton went into the store, Lane grabbed the tyre brace from the car and followed you. He did not produce it and his girlfriend, Ms Doyle, pushed him back out of the store.
19 You and Wilton left the store and another altercation occurred. You and Wilton kicked and punched Lane, causing numerous facial injuries. You then grabbed a fence paling with nails in it and struck Lane with it as he ran back to the store. He sustained small puncture wounds to his back and arm.
20 A few days later, on 7 November 2008, you were arrested and taken to the Frankston police station for interview. You stated that you and your three co-offenders went to Ben's house to find out where the Asian boy lived. You then went to the Sherrin house, you were all yelling but you said you yourself did not hit anyone.
21 In relation to Mr Lane, you said some guy at the Foodies wanted to stab Wilton, Wilton hit him and you and Wilton hit him a couple of times. You denied taking part in the assault with the paling fence.
22 The matter resolved at a directions hearing on 7 March 2011. There has been, in your case as in the case of your co-offenders, a substantial delay of some two years and four months between the offending and my sentencing you.
23 A number of victim impact statements were tendered to me as Exhibit B on the plea. The victim impact statement declared by Rebecca Doyle, the girlfriend of Lane, the complainant in the last event I described, declared that her life has changed in many ways. She cannot go out at night and some days she is house bound and frightened to leave at all. She suffers fear, anxiety attacks before or during job interviews and finds it difficult to sleep, due to the memory of the attack. She writes that she has never seen such violence before.
24 Zane McDonald who was at the Sherrin house when you entered, suffered facial injuries and bruising and he also describes the psychological impact which included an unreasonable fear in public. He did not know you at the time of the attack and was constantly looking around, wondering if the people in public places were the perpetrators of the violence that he had suffered.
25 Members of the Reid family where you assaulted Benjamin and you personally slapped or hit Mrs Reid, Benjamin's mother in the face, said each member feared for the safety of the others and each was afraid of your group returning to inflict further injury. Mrs Reid said seeing her son lying motionless on the ground, thinking he was dead, devastated her as there was so much blood.
26 Fortunately, in the end result, the injuries suffered by your victims were not too severe but clearly, everyone affected by these incidents suffered from depression and emotional trauma.
27 Kerry Sherrin, the owner of the property where you assaulted a number of people on that night indicated an inability to continue working. Kerry Sherrin, however, also included in her declaration that she appreciated that you and Lincoln Cox have apologised to her. She felt that showed that you had character. She reported that you both cried and she declared in her victim impact statement that the two of you discussed with her what you had done and that it was a wrong thing as many people were hurt and it affected everyone's lives. I take all of the victim impact statements into account and I also take your apology to Ms Sherrin into account as evidence of your remorse.
28 Tendered to me as Exhibit 1 on the plea was a progress letter in relation to a youth justice centre order that you received on 11 July 2007 in the County Court. You were released from Malmsbury Youth Justice Centre on 14 April 2008. You were subject then to conditions of a youth parole order which required you to participate in weekly supervision appointments, among other things. Your attendance on supervision appointments remain consistent and you generally participated appropriately during the sessions and discussed your offending behaviour, as well as any issues you were facing. A special condition of the order was that you were to attend YSAS, the Youth Substance Abuse Service for drug and alcohol counselling as directed. This was to assist you to address your substance use which contributed to all of your offending behaviour.
29 The involvement with YSAS ceased on 31 July 2008 when your case manager deemed it appropriate that you no longer needed that counselling. However, of your own volition you recommenced drug and alcohol counselling with the service on 15 September as you were experiencing an increase in substance use.
30 It is clear from this letter which is dated 10 November 2008 that you complied with the requirements of your parole order and cooperated with the other health and accommodation organisations which were supporting your rehabilitation. However, it is clear that the offending which brings you before the court today occurred some eight days prior to that report being written. It appears that for all of your cooperation and the relevant success you had had, it did not prevent you from reoffending and committing the acts of violence which I am to sentence you today.
31 You were remanded in custody after your arrest on 7 November 2008. You were granted bail on 26 February 2009. On 22 March 2010 you failed to answer bail for your committal hearing and you were arrested then on 25 June and remanded in custody and you have now spent 214 days in custody.
32 During that time, you served a three month sentence which was imposed on 12 August 2010, a suspended sentence was restored and a further three months was served cumulatively on the first three months and that sentence was completed on 24 December 2010.
33 You were then remanded in custody in relation to the offences for which I am to sentence you today on 25 December 2010 and then on 15 February you were sentenced to three months imprisonment in the Magistrates’ Court and that sentence is before me as an appeal and I will refer to that later.
34 You have a prior history in the adult jurisdiction appearing first before the Korumburra Magistrates’ Court on 9 September 2004 where without conviction on a charge of theft and one of going equipped to steal, you were ordered to pay $45 and to attend TAFE on each school day until your mechanics course was completed.
35 Then at Geelong Magistrates’ Court on 1 December 2004, again without conviction, you were fined $100 for consuming liquor under the age of 18.
36 On 8 February 2005 at Frankston Magistrates’ Court, again without conviction, you were ordered to pay compensation in relation to a charge of criminal damage. You failed to complete that undertaking and that was found proved but no further action was taken on 30 January 2006 at Frankston.
37 You were then at the Frankston Magistrates’ Court convicted for the first time and fined an aggregate of $600 for resisting police and using indecent language in a public place.
38 On 11 July 2007 your offending had taken a serious leap. You were convicted on two counts of intentionally causing serious injury, one count of aggravated burglary, that is entering premises with the use of an offensive weapon and common law assault. You received a total of two years sentence to a youth justice centre and a period of 38 days was declared as having been already served by way of pre-sentence detention.
39 You then received a suspended sentence on 20 August 2007 for driving whilst disqualified and other traffic matters and you received a sentence of three months fully suspended for a period of two years and you have now served that.
40 On 15 November 2007 you received six months detention in a youth training centre for intentionally damaging property and reckless conduct endangering serious injury.
41 It appears clear from those sentences and dispositions that the court has sought to help you on numerous occasions and I note that following the lengthy period on youth parole, you actually got independent accommodation and you have work. However, you began drinking again and this incident occurred in November 2008 while you were still under the supervision of that youth parole order.
42 The other matter that has been brought to my attention is the subsequent offence I referred to previously which occurred on 25 September 2009 which is for criminal damage. You were convicted and sentenced to three months imprisonment and ordered to pay compensation at the Magistrates’ Court on 15 February and that is the reason you are still in custody.
43 An appeal in relation to that matter, AP-11-0352 is before me and to be dealt with today and as I understand it, that matter is the only matter that has occurred since the offending for which I am sentencing you today.
44 I also understand that there was a motorcycle accident in which you were involved on 15 March 2008 when you were injured while you were on day release from youth detention.
45 You are now aged 24 and your personal history is that your own father left you and your mother when you were very young. You were brought up by your mother and also your maternal grandparents in a loving environment.
46 However, you did begin to use alcohol when you were very young and your abuse of it dates back to when you were about 15 years of age. Alcohol has been involved in all of your offending and it is most important that when you are released from custody, that you make some effort to address those issues which although they may have been partially addressed in the past, contributed very largely to that lengthy period of imprisonment you have just served.
47 A number of events contributed to your offending in 2007. You were severely beaten in an unprovoked attack on the streets of Frankston in 2005. Your maternal grandfather who was your main male figure in your life committed suicide in around 2007 and you were deeply affected by that event. You were left with feelings of anger towards your grandfather and sadness for your grandmother following his death.
48 In addition to that, in 2007 as I understand it, you lost your best friend in a car accident, your relationship broke up and you had had a child in 2006 and you are the father of a little boy who is now aged five and those are all certainly dramatic events occurring in the life of someone who was still only 20 years of age.
49 I note that your son lives with his maternal grandmother and spends a lot of time with your own mother and that you have contact with him when you are not in prison.
50 You have been involved in most of your offending with your friends and associates with whom I have already dealt for their part in these offences.
51 You have now been in custody for that total of 214 days and your arrest for this matter was your first time in adult remand.
52 Since then you have been a sentence prisoner and you have spent time at various different prisons. You have now spent that significant time in custody which I understand has had a serious effect in helping you to understand what your future will be if you do not change your ways.
53 Your counsel argued that you have prospects, you have family and you will return to live with your mother when you are released. She also raised the issue of parity, given that I have also sentenced your co-accused and further, the importance of your plea of guilty at an early stage in the proceedings. I take those matters into consideration, despite the fact that you did fail to appear and spent quite a lot of time being searched for in relation to these matters. I also take into account what has occurred in your life over the period since you committed these offences.
54 I now turn to the other matters I need to take into consideration in sentencing you. Firstly, specific deterrence, and in this case it is extremely important as you have been a repeat offender and have indeed committed offences involving violence, on three occasions including one occasion whilst you were on parole.
55 However, as I indicated, it would appear that being both on remand in adult prison and undergoing a sentence in adult prison, may be sufficient for you to act on your possibilities for rehabilitation and to deter you from offending in the future and that is to be seen.
56 Secondly, I am required to take into account principles of general deterrence, that is, that others in the community should be deterred from engaging in this sort of vigilante behaviour that has brought you before the court today. Violence carried out by young men such as yourself usually involving alcohol is so prevalent in the community that anyone who indulges in such behaviour must be aware that serious consequences will result, particularly when it involves entry into another person's home with the intention to assault.
57 Further, I am required to denounce your behaviour on behalf of the community and I do so absolutely. Your offending has involved the infliction of injury, fortunately for you not too serious, on people who were at home in their own homes or guests in other's homes where they must have at least the expectation that they will not be attacked. The community will not tolerate young men in groups who go around inflicting violence on anyone who gets in their way when they are bent on retribution for some imagined or real offence.
58 I am further required to impose just punishment in all of the circumstances. In doing so, I take into account the period that you have spent in custody and your prospects of rehabilitation. I also take into account the fact that you were on youth parole at the time of committing these offences and that is an aggravating feature.
59 I am also required to consider parity which requires that like offending be dealt with by similar punishment. I sentenced your co-offender, Luke Wilton, who perhaps has had the most similar involvement in the offending to your own. He received a suspended sentence due in part to his having served nine months of a 21 month sentence in youth detention and having completed some 11 months on youth parole, that sentencing having occurred following these offences.
60 I further take into account your youth and attribute to that a requirement that rehabilitation is an extremely important consideration in any sentence I impose and may outweigh general deterrence. Rehabilitation will benefit not only you, but also the entire community.
61 Having considered all of these matters and also taking into account the concession of counsel for the Director of Public Prosecutions, that because of the requirement for parity, you must receive a term of imprisonment but how you are to serve it is purely a matter for the court and within my discretion, subject to those principles of parity. I have reached the conclusion that a term of imprisonment is warranted in this situation for this serious offending, however, given all of those matters I have just referred to, it is appropriate that it be suspended.
62 Further, I intend to deal with the appeal which I referred to earlier and which is before me and in relation to that matter, I order that the orders of the Magistrates’ Court imposed on 15 February 2011 be set aside and in their stead, I make the following orders:
63 On Charge 1 of criminal damage, you are convicted and sentenced to three months imprisonment which is wholly suspended for a period of 18 months and you are ordered to pay compensation of $1,481.53 to the Quik Service Station, Karingal.
64 In relation to the offences on the indictment, I intend to impose a term of imprisonment which will be partially suspended. I impose the term of imprisonment to reflect the seriousness of this offending and I suspend part of it to give you the opportunity to undertake your rehabilitation as you now are aware of the alternative.
65 Would you stand for me please.
66 You understand that I am going to partially suspend the sentence and that you must not, during the period of suspension, commit another offence punishable by imprisonment, either in or out of Victoria and that relates to both the sentence that I suspended in relation to the appeal which is the criminal damage matter and also, the sentence I am going to suspend in relation to the main offences with which I am dealing.
67 Should you commit another offence punishable by imprisonment either in or out of Victoria, you will be in breach of the suspended sentences and you will be brought back before this court, no doubt before myself, and you will be ordered to serve the sentence that has been suspended. Do you understand the consequences of breaching the suspended sentence order?
68 PRISONER: Yes.
69 HER HONOUR: Your sentence in relation to the charges on the indictment is as follows; On Charge 1 you are convicted and sentenced to 12 months imprisonment. 6 months of that is to be served cumulatively on the sentence I impose in Count 4 which will be the base sentence.
70 On Charges 2, 3, 5, 6 and 7, that is intentionally causing injury, you are convicted and fined $1,000 in relation to each charge.
71 In relation to Charge 4, the base sentence which is aggravated burglary, you are convicted and sentenced to two and a half years imprisonment.
72 That is a total effective sentence of three years imprisonment and that period is partially suspended for a period of three years. You are required to serve three months of that sentence before being released to serve the rest of the sentence which is suspended.
73 I declare that 214 days pre-sentence detention be deemed time served and be entered into the records of the court.
74 Further, pursuant to s.6AAA of the Sentencing Act, I declare that but for your plea of guilty, I would have sentenced you to four years imprisonment with two and a half years to serve.
75 Now in relation to the fines of $1,000, I am going to give you a stay of four months and following that, if you have employment you can enter into a payment plan, or elect to do community work to pay them. Your counsel will explain that to you.
76 MS WALKER: Can I just ask Your Honour to put on the record that you do consider that there is time served that in event of any breach, that that be - just to avoid any confusion.
77 HER HONOUR: I further declare that should there be any breach of the suspended sentences, the 124 days when he is released today is applicable to any breach of the suspended sentences.
78 MS SKINNER: Can I just confirm with Your Honour that the two years nine months suspended is for an operational period of three years?
79 HER HONOUR: Yes.
80 MS SKINNER: I just wanted to confirm.
81 HER HONOUR: I think it is the same sentence in fact that I gave to Mr Wilton as they had the two extra victims and they had similar offending. Mr Wilson did you understand all of that?
82 PRISONER: Yes.
83 HER HONOUR: You will be released probably by the end of today. You will be released and it is up to you now what you do. All of this period of offending is now behind you and if you can address your issues, hopefully you will not be before the court again but you know that you have got that period of imprisonment hanging over your head which you will serve if you fail to go on with your rehabilitation.
84 Thank you.
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