Director of Public Prosecutions v Wilson; Wilson v Reid

[2022] VCC 2230

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-20-00043
AP-21-0277

DIRECTOR OF PUBLIC PROSECUTIONS
v
ETHAN WILSON
and
ETHAN WILSON	Appellant
v
ADAM REID	Respondent

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	14 December 2021, 13 April, 20 May and 9 December 2022
DATE OF SENTENCE:	13 December 2022
CASE MAY BE CITED AS:	DPP v Wilson; Wilson v Reid
MEDIUM NEUTRAL CITATION:	[2022] VCC 2230

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              CR-20-00043 contravention of a Community Correction Order of 30 months duration imposed on 11 August 2020 for charges of armed robbery and intentionally causing injury

AP-21-0277 appeal from an aggregate sentence of 180 days’ imprisonment imposed by Dandenong Magistrates’ Court on 24 February 2022 on one charge of burglary, two charges of theft, one charge of obtaining property by deception and one charge of attempting to obtain property by deception

S6AAA declaration: 2 years imprisonment with non-parole period of 18 months.

Legislation Cited:      Sentencing Act 1991

Cases Cited:

Sentence:                  Total Effective Sentence of 12 months imprisonment with non-parole period of 5 months.
s6AAA: Two years’ imprisonment with 18 months non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Atkinson	Office of Public Prosecutions
For the Accused	Ms S Locke	Slades & Parsons Solicitors

HER HONOUR:

1Ethan Wilson, on 14 December 2021 you appeared before me for sentence in relation to two matters:

(a)   CR-20-00043. This involves contravention of a Community Correction Order of 30 months imposed by Her Honour Judge Fox (as she then was) in the County Court on 11 August 2020 in relation to Indictment number K12572289 for charges of armed robbery and intentionally causing injury.  This offending stemmed from you using knuckle dusters to collect a perceived debt from the victim and the circumstances are comprehensively set out in the sentencing remarks of her Honour Judge Fox which comprise Exhibit “D”.[1]

(b)   AP-21-0277.  This is an appeal against a sentence of 180 days’ imprisonment imposed by the Dandenong Magistrates’ Court on 24 February 2021 in relation to one charge of burglary, two charges of theft and one charge of obtaining property by deception and one charge of attempting to obtain property by deception.  All of the offending occurred on 3 January 2021.  Charges 1 and 2 (entering a building with intent to steal and theft) involved you walking by an address where a garage roller door was open and entering and stealing some power tools valued at $700.  Charge 3 (theft), involved you entering the victim’s vehicle which was parked on the street via an unlocked front passenger door and stealing a wallet valued at $60 which contained the victim’s bank card.  Charge 4 (obtaining property by deception) involved you using the bank card referred to in relation to Charge 3 to purchase two packets of cigarettes valued at $91.98.  Charge 5 (obtaining property by deception) involved you using the bank card of the victim on Charge 3 to purchase a packet of cigarettes valued at $59.99.  Charge 6 (attempting to commit an indictable offence of obtaining property by deception) involved you entering a convenience store with the bank card of the victim on Charge 3 and attempting to purchase a packet of cigarettes, however, the purchase was declined, by that stage, the card had been cancelled.

[1]DDP v Ethan Wilson [2020] VCC 1216, 11 August 2020

2When the matters first came before me on 14 December 2021, I considered it appropriate to defer sentence for a period of 12 months.  You had been aged only 19 years when you committed the offences for which Judge Fox sentenced you and only 2 years when you committed the offences which were the subject of the sentence of Dandenong Magistrates’ Court on 24 February 2021. 

3You had a background of significant deprivation. You never knew your father and your mother was an ice addict and frequently absent from the family home. You were subject to abuse and violence from a number of her partners.  Child Protection Services were involved from 2003 to 2014.  It was apparent from material put before the Court that you had to take significant responsibility for looking after your siblings and had disruptive schooling, which finished at Year 9 level.  You had been introduced to illicit drugs use by your mother and this was associated with your criminal history.  You had been diagnosed by Dr Cunningham with a Post-traumatic Stress Disorder from your early physical and sexual abuse and your disadvantaged childhood.  You had left home at 16 and formed a relationship with a young woman, Stephanie Hawkins, who in May 2021 gave birth to your daughter, Lilliana.  You thus had new and significant responsibilities as a young father and had been engaging in drug rehabilitation with Ms Ulukaya at YSAS. 

4A neuropsychological report from Dr Loretta Evans dated 4 October 2021[2] commented upon your complicated neuropsychological profile. This relates to underlying developmental factors secondary to chronic stress reaction, the emergence of Post-traumatic Stress Disorder, longstanding emotional stress from events experienced during childhood, highly disrupted educational opportunities, cortical vulnerability possibly compromised by onset of illicit drug use during critical periods of brain maturation and the potential for development of maladaptive perspective/personality characteristics. 

[2]Exhibit “2”

5Dr Evans considered that you showed a level of insight and remorse which impressed her as positive factors for change and she thought that you were a suitable candidate for “talk based therapy”.  She considered that you needed specialist psychological expertise and intervention over and above a standard episode of counselling or group therapy and that you should be offered one-on-one counselling with a dual diagnostic clinician with specific expertise in Post-Traumatic Stress Disorder, drug addiction and personality disorders, otherwise your prospects of rehabilitation and potential to achieve some level of psychiatric stability would be seriously compromised.

6Your young age, complex problems and the fact that you seemed to be seriously trying to rehabilitate yourself, caused me to conclude that a deferred sentence order was appropriate to enable you to demonstrate that you could do so.

7You came before the court again on 13 April 2022 for review.  It was apparent that, between 12 May 2021 and 29 October 2021, you had engaged in counselling sessions with Forensic Mental Health and had also been diagnosed with Attention Deficit Hyperactivity Disorder on top of your Post-Traumatic Stress Disorder relating to your developmental trauma.[3]

[3]Report of Ashleigh Rowe, Clinical Psychology Registrar, Monash Health, undated, Exhibit “3”

8Although Corrections reported that you had disengaged with Forensic Mental Health Services, it appeared that you had difficulty obtaining psychological services during the restriction imposed due to the Covid pandemic. I noted that, at that stage, you had not offended further and had been spending time on Phillip Island living with your grandmother where you were able to get a significant amount of concreting work.  Thus, although your engagement with Corrections was not perfect, I considered that you were still trying, and it was important to acknowledge the additional new diagnosis of Attention Deficit Hyperactivity Disorder. 

9At the review hearing on 13 April 2022, I was impressed by the fact that, since the previous year, you had continued to engage with Ms Ulukaya at YSAS for a further seven sessions relating to drug treatment, and had successfully transitioned to the South Eastern Consortium of Alcohol and Drug Agencies (SECADA) from December 2021 as you were beyond the age for YSAS clients. You had gone on to complete a further five sessions of drug and alcohol counselling at SECADA. The counsellor, Ms Anagnostakis, had stated, at that point, that you did not require ongoing drug and alcohol treatment as you appeared to be functioning well within the community and your substance use was minimal.[4]  However, following that hearing, I did have my Associate write to Corrections indicating my concerns about the lack of recent urinalysis undertaken by you and your disengagement from Forensic Mental Health Services, and the need for you to be linked with psychiatric services as soon as possible, as well as to have your Attention Deficit Hyperactivity Disorder addressed.  I also expressed concern about the wait time for you to be accommodated in the “Looking at me, Identifying priorities, Next steps Community Services” program and anger management programs.[5]

[4]Addendum report by Bridget Findlay, case manager, Dandenong Community Correctional Services dated 7 April 2022, page 4, Exhibit “F”

[5]Letter to Dandenong Community Correctional Services dated 14 April 2022, Exhibit “G”

10When the matter came before me again for review on 20 May 2022, the updated addendum report from your case manager, Ms Bridget Findlay, dated 6 May 2022,[6] noted that you had continued to engage in supervision, but had missed a number of drug screening appointments and had indicated that you would like to complete a further detoxification stay to address your drug use.  You had gone back to contacting your previous drug support worker, Ms Ulukaya, at YSAS, with whom you had had a good rapport, who indicated that she would help you and she was present at the hearing to support you.[7] 

[6]Exhibit “H”

[7]Exhibit “H”

11A subsequent addendum report by Ms Findlay, dated 12 May 2022,[8] noted that you had been upfront in advising that you had been “self-sabotaging” by not attending drug screens and refusing mental health assistance due to focussing on difficulties in your relationship. You had broken up with Stephanie and, at one point, had been living in a hotel room with baby Lilliana, and also your younger brother in relation to whom you have always played a protective role.  You were still on the wait list for a number of programs, but committed to undergoing a further detoxification stay, and Correctional Services maintained its recommendation that your Community Correction Order be confirmed.[9] 

[8]Exhibit “J”

[9]Exhibit “J”

12You had had a period of treatment with the Monash Health, Forensic Mental Health in Community “Refresh Program” by seeing a psychologist from March 2021 to March 2022, in which you had made some progress relating to your traumatic abuse in childhood and your troubled adolescence. You had been recently rereferred and been seen on 19 May 2022 at which time you revealed that you had relapsed into ice use two months previously.  You also stated that the medication upon which you had been placed for your Attention Deficit Hyperactivity Disorder was sapping your energy and that your motivation was being adversely impacted upon.[10]  Although your performance on the Community Correction Order, again, had not been perfect, your honesty about your relapse into drug use and the problems that you were experiencing in your relationship, which were destabilising, led me to consider that you should be permitted to continue with the order.  This seemed appropriate as, Ms Ulukaya advised the Court that she had made arrangements to book you in for detoxification at Tabor House, run by Uniting Withdrawal Services in Ballarat, on 31 May 2022. She stated that there were plans for you to be followed up with treatment in the community in rehabilitation units where clients could stay for six months.  You were supported at Court by your younger brother and Ms Hawkins. Your Corrections case officer, Ms Findlay, noted that you had been granted approval for a “compliance review package” from Forensic Intervention Services which would enable you to complete the detoxification and hopefully build on that.  At that hearing on 20 May 2022, I indicated in clear terms to you that there would be zero tolerance if you did not comply with the order from then on.  The matter was adjourned for sentence to 9 December 2022.

[10]Letter from Roger Volk, Forensic Community Health, undated but confirmed by the prosecution as dated 19 May 2022, Exhibit “K”

13On 9 December 2022, it became apparent that you had not complied with the order and, indeed, had committed further offending in June and July of 2022 for which you are to be sentenced in the Magistrates’ Court on 19 December 2022.  It seems that following your appearance before me in May 2022, you had lapsed into drug use and did not ever attend the proposed detoxification program, failed to attend for drug screening, and also failed to attend a compliance review hearing with Corrections on 21 July 2022.  The most recent report from your case officer, Ms Findlay, dated 27 July 2022,[11] noted your failure to abide by various conditions of the order and recommended that the order be cancelled and that you be resentenced on the original offences.[12]

[11]Exhibit “L”

[12]Exhibit “L”

14It is with considerable disappointment that, after one year, I find that your failure to fully engage with the Community Correction Order leaves me no opportunity but to cancel it and resentence you on the original offences for which it was given. Although the offences of armed robbery and intentionally causing injury for which Judge Fox (as she then was) sentenced you are towards the lower end of the scale of seriousness, the only appropriate sentence now is a term of imprisonment, this is also the only appropriate sentence for the other anti-social offending which is the subject of the appeal proceeding.  Having said that, it should be acknowledged that you are still young, only 23 years of age. After attending six sessions with Dr Volk at Forensic Community Health via Zoom, commencing on 25 May 2022, it was plain that you were struggling as there were persistent themes of hopelessness and feeling stuck, and being angry with your partner from whom you have now separated. You felt that your partner was abusing you by withholding contact with your daughter, and you found yourself easily overwhelmed and unable to think of solutions.  You had also contacted Corrections on 2 June 2022 to advise that you were not well enough to complete the LINCS program on that day.  To your credit, you did remain engaged with Outreach Support from Ms Ulukaya at YSAS, but obviously this ceased once you were remanded in custody in July.[13]

[13]See page 3 of Exhibit “L”

15In sentencing you, I take no account of the new offending which was committed whilst you were on the Community Correction Order given by Judge Fox.  The disposition on those charges is entirely a matter for the Magistrates’ Court.  Whilst it does reflect adversely upon your prospects for rehabilitation, I do note that the commission of those offences occurred during a particularly difficult time for you.  As already stated, you are a person who has complex underlying neuropsychological problems relating to your childhood trauma and anxiety and depression, and added to that you have been diagnosed with Attention Deficit Hyperactivity Disorder.  You have had a long-term substance abuse problem, and were very young when you became a father.

16It has been apparent to me, throughout the course of the multiple hearings upon which I have seen you, that you are a fundamentally decent person who cares deeply for your little daughter, Lilliana, who is only 18 months old.  You seem to have limited capacity to cope when things are not going well. I note that around June and July this year you were undergoing significant relationship problems with Ms Hawkins, from whom you had separated, and were having difficulty seeing your child, and resorted to maladaptive coping strategies by relapsing into illicit drug use.

17Whilst making it clear that court orders must be obeyed, and you have been given a number of chances, I do acknowledge that your Post-Traumatic Stress Disorder is of enduring significance and, when one has not had any appropriate role modelling from parents during crucial developmental stages, the impacts of that neglect and, indeed, abuse, by being introduced to drugs, is enduring.

18You were a young father and managed, along with your former partner, to navigate your way through intervention from Child Protection from May 2021, when you and Ms Hawkins were suffering homelessness and your substance-abuse problem became apparent.  MacKillop Family Services worked with you, and the letter from them dated 21 November 2021 speaks very positively of your determination to work towards emotional stability, and speaks very positively of your parenting, as follows:

“Ethan’s role as a parent is in my opinion a huge indication of his strength and love for his daughter.  Ethan is an amazing father who is involved in every life event, every parenting activity and every practical task.  He is as hands on and involved as Lilliana’s mother, this view is shared by child Protection.  The emotional connection and attachment that Lilliana has to Ethan is also extremely strong.  Ethan is warm, loving and attuned to all her needs.  He delights in her development and her interactions, and he is determined to give her the best possible start in life.  Ethan has been open and welcoming to any parenting advice on routines, development, and any support that our program has offered.  He is constantly asking questions and shows a genuine interest to know as much as possible.”[14]

[14]Exhibit “6”, page 2

19The Court can appreciate the destabilising effect upon you of your relationship with Ms Hawkins disintegrating and being denied access to Lilliana around the middle of this year.  It was around this time that you began using ice and cannabis, and, perhaps not surprisingly, the relationship with your supportive grandmother, with whom you had been living on Phillip Island while separated from Ms Hawkins, also began to deteriorate.

20In sentencing you for the contravention of the Community Correction Order, I must take into account the extent to which you engaged with it.  In this regard, it is notable that you have had contact with a significant variety of services relating to drug and mental health counselling, which amount to some 168.55 hours.  You had sufficient insight and honesty to report to Corrections and to Forensic Mental Health Services that you were taking drugs, but unfortunately lacked the wherewithal to get your act together to engage with the very services you needed.

21Have now spent some five months in custody.  You have utilised that time very well by undertaking every rehabilitative course that has been offered to you.  Six certificates relating to courses undertaken between 9 August 2022 and 7 December 2022 relating to Release Related Harm Reduction; cannabis, alcohol, and ice use; attendance for four weeks at Narcotics Anonymous; and also completing a Healthy Coping program; were tendered as Exhibit “14”.

22A report from Ms Melissa Rathgen, clinician at the GEO Group Australia Pty Ltd at Ravenhall Correctional Centre, indicates that she assessed you for suitability for inclusion in your remand treatment programs, and that you are on the waitlist for a number of programs.  In addition, she noted that you are undertaking individual counselling on a weekly basis, utilising cognitive behavioural therapy and acceptance and commitment therapy, and that you have expressed a desire to continue with such counselling.[15]

[15]Exhibit “13”

23The Court was told that although you and Ms Hawkins are no longer in an intimate relationship, you have managed to achieve an amicable and cooperative co‑parenting relationship in relation to Lilliana and Ms Hawkins has been facilitating your contact with Lilliana via Zoom whilst you have been in custody.

24You have also repaired your relationship with your grandmother, who brought Lilliana to see you once in prison.  A letter to the Court from your grandmother states that she has noticed a change in your thinking and decision-making since you have been in custody, and she has phone contact with you daily, and believes that you really desire to turn your life around for your daughter’s sake.  She stated that you have spoken at length about your release, and she has agreed that you may live with her, where your younger brother, to whom you are close, also resides.  She stated that there is great potential for your employment as a concreter in the Cowes, Phillip Island, area where you are removed from prior influences and associates.  In addition, you have support from the church in which you grew up, Pakenham Christian Church, and a number of members have been keeping in touch with you to support you.[16]

[16]Exhibit “16”

25Another letter to the Court from your younger brother, Blair Hobson, dated 29 November 2022, speaks about how you have always looked out for him, kept him safe, and got him meals, because your parents did not look after you.  He stated that you enrolled him in secondary school and impressed upon him the importance of education, and he has now finished Year 10 at TAFE and is looking for a job.  He noted the toxic relationship with your former partner and how your mental state deteriorated with all the stress, and that you were not thinking with a clear mind and made some foolish choices.  He affirms his love and support for you.[17]

[17]Exhibit “15”

26You spoke to me personally, and said that, since you have been in custody and off drugs, you feel well and motivated to get your life back on track.  You are attending Narcotics Anonymous three times a week and finding counselling helpful.  You stated that you had obtained your own ABN for your business as a concreter and know that you are able to obtain employment with contacts on Phillip Island.

27You have been engaged with Ms Rathgen at Ravenhall, and it is proposed that she will put a release plan in place when you are due to leave custody.  You already have plans for a particular Narcotics Anonymous group at Wonthaggi.  You stated that you continue to be medicated with fluoxetine, an anti-depressant, and are benefiting from cognitive behavioural therapy, but are yet to be reassessed in custody for treatment for ADHD.

28Your Counsel, Ms Locke, stated that Ms Rathgen has been looking at informal release plans which would involve you attending the Smart Recovery program run by Bass Coast Health in Wonthaggi to assist with remaining abstinent from illicit drugs and alcohol, and also engaging with Headspace in Wonthaggi to support your mental health.  Ms Rathgen would also assist in obtaining a mental healthcare plan.

29In all of the circumstances, although I have no option but to remand you in custody, I consider that your five months spent in custody has resulted in you reflecting upon your situation, maintaining abstinence from drugs, and taking some significant rehabilitative steps by way of education and counselling.  You have had a hard start in life, which has given you ongoing Post-Traumatic Stress Disorder, and you also suffer anxiety and depression, which makes serving a sentence of imprisonment more burdensome. I take those factors into account.  However, you do have good supports in terms of your grandmother, with whom you will have a safe and secure place to stay when you are ultimately released into the community, and hopefully your further time in custody, abstinent from drugs, with ongoing support therapy, educational programs, and attendance at Narcotics Anonymous, will enhance your prospects of turning your life around.

30In making the disposition I propose to make, I take into account your pleas of guilty. I am satisfied that they are remorseful and they carry added utilitarian weight having been entered during the time of the restrictions necessitated by the Covid pandemic which made running contested matters problematic. I acknowledge that Covid restrictions still apply from time to time in the prison environment and that the make serving a term of imprisonment more onerous, particularly as it is already burdensome for you with your complex mental health issues.

31The Community Corrections Order made on 11 August 2020 is cancelled.  On one charge of armed robbery and one charge of intentionally causing injury, you are convicted and re‑sentenced to a total effective sentence of nine months’ imprisonment.

32On the appeal relating to one charge of burglary, two charges of theft, one charge of obtaining property by deception, and one charge of attempting to obtain property by deception, the orders of the Magistrates’ Court at Dandenong made on 24 February 2021 are set aside.  In their stead you are convicted and sentenced to an aggregate term of three months’ imprisonment.

33I direct that the three months’ imprisonment imposed on the matters on appeal be served cumulatively upon the nine months’ imprisonment on the matters which previously were subject to the Community Correction Order.

34The total effective sentence is thus 12 months’ imprisonment.

35I direct that you serve a period of five months imprisonment before becoming eligible for parole.  I declare a total period of pre-sentence detention of 44 days to be time reckoned as already served under the sentences imposed this day. For clarity, of the 44 days presentence detention 31 days relate to the matter the subject of appeal (AP-21-0277) and 13 days relate to the matters upon which you were originally sentenced to a Community Corrections Order (Indictment number K12572289).

36Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty the sentence imposed on appeal would have been six months’ imprisonment, and the sentence imposed on the armed robbery and intentionally causing injury would have been 18 months’ imprisonment.  The total effective sentence would thus have been two years’ imprisonment with a non-parole period of 18 months.

37Finally, I find the charge of contravening a CCO proven and make no further order.

38Mr Wilson, the court hopes you will not give up on yourself and that you will be able to be a contributing member of society and a good father to Lilliana. The court sincerely wishes you well with your rehabilitation.