Director of Public Prosecutions v Winkleman
[2018] VCC 222
•5 March 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication | |
AT LATROBE VALLEY
CRIMINAL DIVISION
Case No. CR-18-00049
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KOBI WINKLEMAN |
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JUDGE: | His Honour Judge Smallwood | |
WHERE HELD: | LaTrobe Valley | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 5 March 2018 | |
CASE MAY BE CITED AS: | DPP v Winkleman | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 222 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. O'Doherty | Office of Public Prosecutions |
| For the Accused | Mr R. Davis |
HIS HONOUR:
1 Kobi Winkleman, you have pleaded guilty to one charge of aggravated burglary, one charge of recklessly causing injury and one charge of criminal damage. Those crimes carry maximum penalties of 25 years, five years and ten years respectively.
2 You were 18 years of age at the time of the offending and indeed are still only 18 years of age. You are therefore to be sentenced as a young person.
3 Your plea of guilty came at an early time and you must get the benefit of that plea of guilty. Remorse would be somewhat problematical but in the circumstances I will give you the benefit of the doubt.
4 Pursuant to s.464Z I make an order that you provide a saliva sample for DNA purposes. That order having been made I must advise you that should you refuse to provide same the police may use reasonable force to take it from you.
5 You do, despite your young age, have a significant number of prior convictions for violence though I note that the vast majority of them are in the Children's Court. In fact this escapes the jurisdiction of the Children's Court by not a very great margin. It could have been heard in the Magistrates' Court but was not and I will just go through the summary and indicate that I regard the aggravated burglary as at the lower end of aggravated burglary.
6 You had been in a relationship with a Ms Gonzi for some period of time. You were 18, she was 17. On 28 September, in the morning, you and her were in heated conversation regarding cheating on one another and a number of phone calls went backwards and forwards and you wanted your phone. You went to the address and I accept it was to retrieve your phone. Your stepfather was with you and a friend was also in your company. On seeing you she locked all the doors. You banged on the front door then went round the back to try and find your phone in the bungalow out the back which, I understand, is where she lived. It was her mother's house, as I understand it.
7 In any event, she went to give you the phone at the front door. You then took it, grabbed her by the neck or hoodie area of her jumper. You grabbed her with such force that she says she was picked up off her feet and could see you were getting angry. That occurred on the front porch. You dragged her forward and she then leant back in an attempt to break free from your grip. You then began to push her backwards and it was in those circumstances that you went through the front door, thereby giving rise to the charge of aggravated burglary. I accept that you did not go there with the intention of entering the premises to assault anybody and it was just simply part of the situation that it occurred. That is not to suggest the charge has not been made out. It has but, as I said, I think it is at the lower end.
8 In any event, you forced her onto a couch and was standing over her forcibly pushing her down and she ended up suffering some bruising. She was kicking at your legs and ultimately your stepfather called you away and you left. Again the assault is one of domestic violence which means it is of significance but certainly I have seen worse.
9 On 1 October 2017, some few days later, you and others attended at her address again. Her new friend, Mr Mayo, was there and you picked up a rock and threw it through the back window of his car. That gives rise to the charge of criminal damage and you have made full admissions to that.
10 When interviewed you admitted that you had assaulted her effectively and that is really the basis of the offending. There is no victim impact statement. It is domestic violence and therefore has to be regarded as serious. General deterrence will play a part and for you, I suspect, specific deterrence is going to have to play a part as well. There must also be an appropriate punishment.
11 I then look to matters personal to you. I have had you assessed for suitability for a Youth Justice order and they have decided that they do not wish to accept you but there is a history to it that I will just very briefly go through.
12 You have a long history with Youth Justice and a very fractured one from what I can see. In relation to this offending you have already done 16 days in adult custody. On 17 October 2017 you were sentenced to 12 months in a Youth Justice Centre and your early release date, which whether I am allowed to take that into account or not I am not quite sure, is around the middle of March of this year. You would then be released on youth parole.
13 In these circumstances I indicated to your counsel I think that a community corrections order would be utterly inappropriate for someone with your difficulties and your age mixing with adult offenders. Now it may well be that that ultimately comes about because of your conduct but I cannot do much about that. Because of your circumstances you have been unable to do programs in Youth Justice during that period of time and if you do not get parole obviously your sentence will expire in October of this year.
14 In the period of time between your last Youth Justice sentence and going into remand for these matters you would appear to have gone a significant period of time without offending and I take that into account.
15 Tendered on your behalf were a number of pre-sentence reports. I simply direct that they remain on the court file. It is quite clear from those reports that you have had a very dysfunctional childhood and have suffered physical and verbal abuse. Your particular circumstances are not uncommon for a child who has been brought up in such a situation and I simply direct, as I say, that the reports which are very revealing in many respects will remain on the court file. They will obviously be sent to, they probably have already got them, Youth Justice and are available to any person who has a genuine interest in viewing them.
16 The prospects of your rehabilitation have to be guarded and the risk of you re‑offending has got to be pretty high I would have thought, Mr Winkleman. But in any event, taking all those matters into account and a report from Pamela Matthews that was tendered on your behalf, in the end I have decided that a period of Youth Justice with an element of concurrency is the appropriate disposition. Accordingly I sentence you to an aggregate period of six months detention in the Youth Justice Centre. I direct that three months of that sentence you serve cumulatively upon any detention you are currently undergoing which, as I understand it, may well not interfere with your early release date and I simply leave it at that.
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HIS HONOUR: The only thing I was going to ask, gentlemen, what do I do with that 16 days adult? The only thing I was thinking of doing is it seems to me that
- did the magistrate declare it?
MR DAVIS: No.
HIS HONOUR: It just seems a bit unfair that he's - - -
MR DAVIS: I should indicate. Your Honour, in his sentencing remarks His Honour Mr Walsh said, "I'm not declaring it but I would have given you 15 months instead of 12 if you hadn't done".
HIS HONOUR: Solved. Yes, all right. Well he's got the benefit of it. That's all I needed to know. I was going to do the same thing.
MR DAVIS: And it's probably preferable it doesn't end up on his record per se, Your Honour.
HIS HONOUR: Well that's right.
MR DAVIS: Because it's an adult - - -
HIS HONOUR: Yes, all right. Section 6AAA nine months youth detention. All the other orders have been made. There's no other orders I need to make?
MR O'DOHERTY: No. No thank you.
HIS HONOUR: No. His papers, you don't have them? It made no difference to his sentence, Mr Davis. Sale City on the North Gippsland flag last year. Not Yarram and Glengarry won the - you forget who you're talking to, and Glengarry - that's why I asked you who they played. And Glengarry won the seconds.
MR DAVIS: Well - - -
HIS HONOUR: And the North Gippy grand final was on 16 September a fortnight before this.
MR DAVIS: I did say there were extensive celebrations, Your Honour.
HIS HONOUR: I know you did. If it hadn't of been you I may have done something about it on the spot.
MR DAVIS: It was under 19, did you check that - - -
HIS HONOUR: North Gippy doesn't have under 19s.
MR DAVIS: I don't know.
HIS HONOUR: There's under 16s. There's no under 19 comps any more since (indistinct).
MR DAVIS: I'll take judicial notice of that, Your Honour. My instructions were - - -
HIS HONOUR: Well I know what they were. I've given it no credence in the sentencing situation which is why I haven't referred to it and I wasn't going to say anything about it but I thought you just should know. All right.
MR DAVIS: Thank you, sir.
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