Director of Public Prosecutions v Winter

[2015] VCC 1394

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

AT BAIRNSDALE
CRIMINAL JURISDICTION

CR -14-02047

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILLIP WINTER

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Bairnsdale
DATE OF HEARING:	28 & 29 September 2015
DATE OF SENTENCE:	29 September 2015
CASE MAY BE CITED AS:	DPP v Winter
MEDIUM NEUTRAL CITATION:	[2015] VCC 1394

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ginsbourg	Office of Public Prosecutions
For the Offender	Mr D. Taylor	Daniel Taylor Lawyers

HIS HONOUR:

1Phillip Winter, you have pleaded guilty to four counts.  One of theft, the maximum penalty ten years' imprisonment.  One count of common assault, maximum penalty five years' imprisonment.  One count of damaging property, maximum penalty ten year's imprisonment and one count of cultivating a narcotic plant and the maximum penalty for that is either one year imprisonment or if it is for a commercial purpose, 15 years' imprisonment.

2The circumstances of the offending were set out in the Crown opening which was read in open Court on the plea and I incorporate that by reference.  Essentially these four offences aside from cultivating a narcotic plant arise out of a dispute between yourself and a neighbour of yours, Mr Leon Belshaw. 

3The offending itself is a relatively low level and it may well be that this would normally be dealt with in the Magistrates' Court.  But essentially you had an argument with Mr Belshaw.  There is a dispute between the two of you as to what prompted the argument.  You were over at his place and he, allegedly, on your account, propositioned you.  You then got into an abusive argument with him and threatened him and also then came back and threatened him again, and at one stage you did have some sort of a garden saw that you threatened him with.  You smashed two windows in his car and smashed the master bedroom window at his house.  They are the offences that constitute the assault and also the offence of damaging property.

4After he kicked you out of his house, you had been drinking when you arrived over there, and he also gave you some of his medication, but after he kicked you out of his house, and that is what the dispute arose over, you took some of his jewellery and also took some of his medication and that amounts to the theft count.

5The police were called by Mr Belshaw and he said there was a dispute between you and him but the next door neighbour says that you had been accusing him of being a "poofter" and that was the basis on which you, in the record of interview, alleged that you had then got engaged in the assault with him.  So your counsel put that that reduced your moral culpability on the basis of provocation.  I accept that there is to be some reduction moral culpability for the offences of common assault and the damage to the property but it does not explain the theft.  Adults have got to control their impulses even when that sort of offensive behaviour is perpetrated against them.

6You said in the record of interview the reason why you took the medication and the jewellery from his bedroom was just an act of the revenge in the spur of the moment.  All the property was recovered and there is damage of something like $700 to the car and to the house.  No victim impact statement has been filed by Mr Belshaw but obviously he would be shaken up by the conduct.  But as I say the first three counts are what would probably be regarded as lower level offending which is usually dealt with in the Magistrates' Court.

7When the police arrived at your property and executed a search warrant they found a number of cannabis plants, some of them quite mature and that constituted the charge of cultivating cannabis.  You told the police in the record of interview that you were smoking three grams of pot a day and you also put that there was a lot of male plants so that the actual yield would be very low.  It was put on your behalf by your counsel that there was no suggestion of any paraphernalia to sell the product although there was a grow light there.  You said in the record of interview that you had, in fact, been charged previously with cultivating cannabis at another location and you expressed in the record of interview that it was for the purposes of your own use. 

8So on a close balance I am prepared to accept that there was no commercial intent in the cultivation and so I will deal with you on the basis of the lower penalty.  In terms of your overall moral culpability for the cannabis, as I say, you have got a prior conviction for it, so that does raise your moral culpability.

9Turning now to matters in mitigation the first matter that goes to your moral culpability in general is that you were the subject of a suspended sentence for some driving offences at the time and so that does go to increase your moral culpability but you are only to be sentenced for these offences.

10The learned prosecutor tendered an extensive list of your prior convictions which date back - you are now nearly 36, and they date back to 1997 when you were aged 18, in this area.  I will not recite them all but there were a number of dishonesty type charges, obtaining property by deception as well as prior convictions for property damage, possession of heroin, failure to answer bail, burglary, theft, possessing amphetamine, possessing cannabis in 2005 and resisting police, damaging property in 2007, and aggravated burglary as well in 2007.

11What was put on your behalf is that, really, from about 2007 the number of appearances before the courts has dropped dramatically and you served a sentence of imprisonment for six months on a 10 months total effective sentence or effective term of ten months' imprisonment in 2007 with six months to be served before being eligible for parole.  Then your next appearance was for cultivating and using cannabis in August 2011.  Then the next appearance after that was on 29 February 2012 where, on charges of unlicensed driving, three counts, failing to give a signal and driving at a speed dangerous, exceeding PCA, , you were sentenced to a Community Corrections Order for 12 months on each charge.

12You were then dealt with on 28 November 2012 for contravening that order as well as exceeding PCA, two counts.  You were then sentenced to a term of imprisonment of four months, with one month to serve, and the balance to be suspended for 12 months.  That was then appealed to the County Court here on 9 May 2013 when you were not required to serve any term and you were placed on a four month suspended sentence for 12 months.

13So what your counsel put as a result of those prior convictions that since you had some children to look after about six or seven years ago, your offending velocity has reduced dramatically and also the nature of your offending has changed and it is traffic offences and then you get back to these lower level street type offences, which brings you before this Court.

14Your personal circumstances are, as I said, that you are now nearly 36.  You have been a truck driver in the past but you suffered a motor vehicle accident in 2004 and it seems that you have not worked since that time.  You have got a significant medical condition relating to your oesophagus and you also have significant depression.  You are on an invalid pension or a disability benefit.

15You are the father of two children with a local woman.  You are separated from her and you are engaged in shared parenting with her for those two children and you spend a lot of time looking after them.

16On the plea your counsel tendered a report from Mr Jeremy Parker, psychologist.  In that report he assessed you as suffering from severe depression, severe anxiety and also moderately severe stress when he assessed you.  He assessed you in the low range of intellectual capacity and also indicated that on one of his analyses that you are unable to make well informed decisions at an age appropriate level in a social context.  This might explain why, when this event occurred with Mr Belshaw, and there had been a previous event a week before, you were not able to respond appropriately and you then ended up smashing his car windows and smashing the back of the house.

17He analysed you and noted that you are in the lowest 16 per cent of the population for your cognitive abilities, low average intelligence with poor short term memory and working memory compared with your peers.  He diagnosed you as having a persistent depressive disorder and noted that that might be a significant contributing factor to your offending but not cause or link.  There are no Verdins considerations and your counsel put that, in fact, you have been prescribed anti-depressant medication but you have not taken that a lot.  You have also been prescribed with OxyContin, which is a serious form of pain relief as well as reflux drugs.  The explanation for why you take cannabis you gave to the police in your record of interview is to reduce your anxiety.

18The basic purposes for which I am required to sentence you are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and re-integrated into the community.

19Now in your case, in the light of the relatively lower level offending and the fact that it has been some years since you engaged in this type of offending before and in light of the content of the report from Mr Parker, I have regarded it is appropriate to have you assessed for a Community Corrections Order and to focus on your rehabilitation as the main sentencing purpose here. 

20I am not ignoring the fact that you have assaulted Mr Belshaw but given the lower level of it and the lower level of damage and the recovery of the goods, they are to have lesser weight than the need for you to get on the straight and narrow by way of some sort of supervisory order.

21Now you have been assessed by the Community Corrections people but they say you are at high risk of re-offending.  So I am giving you, in a sense, an opportunity to see if you are able to knuckle down with an order that requires you to be under supervision, to undertake courses, to undertake some community work, and to address the use of cannabis.  It is a bad drug.  At your age you should not be using it and certainly should not be growing it and also for your mental health because obviously the depression, that has got to be under constant supervision.  As well as that I am going to order that you undertake some community work. 

22But I have got to advise you that if you do not comply with the order and if you do commit further offences in the next 15 months, because that is the duration of the order, then that itself is a criminal offence that carries a maximum term of three months' imprisonment and it means that you come back here to be re-sentenced for the original offences.  So do you understand that?

23So I propose to put you on a Community Corrections Order.  I have had that prepared and I would ask you, Mr Taylor, to explain the terms of the order to your client.

24MR TAYLOR:  I will, Your Honour.

25HIS HONOUR:  Then he can sign the document.  Mr Ginsbourg, there's some forfeiture orders you have handed up; is that right?

26MR GINSBOURG:  Yes I ask that they be made, Your Honour.

27HIS HONOUR:  Yes.  I have made those orders.  So I will just hand the proposed order down, if you could have a look at it and when it has been signed I will resume on the Bench.

28(Short adjournment.)

29HIS HONOUR:  On Counts 1, 2, 3 and 4, you are convicted and you are sentenced to a Community Corrections Order for 15 months.  It commences today and ends on 28 December 2016.  You have got to attend at the Bairnsdale Community Corrections Services by 1 October, two business days. 

30In addition to the mandatory terms you have got to undertake 100 hours community work at the direction of the Community Corrections Office over the next 15 months.  You have got to be under the supervision of the Community Corrections Office for 15 months.  You have got to undergo any testing and assessment for drug abuse and dependency and also assessment and treatment for alcohol abuse or dependency over the next 15 months and any other mental health assessments that they might direct.  Also to participate in programs or courses that address factors related to your offending as directed, which is anger management.

31It is an aggregate sentence and I have made the forfeiture order that has been sought by the prosecution.

32I have got to declare that had you not pleaded guilty I would have imposed an 18 months Community Corrections Order.  I have taken into account, in sentencing you, your early plea of guilty and also you did evidence some remorse in some of the comments you made in the record of interview.

33As I said to you before, Mr Winter, you are regarded as high risk of re-offending so you have got to be very careful.  I am taking a risk, I am prepared to give you that chance because I want you to stay in the community and try get off this cannabis.  You say that in the record of interview that it is bad for you, you know that, so you have got to get off it.  Get your medication and everything under control.  Look after your two children that you are co-parenting with the mother and keep out of trouble. 

34So that is another condition.  That you are not to commit another criminal offence within the next 15 months, an offence that carries a term of imprisonment.  Otherwise you will breach the order and you will be back here.  Are there any other matters, Mr Ginsbourg?

35MR GINSBOURG:  No, Your Honour.

36HIS HONOUR:  Yes I thank you both, Mr Taylor, for your assistance in this plea.

37MR TAYLOR:  Yes, Your Honour.

38HIS HONOUR:  Adjourn until ten o'clock tomorrow.

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