Director of Public Prosecutions v Wisbey

[2018] VCC 152

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01140

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAYDEN WISBEY

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2017
DATE OF SENTENCE:	21 February 2018
CASE MAY BE CITED AS:	DPP v Wisbey
MEDIUM NEUTRAL CITATION:	[2018] VCC 152

REASONS FOR SENTENCE
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Subject:         Criminal Law
Catchwords:  Aggravated Burglary – intentionally causing injury
Legislation Cited:
Cases Cited: Bradshaw [2017] VSCA 273

Sentence:Community Corrections Order for 24 months with conviction. Application for forensic procedure is granted.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Trotman	DPP
For the Accused	Mr D. Langton	Danos Lawyers

HER HONOUR: 

1.Hayden Wisbey, on 18 October 2017, you pleaded guilty to a charge of aggravated burglary which has a maximum sentence of 25 years' imprisonment and to a charge of intentionally causing injury which has a maximum sentence of 10 years' imprisonment. 

2.It can be seen by the maximum sentences that these are extremely serious offences and usually a person committing these sorts of offences, especially aggravated burglary, will go to gaol. However, the law also says that usually a court must pass a sentence that gives a young person the opportunity to learn how to behave properly and not commit serious criminal offences in the future.  That is called rehabilitation. As you were aged 19 at the time of the offending and will turn 21 in April 2018, you are a young person and your counsel urged me to treat your rehabilitation as the most important sentencing factor.

3.I can only send you to gaol if it is the only appropriate sentence.  After hearing from your counsel last October, I adjourned the case to obtain reports as to your suitability for a community correction order or a Youth Justice Centre order.  The community correction order assessment came back quickly after the plea and you were found not suitable because you had breached orders in the past. 

4.There was a delay in obtaining the assessment for a Youth Justice Centre (YJC) order.  It did not come to the court until the end of the year and I was not available to hear more about your case until today, 21 February.  You were found suitable for a YJC order.  I will come back to the sentence I am giving you today after I have said some more about you and your case. 

5.My sentence today is based on the prosecution opening[1] which I have to say was a little hard to follow.  Although the opening is probably an agreed summary, I advise the parties that I have had regard to your victim's statement to police in order to understand properly the order of events and people involved.  Where I make reference to something that is not in the agreed summary, I refer to it as an allegation or assertion. 

[1] Exhibit A

6.On 24 February 2017, you were not then living with your mother.  You went to the house of a man called John Andersen, a neighbour of your mother, and asked to buy some marijuana from him.  He refused and told you to leave.

7.There was a scuffle in which Mr Anderson alleges you hit him with a bottle and then asserts he held you against a wall.  Mr Anderson asserts that his housemate, Daryl Godsmark, helped him to restrain you but also asserts that Mr Godsmark told Mr Anderson to leave you alone because you ‘were just a kid’.

8.Mr Godsmark walked back with you to your mother's house only a couple of doors away and you both sat outside.  You had left your hat behind and Mr Anderson came to where you were, threw your hat at you, told you not to come to his house and again, a scuffle broke out. Your mother came out of her house and I am told by your counsel that somehow her hand was squeezed by Mr Anderson during this scuffle, causing an injury.  In his police statement, Mr Anderson denied touching her at all but he has been charged with recklessly causing injury to your mother as a result.  That has not yet proceeded to conclusion.

9.In my view, your offending occurred because you sought revenge on Mr Anderson because of his scuffles with you and because of your view that he injured your mother's finger.  You did not seek revenge immediately but on the next day, after you had time to calm down.  You went there, as you told police, to ‘make him pay [your mother's] bills’.

10.The next day, 25 February, you were again at your mother's house and you, your half-sister and her former boyfriend all went to Mr Anderson's front door and knocked. Your sister apparently told you that she could handle it and that Mr Anderson would talk to her.  When the door was opened, however, the other male challenged Mr Anderson by saying ‘Do you like hurting kids?’ which was clearly a reference to the scuffles with you and not a reference to your mother. When Mr Anderson said ‘What?’, you hit him on the head with a bottle.  Again, no reference was made to your mother.  Mr Anderson tried to shut his security door but the other male pulled it open.  Mr Anderson shut his main front door.

11.Your sister was saying ‘Let me handle it’ but despite this, Mr Anderson's door was being kicked from the outside by one or more of your group.  He called Mr Godsmark to help him hold the door shut.  Instead, Mr Godsmark asked to go outside and talk to you and the other two, presumably to attempt to calm things down, and the door was opened to allow him outside. This gave one of you the opportunity to put their foot in the door but Mr Anderson kicked it away and shut the door.  That door was then kicked open by one of you and the other male came in and tried to punch Mr Anderson.  You also entered.

12.This entry forms the basis of Charge 1 - aggravated burglary. By your plea of guilty, you have admitted that you went in there knowing that Mr Anderson was in there and intending to assault him.

13.After you went in, you did assault him, by punching him to the head a couple of times in the lounge room, according to what you told police, and by picking up a metal pole from Mr Anderson's kitchen and following him out of the house when he ran out. You swung the pole and hit him on the head a number of times while Mr Anderson was telling you to stop, and moving backwards towards the road.  You and the others then left.

14.Your hitting of Mr Anderson with the metal pole is the basis of Charge 2 - intentionally causing injury.  Mr Anderson received a number of lacerations to his head as shown in the photographs[2].

[2] Exhibit C

15.The charge of aggravated burglary is made even more serious because:

·First, it was not a spur of the moment attack on the day that your mother's hand was apparently injured;  I am satisfied that you went there the next day even after you had time to cool off from your scuffles with him because you wanted to confront Mr Anderson; 

·Next, the burglary was committed on his home where he was entitled to feel safe; 

·Next, there were three of you at the door with the other male acting aggressively and actively trying to get in the door - even though neither of the others were charged, it is the impact from the perspective of Mr Anderson of having three people at his door that is important;

·Next, you, together with the other male, persisted with trying to get in when you were first blocked from entering Mr Anderson's house; 

·Next, you hit the victim on the head with a bottle immediately before breaking into the house; and

·Next, once you were inside, you punched Mr Anderson and then armed yourself with a weapon.

16.The charge of intentionally causing injury is made more serious because you used a weapon to cause the injury, you persisted in the attack by chasing Mr Anderson out of his own house and towards the road, and you hit him a number of times with the pole. 

17.Both offences are made more serious by the fact that you were on a community correction order at the time which had the core condition not to commit any other offence.

18.The other male who entered the house with you has not been charged. 

19.I received a statement[3] from Mr Anderson telling me of the impact of your offending on him.  Apart from the lacerations he received and associated pain, he has also been fearful, stressed and anxious as well as angry at the violation of his home. I was told in October last year at the plea hearing that he had just moved from that address.  From February to October then, he was living just two doors away from your mother's house and was concerned about possible repercussions.  I do take into account the impact on Mr Anderson of your offences against him.

[3] Exhibit B

20.I mentioned that you were on a community correction order when you committed these offences.  You have a criminal history which is from both the Children's Court and the Magistrate's Court. 

21.Your offending began in October 2011 when you were aged 14, and overall since 2012 when you were aged 15, you have been charged with five dishonesty offences, seven property damage offences, three assault or injury offences and five, possibly six times, have breached court orders, not including the breach of the 2016 community correction order by the offending for which I am sentencing you today. 

22.On probation orders made in 2014 and 2015, and on the community correction orders made in 2015 and 2016, you had conditions imposed to assist you with your rehabilitation, including dealing with abuse of alcohol and drugs and mental health issues, but you failed to take advantage of these opportunities to get your life in order.

23.I was provided with reports about the community correction orders, both dated 25 January 2017[4], which is shortly before you committed the offences for which I am sentencing you. 

[4] Exhibit D

24.In summary, you were placed on an order for nine months from November 2015 for assaulting your stepfather who you accused of hurting your mother, by throwing beer bottles at him and hitting him on the head with a bong, and also caused damage to your mother's home. 

25.You began well on that community correction order, appearing motivated and attending appointments including with a psychologist and a drug and alcohol counsellor.  However, you reported that you were using amphetamines weekly, were not seen to be willing to work on the drug and alcohol issues which were impacting on your mental health and returned three positive urinalysis test results for methamphetamines and cannabis.  You failed to attend on 27 occasions and did not one minute of the 120 hours of unpaid community work. 

26.When you were next assessed for a community correction order a year later, based on this poor performance you were found unsuitable, but the court exercised its discretion to allow you a further opportunity of rehabilitation and you were placed on another community correction order, this time for 18 months, starting December 2016. You did absolutely nothing on this order, even failing to turn up for the first appointment two days after the court made the order. The day before you were put on this order you committed a violence offence on your brother and damaged your mother's home.  A family violence intervention order was made to protect your mother on 8 December 2016. Immediately on your release from court, in flagrant disregard of the orders that had just been made, you went to your mother's house, damaged her home further and confronted your brother.

27.When you confronted Mr Anderson on 25 February 2017 you were facing a number of charges arising out of this and earlier matters. On 29 November 2017 you pleaded guilty to these charges and the breach of the 2016 community correction order and the case was adjourned to March this year for sentence awaiting the outcome of today's sentence.

28.Your criminal history is a very poor record for someone not yet aged 21 years.  However, as appears from the Youth Justice Centre assessment, there may be reasons for this history and you may now be at a stage to understand and address the reasons for your substance abuse leading to your offending.

29.Against your poor criminal record and the seriousness of the offending for which I am sentencing you, your counsel has referred me to matters which I must take into account in your favour in deciding what the most appropriate sentence is. 

30.The first of these matters is the fact that you pleaded guilty and did so at a very early stage.  You are entitled to have that taken into account in your favour and I do so.  By your early plea you have saved the time and cost of a trial and saved your victim from the ordeal of having to give evidence.

31.I also accept that your plea of guilty shows an acceptance of responsibility for your offending.  This is particularly important where you apparently have little memory for what happened but made full admissions to police on the basis that, others who were there, presumably your sister and possibly the other male, told you what you did. Your counsel pointed out that what you told police from your source of information was almost identical to what the victim said had happened.  As a result, I treat your plea of guilty as a sign of some remorse.

32.Your counsel also said that your lack of memory was not because of drug or alcohol use but because you blacked out due to your anger at Mr Anderson.  It is surprising that there was apparently no drug or alcohol use involved as I was told that you used up to 4 grams of cannabis and a six pack of beer a day. On the other hand, your instructions are that you went to Mr Andersen to try to buy some cannabis, so it is possible that you had not consumed any drug, or at least cannabis, at that stage of the day.

33.As to anger being a reason for you having no memory, the police summaries attached to the community correction order reports[5], show that you do have a violent temper and react angrily to what you see as challenges or threats to you or your mother.

[5] Ibid

34.As I have no other information or evidence, I make  no finding as to what caused your blackout or lack of memory, or whether you committed these serious offences because you were angry, drunk or drug-affected or a combination of one or more of these. 

35.The next matter I take into account is your personal history.  As I mentioned earlier, you are about to turn 21 and you were aged 19 at the time of the offending.  You have a brother and sister who have different fathers to you. Your parents separated when you were aged about 6 years and you lived with your father from then until about aged 13, according to the YJC report. Your parents’ relationship had involved alcohol abuse and violence which presumably you witnessed.  I note the YJC assessment that in your childhood there were child protection investigations, and these were said to be related to exposure to domestic violence, among other things. Research on the impact of this type of exposure shows it can have a significant effect on the mental health of a child or adolescent and continues into adult life.

36.In 2010 your mother was diagnosed with liver cancer when you were aged 13 or 14 and is currently in remission.

37.The Youth Justice assessment refers to the assessment that Dr Walton, psychiatrist, made of you in May 2015 that you would qualify for a diagnosis of a chronic mixed anxiety and depressive disorder, alcohol dependence and poly drug abuse.  He further assessed that your mother's diagnosis of cancer was a major psychological trauma for you and that it was around this period that you developed significant mood disturbances, commenced your substance abuse and began to engage in offending behaviours.

38.Despite the difficulties between you and your mother in the past, as at October last year and continuing to now, you are living with your mother again, initially just the two of you, and now with your partner.

39.You apparently began drinking alcohol at the age of 12.  You left school at age 13 and so have only a limited education.  However, you have apparently managed to find work most of the time since you were about 15 in cabinet making, furniture making, landscaping and roof tiling.  In this last activity you fell from a roof in March 2015 and suffered multiple fractures around your elbow which prevented you from working for about 12 months.

40.You began a building apprenticeship last year and I received a very supportive reference[6] from your employer last October as to your prospects for working in his business and for getting your life back on track. I heard today that you continue to work with him and that you have in fact started an apprenticeship with him. 

[6] Exhibit 2

41.At the plea hearing in October last year your counsel submitted that you had turned your life around.  Having a stable place to live has apparently been a problem for you, but as at October last year and continuing, you are living again with your mother.  You have re-established your relationship with your father.  You have good employment prospects and you have been in a relationship with a young woman since about three months before the plea hearing and she attended court with your mother to support you.

42.It was submitted on your behalf last October that you had renewed motivation to rehabilitate yourself and I was told then that you accepted your problem with drugs and alcohol and the link this abuse had with your offending. In October, on the basis of your early plea of guilty and admissions, your young age, your potential for rehabilitation, and if I agreed, the fact that your criminal history was not as serious as it might be, and the offending itself was not so serious as to rule out a sentence being imposed on you that did not involve a custodial sentence, your counsel submitted that I should place you on another community correction order, or if not, then a term of detention in a Youth Justice Centre should be imposed rather than adult prison.

43.In October the prosecutor submitted that, while you are to be treated as a young offender, that factor can carry less weight if the offending is very serious, and on the basis of the objective gravity of your offending, it was submitted that because you were not a first time offender, had a relevant criminal history and had not demonstrated a commitment to rehabilitation in your previous community correction orders, the only appropriate sentence was one of detention in a Youth Justice Centre.

44.Last October I was referred to a case handed down by the Court of Appeal only the month before I heard your plea[7].  The court noted at paragraph 45 that judges in this court, in both 2015 and 2016, had not infrequently imposed, what's described as a “straight” community correction order for aggravated burglary.

[7] Bradshaw [2017] VSCA 273

45.The court went on to say that:

"These decisions showed that notwithstanding the uplift in sentencing practice following [a case called] Hogarth non-custodial sentences were amongst the range of sentencing dispositions utilised with respect to offenders of 20 years of age or less". 

46.The court also went on to say at paragraphs 49 and 50, and I apologise for reading this out but I think that it is important:

“Parsimony requires sentencing judges to give proper consideration to non-custodial options.  As this court stated in Boulton, a CCO provides a flexible mechanism for imposing a sentence that is both punitive and rehabilitative, which can be fashioned to address the particular circumstances of the offender and the causes of the offending and to minimise the risk of re-offending by promoting the offender's rehabilitation.  As the order of seriousness of offending conduct increases, so the likelihood that such a disposition will be appropriate diminishes, but it may remain an option that is open even in cases of very serious offending".

47.At paragraph 50 the court said there were factors present in that case before them that could have led the judge to conclude that the purposes of sentencing could be met without an order of confinement.

48.They added that:

"It follows that in cases where rehabilitation is of paramount importance, consideration of a CCO will take on greater significance".

49.As I said before, the result of the community correction order assessment was that you were unsuitable for a further order.  The results of the Youth Justice Centre assessment were that you were open to referral for substance abuse but remained unwilling, so far, to implement strategies to address your substance abuse which was said to be affecting your mental health. It was recommended by the Youth Justice Centre assessment team that you would benefit from interventions to address your substance abuse and also to address your limited victim awareness, which they took from comments that you had made. On the basis of the factors that they have to take into account, they concluded that you were suitable for a Youth Justice Centre detention order because of your reasonable prospects for rehabilitation and that you were a young person who was particularly impressionable, immature or likely to be subject to undesirable influences in an adult prison.

50.Today I received an update on your current circumstances.  They are that you have continued in your employment with Mr De Koning and that you have begun your apprenticeship.  You plan to sign up for attending at Holmesglen TAFE one day a week, and although I haven't heard further from Mr De Koning, I know that his reference back in October was very supportive of you and of you continuing to work with him. You have had stable accommodation for that period of time and your relationships have continued to be stable, both with your parents, and with your girlfriend. You have not committed any further offences, which given your persistent behaviour in offending in the past, is a positive factor.

51.Importantly, you gave evidence before me, which was the first time you have given evidence in a court, and said that you clearly understood your position, that if you are given a chance and you muck up, you know where you will be going and that will be adult gaol.  The Youth Justice Centre detention option will no longer be available to you. You said in your evidence that you are not the person now that you were when you committed the offences at the age of 19 and, as I have said, confirmed that you have reduced your substance abuse, and although very recently using amphetamines, you say that that is not the person that you are now and that you realised what you had to risk, which is just about everything, by continuing to abuse substances which can lead to your offending.

52.Both counsel confirmed their submissions from the previous hearing date: your counsel's submissions that I have referred to, and the prosecution's submissions as I have also referred to. 

53.On balance, I am satisfied that your prospects of rehabilitation are reasonably good, and rehabilitation remains for my sentence of you the primary purpose.  However, I must also by my sentence deter other young men from committing violent invasions of another person's home and causing them injury. 

54.Also, because of your criminal history and your limited victim awareness, my sentence still needs to deter you from committing further offences.

55.In summary, these are serious examples of serious offences, but they are not at the upper end of the range, and although I must express the community's denunciation for such serious offending, your youth and the factors in your favour, in particular the way you have conducted your life since last October, in my view, mean that the need for my sentence to promote your rehabilitation is not outweighed by the seriousness of the offending. 

56.So despite the Corrections Victoria assessment that you are unsuitable, which is a completely understandable assessment on their part, I have decided to give you one last chance and I will not impose a sentence of Youth Justice detention or adult gaol on you today. 

57.It follows that I am satisfied that there is another option and that is a community correction order.

58.Now, if you agree, I will release you on a community correction order for two years.  I am satisfied that such an order with punishment and treatment conditions will satisfy the sentencing requirements. 

59.The conditions will have been explained to you at your assessment, and of course on other occasions, but as that was all some time ago I will go through them again. 

60.The order will have the conditions that are attached to every order which are that you must report to and receive visits from Corrections Victoria, and as you know that means reporting two days from today, not failing to do that like you did last time. You must notify Corrections Victoria of any change of address or employment.  You must not leave the State of Victoria without the permission of Corrections Victoria and must comply with any direction given by Corrections Victoria.

61.I will also order that you comply with other conditions during that two years.  These other conditions are to help you with your rehabilitation so that you will not re-offend but there is also some punishment because you broke the law in such a serious way. In my view, there are still a number of danger signs for you even though you have, apparently, reduced your substance use and I think that you do need to complete programs that will make you think before you make bad choices again.

62.So the other, or special conditions are that you will be under supervision of Corrections Victoria; that you must perform 100 hours of unpaid community work - I have made that number of hours because of the fact of you being in full time employment, otherwise it would be considerably higher, but as you are well aware, you need to have this as your number one priority and paid work comes second; you must undertake assessment and treatment for drug and alcohol use; you must undertake assessment and treatment for mental health issues - and just pausing there, I know you have worked on these matters before, but as I said, I think there is still some work to be done; you must undertake, as directed, a program designed to reduce re-offending - that might be an anger management program, but I will leave that up to Corrections Victoria; and you must come back and see me on a date that I will give you in a moment so that I can check on how you are going. That is known as judicial monitoring.

63.I will order that any hours of programs that you do count towards your hours of unpaid work.  So, Mr Wisbey, if you could stand up please.  Do you understand those conditions?

64.ACCUSED:  Yes, I do.

65.HER HONOUR:  Do you agree to being released on a community corrections order with those conditions attached?

66.ACCUSED:  Yes, I do.

67.HER HONOUR:  Now, if you are ill or there are other exceptional circumstances, the order may be suspended for a period of time.  If your circumstances change the court can change the order or cancel it, but in either case, you must tell the Community Corrections Office if you are ill or if your circumstances change and I recommend that you also get legal advice.  So do you understand that?

68.ACCUSED:  Yes.

69.HER HONOUR:  As you well know, if you do not complete any condition of the order, including by committing other crimes, you will be brought back before me to be re-sentenced on these charges and also to be dealt with for the breach of the condition. 

70.Given the chances you have been given and not made use of, you should be aware that my options are limited and you will almost certainly be going into adult prison if you breach this community correction order.  So do you understand what will happen if you breach this order?

71.ACCUSED:  Yes, I do, yeah.

72.HER HONOUR:  The order of the court is that on the charge of aggravated burglary and on the charge of intentionally causing injury, you are convicted and released on a community correction order for two years with the core and special conditions that I have outlined. 

73.I also order that any hours of treatment be counted towards your hours of unpaid community work. 

74.I order that you return to the court for judicial monitoring at 9.30 am on Wednesday 23 May 2018.  So you will have had a couple of months on the order.  You do not need to have a lawyer with you, that is you can, but you do not need to.  That is a chance for you to come back and show me that you are taking advantages of these opportunities.  If not, well, then you know what will happen. 

75.Mr Wisbey, you have agreed to this order but you must sign it to show that you have agreed.  So Mr Wisbey can come out of the dock and sit behind Mr Langton and we will have that order prepared. 

76.Yes, that contains the conditions that I have just gone through, Mr Wisbey, but Mr Langton will just go through them again with you to make sure you understand before you sign.

77.(Orders signed and acknowledged.)

78.I have signed that order now, Mr Wisbey, and so it is in force.  You will get a copy of that before you leave today. 

79.Finally, I need to deal with one other matter.  An application has been made for an intimate forensic sample to be taken from you, and through your counsel, you have not objected to this.  I am satisfied that it is in the interests of justice that, in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you.  The sample may be taken by a doctor or nurse or other authorised person and a saliva sample is taken by wiping a swab inside your mouth.

80.I must inform you that if you change your mind the police may use reasonable force to enable such a procedure to take place.

81.Lastly, I indicate that if you had not pleaded guilty but had been found guilty after a trial on these charges, the sentence I would have imposed is 8 months' detention in a Youth Justice Centre. 

82.In the event that I do have to revisit your sentence I note that there has been no pre-sentence detention. 

83.So Mr Wisbey, I cannot say that this is your last chance because no one knows, as Mr Langton says, what the future might hold but it is just about as close as I can to say that this is your last chance.  Do you understand that?  All right. 

84.I will see you on 23 May.  As I keep emphasising, you know what will happen if it is not a good report.  No other orders, Mr Trotman?

85.MR TROTMAN:  No, Your Honour.

86.HER HONOUR:  All right, I thank counsel for their assistance in this matter and of course those others attending court.  I will see you on 23 May, Mr Wisbey, and otherwise we will adjourn the court sine die.

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