Director of Public Prosecutions v Wise

[2018] VCC 462

IN THE COUNTY COURT OF VICTORIA

 Revised

(Not) Restricted

 Suitable for Publication

AT MILDURA

CRIMINAL JURISDICTION

CR 17-00109

DIRECTOR OF PUBLIC PROSECUTIONS

v

OLIVER WISE

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JUDGE:	HIS HONOUR JUDGE M. BOURKE
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	1 February 2018
CASE MAY BE CITED AS:	DPP v Wise
MEDIUM NEUTRAL CITATION:	[2018] VCC 462

REASONS FOR SENTENCE

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Subject:

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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty
For the Accused	Mr C. Morgan

HIS HONOUR:

1Oliver Wise, you are to be sentenced for one charge of extortion and one charge of intentionally causing injury.  Respective maximum sentences are 15 and ten years' imprisonment. 

2You pleaded guilty before me on 4 August 2017.  When interviewed by police on 20 June 2016 you exercised your right to silence.  You entered a plea of not guilty after committal on 25 January 2017.  However, in February of that year you indicated a plea of guilty. 

3You receive the benefit of your pleas of guilty and the level of cooperation that short history of the proceeding shows.  Your plea has facilitated the interests of justice and I accept that you are remorseful. 

4At your plea hearing, which ran on 4 August 2017 and 30 January 2018, Mr O'Doherty for the Crown tendered a written Crown opening,  mobile phone video footage of part of the offending, still images of that and of other footage, the victim impact statement of Darcy Saville and the prior criminal record of your co-offender, Zachary Beatty.  Tendered on your behalf by Mr John Lavery on 4 August and Mr Morgan on
30 January were a forensic psychological report of Gina Cidoni dated 10 July 2017;  counselling and like reports by Zah Thebe, Richard Vaughan and Simon Stockman of Mildura, Mallee District Aboriginal Services; and letters of character and work reference.

5On 30 January Mr Morgan called Simon Stockman of Mallee District Aboriginal Services to give evidence on your behalf.  He is a social worker connected with Wiimpatja Healing Place in New South Wales and has worked with you there and since your departure from that program.

6I have also had reference to the sentencing reasons of Judge Grant of this court who sentenced your co-offender in December of 2016.  That sentence was four years' imprisonment with a minimum term of two and a half years which was imposed for offences including extortion, intentionally causing injury and trafficking in methylamphetamine.

7On 4 August Mr Lavery submitted that I should defer sentencing under s.83A of the Sentencing Act. The Crown did not argue against this. I adjourned the matter to these January/February sittings at Mildura.

8The circumstances of your offending are comprehensively set out in the tendered Crown opening which is Exhibit A.  My own summary may therefore be shorter.

9Co-offender Zachary Beatty is your cousin. At the time of offending you were 30 and he was 25.  Your victim, Darcy Saville, was 22.  You had been using methylamphetamine for about five years, progressing to heavy use.  Beatty not only used but also trafficked that drug in the Swan Hill area.  I find that he supplied to you and to Saville.  Saville owed him $800.  When arrested by police Beatty was in possession of 44 grams of methylamphetamine and $10,500 in cash.  Beatty wanted to enforce Saville's debt and enlisted your assistance.  Saville was taken to Beatty's home.  You were there and for a time another man named Oakley.  He left.

10Saville was questioned about the debt.  Ultimately Beatty produced a handgun and repeatedly pointed it at him, pulling the trigger.  He pretended or appeared to load the gun.  This treatment of Saville continued.  At one point you moved a box cutter along Saville's leg and down his face.   The tendered video and stills show Saville to be terrified and distressed.  At another point Beatty placed the gun against his knee and pulled the trigger.  Saville was sent to buy food.  Upon return you began punching him to the face and body.  This continued.

11In the video Darcy Saville presents as a lightly built man.  You are large and strongly built.  Finally Saville rang his mother and told her he was in fear of his life and an arrangement was struck whereby she would pay $600.  There was a meeting at which in short she dropped the money off in Swan Hill.

12Police later examined Beatty's mobile phone which contained the footage tendered.  In part Beatty points the handgun at Saville.  You are seen sitting next to Saville.  Darcy Saville's physical injuries included split lips and a sore stomach and ribs.  As I have said, he was cruelly frightened. 

13I find that Beatty was the main driver of what happened.  However, your assistance was important and necessary.  You directly caused his physical injury. 

14That cruelty, brutality and its effect upon Darcy Saville is reflected in his victim impact statement.   It describes his fear, humiliation and anger.  That has included fear of retribution.  He states his concern for his mother and impact upon her.  Family life and friendships have been affected.  He feels isolated and has lost a sense of safety and security.  I am not complete.  The victim impact of your offending must be taken into account in my sentence.

15You are a 31 year old man who lives in Swan Hill with your long-term partner and three young children.  You were raised mainly in Broadmeadows and Swan Hill.  Your mother is Aboriginal and a prominent person in the Swan Hill community.  Your father has re-partnered and lives in Albury.  You have good relations with your family.

16You left school at Year 11.  Since you have worked as a landscaper, transporting Aboriginal medical patients and now both at your mother's ice-creamery and for your partner's brother at his orchard in Lake Boga.  His tendered letter speaks well of you.

17You began using alcohol and then drugs such as amphetamine in teenage years.  This intensified at 24 when you began using ice amphetamine.  Your maternal grandfather and other close members of your family died at and over this time.

18Your criminal record states several court appearances between June 2003 when you were 18 and October 2015.  As raised with counsel, analysis of the record reveals two offences of violence, recklessly causing injury and serious injury.   Original sentences were in 2003 and 2006.  Since 2006 there are two charges of drug possession and possession of explosives.  Convictions were not recorded. 

19What has happened since the offending is important in your case.  I find unusually strong aspects of rehabilitation.

20You served 59 days of remand and were then given bail, conditions of which included residence at Wiimpatja Healing Place, at Warrakoo Station beyond Wentworth in New South Wales.  This is a remote rural facility.  It entails work on the property, counselling and other programs including drug and alcohol treatment.  It presents as a strict regime.  The day begins at 7 am.  Residents may not leave the property.  They are allowed one phone call each week.  There are no visitors.  You spent a total of six months at Wiimpatja.  After leaving in February of 2017 you have lived in Swan Hill and continued engagement with Mallee District Aboriginal Services,  and with Simon Stockman.  Bail has continued to be stringent, including a nightly curfew.  Accordingly, this has been so for almost a year.  You have not re-offended and present as drug free.  You have returned to playing football with a local club and coach a junior soccer side.

21I was impressed by the evidence of Mr Stockman.  He described your engagement at Wiimpatja in particularly positive terms.  You are, in his view, the most successful client he has seen.  Engagement with him has continued.

22As my earlier description makes clear this was serious offending.  The treatment of Darcy Saville was callous and gratuitously cruel.  It occurred in the context of drug trafficking; although unlike Beatty, you are not to be sentenced for that offence.   Whilst not the main driver of what happened, as I have said, your role was necessary and important.  There is significant victim impact.  You have relevant prior convictions, albeit for offences committed over ten years ago.   The circumstances of this offending make relevant sentencing purposes and considerations of deterrence, particularly general deterrence, its moral culpability, the need to sentence in a way to condemn and punish proportionately.

23The usual sentence would be imprisonment, one of significant length beyond what you have served.  However, in your case there are also important matters which should go to moderate that sentence.  They include the following.

24You have pleaded guilty and at a relatively early time.  Your personal circumstances particularly include what has happened since the offending.  The evidence of rehabilitation is very strong in this case.  You have addressed your drug use and have achieved positive reconnection with family and community.  You have stable employment.

25Also a relevant part of your circumstances since offending as legitimately raised by Mr Morgan is significant restriction of your freedom in remand,  at Warrakoo Station and on bail since leaving there.  I should take this into account.

26I am persuaded that your prospects for continuing rehabilitation are good. 

27I must take into account and consider the sentence imposed on your co-offender.  However, there are differences between you which I see as significant here.  Those relate to role and offences committed, criminal record; but particularly achieved and prospects for further rehabilitation.

28The relevance of delay or perhaps better put here, time that has passed since, is limited by the fact that it has to some extent been caused by you. I speak particularly of the deferral under s.83A sought in August of last year. However, the broad period since, now almost two years, is relevant in respect of movement toward rehabilitation over the time. As I have said, the evidence of that is very strong.

29This was detestable offending and the circumstances of it, viewed in isolation, would require imprisonment beyond that served.

30Such a sentence was my initial position.  However, I have been persuaded that a sentence of imprisonment combined with a community corrections order is the appropriate sentence.  The sentence I impose will allow that you do not return to prison.  The community corrections order should include significant punitive, as well as rehabilitative conditions.

31Stand up please.  After considering and balancing what I see to be the relevant and competing factors I sentence you as follows. 

32On both Charges 1 and 2 you are sentenced to 59 days' imprisonment.  Also on both charges you are convicted and I impose a community corrections order of three years duration.  The usual terms apply.  The additional conditions are that you perform 400 hours of unpaid community work over that period as directed, that there be drug and alcohol assessment and treatment, and that you participate in programs specifically related to the offences you committed as you are directed, and that there be supervision.  I direct that 50 hours of participation in rehabilitation conditions or programs may be counted as hours of community work. 

33Under s.18 I declare 59 days of pre-sentence detention as detention already served. Under s.6AAA of the Sentencing Act I indicate that had you not pleaded guilty I would have imposed a sentence of imprisonment of three and a half years with a minimum term of two years before you would have been eligible for parole, so the arithmetic would be pretty clear to him.

34What are the other matters that I need to ‑ ‑ ‑

35MR O'DOHERTY:  No other matters, Your Honour.

36HIS HONOUR:  You can come out of the dock now and sit near Mr Morgan and we will prepare the document.  Stand up.  I have got to explain the detail of this to you.  You can leave today but you are on a community corrections order for the next three years.  That is until January of 2021.

37The usual conditions are these, that you do not commit another offence for which you could be imprisoned.  Being in possession of methylamphetamine would be an offence for which you could be imprisoned and it would not matter how small it was.

38You must comply with a regulation which as I best understand it states that you cannot attend any program or work site affected by alcohol or drugs or in possession of any illegal drugs. 

39You must report to and receive visits from Community Corrections.

40You must report to the Swan Hill Community Correction Centre within two clear working days of today. 

41You must let them know within two days of any change of address or job. 

42You must not leave Victoria without getting permission to do so from them.

43You are close to the river here so you will discuss that with them and they know how to manage that sort of thing, work and the like. 

44You must obey all lawful instructions and directions of Community Corrections.

45The additional orders are that you perform 400 hours of unpaid work, 50 hours of what you do on the rehabilitation side can be set off against that.  You must be under the supervision of a community corrections officer, you must undergo assessment and treatment, including testing for drug abuse or dependency, and you must undergo assessment and treatment, including testing for alcohol abuse or dependency as you are directed.  You must participate in programs that particularly relate to the offending for which I have sentenced you. 

46Do you understand all of that?  Do you agree to the order?  I will get you to sign it and then I will sign it.

47My assessment of you is that you have got a potential also to be a prominent person in your community and you should be a person that young people look up to, not a person that behaves in the despicable way in which you behaved on this day.  That is what you should be aiming to do.

48You will get the order and then you make hay.  Just take a seat there for a moment.  Thank you for your assistance, Mr Morgan.

49MR MORGAN:  Thank you, Your Honour.

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