Director of Public Prosecutions v Wisely
[2023] VCC 140
•8 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-01065
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW WISELY |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 February 2023 | |
DATE OF SENTENCE: | 8 February 2023 | |
CASE MAY BE CITED AS: | DPP v WISELY | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 140 | |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Aggravated burglary - common law assault - make threat to kill - make threat to inflict serious injury
Legislation Cited:
Cases Cited:
Sentence:12 months' imprisonment and 2-year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Pillai | Office of Public Prosecutions |
| For the Accused | Mr M. Brogden | Daniel Taylor Lawyers |
HIS HONOUR:
1 Matthew Wisely, you have pleaded guilty to a charge of aggravated burglary occurring on 22 February 2021. The maximum penalty for that offence is imprisonment for 25 years. You have pleaded guilty to common law assault arising on the same occasion against the same victim, for which the maximum penalty is five years’ imprisonment. You have pleaded guilty to making a threat to kill that same victim on the same occasion. The maximum penalty for that offence is imprisonment for 10 years.
2 You have pleaded guilty to an offence of making a threat to inflict serious injury in respect of your primary victim's daughter some short period after the commission of the three offences the subject of Charges 1, 2 and 3. The maximum penalty for that offence is imprisonment for five years.
3 You have admitted a prior criminal history which, although not lengthy, contains at least one offence involving burglary. I understand it to be of a different kind and not an offence of aggravated burglary. The court appearance for that offence was in 2015.
4 The prosecution tendered and relied upon a summary of prosecution opening for the plea (Exhibit A) identifying the circumstances in which you attended the home of your primary victim, forced your way into the home and attacked her, grabbing her around the throat, pushing her to the ground and squeezing her neck, causing her injury and then ultimately standing over her and stamping each of your feet on either side of her head, threatening to kill her.
5 A short time later you contacted her daughter by phone. You told her daughter that you had been to her mother's house, and that you had done something to the front door. You told the daughter to tell her mother to delete what she had posted on Facebook or else you would, 'Slit her throat'. You then hung up. The Facebook message to which you referred was apparently one posted by your primary victim and reads: ' Stay Away from me & my Kids MATT WILEY you HIV infested Gronk!!’.
6 It is put on your behalf, and indeed reflected in what you have said to Mr Cummins later, that that was provocation for the events that I have just described.
7 You were arrested later on that day and interviewed by police. You denied wrongdoing, although you admitted you had kicked the door. You denied assaulting your primary victim. You admitted that you kicked the door ‘two or three times, or something'. You denied having entered the premises and denied having assaulted your primary victim. You denied making any threats to her daughter after the events at your primary victim's home.
8 The primary victim has made a victim impact statement, which is Exhibit B on the plea hearing. That sets out what seem to be quite significant psychological impacts upon her as well as the physical harm that she suffered. She was examined by a doctor. There were various injuries found which were consistent with the account that the prosecution has set out in its summary of prosecution opening.
9 Turning to matters personal to you.
10 In addition to oral arguments, your counsel relied upon the outline of submissions on sentence indication which is dated 11 October 2022, together with various letters, including letters from Victor Viray, an accredited mental health social worker who speaks of your attendance between 4 May 2021 and 17 September 2021 at a total of five counselling sessions which were focused on strategies to deal with anger management.
11 In addition, as part of Exhibit 2, there were various other character references from swimming teacher Sarah Hawkins and a former girlfriend named Hayley Lindrea who speaks of the relationship that you had with her leading to the birth of what she describes of a beautiful son in March 2022. That son is now 11 months old. She speaks in her letter of the fact that you are very active in that son's life. That is to be contrasted with what you told Mr Cummins, according to his report dated 17 January 2023, which was that you hadn't seen that child since he was two months old.
12 There are other letters of support for you from Christie Lee Dillan who is the mother of your three-year-old son Matthew Junior, and from your mother Lisa Wisely. They both support the proposition that you had been a very caring father to Matthew Junior and that you have had full custody of him since February last year.
13 There is also a letter of support from Robert Tilley and Jason Maskiell. Exhibit 5 is a report from Gippsland Psychology setting out three previous appointments which you kept. Those appointments focused on psychological strategies with a mental health social worker on 25 November 2022, 9 December 2022 and 20 January 2023. In addition Mr Brogden relied upon a letter from you dated 31 January 2023.
14 I generally give little weight to letters from accused persons. I think it is totally inappropriate to be relying on such material: what you wish to say can be said by your counsel. That is the way it should be.
15 However, it does express remorse and makes a plea not to be given a term of imprisonment so that you can look after your young child, Matthew. Mr Brogden also relied on Exhibit 4, a report from Mr Jeffrey Cummins, psychologist, dated 17 January 2023. That sets out some useful history of your upbringing, your education and your work experience It deals with your past use of drugs including methamphetamine and other illicit substances and your relationship with alcohol in more recent years. He also speaks of matters relevant to your offending conduct the subject of this indictment, and expresses various opinions about links between your offending and psychological disorders including adult hyperactivity disorder. The last sentence in paragraph 55 reads, 'In response to being diagnosed with and treated for HIV he developed a Major Depressive Disorder with features of anxiety and depression.'.
16 I cannot see any material to support that opinion, other than the fact that it was reported that you had made a suicide attempt.
17 There is reference to feelings of anxiety and depression but nothing before me which would support a diagnosis of major depressive disorder. There is no reasoning which supports that diagnosis.
18 In paragraph 55 Mr Cummins also expresses the opinion that at the time of your offending, '[your] moral culpability was impaired as a result of [you] suffering from a mental health condition (depression and anxiety) - which had been triggered as a result of [you] being diagnosed with and treated for HIV'.
19 Mr Cummins had also noted that you had told him that you were under the influence of alcohol at the time of the offending conduct. He also noted a nexus between your consumption of alcohol and your propensity to express feelings of anger.
20 In paragraph 37, Mr Cummins says this, 'At interview he, [meaning you] acknowledged [you were] under the influence of alcohol at the time of offending against [both of your victims]’.
21 There is absolutely no explanation for why Mr Cummins formed the opinion that your moral culpability was impaired as a result of you suffering from a mental health condition (depression and anxiety) at the time of the offending as distinct from being disinhibited as a result of being under the influence of alcohol. The prosecution has submitted that there is no evidence of a relevant nexus to enliven the Verdins principles, in particular, principles 1-4. Likewise, there is nothing in the report which supports the conclusion that either of Verdins principles 5 or 6 should apply in this case.
22 There is reference to the likelihood of deterioration in your mental condition during a period of incarceration. But it doesn't rise to the level required for Verdins principle 5, nor does it enliven Verdins principle 6, in my judgment. I do not think that proposition was seriously pressed by Mr Brogden in any event.
23 That said, I have no doubt from all of the material that I have read that your separation from your son, for whom you now have sole custody, will have a very significant impact upon you during the period of your incarceration. I conclude that that will make your time in custody significantly more onerous. And, although the Verdins principles do not apply, that matter carries significant weight in determining what sort of punishment you should receive.
24 It is to your credit that you have pleaded guilty to these offences and that you did so during the COVID pandemic, which still impacts upon the Corrections system. You must be given a significantly discounted sentence for those factors. There is also a considerable utilitarian benefit in your plea in that it has avoided the necessity of a trial, which would have been costly and inconvenient and would have imposed further pressure upon your victims.
25 Referring to the report of Mr Cummins, to the other material showing that you are seeking and obtaining treatment, it seems to me that there are reasonable prospects of rehabilitation. It is to your credit that you have not been in any further trouble, and that your record is now to be regarded as much less significant than it might have been if we were dealing with sentencing you in 2016. That period of offending is now well in the background. You have the capacity to work when you get the opportunity to do so. I expect that when you are free to do so, you will return to caring for your young son Matthew Junior. The references suggest that you have good qualities as a father and that you have shown devotion to that task.
26 It is necessary to reflect the seriousness of the offending conduct in punitive elements of sentencing, to acknowledge the need for general deterrence, just punishment and for the court to denounce offending of the kind reflected in each of the charges to which you have pleaded guilty. This was a very nasty incident. Although you may have been upset by what had been posted on Facebook for the rest of the world to see, it did not come close to justifying your reaction, which is reflected in this offending conduct.
27 People are entitled to feel safe in their own homes. I am quite sure that your primary victim is genuine in her victim impact statement in saying that she no longer feels safe in her own home. The seriousness of the offences is reflected in the maximum term of imprisonment for offences of aggravated burglary. It is a very serious offence, which ordinarily requires a significant term of imprisonment.
28 There is also an element here of protection of the public that needs to be acknowledged, as well as general deterrence. Your past dealings with alcohol and your response on this particular night in February 2021, fuelled as it seems to be by alcohol, are matters of concern which you will ultimately have to address. However, you have taken some steps to address that and I think the likelihood is that with the responsibilities you bear as a father, the inconvenience that you will have caused your mother during the period of your incarceration and the deprivation that you will feel from your lack of capacity to fulfil your responsibilities as a father, will give you every incentive to stay out of trouble in the future.
29 I think there is a reasonable prospect of you doing so. The public therefore can be appropriately protected and the other sentencing considerations can be met by a combination sentence of a term of imprisonment and a Community Correction Order which is designed both to give you further punishment beyond the period of imprisonment that I am limited to imposing under the law. It can be reflected in the hours of unpaid work which you will be required to do and the other conditions of the Community Correction Order, acting as the order does, effectively, as a suspended sentence hanging over your head during the period during which the orders are in force.
30 Considering all of those factors, I have concluded that justice can be done in this case by imposing a combined sentence. And I am now ready to impose sentence upon you.
31 On Charge 1 of aggravated burglary, you are convicted and sentenced to imprisonment for a term of 12 months.
32 On Charge 2 of common law assault, you are convicted and sentenced to imprisonment for a term of 10 months.
33 On Charge 3 of making a threat to kill, you are convicted and sentenced to imprisonment for a term of 10 months.
34 On Charge 4 of making a threat to inflict serious injury, you are convicted and sentenced to a term of imprisonment of five months.
35 All of those sentences will run concurrently.
36 I declare pre-sentence detention of seven days as time to be reckoned as served on the sentence that I have imposed. The total effective sentence is 12 months' imprisonment, with seven days to be deducted from that as pre-sentence detention.
37 In addition, for all of those offences I propose to order that you undergo a Community Correction Order for a period of two years which will commence at the conclusion of the sentence that I have imposed. There will be a number of conditions which I need to go through with you, so please listen carefully.
38 At the conclusion of your sentence, you will be required to attend the Sale Community Correctional Services at Level 1, 374-378 Raymond Street, Sale, within two clear working days after the commencement of the order which will commence upon your release from your term of imprisonment.
39 There are various terms of the order which apply to all Community Correction Orders, and they are:
· you must not commit another offence for which you could be imprisoned during the time that the order is in force;
· you must comply with any obligation or requirement prescribed under Regulation 17 of the Sentencing Regulations, which concern matters such as not turning up to appointments with corrections drunk or drug affected;
· you must report to and receive visits from the Secretary of the Department of Justice and his or her delegate;
· you must report to Community Correction Centre within two clear working days of the order starting;
· you must let a Community Corrections officer know within two clear working days of your changing your address or job;
· you must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate; and
· you must obey all lawful instructions from and directions of the Secretary or his or her delegate.
40
In addition to those terms, these are the additional terms that will apply to the order, if you accept the order:
· you must perform 250 hours of unpaid community work over the period of two years during which the order is in force, as directed by the regional manager, and I order that 100 hours of treatment and rehabilitation satisfactorily undertaken be counted as hours of unpaid community work for the purposes of the unpaid community work condition - if you fail to comply with that order, the Secretary of the Department of Justice may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act;
· you must be under the supervision of a Community Corrections officer for the two-year period during which the order is in force;
· you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager;
· you must undergo assessment and treatment (including testing), for alcohol abuse or dependency as directed by the regional manager;
· you must undergo any mental health assessment and treatment that may include psychological, neuro-psychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager; and
· you must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager.
41 Do you understand all those terms?
42 OFFENDER: (Inaudible response.)
43 HIS HONOUR: You do? You need to answer so that it's heard.
44 OFFENDER: Yeah. Yeah.
45 HIS HONOUR: Did you say, yes?
46 OFFENDER: Yes, I did, yeah.
47 HIS HONOUR: Are you willing to comply with an order with all those terms?
48 OFFENDER: Yes, I am.
49 HIS HONOUR: Yes, all right.
50 OFFENDER: Yep.
51 HIS HONOUR: Mr Brogden do you need an opportunity to go through those terms with him and make sure he understands or are you confident that he does?
52 MR BROGDEN: I'm confident he does Your Honour, we've previously discussed - - -
53 HIS HONOUR: Yes, all right. Mr Wisely, if you consent to being placed on that order, you need now to signify your agreement and consent so that we can hear that? Do you consent to the order in those terms?
54 OFFENDER: Yes, Your Honour I consent.
55 HIS HONOUR: Thank you. Obviously he can't sign the order right now, so we'll treat it as having been consented to. What I will do now is to sign the order, which will put that order in force.
56 MR BROGDEN: As Your Honour pleases.
57 MS PILLAI: Your Honour there's one matter just relating to these terms, pre-sentence detention to clarify, that's one day if I understand that the - - -
58 HIS HONOUR: No, but he has been in custody for a few more days.
59 MS PILLAI: Oh, for the period in the last week.
60 HIS HONOUR: Yes.
61 MS PILLAI: I beg your pardon, he's been remanded.
62 HIS HONOUR: My associate is pretty good at calculating these things.
63 MS PILLAI: I apologise, yes. Well that's fortunate, thank you Your Honour.
64 HIS HONOUR: So, you're happy with that, are you?
65
MS PILLAI: Yes. And the only other aspect, and I don't know whether
Your Honour's finished, it is 6AAA, Your Honour.
66 HIS HONOUR: I haven't but I plan to do that. But for your pleas of guilty to these offences I would have sentenced you to imprisonment for a period of four years with a non-parole period of two years and eight months.
67 HIS HONOUR: There aren't any ancillary orders, are there?
68 MS PILLAI: No.
69 HIS HONOUR: Thank you. Are there any other matters from either counsel?
70 COUNSEL: No, Your Honour.
71 HIS HONOUR: No, all right. Thank you
72 MR BROGDEN: As Your Honour pleases.
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