Director of Public Prosecutions v Witcombe
[2022] VCC 1254
•4 August 2022
26 May 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00089
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KYE WITCOMBE |
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JUDGE: | HIS HONOUR JUDGE WISCHUSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 May 2022, 18 July 2022 | |
DATE OF SENTENCE: | 4 August 2022 | |
CASE MAY BE CITED AS: | DPP v Witcombe | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1254 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N. Grunwald | Office of Public Prosecutions |
| For the Accused | Mr C. Edwards | Adrian Paull Criminal Lawyers |
HIS HONOUR:
1Kye Witcombe, you have pleaded guilty to three charges of burglary, to five charges of theft, to one charge of threat to damage property, to one charge of attempted theft, to two charges of attempted armed robbery and to one charge of causing injury recklessly. You have also pleaded guilty to two summary charges and have agreed to have them dealt with by me. The summary charges are possessing a prohibited weapon without exemption or approval and wilful damage.
2The maximum penalty for the offences for which you are to be sentenced today are as follows:
· for burglary, 10 years' imprisonment
· for theft, 10 years' imprisonment
· for threat to damage property, five years' imprisonment
· for attempted theft, five years' imprisonment
· for attempted armed robbery, 20 years' imprisonment
· for causing injury recklessly, five years' imprisonment
· for possessing a prohibited weapon, two years' imprisonment
· for wilful damage, six months’ imprisonment.
3The circumstances in which these offences occurred are set out in the summary of prosecution opening – Exhibit 1, the accuracy of Exhibit 1 you accepted through your counsel.
4These offences were all committed in the space of just 14 hours, during which time you were under the influence of significant quantities of methylamphetamine and Xanax. The offending was properly characterised on the plea as senseless, if not absurd. Nevertheless, despite the state you were in, you managed to commit a remarkable number of serious offences in that short period of time.
5At 1.00am in the morning on 31 July 2021, you and a companion, Oberbauer, parked your vehicle in Casey Boulevard, Fyansford. Using a hammer, you broke into three display homes by smashing the rear glass doors (the break-ins give rise to Charges 1, 3 and 5 – burglary). From the houses you stole four display televisions (Charges 2, 4 and 6 – theft). The TV sets you have stolen had almost no value to you or to anyone else because they do not work, being display models.
6The security service responded to an alarm you had set off at about 1.15am and at 1.30am Thomas Barr heard footsteps on the roof of his home which was nearby and so he called triple 0. You then went to his front door and demanded that Barr give you his car keys or you would kick the door down. The keys were not provided and you soon left (Charge 7 – threat to damage property, Charge 8 – attempted theft of a motor vehicle). After you left, Barr noticed that the bonnet of his car was damaged (this gives rise to Summary Charge 18 – wilful damage).
7At 2.12am, group security officer John Mc Neight, responding to the alarm from Casey Boulevard, arrived and saw your vehicle parked on the median strip. You approached McNeight and held up the hammer as if you are going to hit him and then got into his vehicle and started the ignition. McNeight told you that if you did not get out of his car he would call the police. You then got out of the car and left in your vehicle, but only after an unknown car turned up with some petrol for it (Charge 9 – attempted armed robbery).
8Police attended soon after and recovered the stolen display televisions from outside one of the houses from which they had been stolen.
9
Later still on that night, at 6.43am, you and your companion returned to
Casey Boulevard and there came across Joshua Elliott. He was a glazier who was collecting his tools from the display homes, in company with a security officer by the name of Ali. You got into Elliott's vehicle and took a hammer and then approached Elliott from behind and demanded his car keys. He refused and you said, “hand them over or I'll smash you with a hammer”. Elliott refused and called triple 0 (Charge 10 – attempted armed robbery).
10You stole various tools from the tray of Elliot's ute and left the scene with your companion (Charge 11 – theft).
11
At 10.00am that morning, you went to the SportFirst store in Corio Village and there stole clothing to the value of nearly $2500, leaving without paying
(Charge 12 – theft). The store manager and another member of his staff approached you outside the store and a physical altercation followed. In the course of it, you struck the manager, one Faud Salah, in the face causing a cut to the inside of his lip (Charge 13 – recklessly causing injury).
12You then left Corio Village but returned soon after with your companion, who was promptly arrested by police. You were arrested soon after, though you tried to avoid apprehension by climbing onto the roof of the shopping centre.
13Your vehicle was found in the car park of Corio Village and in it were some of Elliot's belongings, and a set of black knuckle dusters, the possession of which gives rise to Summary Charge 11 – possession of a prohibited weapon without exemption or approval.
14After your arrest, you were interviewed at the Geelong police station and in the course of the interview you made admissions, explaining that you were trying to make money in order to buy more drugs and you had stolen the clothing because you were homeless and living out of your car.
15You are now 25 years of age.
16You have admitted your highly relevant criminal history.
17No victim impact statements were tendered on the plea.
18You indicated your intention to plead guilty at the earliest opportunity, the committal mention.
19You have been remanded in custody since your arrest, a little over 12 months now. All of the time you have been in custody on remand has been spent in the difficult conditions prevailing in our prison system during the Covid-19 pandemic with restrictions on work opportunities, educational courses, and particularly in-person visits. I was told that in the whole of the 12 months you have only had two visits from your mother.
20Kye Witcombe, I state to you that I have taken into account all the matters raised on your behalf in the course of the plea, during which your counsel spoke to very detailed written submissions – Exhibit 5.
21The matters raised in mitigation of penalty included the following.
22Your plea of guilty, entered at the earliest opportunity, has saved the community the cost and the witnesses the stress of a committal and of a trial. In these times of pandemic, additional weight is to be given to the utilitarian value of such a plea.[1] I take your plea and your frank admissions to the police when interviewed also to be evidence of your remorse for this offending. You are entitled to have these matters taken into account in mitigation of penalty, and I have done so.
[1]Worboyes v R [2021] VSCA 169 at [35], [39]: “We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence… For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.” See also Chenhall v R [2021] VSCA 175.
23I have taken into account your relative youth. You were just 24 years of age when these offences were committed. Your counsel referred extensively to passages from Mills and Azzopardi in support of the submission that your rehabilitation is a very important factor in the sentencing consideration,[2] though it is to be remembered that the weight to be given to youth as a sentencing consideration moderates as the gravity of the offending increases.
[2]See R v Mills [1998] 4 VR 235 and Azzopardi v The Queen (2011) 35 VR 43
24I have taken into account your background and personal circumstances. These are set out in counsel's submissions and in the histories taken by Ms Cidoni, psychologist, whose report was Exhibit 6 and by Dr Triglia, the forensic psychiatrist who assessed you on behalf of Forensicare,[3] Exhibit 2.
[3]Forensicare Report of Dr Maria Triglia dated 6 July 2022 – Exhibit 2
25Shortly, born and raised in Greater Geelong, your parents separated when you were a toddler. You were raised by your mother who later formed a new relationship. Your mother and her partner live in Mt Duneed with your five considerably younger stepsiblings. You still have contact, but not much, with your father.
26Your schooling was uneventful until you attended secondary school, at which point you became disinterested and began playing up to the extent that you were frequently suspended until you were expelled in Year 9. After leaving school, you worked as a labourer in the floorcovering industry and then drove a forklift on a full-time basis for a couple of years.
27You have had one long-term relationship that lasted from the age of 18 until 21, coming to an end because of your substance abuse.
28You have a regrettably familiar history of substance abuse. It began with cannabis in your early teens, which very soon became daily use and persisted until you turned 21. At 15, you commenced ecstasy and binge drinking. From the age of 18, methamphetamine became a feature and you used it regularly from the age of 20, often in combination with Xanax, Valium and OxyContin. You have tried heroin but never used it regularly.
29
Again, in an all-too-familiar way, your descent into methylamphetamine addiction was accompanied by the commencement of your criminal history and the first sentencing occasion was in March 2019, followed by
community corrections orders, short periods of imprisonment and breach proceedings because of reoffending and fines.
30The period of time you have spent in custody on these charges is by far the longest term of imprisonment you have served and, not coincidentally, is the longest period of abstinence from substances in your adult life.
31On the plea, I was informed that in the weeks before these offences, a close friend of yours had died from a drug overdose and it was put on the plea, and I accept, that your grief concerning this event led to even greater consumption of methamphetamine, reaching two to three grams a day in the lead-up to these offences.
32As you explained it to the forensic psychiatrist, your recollection of much of this offending is impaired by the substances you had taken and, looking back on it, you had sufficient insight to realise that it was senseless and absurd.
33I have taken into account your mental state. There is a marked difference between the conditions diagnosed by Ms Cidoni that were adopted by the psychiatric nurse Gregory Lane[4] and those identified by the Forensicare psychiatrist Dr Triglia. In my view, the diagnosis made by the psychiatrist is more in keeping with the recorded mental state examination and with the history. In short, I am not persuaded that you suffer from a major depressive disorder, but rather, your increased anxiety is the product of excessive consumption of illicit substances over a number of years, leading up to these offences and more heavily at the time. I do accept,[5] and this was not pressed as a matter of more than modest weight on the plea, that your state of anxiety may worsen with continued imprisonment.
[4]Exhibit 3
[5]Counsel for the director accepted that modest weight should be given to this
34As to your prospects of rehabilitation, it was submitted on your behalf that you are now at a turning point in your young life and that the 12 months or so in prison has brought not only the longest period of abstinence in your adult life, but also insight into how the rest of your life might look if, upon your release, you returned to using illicit substances. The hope was expressed that this long period of abstinence would achieve what earlier residential detoxification programs had failed to do, that is, sustained abstinence from drugs and a return to steady employment as a forklift driver. In that regard, I was told there is plenty of such work around in your district and that you will be welcomed back into your mother's house. I must say, this is admirable because you had previously been obliged to leave in the lead-up to this offending because of your substance abuse.
35It was submitted that these matters, along with the strict supervision and testing as a condition of a community corrections order, should lead me to conclude that there is, in your case, a real chance of rehabilitation. It is my unfortunate and now long experience that hopes such as these, often expressed in the case of young people in the grip of methylamphetamine addiction, are only rarely realised and I still assess your prospects of rehabilitation as guarded. More so, as past efforts at residential detoxification and rehabilitation from addiction have failed to produce any lasting change in your behaviour.[6]
[6]See Exhibit 5, para 11
36Having regard to the submissions made, I did order that you be assessed to ascertain your suitability to undergo a community corrections order. The report has been received, dated 8 June 2022 – Exhibit 4. The author of it, Paul Sguerzi, despite assessing your risk of reoffending as high, did assess you as suitable to undergo such an order and recommended treatment and rehabilitation conditions for substance abuse and mental health, as well as supervision.
37I have had regard to the principle of totality and the passage from Bogdanovich relied upon[7] does seem particularly relevant here, as in my view, this offending is to be properly regarded as a single episode of criminal conduct.
[7][2011] VSCA 388, 12-13, [63]–[64]
38Against the matters to be taken into account in mitigation of penalty must be balanced the fact that, although unproductive and senseless, these offences, as the maximum penalties set by Parliament show, are very serious and the risk to the health, safety and sense of security of the victims was very real in circumstances where, as here, you committed these offences in the grip of some sort of drug induced mania.
39Offending of this sort, particularly under the influence of methamphetamine, is all too common in the daily lists of this court and general deterrence must be given weight in the sentencing consideration, as must specific deterrence, especially having regard to your criminal history. Further, I am called upon by the Sentencing Act1991 to manifest the community's denunciation of your conduct and to otherwise impose just punishment.
40Kye Whitcombe, I state to you that I have taken into account all of the matters raised on your behalf in mitigation of penalty in the course of the plea and all other relevant facts and sentencing principles in arriving at the sentence I am about to impose.
41In the end, though not without some misgivings, I have concluded that your relative youth, family support and expressed willingness to engage in rehabilitation offer at least the hope of rehabilitation and so I have concluded that a term of imprisonment to be followed by a community corrections order would meet all relevant sentencing considerations.
42On the 13 charges on the indictment and the two summary charges, you are convicted and sentenced to a term of imprisonment of 22 months, to be followed by a community corrections order with conditions of supervision and drug and mental health treatment and rehabilitation conditions for a period of 12 months.
43Mr Whitcombe, you have been convicted and sentenced to a term of imprisonment and a community corrections order that follows the term of imprisonment for the next 12 months and I am obliged to explain the order so that you understand what it means and what may happen if you breach the order in any way.
44There are a number of core conditions that apply to such an order:
(a) You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment. If you do, you will be in breach of the order.
(b) You must comply with any obligations or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011.
(c) You must report to and receive visits from a Corrections officer during the period of the order, that is, 12 months.
(d)
You must report to the Community Corrections Centre at
5/30A Little Malop Street, Geelong within two clear days after your release from custody. If you do not, you will be in breach of the order.
(e) You must let a Community Corrections officer know within two clear working days of you changing your address or your job.
(f)
You must not leave Victoria, except with the permission of the
Secretary to the Department of Justice or his or her delegate.
(g) You must comply with any lawful direction given by the Secretary or his or her delegate that is necessary to ensure you comply with the order.
45They are the core conditions that apply to the order and they apply to all Community Corrections Orders.
46There are a number of additional conditions that apply to you:
(a) As you will already have served a term of imprisonment, I have not imposed any hours of unpaid community work.
(b) You must be under the supervision of a Community Corrections officer for a period of 12 months.
(c) You are required to be supervised, monitored and managed, as directed by the Secretary, or his or her nominee .
(d) You must undergo assessment and treatment, including testing, for drug abuse or dependency, as directed by the Regional Manager.
(e) You must undergo assessment and treatment for mental health.
47I can only impose a Community Corrections Order if you agree to such an order being imposed.
48If you contravene or breach this order by committing further offences you can be charged and sentenced to a term of imprisonment for the breach and you can also be resentenced for the offences that are before me today. In other words, I would resentence you on all the charges that are currently before me and you could, in that circumstance, be sentenced to a further term of imprisonment.
49
I have to advise you that if you fail to comply with any direction of the
Secretary to the Department of Justice, that is, a Community Corrections officer, as part of this order you can also be fined.
50I declare that the 369, is that right?
51MS GRUNWALD: 368, not including today, Your Honour.
52HIS HONOUR: 368 days you have spent on remand in respect of these charges is to be reckoned as time served under the sentence I have imposed and I direct that this fact be entered in the records of the court.
53Pursuant to s 6AAA of the Sentencing Act 1991, I state that had you been found guilty of these offences after a trial, I would have sentenced you to a term of imprisonment of four years and six months, with a non-parole period of three years.
54I make the ancillary orders, the forfeiture order and the restitution order.
55MR EDWARDS: They're not opposed, Your Honour.
56HIS HONOUR: Are there any other matters?
57MS GRUNWALD: Nothing further, Your Honour.
58MR EDWARDS: Nothing further, Your Honour.
59HIS HONOUR: Mr Grunwald, I'm going to leave the Bench. The arrangement is that you get the Community Corrections Order emailed to the prison for it to be signed. We could leave the link up and you could explain the situation to your client.
60MS GRUNWALD: Mr Edwards.
61MR EDWARDS: I will.
62HIS HONOUR: Sorry, yes. Sorry, Mr Edwards. All right, shall I sign this now then?
63MR EDWARDS: Yes, please, Your Honour.
64HIS HONOUR: 10.30.
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