Director of Public Prosecutions v Withers
[2013] VCC 1675
•11 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-01200
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID WITHERS |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 September 2013 | |
DATE OF SENTENCE: | 11 September 2013 | |
CASE MAY BE CITED AS: | DPP v Withers | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1675 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Aggravated burglary – Criminal damage – Plea of guilty – Community Corrections Order – Major depressive disorder- Substance abuse – Good prospects of rehabilitation
Cases Cited: R v Verdins 16 VR 269
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Duckett | Mr C. Hyland, Solicitor for Public Prosecutions |
| For the Accused | Ms J. Garner | Rainer Martini & Associates |
HER HONOUR:
1 David James Withers you have pleaded guilty to one charge of aggravated burglary which has a maximum penalty of 25 years imprisonment and one charge of criminal damage which has a maximum penalty of 10 years. As you would appreciate these offences are considered to be very serious, especially aggravated burglary.
2 The Crown opened your offending as follows:
3 On Tuesday 18 October 2011 at approximately 2.45 pm you were ‘driving around’ Rowville in your car with Phillip Curtis and Stephanie Hall. You drove to an address in Dandelion Drive and got out of the car. You were said to be ‘obviously angry’ as you approached the front door of this premises.
4 Stephanie Hall was told to remain in the car and could only see the front door. She did not see any kicks to the door but heard two ‘loud bangs’.
5 When you reached the front door Mr Delbridge, who was lying on his bed watching a movie, heard two massive bangs from the front of the house. Mr Curtis said in his statement that he saw you kick the front door ‘really heavily’ twice breaking it.
6 On hearing these bangs Mr Delbridge locked his bedroom door and lay down on the floor beside his bedroom window. As his bedroom was beside the front door of the residence and the ‘blind’ was partially open at the time, he could see you and another person’s shoes.
7 He then saw you walk into the premises and heard you scream ‘You’re fuckin’ dead Tek’. Mr Delbridge knew that you were referring to him as ‘Tek’ as this was his ‘tag’ name (Charge 1 – Aggravated burglary – Person present).
8 Mr Delbridge then heard two more loud bangs to his bedroom wall which caused the plaster to break through to the side of the wall that he was on, causing damage to the wall's plaster (Charge 2 – Criminal damage).
9 Mr Curtis then said to you “let’s go” and the two of you left the premises.
10 Mr Delbridge then called ‘000’.
11 Approximately 10 minutes later a friend of Mr Delbridge’s, Jason Brideson, arrived at his address and Mr Delbridge realised that you must have left.
12 At approximately 3.35 pm that day police attended Mr Delbridge's address and examined the premises. They noted that the front security door of the house was buckled and bent, the lock to the front door was damaged and there was damage to the wooden frame and two holes in the plasterboard in the front entrance hallway. I have viewed photos of that damage.
13 On Wednesday 19 October 2011 at approximately 12.50 pm the police attended at an address in Norma Crescent, Knoxfield where you were residing and they arrested you.
14 Mr Curtis was interviewed and exonerated in relation to having any involvement in the Aggravated Burglary on 19 November 2011 at 2.21 pm. A statement was taken from him in relation to the Aggravated Burglary at 4.35 pm.
15 On searching the residence the police found a number of items which were stolen. You have been charged in relation to this property as was Curtis and those charges have been remitted to the Magistrates Court for hearing.
The arrest and record of interview
16 You were then taken to the Knox Police Station and took part in a record of interview, although you exercised your right to make a ‘No comment’ response to the allegations which were put to you.
17 You were remanded that day and granted bail on 18 November 2011. You have served 31 days by way of pre-sentence detention.
18 Mr Withers, objectively, your offending is serious. You violated the sanctity of another person’s home in a most frightening way. This was a place where the victim was entitled to feel safe. You went into his house intending to assault him. You uttered a threat to harm him just after you entered and you smashed a wall. It was fortunate for him and for you that you did not find him. Whilst it may be that you could not be sure that he was in the house when you first entered, I find that you expected him to be there, which was the reason you entered in the way that you did. Contrary to your Counsel’s submission, I am satisfied, if necessary beyond reasonable doubt, that you intended to physically assault the victim rather than simply place him in fear as you entered his home. I find this because you told Dr Cidoni that the victim owed you money and drugs which was your reason for attending, because of the ferocity of the entry into his home, and because of the threat that you made when you broke in accompanied with the two punches to the wall.
19 Fortunately, you listened to Mr Curtis and left the premises without harming the victim, so the incident was fairly short lived, albeit that it must have been most frightening for Mr Delbridge. You committed the offences in daylight and they were not premeditated so there is a lacking in terms of aggravating features that often attend conduct of this type. On the other hand, you were fuelled by drugs, which heightened your dangerousness. Your conduct must be denounced and I must impose an appropriate punishment upon you in all of the circumstances. One of those circumstances was your state of mental health at the time which I will come to presently.
20 You were 21 years old at the time of the offending and are now aged 23 years. You were, and continue to suffer from an impairment of mental function being a major depressive disorder, which appears to date back to when you were a little boy, having witnessed ongoing domestic violence to which your father subjected your mother. Notwithstanding this, and your parents’ separation when you were 6 or 7 years old, you battled on and completed your VCE with an enter score of 86, which shows that you are rather intelligent.
21 You have a brief but relevant criminal history: On 10 August 2011 at the Ringwood Magistrates Court you pleaded guilty to one charge of criminal damage and one charge of assault with a weapon. You were convicted and fined $1000 for each charge but you successfully appealed that sentence on 4 June 2012 and were granted an adjourned undertaking. On 3 June 2011 you had been charged with theft and perhaps other offences which resulted in the imposition of a Community Corrections Order on 21 June 2012, which you completed successfully. You have some outstanding matters to which I have referred which I remitted to the Magistrates Court. As they are yet to be dealt with, I will not take them into account but note that each of these are dishonesty offences and are the product of the police search referred to in the prosecution opening. Therefore, they date from the same period in your life as the offences before me.
22 I take into account your background and history of substance abuse. In your teens you turned to alcohol and developed a severe dependency on drugs. The substance abuse is largely attributable to self-medication for the mental health difficulties which you have been suffering for many years now. In view of the reports of Dr Cidoni and Dr Cunningham, and Counsel’s submissions, I accept that at the time you committed the offences for which I now sentence you, you were suffering from an impairment of mental function which impacted on your ability to make calm and rational decisions, and that you were more prone to impulsivity, aggression and irritability, such that I allow for a reduced level of moral culpability on your part. I also place lesser weight on specific and general deterrence than would otherwise be the case because of such impairment. Further, I allow for the fact that gaol for you would be harder than for someone not operating under such difficulties, and that any period in gaol would be likely to lead to a deterioration in your mental health. I also take into account that at the relevant time you had a dependency on methamphetamine or ice which also impacted on your level of irritability. I factor in that your drug addiction was largely self-medication for your mental health issues, but you should know that a decision to take drugs in the future in the context of committing further offences may well be treated as an aggravating feature. That is because there appears to be a degree of connection between your drug taking and offending. Do you understand that?
23 PRISONER: Yes, Your Honour.
24 HER HONOUR: You should also be aware, Mr Withers, that if you were to commit further offences in the future, the need to protect the community from you may well demand that, notwithstanding your mental health issues, there may be no other option but to put you in gaol. In relation to the offending for which I sentence you, I do place some weight on the need to protect the community.
25 I understand that the prior offending concerned your brother, who has since forgiven you and provided a character reference in support of you. You committed the offences for which I sentence you while you were living away from home and family, which had been the case since you were 18. You reconnected with your mother and brothers in 2011 when you were on remand and you have had their support ever since. Your mother also provided a character reference in support of you and describes the hardships you encountered when growing up. She also says how proud she is of you in recent times because of the progress you have made. She was here in support of you at the plea hearing and I see she is here in support of you today. Your uncle has employed you since December 2012 as a forklift operator and storeman and speaks of your excellent work ethic, competence and change in attitude for the better. It seems that since being arrested for the matters before me, you have done all you can to turn your life around, including abstaining from drugs for a significant period, with the help of Anglicare. In the period since your offending, you have not committed any further offences. Therefore, you have used the intervening period of nearly two years to rehabilitate yourself. I was not addressed on the question of delay as such but this aspect of delay is evident. It may well be that the 31 days which you spent on remand had a salutary effect upon you. I was told that you now take two forms of medication to treat your depression and anxiety, and that things are going very well. You no longer take illicit substances, notwithstanding there have been some lapses along the way. I note that you are still imbibing some alcohol which may need to be addressed. In all of the relevant circumstances, I find that your prospects of rehabilitation are quite good. Much will depend on your ability to stay on the prescribed medication, and to stay away from illicit substances. As you did have a significant drug addiction, this will be a challenge for you, but you have shown that you are able to meet such a challenge, and I very much hope that you continue to do so.
26 I was not addressed specifically in respect of the stage at which you pleaded guilty; however, I note that you conducted a contested committal hearing, which is your right, but as such you are not entitled to the discount you would otherwise receive had you pleaded guilty from the outset. However, you have now pleaded guilty and are entitled to a discount in sentence which is not insubstantial as you have saved the witnesses, especially the victim, the time and trouble of giving evidence at trial and you have saved the community the time and expense of running a trial.
27 In all of the circumstances in your case, and in particular the Verdins considerations and the fact that the Crown have submitted that a Community Corrections Order would be within the range of sentence open to me to impose, I had you assessed for a Community Corrections Order.
28 That assessment has now come back to me and you are considered suitable to undergo a Community Corrections Order. In a bid to keep you employed full time as you are at present, I have decided that the unpaid community work component is not required; however, there are other conditions which you must fulfil and I shall take you through these now:
29 In relation to Charges 1 and 2 I propose to order with conviction that you undergo a Community Corrections Order for a period of 3 years.
30 There are standard conditions of that order as follows:
31 You must not commit another offence for which you could be imprisoned during the time that the order is in force.
32 You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011.
33 You must report to, and receive visits from, the Secretary to the Department of Justice (or his/her delegate).
34 You must report to Ringwood Community Correctional Service today (11 September) at 2 pm.
35 You must let a Community Corrections Officer know within two clear working days of you changing your address or job.
36 You must not leave Victoria without first getting permission to do so from the Secretary to the Department of Justice (or his/her delegate).
37 You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his/her delegate).
38 In addition to the core conditions there will be the following conditions:
39 Firstly, that you undergo assessment and treatment including testing for alcohol abuse or alcohol dependency and/or drug abuse or drug dependency as directed.
40 Secondly, that you undergo assessment and treatment in respect of your mental health, as directed.
41 Thirdly, that you undergo any program deemed necessary as directed by the Secretary to the Department of Justice. to address your offending behaviour, including violent behaviour.
42 Fourthly, that you be supervised by the Secretary to the Department of Justice or his/her nominee, as directed for a period of three years.
43 Fifthly, that you be subject to judicial monitoring so that you are required to appear before me firstly on Wednesday 11 December 2013 at 9.30 am, and every three months thereafter or such period thereafter as I deem fit from time to time during the course of the next three years.
44 Do you understand those conditions?
45 PRISONER: Yes, Your Honour.
46 HER HONOUR: Do you consent to the proposed Community Corrections Order?
47 PRISONER: Yes, Your Honour.
48 HER HONOUR: I should tell you that if you do not comply with all of the requirements of the order then you will face breach proceedings before me. You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, in which case you may well be sentenced to a period in gaol. Do you understand that?
49 PRISONER: Yes, Your Honour.
50 HER HONOUR: I would regard a breach of the Community Corrections Order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.
51 Do you understand this?
52 PRISONER: Yes, Your Honour.
53 HER HONOUR: And do you maintain your consent to the Community Corrections Order?
54 PRISONER: Yes, Your Honour.
55 HER HONOUR: Very well. Therefore in relation to all of the charges to which I have previously referred, you are convicted and sentence to a Community Corrections Order in the terms and conditions that I have just set out.
56 I will ask you to come out of the dock and I will have your Counsel to assist you in completing that document. Just take a seat, Mr Withers, and I will have Ms Garner assist you once I have signed the order, thank you.
57 MS GARNER: Thank you, Your Honour.
58 HER HONOUR: You can stay where you are but stand up because I still have some further sentencing remarks which are fairly brief.
59 I indicate that if not for your pleas of guilty I would have sentenced you to a period of two years' imprisonment with a non-parole period of 12 months.
60 I also make an order pursuant to s.464ZF for the retention of the forensic sample you previously provided. I make the order because it is not opposed, because of the seriousness of the offending and because it is in the public interest to do so.
61 I understand there is the question of bail in relation to the matters which were omitted, is that right?
62 MS DUCKETT: Yes, Your Honour, that is correct. Your associate has obtained a date of 17 October at the Dandenong Magistrates Court and as I understand it if Mr Withers could be bailed to that date and there have been variations to the bail that he was previously under in relation to these matters. So it's probably better if he enters into a new bail this day in relation to those charges.
63 HER HONOUR: And I am able to bail him to the Magistrates Court? Yes, very well. I have a document here and I understand it must have been the subject of discussion before I came on the Bench that Mr Withers be released on bail to attend at the Magistrates Court?
64 MS DUCKETT: Yes.
65 HER HONOUR: Excuse me. I will just keep going with the document that I have and we will have the document printed out as a final draft once I check these with you; that he be released on bail to attend at the Magistrates Court at Dandenong on 17 October 2013 at 9.30 am?
66 MS DUCKETT: Yes, Your Honour.
67 HER HONOUR: Upon entering an undertaking that he resides at 31 Wakeley Crescent, Wantirna South?
68 MS DUCKETT: Yes, Your Honour.
69 HER HONOUR: And with special conditions not to associate with Phillip Curtis, Jessica Sachero, Stephanie Hall, Blake Thomas, Greg Hartley or Joshua Cook, is that right?
70 MS DUCKETT: That is really the only special condition that should be remaining on them just because of those charges not being finalised to date. But once the Community Corrections Order is in place there is no need for him to be reporting to the investigator in these matters any longer.
71 HER HONOUR: Very well, just one moment please.
72 MS DUCKETT: Of course.
73 HER HONOUR: I understand that bail has to be ultimately entered into through Registry.
74 MS DUCKETT: That's correct, Your Honour.
75 HER HONOUR: So I am just not sure if I need to remain here to sign the document or I can leave the Bench. Ms Hammond?
76 ASSOCIATE: (inaudible words)
77 HER HONOUR: Very well, I will stay here.
78 Ms Garner, while it is being fixed up you will note that judicial monitoring requires that your client come and see me on Wednesday 11 December 2013. At that stage I will have a progress report about Community Corrections. He will probably be required to come up and sit at the Bar table and tell me how he is getting on.
79 MS GARNER: As Your Honour pleases.
80 HER HONOUR: And I will have to hear his good news. I am sure it will - - -
81 MS GARNER: I hope so, I am sure there will be, Your Honour.
82 HER HONOUR: Very well, thank you.
83 MS GARNER: Thank you.
84 HER HONOUR: Thank you, I have signed that. We will now adjourn until 10.30, thanks.
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