Director of Public Prosecutions v Wyatt

[2023] VCC 922

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW WYATT (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2023
DATE OF SENTENCE:	31 May 2023
CASE MAY BE CITED AS:	DPP v Wyatt
MEDIUM NEUTRAL CITATION:	[2023] VCC 922

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:

Legislation Cited:  Crimes Act 1958 (Vic); Family Violence Protection Act 2008 (Vic);

Cases Cited:DPP v Paulino [2017] VSC 794; Pasinis v The Queen [2014] VSCA 97; Worboyes v The Queen [2021] VSCA 169.

Sentence:  47 months imprisonment; non parole period of 32 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. Brydon	Office of Public Prosecutions
For the Accused	Ms D. Lamovie	Victoria Legal Aid

HIS HONOUR:

1Andrew Wyatt[1], you have pleaded guilty to the following charges which carry the following maximum penalties:

[1] A pseudonym

Charge No.	Offence	Maximum Penalty	Additional
1	Aggravated Burglary contrary to section 77 Crimes Act 1958	25 years imprisonment
2	Contravention of an Intervention Order Intending to Cause Harm or Fear for Safety contrary to section 123A of the Family Violence Protection Act 2008	5 years imprisonment or a level 6 fine (600 penalty units maximum) or both

2You have admitted your prior criminal history.  It is relevant to this offending, and I shall say more about it in the course of these remarks.

Circumstances of Offending

3The Crown tendered the summary of prosecution opening as Exhibit A. A summary of your offending is as follows:

4On 26 January 2022, you were served with an Intervention Order naming your former partner Grace Dawson[2] and your three children as affected family members. You were prohibited from attempting to locate the affected family members, from approaching them or their home or committing family violence against them.

[2] A pseudonym

5On 12 August 2022, Ms Dawson and her then current partner Mr Gibbs[3], were home at Ms Dawson's place in Hampton Park.

[3] A pseudonym

6At some stage during the evening, Ms Dawson took the three children to the master bedroom where they fell asleep.

7At around 10:30 pm, Ms Dawson and Mr Gibbs also went to bed.

8At approximately between 11:30 pm to 11:40 pm you attended outside the house. You began banging on the front door and calling out. This caused Ms Dawson and Mr Gibbs to wake up.

9Ms Dawson recognised your voice, and immediately went to the bedroom where your children were sleeping. She closed the door behind her and laid in bed with the children.

10Whilst still outside the property, you began banging on multiple external windows around the house including the window to the spare room where Mr Gibbs was.

11You were heard yelling, 'Where is Deon[4]? Where the fuck is Deon?' and 'Open the door, open the fucking door.'

[4] A pseudonym

12Mr Gibbs called Triple 0 requesting police assistance from his mobile whilst hiding inside the spare bedroom. He also locked the internal spare bedroom door to protect himself.

13Ms Dawson whilst inside the master bedroom with the children called her neighbour, Ms Lang[5] with Ms Dawson explaining what was occurring and asking her to call the police. Ms Lang reported the matter to Triple 0 and requested police attendance.

[5] A psudonym

14You managed to find an unlocked external window which led to the toilet and removed the external fly screen from the window to enter the property. At the time of entry, you intended to assault Mr Gibbs and you were aware of other people being present in the property.

15You walked directly into the bedroom containing Ms Dawson (and your children). You turned on the lights, and yelled 'Where is he? Where the fuck is he?' 'You fucked him whilst I was in gaol' and you called Ms Dawson a 'slut'.  

16You then stated, 'fuck it, I’m just gonna go'. Ms Dawson observed you walk to the front door, and upon reaching the front door you noticed a pair of shoes and paused. You returned to the master bedroom and pointed to the spare bedroom asking if Mr Gibbs was inside.

17You tried to enter the spare bedroom, but the door was locked. You used your body weight to push open the door. Mr Gibbs tried to defuse the situation in response to your questions about whether he was Deon.

18Police arrived at this time and Mr Gibbs walked out of the front door to allow police entry into the house. You began walking towards the back of the house. The police called out to you from the front door to come back to the front of the house. You ran towards the back door and into the backyard and went over the back fence.

19Your children remained asleep for the duration of your offending.

20The police pursued you on foot however they were not able to catch up to you. You were ultimately arrested the following day at your parents' home.

21You did not participate in a record of interview. You were remanded in custody and you have now spent 291 excluding today on remand by way of pre-sentence detention. I will reckon that period as already served.

Objective Gravity and Moral Culpability 

22I now turn to a consideration of the objective gravity of your offending and an assessment of your moral culpability.

23The seriousness of the offence of aggravated burglary is readily ascertainable by the maximum penalty set by Parliament – 25 years. Moreover, the Court of Appeal has repeatedly reminded sentencing judges that the crime of aggravated burglary must be met by principles of general deterrence, denunciation and just punishment.

24Your offending must take into account the following:

a)You were subject to the conditions of the family violence intervention order at the time of your offending;

b)Especially, you were prohibited from attempting to locate your former partner and children and yet you entered the home where they lived and were entitled to feel safe;

c)You committed your offending at night; and

d)Your children were present, although asleep.

25I take into account that although you entered with the intention of assaulting Mr Gibbs, your offence was not committed with actual physical violence or express threats of physical violence. Nevertheless, it remained an intimidating, verbally abusive confrontation directed at your victims. Fortunately, and through no particular determination by you, the confrontation was not prolonged. More fortunately, as I have already noted, your children were not woken.

26There is no particular evidence of planning or preparation on your part, although you did take steps to find or learn where your former partner was living. You were not armed; you were not in company; and you did not break or smash anything to enter the property, apart from the door into the internal bedroom. In this way, I am prepared to conclude that your conduct was relatively spontaneous to your angry jealousy.  I assess your moral culpability for your offending as high, but I do take these other factors into account.

27Mr Brydon referred to the cases of Paulino[6] and Pasinis[7] in submitting that your family violence offending must attract principles of general deterrence, denunciation and just punishment. You have previously received a term of imprisonment on 15 February 2022 for offending that involved (amongst other things) sending abusive text messages to Ms Dawson. Mr Brydon submitted that specific deterrence must play a role in the sentencing consideration.

[6]DPP v Paulino [2017] VSC 794.

[7]Pasinis v The Queen [2014] VSCA 97.

28I consider that the principles already identified – that is deterrence, denunciation and just punishment – must together play a dominant role in the sentencing consideration. The message must be sent to all possessive, angry, jealous men who refuse to acknowledge and respect the fact that women are entitled to move forward with their lives after the end of a relationship, that fear inducing, intimidating trespasses into their safe spaces will be met by stern punishment.

29I recognise that there is a considerable overlap between the two charged offences. As such, I must ensure that you are not doubly punished.

Personal Circumstances

30You are 33 years old, being born in November 1989.

31You were born in Melbourne and raised by your parents, alongside your three younger siblings. You have four older half-siblings from your mother's previous marriage.

32Your father was a technical schoolteacher and was very strict on you when you were growing up. He abused alcohol. He was also abusive towards you, your siblings and your mother; to whom you were close. You describe your mother as fearful of your father at times and note that she could not intervene in your father's aggression due to the fact she worked night shifts.

33Your family circumstances led to you moving out of home, by your own choice at the age of 16. Nevertheless, you remained in close contact with your family and successfully completed your VCE at Noble Park High School.

34You have one child with your former partner Taylor[8] and later had three children in quick succession with your former partner Ms Dawson, who you met in 2012. You have not had contact with Taylor or your shared child since that child was a baby; however, you have stated that you loved spending time with the children you share with Ms Dawson.

[8] A pseudonym

35I take into account the fact that since this offending, you have had no contact with your children. Although there is currently no IVO in place, you fully recognise that it will be a long time and that there is much work to do before you will have face to face contact with your children again.

36You started employment in the construction industry at age 18 before working as a dispatch operator between 2008-2013. You have since worked a number of fixed-term contracts as a concreter and held employment until you were sentenced to a term of imprisonment on 15 February 2022.

37You started drinking and using drugs in your mid‑teenage years. Your drug use became problematic when you started using marijuana, ice and Xanax for relaxation and as a means of coping with work pressures and relationship problems. This contributed to the difficulties of your relationship with Ms Dawson.

38You have a long and unenviable prior criminal history. You have offences for assaulting women and you have breached a considerable number of court orders – community corrections, bail and Family Violence - despite being given a number of opportunities to complete your corrections order. As Ms Lamovie observed, you often did enough to warrant a second chance but often ultimately breached the order.  This is your first time in the County Court. Ms Lamovie submitted that along with the other factors that I am about to turn to, this has been something of a wake-up call to you.

39You were closer to your mother than to your father when you were growing up.  Before your return to prison for this offending, you had been caring for both your parents. You were devastated when your mother died late last year while you were on remand. Importantly, you were prevented from participating in the longer Māori rituals after her death; but you were granted a release for a couple of hours to attend an essential part of her funeral.

40On top of this, your father now has late-stage Parkinson's disease. He is now in respite care.  You not only feel guilty for not being available to support your parents and siblings during your mother's decline but also at the fact that you cannot care for your father.

41Ms Lamovie describes this period of remand and these events as a turning point in your life. Essentially, she submits that along with realising that you must move past the end of your relationship with Ms Dawson, the events with your parents whilst in custody make you realise how important it is to remain drug-free and spend meaningful time out of prison.

42I was provided with character references from five of your family members. Together, those references speak of a different side to you. It is apparent that you have their love and support; and you will be well supported upon your release from prison. You are admired in your family for your consistent work history and your work ethic. The references speak of your remorse for your offending, and your desire to do more with your life. I have also received a letter of apology and remorse written by you. Again, you speak of your hope to remain drug-free and to remain out of prison.

43In your favour, Ms Lamovie points to some of your most recent partially completed programs in the community (before this remand) to submit that you can do good work, develop insight and move forward. Ms Lamovie then points to the number of courses that you have completed in prison. It is apparent that you have completed both vocational and life skill courses whilst on remand.

44I was told that you have remained drug-free whilst in prison although you have only been asked to provide one sample and you do not yet have the results. I am satisfied that between the courses you have and are undertaking, and your work in the prison, you are keeping busy, productive and positive. Nevertheless, I consider that you have a great deal more work to do before the courts and the community can start having any real faith in your intention and determination this time to remain drug free and to change your behaviour patterns.

Sentencing Submissions

45Ms Lamovie submitted that the following factors should operate to mitigate your sentence:

a)Your early plea of guilty has significant utilitarian value and facilitates the course of justice;

b)Your time spent on remand during the COVID-19 pandemic and you are entitled to what is known as the Worboyes discount;

c)You have exhibited remorse through your plea of guilty and your expressions to your brother and other family members contained in character references and also in your letter of apology to me;

d)You have suffered extra-curial punishment – in that you were unable to support your family and your mother through her sudden cancer diagnosis and passing; you are unable to care for your father who now resides in a respite home and your guilt and anxiety at not being able to see your children;

e)You have participated in a variety of courses and you have voluntarily attended counselling with a psychiatric nurse whilst in custody to address your mental health concerns;

f)Your prospects for rehabilitation are enhanced by the vocational courses you have completed in custody to address your offending behaviour. You have gained greater insight into your past conduct and your mental health issues and you are now motivated to become a better parent and remain drug free;

g)Ms Lamovie submitted that I must take caution to avoid double punishing you on the offences of aggravated burglary and the breach of the IVO;

h)I am asked to take into account the principle of totality and to also take into account the fact that you had only just completed serving 270 days in prison when you were arrested for this offending; and

i)Ms Lamovie submitted that in the end I should impose a 'generous' parole period to give you the best opportunity for structure and support in the community.

46Ms Lamovie provided a table of comparable cases, which Mr Brydon described as accurate. I have read the table of cases. I accept that the cases provide some assistance in settling on the range in which your offending should fall.  In the end however, I must not be overly influenced by the sentences imposed in other cases – I must consider the objective circumstances of your case, and the matters personal to you.

47Mr Brydon submitted that the only appropriate sentence is a term of imprisonment with a non-parole period.

48The Crown conceded that your plea of guilty was made at an early time and is attended by some remorse.  Nevertheless, Mr Brydon submits that your prospects for rehabilitation are guarded. You have failed to complete your Community Correction Orders and you offended again soon after your release from prison in 2022.

49The Crown also cautioned against double punishing you because of the considerable overlap between the two crimes. However, Mr Brydon did not accept that the principle of totality applied in this case simply for the fact that you were quickly imprisoned again soon after your release from your earlier sentence.

Analysis

50I am satisfied that your plea was made at an early time, that it has utilitarian benefit and is attended by some expressions of remorse. It is reasonable that your insight and remorse have only developed in the time since you have been in custody, and that it was not immediately displayed or apparent when the police attended on your offending or for the fact that you refused to participate in a record of interview.

51Of course, the situation which deprives you of seeing your children is entirely of your own making, and their presence in the house when you decided to enter was almost inevitable.  The logic of hindsight does not however discount the feelings that you still have for your children, and your guilt and your longing to see them. It is at least encouraging that you have insight into the reality of the issue that you have created.

52I take into account the other aspects of this, that is the guilt that you feel of losing your mother whilst you were in custody and the fact that you cannot care for your father.

53I also take into account the fact that you have been on remand on this occasion during part of the Covid pandemic and the strategies used in prison to counter the pandemic. You have experienced some of the isolation strategy used by prison authorities, but it is clear that you have undertaken a number of courses whilst you have been in custody on this occasion and you do have a job. Nevertheless, I will take into account that the plea offer was made and that you are entitled to some discount under what is known as the Worboyes principles.

54By your prior convictions, I can only conclude that your prospects for your rehabilitation are guarded. I am prepared to accept that your intention and your determination to change is real, but the true test of these matters will come when you are released back into the community.  Your previously displayed work ethic and the very real support from your family network whilst living back at home will provide you with encouraging pro social factors toward your rehabilitation.

55I consider you should be given the opportunity of a reasonable period of parole. Given your very many prior convictions and your poor history of compliance with court orders, you will have to continue to work hard whilst in custody to secure your release on parole. If parole is granted, it should provide the support, structure and regulation you will need to reintegrate back into your community.

Orders

56Accordingly, Mr Wyatt, I make the following sentencing orders:

57On the crime of aggravated burglary you are convicted and sentenced to 42 months' imprisonment.

58On the charge of contravention of the intervention order you are convicted and sentenced to 14 months' imprisonment.

59I order that five months of that sentence be served cumulatively on the Charge 1 of aggravated burglary.  That makes for a total effective sentence of 47 months.  I order that you serve a non-parole period of 32 months before you are eligible for parole.

60I declare the period of 291 days pre-sentence detention excluding today reckoned as already served.

61The 6AAA declaration is but for the plea of guilty I would have imposed a sentence of five years and three months with three years and six months to serve.

62Mr Brydon, are there any other matters or orders sought?

63MR BRYDON:  No, Your Honour.

64HIS HONOUR:  Thank you.  Ms Lamovie, is there anything you need to raise in the sentence?

65MS LAMOVIE:  No, Your Honour.

66HIS HONOUR:  Ms Lamovie, do you want the opportunity to speak to Mr Wyatt in private on the link; I can keep it open and remove all other ‑ ‑ ‑

67MS LAMOVIE:  Yes, thank you, Your Honour, that would be useful.  Thank you.

68HIS HONOUR:  Thank you, I will do that.  I will adjourn now.

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