Director of Public Prosecutions v Wyhoon
[2015] VCC 1324
•11 September 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL JURISDICTIONCR 15-01099
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER WYHOON |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 September 2015 |
| DATE OF SENTENCE: | 11 September 2015 |
| CASE MAY BE CITED AS: | DPP v Wyhoon |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1324 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Offender | Ms K. Youngson | |
| For the Director of Public Prosecutions | Mr D. Cordy |
HIS HONOUR:
1Christopher Lee Wyhoon; on 10 September 2015 you pleaded guilty to the following charges on the indictment. Charge 1; intentionally cause injury to Peter Lowe. This offence has a maximum penalty of ten years' imprisonment. Charge 2 on the indictment is recklessly cause injury to John Sesti. This offence has a maximum penalty of five years' imprisonment.
2
At the same time of the plea hearing you pleaded guilty to the related summary matters of failing to answer bail, commit an indictable offence whilst on bail and a contravention of a community corrections order, which was imposed on you in the Maryborough Magistrates' Court on
18 September 2014.
3I turn to the circumstances of your offending - in particular in respect to Charge 1 on the indictment. They are as follows.
4
At approximately 7 pm on 22 December 2014 you attended unannounced at the Maryborough premises of Ms Cheryl Mustard. At the time Ms Mustard was at home with Mr Peter Lowe and both were watching television. You walked into the house through the unlocked front door and asked for a lift home. Mr Lowe refused and you started to become aggressive. Both
Ms Mustard and Mr Lowe suspected that you were under the influence of substances, and Ms Mustard proceeded to ask both you and Mr Lowe to go outside to continue your discussion.
5Once outside you asked Mr Lowe to borrow his laptop computer, but was again refused. Mr Lowe then prevented you from re-entering the premises, resulting in you commencing an attack on Mr Lowe. You punched Lowe to the front of the head with a closed right fist. You proceeded to push Lowe into a tree outside the neighbouring flat and kicked him approximately three times to the head whilst Lowe was on the ground. During the assault you were yelling, "Give me a ride to my parents place." Mr Lowe was screaming, "Leave me alone", and did not fight back during the assault. The assault was witnessed by neighbours.
6Following the assault you walk away onto the main street when Mr Lowe was approached by neighbours and Ms Mustard. Police and ambulance were called and attended shortly thereafter. Mr Lowe was taken to the Maryborough Hospital, where he was treated for his injuries. Mr Lowe sustained a laceration to his forehead as well as grazes to his face and the back of his head.
7
Later that night police arrested you and conveyed you to the
Maryborough Police Station for a record of interview. On 23 December 2014 you signed an undertaking of bail which required you to attend at the Maryborough Magistrates' Court on 5 February 2015.
8
The circumstances of your offending in respect to Charge 2 on the indictment are as follows. On the evening of 21 February 2015 you were at your home address consuming alcohol. At approximately 10.30 that night you left your home and attended unannounced again at the Maryborough premises of
John Sesti. At the time Mr Sesti was at home with his partner,
Rachel Emmett.
9
You arrived at the premises carrying bottles of alcohol, and both Sesti and Ms Emmett suspected that you were intoxicated. Unknown to Mr Sesti and Ms Emmett you also had with you a green paring knife that had been taken from your kitchen. You remained at the premises for approximately
30 minutes. At about 11 pm Ms Emmett retired to her bedroom. Shortly thereafter Ms Emmett heard Mr Sesti ask you to leave. A scuffle resulted and you stabbed Sesti in the neck with the knife that you had been carrying. Following this you ran out of the front door and Ms Emmett walked into the lounge room to find Sesti holding his neck and asking for an ambulance to be called.
10Mr Sesti was ultimately conveyed, first of all, to the Maryborough Hospital, where he was treated for his injuries. In particular Sesti obtained a stab wound to the right side of his neck and was bleeding profusely. That is the charge of recklessly cause injury.
11On 22 February 2015 you were arrested by police and conveyed to Maryborough Police Station for a record of interview. During the record of interview you admitted to stabbing Sesti, and to consuming approximately 500 millilitres of bourbon and whiskey prior to attending his premises. You have remained in custody since the date of arrest on 22 February this year.
12
I turn to the related summary matters, which arise in the following circumstances in respect of the failing to appear on bail. On
23 December 2014 you signed an undertaking to bail which required you to attend at the Maryborough Magistrates' Court on 5 February 2015. As I say, that was the bail for Charge 1. On 5 February 2015 you did not attend at the Maryborough Magistrates' Court in accordance with your undertaking of bail. Your bail was then forfeited and a warrant for your arrest was issued. The warrant for arrest was executed on 12 February 2015 and a charge of failing to answer bail was filed against you.
13
I now turn to committing an indictable offence whilst on bail. On the day of the arrest for the failing to appear on bail you then signed another undertaking under bail which required you to attend the
Maryborough Magistrates' Court on 5 March 2015. On 21 February 2015 you committed the offence which is the subject of Charge 2; that is the stabbing of Mr Sesti. You were on bail at that time. On 23 February 2015 a charge of committing an indictable offence whilst on bail was filed against you, and that was before this court.
14
Finally, the matter of contravention of a community corrections order. On
18 September 2014 you were convicted and sentenced at the Maryborough Magistrates' Court and placed on a community corrections order for a period of 24 months with a number of conditions imposed. This sentence was imposed following you pleading guilty to a number of charges. They included burglary and attempted theft, going equipped to steal, a charge of using threatening words in a public place, one charge of robbery and one charge of making a bomb hoax.
15The CCO has, as I say, a number of terms and conditions attached, which included a condition that you were not to commit another offence or you could be imprisoned during the period that that order was in force. The prosecution tendered summaries of the offending activities that placed you on the CCO at Maryborough on 18 September 2014. In total there were six charges, and I will not detail all of those.
16I turn to the impact of your offending on your victim. Mr Peter Lowe, your victim in Charge 1, has filed a victim impact statement. Mr Lowe sets out how your action had made it hard for him to sleep. He is apprehensive in public and looking over his shoulder. He now sees a psychiatric practitioner in Maryborough and he had to replace his glasses, which were smashed in your attack on him.
17Your victim in Charge 2 presented to Dr Villiers with a stab wound to his neck. He was sutured and then transferred, as I understood it, to Ballarat. That was part of Exhibit E on the plea. Mr Sesti, who is a friend of yours, did not make a victim impact statement.
18I turn to your personal circumstances. You are now 34 years old. You come from a good, hard working, loving and supportive family. Your three sisters attend court when you go to court to support you, and visit you in prison. One of them was here the day of your plea. You struggled at school and left when you had turned 15. Originally you worked at Bridgewater as a tomato picker; you then joined your older brother in Queensland and worked in tomato picking up there. You have alternated your tomato picking activities between Queensland and Shepparton, depending on the seasons in both places.
19You have engaged in cannabis use since you were 15 years old. You have used heroin for pain relief but ceased that activity, you reported, some two years ago. You have used methylamphetamine now and then. Your main addiction, or “poison”, is alcohol. In respect of the two charges on the indictment alcohol is the strong, persistent feature in that offending.
20You came to this court with 11 prior court appearances. Nine of those court appearances are in your home town of Maryborough, one is an appeal to the County Court in Ballarat, and the interstate appearance in 2002 was in Bowen, Queensland, where you were fined for theft and obstructing a police officer. Your offending covers dishonesty charges, destruction of property charges, 0.05 driving charges, personal violence charges and assault with a weapon charges. Your offending pattern is consistent with an anti-social person behaving as he likes, with no regard for other people.
21
In the past you have been a patient of Maryborough Community Mental Health Service. A report from that service dated 14 January 2014 was
Exhibit 2 on the plea. I note in that report on one occasion when you attended Maryborough Hospital due to vomiting you had three knives in your pocket. At that time you were not assessed as psychotic but had some suggestion of paranoia. You were assessed as a high risk of opioid abuse and violence, and that turned out to be a very accurate assessment. You have been discharged from that service.
22
Dr Aaron Cunningham, psychologist, has assessed you and prepared a report dated 20 August 2015 - that is Exhibit 3 on the plea. His history of your employment is that you have been unemployed for the last five years and you were on Newstart Allowance before your remand on these charges.
Dr Cunningham assessed you as presenting with symptoms of depression due to your frustration with chronic pain from a shoulder injury and your drug problems when you are in the community.
23
Dr Cunningham performed the WISC-IV test on you to assess your cognitive functioning and he assesses you as being in the extremely low range. I have taken into account your low mental functioning as assessed by the expert,
Dr Cunningham, when fixing your sentence. The principles set out in Verdins case have some application in your sentence; in particular that specific deterrence should be moderated and a lengthy gaol sentence would weigh more heavily on you than a person of normal intelligence and cognitive functioning.
24I note in the report of Dr Cunningham that you state you have cancer in your kidney. There is no medical report or other independent evidence to support that diagnosis and I do not act upon it in fixing your sentence.
Sentencing Considerations
25In this whole sentencing process you are to be dealt with for the primary offending on the indictment. You have related summary offences and you have unrelated summary offences, and of course, the breach of the community corrections order from 18 September 2014. In short, the total of this sentence covers a wide range of offending by you.
26The first consideration I take into account is that you have pleaded guilty on the charges on the indictment. The plea of guilty was made at the earliest stage, and that is accepted by the prosecution. Your plea of guilty has a utilitarian value of allowing orderly and effective administration of justice. It gives certainty of outcome to your case and a resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of court and police resources to deal with other matters, and your plea vindicates the public confidence in the legal process set up to protect the community. A plea of guilty to these charges indicates and demonstrates some remorse on your behalf for the offending; I accept that. Your plea is clear acknowledgement that you accept responsibility for your criminal behaviour in this case. Your plea also recognises you are willing to facilitate the course of justice in the community.
27The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence; both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. I am required to balance the interests of the community in denouncing your criminal conduct and to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
28I am mindful of the provision of the Sentencing Act, and in particular s.5(4C), which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed. I have reviewed the case of Boulton considering if a community corrections order would be appropriate in your case.
29I have had you assessed for a community corrections order and you have been assessed as unsuitable for such an order. You have had eight previous orders and not completed any of them except the first. In short, Corrections do not want you. In the past you have blamed Corrections officers for your failure to complete the orders. It is your responsibility to comply with court orders and you cannot avoid your responsibility by blaming other people. No one else puts a knife in your pocket or pours the drink or drugs into your body; you do that.
30In respect of Charge 1 on the indictment the aggravating features of your offence are that you have visited a friend and asked for a favour, and when that is refused you assault Mr Lowe by punching and kicking him. Whilst you are doing this you are on a CCO, and it just shows that you have no regard for court orders.
31
In respect of Charge 2 you visit a friend and end up stabbing him. As I said before your friend, Mr Sesti, has not made a victim impact statement, but you have damaged him, and you could have killed him in your drunken rage. The offence occurs whilst you are on bail for failing to appear, and you were also on a CCO from September 2014. Your arrest for this offence ended your reign of terror in Maryborough and became your first time in custody. You have been in custody now, I am told, for 203 days. I agree with
Ms Youngson that this is your most serious offence in the suite of offending before this court.
32I take into account the principles in Verdins case, as previously outlined in these reasons for sentence. You have extremely low cognitive functioning and the salutary lesson of a term of imprisonment may have brought home to you that you have to comply with court orders and live a law abiding life, or else brace yourself for long periods of incarceration in gaol.
33In sentencing you for the related summary matters of failing to answer bail and committing an indictable offence whilst on bail, I am to consider the issues of double punishment and the totality of your sentence. The double punishment arises because you offended whilst on bail, and that is an aggravating feature in respect of Charge 2. Further, you have committed the offences in Charge 2 and Charge 1 whilst you were on a community corrections order for the unrelated matters.
34The principles of general and specific deterrence require that a sentence of imprisonment is appropriate in this case, and denunciation of your behaviour and just punishment also require a term of imprisonment.
35On indictment number 201511187; Charge 1 - you are convicted and ordered to serve a two year community corrections order with the following conditions:
·You are to be supervised;
·You are to have drug assessment and rehabilitation treatment;
·You are to have alcohol assessment and rehabilitation treatment;
·
You are to be judicially monitored. Your first monitoring date is
11 August 2016 at 9.30 am in Melbourne and this CCO commences upon your release from imprisonment.
36Charge 2; you are convicted and sentenced to 12 months' imprisonment.
37Charge 6; the summary charge of failing to answer bail - you are convicted and sentenced to one month imprisonment. This sentence is to be served concurrently with all other state sentences of imprisonment.
38On Charge 15; the summary charge of commit an indictable offence whilst you were on bail - you are convicted and sentenced to three months' imprisonment. I order that one month of this sentence is to be served cumulatively on the sentence in Charge 2 on indictment number 201511187.
39On the unrelated charges I sentence you as follows. In respect of Charges 1, 2, 3, 5 and 6, you are convicted and sentenced to an aggregate sentence of six months' imprisonment. I order that three months of this sentence be served cumulatively on the sentences in Charge 2 on the indictment number 201511187, and the Summary Charge 15. That is a total effective sentence of 16 months' imprisonment.
40I declare that you have served 203 days pre-sentence detention. Is that an accurate number?
41MR CORDY: Yes.
42HIS HONOUR: Yes, 203 days pre-sentence detention, which is to be deducted administratively from this sentence.
43On the unrelated Charge 4 you are convicted and discharged.
44On the unrelated Charge 7, which is the contravene a community corrections order, I find that the charge is proven and make no further order. I order that there be a forensic sample, which was sought by the prosecution, and I also will sign the disposal order sought.
45In respect of Charge 1 on the indictment, but for your plea of guilty I would have sentenced you to 12 months' imprisonment.
46
On Charge 2, but for your plea of guilty I would have sentenced you to
18 months' imprisonment. Does that cover all matters?
47MR CORDY: Yes. Can I just check with, Your Honour ‑ ‑ ‑
48HIS HONOUR: Certainly.
49MR CORDY: Your Honour mentioned unrelated Charge 4.
50HIS HONOUR: Four, yes.
51MR CORDY: Convicted and discharged. What was that charge?
52HIS HONOUR: Yes, that's the threatening words in public.
53MR CORDY: I see.
54HIS HONOUR: Yes.
55MR CORDY: That one, yes.
56HIS HONOUR: Yes.
57MR CORDY: Yes, thank you, Your Honour. I believe that that covers it all.
58HIS HONOUR: Ms Youngson, does that cover everything?
59MS YOUNGSON: Yes, Your Honour.
60HIS HONOUR: Thank you. The position you are left in is that you have a 16 month sentence. You have done 203 days of that sentence. After you finish that sentence you have got a two year CCO in front of you. As I said during the course of this sentence, the Office of Corrections do not want you. So the test is for you; you will have to comply, you will have to run it.
61OFFENDER: Yes, Your Honour.
62HIS HONOUR: You will have to make sure you do it, and one of the things you have got to do for youself; you cannot drink.
63OFFENDER: Yep.
64HIS HONOUR: You cannot drink, otherwise you will come back to me and I will sentence you, as you know, on the breach of the CCO.
65OFFENDER: Yeah. Yes, Your Honour.
66HIS HONOUR: Thank you.
67OFFENDER: Thank you.
68MS YOUNGSON: Your Honour pleases.
69HIS HONOUR: I just have to sign this Corrections order. Mr Cordy, do you have those orders? Sorry, the 464 and the ‑ ‑ ‑
70MR CORDY: I think that's been provided to Your Honour's associate.
71HIS HONOUR: Have I already got it?
72MR CORDY: Yes.
73HIS HONOUR: Sorry, my mistake.
74MR CORDY: It's pretty efficient, Your Honour.
75HIS HONOUR: I know that.
76MR CORDY: One step ahead of me and you I think.
77
HIS HONOUR: Yes, I've signed those orders and I'll hand them down,
Mr Cordy.
78MR CORDY: Thank you, Your Honour.
79HIS HONOUR: Thank you. Ms Youngson, thanks for your assistance in this matter. Hopefully I'll happily see you, or someone that you brief, on 11 August next year.
80MS YOUNGSON: Does Your Honour require appearance from defence? Ordinarily with the judicial monitoring ‑ ‑ ‑
81HIS HONOUR: No, not necessarily. I hope everything's going fine.
82MS YOUNGSON: I guess we'll find out in due course.
83HIS HONOUR: Yes, we will. Thanks.
84MS YOUNGSON: Thank you, Your Honour.
85
HIS HONOUR: Thank you very much. You might have to round up
Ms Munster? Sounds like there's a question I think.
86MR CORDY: Maybe they were just told to buzz when they're all there, Your Honour? Because, of course, it's 10 o'clock.
87HIS HONOUR: I see, yes. I'll just stand down.
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