Director of Public Prosecutions v Wyman (a pseudonym)

[2025] VCC 506

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

COLE WYMAN (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2025
DATE OF SENTENCE:	28 April 2025
CASE MAY BE CITED AS:	DPP v Wyman (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2025] VCC 506

REASONS FOR SENTENCE
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SubjectCriminal law – Sentence.

Catchwords:              Persistent contravention of a family violence intervention order – Aggravated burglary – Common assault – Possession of a drug of dependence – Possession of a controlled weapon without lawful excuse – Offending primarily directed at ex-partner – Aggravated burglary committed at night whilst in a jealous rage with the intention to assault – Pleaded guilty following a sentence indication – No prior criminal history – Offending in the context of decompensation following the breakdown of the relationship – Family support – Good employment history – Decent prospects of rehabilitation – Verdins limbs 5 and 6.

Legislation Cited:      Crimes Act 1958; Control of Weapons Act 1990; Drugs, Poisons and Controlled Substances Act 1981; Family Violence Protection Act 2008; Sentencing Act 1991.

Cases Cited:DPP v Reynolds (a pseudonym) [2022] VSCA 263; DPP v Vasu (a pseudonym) [2022] VCC 15; Verdins v The Queen (2007) 16 VR 269.

Sentence:                  Total effective sentence of 2 years and 4 months’ imprisonment with a non-parole period of 1 year and 4 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. White (Plea) Ms C. Lloyd (Sentence)	Office of Public Prosecutions
For the Accused	Mr J. Barreiro	James Dowsley & Associates

HIS HONOUR:

1Cole Wyman,[1] following a sentence indication, you have pleaded guilty to the following five charges:

·        Charge 1, persistent contravention of a family violence intervention order, contrary to s 125A of the Family Violence Protection Act 2008. This offence carries a maximum penalty of 5 years’ imprisonment.

[1]        A pseudonym.

· Charge 2, aggravated burglary, contrary to s 77 of the Crimes Act 1958. This offence carries a maximum penalty of 25 years’ imprisonment.

·        Charge 3, common assault, contrary to the Common Law. This offence carries a maximum penalty of 5 years’ imprisonment.

· Charge 4, possession of a drug of dependence (methylamphetamine), contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981. This offence carries a maximum penalty of 1 year imprisonment and/or 30 penalty units.

· Charge 5, possession of a drug of dependence (cannabis L), contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981. This offence carries a maximum penalty of 5 penalty units.

2You have also consented to this court hearing and pleaded guilty to a summary charge of possessing a controlled weapon without lawful excuse, contrary to s 6 of the Control of Weapons Act 1990.[2] This offence carries a maximum penalty of 1 year imprisonment and/or 120 penalty units.

[2]Summary Charge 17.

Circumstances of the offending

3The circumstances of your offending are set out in a Summary of Prosecution Opening dated 14 April 2025.[3] The summary was read out in court.

[3]Exhibit A.

4You were in a relationship with the victim, your ex-partner, for approximately 10 years from 2012 until 2022. You have two young children together, now aged six and four.

5In December 2022, your ex-partner and the children relocated to a new address. You continued residing in Pakenham.

6On 15 November 2023, the Magistrates’ Court granted a family violence intervention order against you, protecting your ex-partner and the children. The conditions of the order prevented you from contacting your ex-partner, being within 5 meters of her, attending within 200 meters of her address and committing family violence against her or the children. However, the order allowed communication for the purposes of family law matters and childcare.

7The intervention order was served on you in court on 15 November 2023 and the conditions were explained to you.

8In December 2023, your daughter was in your care, staying with you in Pakenham. It was her fifth birthday the following day. Your daughter rang her mother using your phone, begging her to stay over at your house for her birthday. Your ex-partner reluctantly agreed, staying the night and leaving for work in the morning. She collected her daughter and the youngest child, who was three years old at the time, later that day in accordance with a prior agreement.

9Between 4:24 pm and 11:57 pm you called the victim 13 times and sent her 51 messages. The calls involved a mixture of voice and video calls. The messages delved into her new relationship. For example:[4]

(i)Why did [my daughter] say to me we call [him] to say good night dad.

(ii)Yeah mum has his number they talk on mums phone and can recall him say night he stays at my place with mum all the time.

(iii)Wtf and make sense about last night and way it was can’t look at me not want to touching you? Call me

(iv)I’m not going off but been on my mind last night to now have to say

(v)Merry Christmas to me

(vi)Please let me know what you have to say like you asked me want to tell me something

(vii)I told you the truth

(viii)You need not say I guess she was telling me the truth.

[4] Exhibit A at [22].

10At 11:56 pm you sent a message saying “Who’s ute”.  The victim’s new partner’s ute was parked outside her address at the time. You were outside at her address.

11At approximately 11:57 pm, your ex-partner was asleep in the main bedroom of her address. Also present in the bedroom was her then partner. The children were asleep in a rear bedroom, along with a friend of your daughter who was aged five.

12Your ex-partner was awoken by loud banging on the front door. She looked out a window and heard you demanding to be let inside. Her current partner called 000 to report your presence.

13She went to the front door and attempted to de-escalate the situation by asking you to leave without waking the children. The front door remained closed. You responded by threatening to kick the door in, stating “Please don’t make me kick the door in.” She saw you through the glass of the front door lifting your leg as if to kick it before you appeared to leave. The commotion drew the attention of the neighbours.

14A few minutes later, you returned to the address and broke a fly wire screen on the main bedroom window before attempting to jimmy the window open in order to enter the house. Your effort was unsuccessful as the window was locked. The neighbour noticed you and told you to leave and that the police had been called.

15You then entered the backyard of the address by going through a gate that had been closed. You took a metal container from the shed and placed it below the kitchen window at the rear of the house. You forced the kitchen window open, damaging the frame and the fly wire screen.

16Your ex-partner was sheltering in her bedroom and could hear crashing noises in the kitchen. Upon hearing her daughter crying, she ran into the kitchen area. Having arrived in the kitchen, she saw you halfway through entering the house via the kitchen window. As you entered, you yelled “Where is he? I’m going to kill him.”

17She moved to shield her daughter from you as you climbed through the window and off the kitchen counter.[5]

[5]Charge 2.

18You grabbed your ex-partner by the throat and forced her out of your way.[6]

[6]Charge 3.

19By this time, the neighbour had come over to the address and was attempting to enter the house to assist. You left the house through the rear door, where you were confronted by the neighbour. Following a confrontation, you ran away.

20At 12:16 am, you sent messages saying:

(i)Best you fess up to them all and tell me the whole lot why you lied not just tell me

(ii)Am I waiting for cops?

21At 1:02 am, you sent further messages in which you said “sorry it had to end like this” and then you accused the victim of not being “honest” and of “humiliating”  you.

22You were arrested around 2:00 am on 17 December 2023. The police searched you and found a leather man knife with an exposed blade and a flick knife.[7] Also found on you was a small bag containing methylamphetamine,[8] and a tobacco pouch containing cannabis.[9]

[7]Summary Charge 17.

[8]Charge 4.

[9]Charge 5.

23Your following conduct was in breach of the family violence intervention order:[10]

(i)allowing the victim to stay over at your house on 15 December 2023;

(ii)making calls and sending messages to your ex-partner between 16 and 17 December 2023 that did not pertain to family law or childcare matters;

(iii)attending her address on 16 December 2023;

(iv)being within 5 meters of your ex-partner on 15 and 16 December 2023; and

(v)committing family violence by yelling at your ex-partner and grabbing her throat.

[10]Charge 1.

Criminal Record

24At the time of this offending you had no criminal history. However, since this offending you have appeared twice before the Magistrates’ Court on 17 January 2024 and 20 May 2024. Your first appearance resulted in a no conviction adjourned undertaking for an offence of persistent contravention of a family violence intervention order, commit indictable offence on bail and contravene a conduct condition of bail. The second appearance resulted in a fine and an adjourned undertaking for an offence of contravening a family violence intervention order, commit indictable offence on bail and contravene a conduct condition of bail. This subsequent offending was also committed against your ex-partner and occurred around the same time as the offending for which you fall to be sentenced.

Victim impact

25I have taken into account the victim impact statement declared by your ex-partner.[11] She is experiencing many different emotions, including fear, anger, sadness and betrayal. She is constantly anxious and grapples with trust issues. The children miss you. Each night, your eldest daughter checks with her mother that all the windows and doors are locked.

[11]Declared on 8 April 2025 (Exhibit B).

Personal circumstances

26I have taken into account your personal circumstances as set out in Mr Ian Mackinnon’s psychological report dated 14 August 2024.[12]

[12]Exhibit 3.

27Your mother was only 16 years old when you were born. Your parents separated when you were three months old. You were raised by your mother but continued to see your father on a regular basis. Your mother entered a new relationship when you were 12 years old. She and your stepfather had three children together. You have two stepbrothers from a previous relationship of your stepfather.

28Your mother and stepfather separated some 20 years ago. She now lives in Gippsland with her new partner. You enjoy a good relationship with your mother.

29Your father is single and continues working as a heavy machinery technician. Your relationship with him is generally cordial.

30You attended a number of primary schools and obtained a Year 8 pass at a secondary college in Pakenham. You struggled with concentration at school and were easily distracted. You were sometimes disruptive and presented with anger issues for which you received some counselling at school.

31While at school, you worked part-time at a BMX shop building bikes. You also helped out your father and stepfather with their automotive mechanical work.

32Having left school you commenced and completed an automotive engineering apprenticeship. You have worked as a mechanic all your working life up until your remand in custody.

33You met your ex-partner around 2012 and enjoyed a 10 year relationship. You have struggled to accept that the relationship is over.

34You have occasionally smoked cannabis, and since the age of 30, have also occasionally smoked ice. You began drinking alcohol from the age of 18. Prior to your remand, you were drinking some four cans of bourbon four nights a week.

Objective gravity

35The offence of aggravated burglary carries a maximum penalty of 25 years’ imprisonment. It is clearly a very serious offence. In this case, the offence occurred at night when your ex-partner, her new partner and your two children were inside the house. At the time of breaking into the house you were subject to a final intervention order that you paid absolutely no regard to. You were persistent and determined to gain entry into the house in order to commit an assault upon the victim’s new partner whilst engulfed by a “jealous rage”. You ignored your ex-partner’s and the neighbours’ requests for you to leave. The fact that the neighbours told you the police had been called did not deter you. You gained entry upon your third attempt by damaging some exterior fittings. Both your two young children and a third five year old child were inside the house. Your daughter was crying. The crashing noise in the kitchen led to your ex-partner running into the kitchen to shield her daughter who witnessed your entry.

36Once inside the house, you committed an assault on your ex-partner by grabbing her by the throat and forcing her out of your way. Luckily the arrival of the neighbour led you to leave.

37Your jealous rage, underpinned by an inability to accept that the relationship was over and that the victim had moved on, led you to behave in this despicable manner with no regard for the impact of your actions on the welfare of your young children or others present.

38In DPP v Reynolds (a pseudonym), the Court of Appeal reiterated:[13]

This Court has said on many occasions that domestic violence will not be tolerated, and that general deterrence is a very important sentencing principle in the sentencing disposition which must be, and must be seen to be, condemned by the courts. To borrow from what this Court said recently in Filiz v The Queen, offending of this nature is too often perpetrated by men whose response to conflict with a partner is one of violent rage. Such a response is utterly unacceptable. This Court has made it clear, and will continue to make it plain, that offending of this kind will attract serious consequences.

[13]DPP v Reynolds (a pseudonym) [2022] VSCA 263 at [74] (T Forrest JA and Kidd AJA).

39As I have said, you have paid no regard to the intervention order that was in force. You breached the order in numerous ways as outlined in paragraph [23] of these reasons. You have also breached the intervention order on other occasions as is revealed by your subsequent offending.

Prosecution submissions

40Mr White on behalf of the prosecution submitted that your offending represented family violence against a former partner and was serious. He submitted that a term of imprisonment with a non-parole period was necessary in order to properly deal with the sentencing purposes of general deterrence, denunciation, just punishment and community protection. Specifically deterring you from further re-offending was also a relevant consideration.

41Mr White highlighted the factors that impact upon the assessment of the gravity of the aggravated burglary. He referred me to the sentence in DPP v Vasu (a pseudonym),[14] pointing out the similarities, but acknowledging its limitation and the fact that each case turns on its own facts and circumstances.

[14]DPP v Vasu (a pseudonym) [2022] VCC 15.

Defence submissions

42I have had regard to the written and oral submissions of your counsel, Mr Barreiro, which were uncontroversial.[15]

[15]Exhibit 2 (dated 15 April 2025). Also see Exhibit 1 - submissions dated 12 January 2025 prepared by Mr C. Pearson.

43Mr Mackinnon has assessed you as suffering with a chronic Mixed Depressive and Anxiety Disorder currently manifesting at a moderate level of intensity. He states that your depression and anxiety has been particularly troubling over the last few years as your relationship with the victim has unravelled and your mental health deteriorated. Mr Mackinnon also opines that you struggle with anger management, dating back to your childhood and chronic interpersonal difficulties.

44In terms of your time in custody, Mr Mackinnon states:[16]

In my opinion, should Mr Wyman serve a period of imprisonment, he is likely to suffer an elevation of his anxiety and depression to unmanageable levels, with suicidal ideation then likely to be manifested and crisis mental health care then being required. Mr Wyman already appears to be quite anxious about the prospect of being imprisoned, and his hospitalization and suicidal gestures over the last eighteen months do not auger well for his prospects within the prison system.

[16]Exhibit 3 at [83].

45I have also noted the observations of Mr Mackinnon in his short addendum report dated 9 April 2025.[17] You are currently not being prescribed any medication. You are struggling within the prison environment and are finding it hard to sleep. Mr Mackinnon states that you are psychologically highly labile and fragile. You are likely to suffer an elevation of your anxiety and depression to what Mr Mackinnon describes as “unmanageable” levels. Mr Mackinnon has notified the prison authorities to assess and review your current needs.

[17]Part of Exhibit 3.

46You did tell Mr Mackinnon that you have been going to the gym and are looking to complete a food handling course and obtain employment. You maintain contact with your mother and a close friend.

47In light of Mr Mackinnon’s findings, I accept that Limbs five and six of Verdins are enlivened.[18]

[18]Verdins v The Queen (2007) 16 VR 269 (‘Verdins’);

Limb five - the existence of an impairment at the time of sentencing, or its reasonably foreseeable re-occurrence, may mean that a specific sentence may weigh more heavily on the offender then it would on a person in normal health.

Limb six - if there is a serious risk that imprisonment will have a significantly adverse impact on the offender’s mental health, this will be a mitigating factor.

48You are now 41 years old and have enjoyed a long history of employment in your chosen trade. At the time of this offending, you had no criminal history.

49This will be your first term of imprisonment. I note your expressions of fear at the prospect of being incarcerated reflected in Mr Mackinnon’s reports. I accept that the mere fact of custody regardless of the actual term, will have a real impact in deterring you from re-offending. In terms of the importance of specific deterrence, I note the opinion of Mr Mackinnon who states:[19]

In my opinion, Mr Wyman appeared to genuinely want to avoid again harassing or victimising [the victim]. However, it is evident that Mr Wyman still holds strong feelings for [her] and this leaves him vulnerable to acting inappropriately on a spontaneous basis, perhaps leading to additional offences (similar to those that he currently faces).

In that context, Mr Wyman appears to pose some level of risk for again engaging in threatening and/or violent behaviour, albeit at a low to moderate level. This is more likely to occur if Mr Wyman uses methylamphetamine and/or alcohol at any level.

[19]        Exhibit 3 at [80] to [81].

50As your background demonstrates, you are capable of leading a law abiding life. In order to do so, you must accept that the victim has moved on with her life as she is absolutely entitled to. You must accept that fact and move on with your life. If you can, then I accept your prospects of rehabilitation are quite good. You are fortunate to have the support of your mother. I have taken her reference into account.[20]

[20]Exhibit 4.

51You accepted the sentence indication and avoided the need for a trial. Your guilty pleas, whilst not early, attract utilitarian benefit. Your pleas have facilitated the course of justice and have avoided the victim from having to give further evidence in a trial. I am prepared to accept that your pleas indicate some limited remorse.

Sentencing

52Having taken into account all relevant matters and circumstances, I sentence you, Cole Wyman, as follows:

·        On Charge 1, persistent contravention of a family violence order, you are convicted and sentenced to 6 months’ imprisonment.

·        On Charge 2, aggravated burglary, you are convicted and sentenced to 2 years’ imprisonment.

·        On Charge 3, common assault, you are convicted and sentenced to 6 months’ imprisonment.

·        On Charge 4, you are convicted and sentenced to a financial penalty in the sum of $400.

·        On Charge 5, you are convicted and sentenced to a financial penalty in the sum of $200.

·        On Summary Charge 17, you are convicted and sentenced to 14 days’ imprisonment.

53The sentence on Charge 2 will be the base sentence. 2 months of the sentence on Charge 1 and 2 months of the sentence on Charge 3 will be served cumulatively upon each other and on the base sentence. The sentence on Summary Charge 17 will run concurrently with the base and the other sentences.

54This makes a total effective sentence of 2 years and 4 months’ imprisonment.

55I set a non-parole period of 1 year and 4 months.

56The total effective sentence and the non-parole period I have imposed is in accordance with the indication given on 7 March 2025.

Pre-sentence detention

57Pursuant to s 18 of the Sentencing Act 1991, the period of 74 days of pre-sentence detention, not including today’s date, is declared as having already been served in respect of this sentence.

Section 6AAA declaration

58Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 4 months.

Other orders

59I grant the forfeiture and disposal order sought by the prosecution.