Director of Public Prosecutions v Wynd

[2017] VCC 1245

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00031

DIRECTOR OF PUBLIC PROSECUTIONS

v

JARROD WYND

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	31 August 2017
CASE MAY BE CITED AS:	DPP v Wynd
MEDIUM NEUTRAL CITATION:	[2017] VCC 1245

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. O'Doherty
For the Accused	Mr C. Farrington

HER HONOUR:

1Jarrod Michael Wynd, you have pleaded guilty before me to one charge of common law assault, the maximum penalty for which is five years' imprisonment; one charge of threatening to inflict serious injury, the maximum penalty for which is five years' imprisonment; one charge of being a prohibited person possessing a firearm, the maximum penalty for which is ten years' imprisonment; one charge of theft of a motor vehicle, the maximum penalty for which is ten years' imprisonment; one charge of retention of stolen goods, the maximum penalty for which is 15 years' imprisonment.

2You have also pleaded guilty to the following summary charges; Summary Charge 11, drive whilst disqualified, the maximum penalty for a first offence being four months' imprisonment; Summary Charge 13, possessing a controlled weapon without lawful excuse, the maximum penalty for which is one year's imprisonment; Summary Charge 14, possessing a prohibited weapon without exemption or approval, the maximum penalty for which is two years' imprisonment; Summary Charge 20, possessing cartridge ammunition without a licence, the maximum penalty for which is 40 penalty units; three charges of breaching a family intervention order, they being Summary Charges 28-29 and 30, the maximum penalty for which is two years' imprisonment in relation to each charge, and; Summary Charge 31, harassment of a witness, the maximum penalty for which is one year's imprisonment. 

3The facts underlying your offending are as follows.  The offending arose from a relationship with the complainant, Taylah Benson,[1] with whom you lived on an on-and-off basis from about October 2015 to May 2016 at a house in Hopetoun Road, Warrnambool.  Charge 1 occurred on the Good Friday weekend in March 2016 at the Hopetoun Road house. 

[1] Taylah Benson is a pseudonym.

4The complainant had gone to a wedding, to which you were not invited.  On her return, you were upset that she was home late.  You tipped a glass of drink on her, pushed her against a wall and onto the bed whilst yelling at her, which actions resulted in bruising all over her body.  This behaviour continued for about an hour. 

5Charges 2 and 3 occurred on 4 May 2016 after the complainant came home to Hopetoun Road after being out shopping for a Mother's Day present for her mother.  You were upset again that she was late.  You asked where she had been, what had taken her so long, and began accusing her of cheating on you, because she was home so late.  From about 10 pm to midnight, the two of you were bickering and yelling, which argument was overheard by neighbours. 

6At about midnight again, you were accusing the complainant of cheating.  You began stopping her from leaving the bedroom, body-searched her after she refused to give you the keys to her car, and began calling her names such as "cunt", and "cheating dog", and spitting in her face.  You pushed her onto the bed as she tried to get up, and due to past assaults, the complainant felt she could not leave.

7Whilst she was on the bed, you Taser-ed her on her right upper forearm, which caused her a piercing ache, and caused her to go into shock and cry.  The Taser shocker left bruises and a graze mark.  Your possession of that item relates to Summary Offence 14, possessing a prohibited weapon.

8The argument continued, during which you assaulted her, pushed her and slapped her face, then head-butted her to her forehead.  These are uncharged events arising from this incident.

9At one point after Taser-ing her, and as the complainant was lying on the bed, you told her that she needed to "learn a lesson".  You said something to her about shoving a gun which you had (that being, as she described it, a brownish-black wooden-looking firearm, about 30 cm long), up her, in other words, meaning her vagina.  You said words to the effect of "You'd love it, you little slut", or "You'd love that, wouldn't you?".  You said you wanted her to hold the gun.  You said that maybe she should hold it and "No, I shouldn't get in trouble, you should, you can hold it.  Maybe I'll make you hold it".

10Those actions underlie Charge 2 and 3 on the indictment, as I have said, they being charges of threatening to inflict serious injury and being a prohibited person possessing a firearm.

11Eventually the two of you went outside, as you kept asking to use her car, and at that point the complainant ran away from you and hid in a neighbouring yard.  You ran past her whilst she was in the yard.  There, the neighbours Asha Esom and her then-partner Jordan Horsten found her curled up in a foetal position on the doorstep, appearing terrified, crying and complaining that you were going to kill her.

12Eventually after some discussion, during which the complainant said she was afraid to leave the house to go and get her car, Mr Horsten got the keys from her and took her car while Ms Esom drove the complainant in her car to her uncle's address.

13You were seen leaving the property driving a car, and at about 6.30 am, the complainant called police and reported the incident, but used the name Asha instead of her own, as she was scared.  She received a text message from police asking to call, as they were trying to find her, and eventually police found the complainant in her car at about 7.30 on the morning of 5 May. 

14Turning to other offending, a police investigation commenced following the reported incident involving the complainant and you on 5 May, and on 7 May 2016, you were seen by surveillance operatives to be driving a 2015 Mercedes Benz in and out of the Hopetoun Road address, and it was determined that was a vehicle that had been stolen by other offenders on 2 May 2016.

15Your actions in driving this stolen car relate to Charge 4 on the indictment, and Summary Charge 11, drive whilst disqualified, you being disqualified from driving at the time.  Police also located a pocket knife in the console of the vehicle, possession of which underlies Summary Charge 13, possession of a controlled weapon.

16Police executed a search warrant on the address at Hopetoun Road and at your mother's house.  Located in your bedroom at Hopetoun Road were found the keys to the stolen Mercedes Benz and the Taser, subject of Summary Charge 14.  Police also discovered a stolen FitBit Blaze in a box, possession of which underlies Charge 5 on the indictment, retention of stolen goods.  Police also discovered a box of 0.22 calibre rounds of ammunition, which fitted the firearm to which I will in a moment make reference, which underlies Summary Charge 20.

17On 10 May 2016, police attended an auto salvage centre where the stolen vehicle that was located near your house had been stored since its seizure on 7 May.  Under the bonnet in the engine bay of the vehicle police located a firearm wrapped in a plastic mag with a magazine taped to the outside, which was photographed.  It was found to be a handgun.  An analysis of the magazine and ammunition cartridges found with it showed that they were suitable for use with the handgun. 

18The weapon is called a handgun, in fact it was a rifle, the barrel of which has been shortened, in other words, it is a sawn-off shotgun.

19A final intervention order was made against you in relation to Taylah Benson on 9 May 2016 for a 12-month period, which included prohibition on you contacting or communicating with her.  Soon after you were arrested and were in custody, the complainant wrote to you, sending you a birthday card, as she felt guilty, was upset, and still missed you, and at the time felt that it was her fault that you were in gaol.

20You then contacted her a number of times from prison, and instructed your mother to contact the complainant, which she did.  You and your mother urged the complainant to have the charges dropped, or to assist you in getting off the charges.  Those actions relate to Summary Charges 28, 29 and 30, which is a breach of a family violence intervention order, and 31, the summary charge of harassing a witness.  Police eventually received recordings of those phone calls.

21In summary, the conversations essentially involved you contacting your mother and giving her the complainant's number, asking that your mother ring the number from her mobile and then put the phones together so that you could talk to Ms Benson.  Your mother did as she was asked.

22During that conversation, you asked the complainant how she was going to fix everything, as you were sitting in gaol for no reason.  You told her that she had to go to court and get everything revoked.  During this conversation, the complainant was crying and stating she did not know what do to.  You told her you would get your mother to ring her after they had hung up and get her to help you.  You also told her to give a false name so that she could be placed on your phone list.

23There was a further conversation with your mother, where you told her to ring Ms Benson, explain to her what she had to do to get you out of gaol, and your mother stated she would do it straight away.  You contacted her on 8 July 2016, and spoke to the complainant for about ten minutes, during which conversation you said you were sorry for what had happened, but wanted to know how she was going to fix everything, and if it was fair that you were sitting in gaol.

24The same day, you contacted the complainant again, speaking to her for about ten minutes, and asking her how she was going to fix what had happened, and asking her to write a letter to your solicitors so the charges could be dropped, and told her to speak to your mother if she needed advice.  During these conversations, the complainant was crying and again saying she did not know what to do.

25You were arrested on 7 May, and in a record of interview denied all the allegations, but made partial admissions that Ms Benson was your ex-girlfriend, that you had been at Hopetoun Road on the night of 4 May and into the early hours of 5 May, that you and the complainant had been bickering and had an argument, but were not "full on screaming at each other", that the two of you had pushed each other, that you owned a Taser, did not have a driver's licence, that you had driven the Mercedes Benz, and had driven it without a licence. 

26The prosecution opening contained descriptions of other misconduct towards the complainant, which is not the subject of any charges.  But it included daily verbal abuse, other assaults, which included you on one occasion punching her in the eye, on another occasion holding material with chemical soaked into it over her face, and ultimately, when police examined the complainant on 5 May 2016, a number of bruises were found on the complainant’s upper left and right arms.  There was a bruise beneath her collarbone and on the right hand, she had a large, bluish-coloured bruise on her right arm, where she reported being shot by the Taser, and bruising was also found on her upper lip, with swelling on the right side of her forehead, faint bruising on her left leg, and a large bruise with an abrasion below the knee.  It was also reported that a bluish-yellow discolouration with a small healed wound was located beneath the right eye from a previous assault. 

27I now turn to your personal circumstances.  You are 26 years old, and were 24 at the time of this offending.  You were born to parents who separated when you were five, you have a younger sister and a half-brother born to your mother.

28Your counsel told me you had a good relationship with your mother and father, and subsequent stepfather, whom your mother divorced about 14 years ago.  You apparently enjoyed a happy upbringing, with few problems at school, and were a talented sportsman.

29You left Terang High at age 15, halfway through Year 10, to take up a diesel mechanic apprenticeship.  You were extremely successful at this, you completed the four-year apprenticeship in two and a half years, as the academic side of it was accelerated.  You were then headhunted by another company, the Christie Automotive Group, where you worked until you were imprisoned in 2014.  In that time, you received further training in Holden vehicle maintenance and welding.  Your parents remain supportive of you, both of them accompanying you to court throughout these proceedings. 

30From the age of about 16 to 17, you dated your former partner Christie, who fell unexpectedly pregnant with your son Kye, now aged seven, when she was about 18 and you, 19.  The two of you lived together happily for some years, during which time a second son Mason, now aged four, was also born.  That relationship ended in 2013-14 when Christie formed a relationship with another man.  Up to that stage, you had never been in trouble with police.

31You had previously had sporadic and unproblematic use of cannabis, and occasional use of ice, but on the demise of your relationship, you turned to ice use on a regular basis, and swiftly developed a heavy habit.  This led to offending and the start of your criminal record.

32You first appeared in court on 12 January 2014 on serious charges, including trafficking methylamphetamine (ice), possession of a firearm without a licence, and dealing with the proceeds of crime.  The facts of that offending were, in my view, serious, and deserve repetition. 

33Police came to your house in November 2013, when you reported a burglary there, and during that visit you admitted to having trafficked ice for about three months.  On 4 January 2014, police executed a warrant at your home, where they discovered you in possession of $3,280 in cash, 5.8 grams of ice, numerous pieces of trafficking paraphernalia, and a sawn-off double-barrelled shotgun.  You received a sentence of 18 months' imprisonment with a non-parole period of nine months.

34You were paroled on 20 March 2015, which parole you breached by using ice, and that parole was cancelled on 4 April 2015.  You served the rest of the 18-month head term.  Christie had re-partnered and had another child, and she and that new partner were reluctant to let you see your children.  On your release, this issue remained unresolved, causing you to fall back into heavy ice use, and on 18 January 2016, you were placed on a 12-month community corrections order with drug and mental health treatment conditions for charges including possession of methamphetamine, theft, and possession of anabolic steroids, which order you breached by the current offending.

35A Corrections report indicated you had engaged well on the order, attending all but one appointment, and completing your community work hours.  However, it is clear that, notwithstanding the order you were on, your ice use had continued unabated, and you in fact began reoffending in March 2016.  Your counsel told me your ice use at the time of the offending against the complainant was daily and heavy. 

36You were then remanded in custody from 7 May 2016 to 6 March 2017, and were then bailed.  You were then charged with further offending, being further alleged trafficking in ice, and possession of proceeds of crime, which charges are still to be dealt with, and that bail was revoked on 10 May 2017.  You have since remained on remand, where few courses and rehabilitative programs are available.  You work as a laundry billet, which is a position of trust, have apparently refrained from drug use, and work out at the gym.

37Your counsel informed me that it was your hope that on your eventual release, you would gain work in the mines somewhere, where it is hoped your particular employment skills would ensure you work, and a fresh start.  Your counsel told me your former partner Christie has agreed to allow you contact with your sons once you have demonstrated you have ceased drug use.

38Mr Farrington, your counsel, submitted that I should deal with you by way of a 12-month sentence combined with a community corrections order.  He submitted that your excellent employment history and particular skills meant that you were in a particularly good position to rehabilitate yourself work-wise.  Further, he noted that you enjoy the continued support of your family.  He said that in custody you had realised the wrongness of your actions.  He told me that this is the longest time you have ever spent in prison, that is, 415 days to date, had allowed you to become drug-free and to gain insight into your offending, which you now very much regretted.

39He told me your desire is to return to the life you led before your descent into ice addiction and subsequent offending.  Mr Farrington said that you want to work towards contact with your children, and realised that you must do this by legal representation.

40Mr Farrington ultimately submitted that you were still a relatively young man with your life ahead of you, and it was both in your and the community's interest that you be given the opportunity for reform.

41The prosecution submitted that a gaol-CCO combination was not a sufficient response to this offending, and that I should deal with you only by way of a term of imprisonment.  Mr O'Doherty for the prosecution pointed out that you had in the past been given two opportunities, first parole, which you breached within a matter of weeks, and then the community corrections order, which you again breached within weeks by virtue of your offending against the complainant, Taylah Benson.

42He submitted that I should, in the circumstances, regard your prospects of rehabilitation as poor.  He pointed in particular to the fact that in 2014 and again in 2016, you had been found in possession of a sawn-off rifle, which he described as a "classic protection tool of the drug trafficker".  He did not regard the time you have already spent in prison as a sufficient sentence for the offending before this court.  I accept the prosecution's submission.  In my view, the only appropriate disposition in this case is a term of imprisonment, and one which exceeds the time you have already spent in custody.  My reasons for this decision are as follows:

43The offending involved serious and nasty domestic violence.  It was conducted against a background demonstrating continuing verbal and physical abuse, which whilst not the subject of charges for which you can be sentenced, is admitted misconduct, demonstrating, as the prosecutor said, the character of your domestic life at the time.

44Further, the authorities have made it clear that domestic violence is to be treated via a strong response by the courts, where the principles of denunciation, just punishment and general deterrence play a dominant role in the sentencing exercise;

45Of particular concern in my view is the fact that twice now you have engaged in offending involving possession of a sawn-off rifle.  These illegal weapons are hallmark of entrenched criminal activity and associations.  I regard your use and possession of this weapon as a particularly grave aspect of the offending before the court.

46Further, the authorities have made it clear that possession of such a weapon is in itself serious, and any use of it in a criminal activity as an aggravating feature of that offending;

47I regard your prospects of rehabilitation as guarded at best.  Despite the family support you enjoy, despite your professional skills and excellent employment history, despite the salutary lesson of a term of imprisonment imposed on your first appearance in a court, despite the rehabilitative opportunities given to you via parole and a community corrections order, you have continued to engage in heavy methamphetamine use and criminal activity.  The fact that in the rigid structure of a gaol you have managed to cease drug use affords little evidence of your capacity to continue this in the community, particularly given your immediate return to it in the past, even when returned to the community on supportive, rehabilitative orders. 

48Your capacity to rehabilitate, in my view, remains unknown, against a background of persistent substance abuse, criminal associations – (for example, I note that the 2015 Mercedes you drove was stolen by someone that you knew), and your continuing serious criminal activity.

49Your plea of guilty was entered at a very late stage, that is, the first day of the trial proceeding.  You conducted a contested committal where the complainant was cross-examined.  Your counsel submitted plea offers had been made on your behalf ever since committal proceedings, however the prosecutor pointed out that none of those included an admission to possession of a shotgun and associated offending, that is to what, in my view, constitutes the most serious offending on your part on this occasion.  That plea was also made in the face of what I regard as very strong prosecution case, where the complainant's evidence was supported by independent evidence, such as photographic and medical evidence of her injuries, the Taser allegedly used on her (again I note this is not the subject of any assault charge) being found at your premises, the gun found in the car matching her description of it, the widespread complaint evidence and so forth.

50I am not satisfied in the circumstances that this is a plea indicative of remorse.  I acknowledge that you had saved the community the time and expense of a trial, and the complainant the trauma of being further cross-examined, and it will be given utilitarian value.

51Your actions have had a grave effect upon the complainant, who in her victim impact statement stated ongoing anxiety and debilitating low self-esteem, for which she still receives counselling.

52In her victim impact statement, Ms Benson stated:

"I used to be an outgoing and confident person, but after being told over and over that I was a fat bitch and other nasty things, I started believing it and lost all confidence in myself and my body".

53Ms Benson has been unable to resume employment due to ongoing anxiety issues.  She felt unsafe in Warrnambool, and decided to relocate interstate.  She stated in her victim impact statement that:

"At times, it felt there has been no end to the spreading of malicious lies, rumours and slander to my name.  This has caused my reputation to be damaged, has often humiliated me, and has also been very distressing."

54As a result of moving interstate, she has suffered financially, and has been far removed from her family and friends.  She continues to suffer broken sleep and flashbacks of the violence that you perpetrated before her.

55May I say that her description of her continuing reaction to your offending is entirely unsurprising to this court, and is a reaction commonly described by victims of domestic violence.  That is, anxiety, possibly symptoms of post-traumatic stress disorder, complete disruption in her life, and unfortunately as this court often sees, she is a person who as a victim has been demonised for even reporting the matter. 

56It is quite clear in my view that the dominant sentencing principles in the case are denunciation of your cruel and often cowardly violent behaviour towards her, just punishment, protection of the community, and general deterrence.  It is important that those in the Warrnambool area and elsewhere understand that domestic violence is a terrible and widespread phenomenon in the community, and that the courts will respond to behaviour such as yours, in a way which makes it entirely clear that this behaviour will not be tolerated.

57I therefore sentence you as follows, could you stand up please, sir?

58Charge 1, you are sentenced to eight months' imprisonment;

59Charge 2, you are sentenced to 18 months' imprisonment;

60Charge 3, you are sentenced to two years and four months' imprisonment;

61Charge 4, you are sentenced to six months' imprisonment;

62Charge 5, you are sentenced to one month imprisonment;

63Summary Charge 11, you are sentenced to one month imprisonment;

64Summary Charge 12, you are sentenced to one month imprisonment;

65Summary Charge 14, you are sentenced to six months' imprisonment;

66Summary Charge 20, you are fined $500;

67On each of Summary Charges 28, 29, 30 and 31, you are sentenced to four months' imprisonment.

68The base charge will be the sentence imposed on Charge 3, a sentence of two years and four months' imprisonment. 

69I order that four months of the sentence imposed on Charge 1, eight months of the sentence imposed on Charge 2, four months of the sentence imposed on Summary Charge 14, one month each of the sentences imposed on Summary Charges 28, 29, 30 and 31 be served cumulatively to the sentence imposed on Charge 3 and to each other.

70This gives a total effective sentence of four years, and you are ordered to serve a minimum term of two years and six months.  I declare that 415 days of this sentence have already been served by way of presentence detention.

71In relation to Charge 4, all licences are cancelled and you are disqualified from obtaining any licence for a further period of 18 months. 

72Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a maximum term of four years and six months, and order that you serve a minimum term of three years.

73Now, you are a young man who had everything going for him, and you blew it bigtime.  And you kept blowing it.  And you may not accept the damage of what you have done, or the seriousness of the offending that you have engaged in since 2013.  I hope you do now, and that is why you have got the sentence that you have.  Have a seat sir.

74Is there anything else that I need to attend to?

75MR O'DOHERTY:  Yes, there are the orders that we sought ‑ ‑ ‑

76HER HONOUR:  I also - sorry, I also thank Mr Farrington for a very thorough and helpful plea.  Yes.  I am just trying to think.  You have probably got about a year to go, and then you can apply for parole, all right?  You understand what the consequences are of breaching parole if you get it.

77ACCUSED:  Yes.

78HER HONOUR:  All right?  Not only will you owe the Parole Board 20 months - 22 months, if you breach parole, that is a further offence, and if you breach parole by offending on parole, that is a further offence.  So first thing you have to do is actually get parole, you do not automatically get parole, you have to apply.  Mr Farrington will explain all of this to you when he sees you after the plea, all right?

79So it is entirely a matter for you how you want to live your life now, but there are very heavy consequences if you do not make a big U-turn from the direction that you have been heading in for the last four, five years.  Have a seat, thank you very much.  Yes, thank you.  Is there anything else that I need to attend to?

80MR O'DOHERTY:  No Your Honour.

81HER HONOUR:  Yes, thank you very much, we will adjourn to 9.30 tomorrow morning, thank you.

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