Director of Public Prosecutions v Wyvill

[2017] VCC 204

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00530

DIRECTOR OF PUBLIC PROSECUTIONS

v

TAYLER ANDREW WYVILL

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	3 March 2017
CASE MAY BE CITED AS:	DPP v Wyvill
MEDIUM NEUTRAL CITATION:	[2017] VCC 204

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. Stefanovic
For the Accused	Mr J. McQuillan

HIS HONOUR:

1Tayler Wyvill, you have pleaded guilty to one charge of causing injury intentionally, and one charge of robbery. 

2The facts of the matter are set out in the prosecution opening, which is accepted by your counsel.  I will not refer to it in any detail.  Any reader of these reasons can go to Exhibit 1 to place the sentence in its factual context.

3I am very much influenced by the fact that your co-accused, who actually took part in the physical activity, was dealt with in the Magistrates' Court, together with other offences, and given a sentence of five months, with a community correction order of 12 months.  His criminal history has been handed up to me.  It could be described as worse than yours, although yours is bad enough.

4I have to consider the issue of parity, that is, what he got, you should get something similar, and not something completely way over the top from what he got.  As I have commented, if I had dealt with him at first instance, he would have got more than what the magistrate gave him.  However, I bear that in mind.

5You have admitted your criminal history.  At the time, you were on a community corrections order.  You have had community corrections order, you have had difficulty keeping them.  You have told Dr Cunningham, the psychologist who saw you, and has supplied a report, that you are still using cannabis,  that would straight away breach any community corrections order that I would give you.

6It seems to me that if you are correct, that you have given up heroin, then that is a significant breakthrough in your rehabilitation.  The fact that you have owned up to Dr Cunningham the cannabis use suggests to me that possibly you have stopped heroin.  You have sworn to that in the witness box, and I was impressed with your frank and honest answers and your attitude.

7You are back at home, you are getting on all right with Mum, much better with Dad.  You have got a job, which is very important.

8I have taken into account your plea of guilty, which, although late, still attracts the benefit of a discount, because no trial has occurred, and it is an acceptance of responsibility by you for your actions. 

9General deterrence is a way of sending a message to the community that if you do this, there are serious consequences.  Specific deterrence, that is, I have to get it into your mind not do to it again, is also a factor here.

10You have heard me express my view of it.  Taxi drivers should be allowed to go around and do their work without young men getting in and doing serious things to them.  It is appalling.  And if I was a taxi driver late at night, I would be very uneasy about three young men getting into my cab.  They have to make a living. 

11Taking into account the matters set out in your psychologist report that sets out your background, you were asked to leave home at 15, you come from a normal parental background.  You were expelled from school, you have had a number of intermittent jobs.  You got into the use of cannabis, then heroin from the age of 14.  You have also had some dealings with methylamphetamine.

12Dr Cunningham says you do not present with a mental illness, and there is no indication of intellectual disability, you being in the average range.  When you left home, you got associated with gangs of various descriptions, and that is how you got into trouble.

13He says you present with perceptions of emptiness and emotional disconnection.  That is, you have got to get your life in order. 

14There was discussion - you have heard about whether I should put you on a prison sentence and a community corrections order.  In my view, on the material in front of me, you would breach that order straight away just by the act of smoking cannabis, let alone anything else.  It has not worked for you successfully before.  And perhaps it is now time for you to realise that you have got to do it yourself.

15I should have asked, will the job be open when he gets out?

16MR McQUILLAN:  I do not know, Your Honour, but being a casual - the way he described it ‑ ‑ ‑

17HIS HONOUR:  Do you mind if I ask him?

18MR McQUILLAN:  Yes, no of course not, Your Honour.

19HIS HONOUR:  Have you discussed with your employer that you might be going to gaol, and whether ‑ ‑ ‑

20OFFENDER:  No, no I haven't told him anything about it.

21HIS HONOUR:  Well, do you think the job will be there when you get out?

22OFFENDER:  No, but I'll start, probably a bricklaying apprenticeship when I come out.

23HIS HONOUR:  Does he know you have had a criminal record?

24OFFENDER:  No.

25HIS HONOUR:  Perhaps you can get your father to ring him, and explain it to him in some way so that it does not seem as if you have disappeared and lost interest in the job.  I think that would be in your best interests.

26OFFENDER:  Yep.

27HIS HONOUR: Both parties agree I can deal with this under s.9(1) of the Sentencing Act as an aggregate sentence, it being arising out of the same facts and circumstances.

28Taking into account all those matters, the submissions and materials handed up to me, and very much bearing in mind the issue of parity, I sentence you to a term of imprisonment of four months.  There is no PSD, is there?

29COUNSEL:  No.

30HIS HONOUR: I declare that, pursuant to s.6AAA of the Sentencing Act, that if you proceeded to trial and you were convicted, you would have got something like three years with a non-parole period of two years.  Have you got those orders there for me to sign?  You can sit down, thanks Mr Wyvill.

31MR STEFANOVIC:  They have been handed up.

32HIS HONOUR: All right. I make an order for disposal pursuant to s.77(1) of the Confiscation Act in the terms of the order I sign.  So there is the disposal order.

33Pursuant to s.464ZF(2) of the Crimes Act, I make an order for the taking of a forensic sample, having considered the circumstances of the forensic sample offence.  I am satisfied that in all the circumstances the making of the order is justified for the following reasons:  the seriousness of the circumstances of the offending warrant the order; the order is not opposed.

34Mr Wyvill, I have made an order for the taking of a forensic sample.  A police officer will come around and take it.  If you decide to oppose it, I am here to tell you that police may use reasonable force to enable that forensic procedure to be conduct, do you understand that?

35OFFENDER:  Yes.

36HIS HONOUR:  Thank you.  Any other orders that I need to make, or matters to attend to?

37MR STEFANOVIC:  No Your Honour.

38HIS HONOUR:  You can take Mr Wyvill out, thank you.  All right.  I generally ask counsel now, and I do it on the one day, whether counsel think I am in a position to do so - I assume you both thought I was?

39MR STEFANOVIC:  No issue from the Crown.

40MR McQUILLAN:  (Indistinct words), of course.  No, in fact, should be encouraged, Your Honour.

41HIS HONOUR:  Well Court of Appeal ‑ ‑ ‑

42MR McQUILLAN:  I was going to say something to your - to your tipstaff ‑ ‑ ‑

43HIS HONOUR:  Court of Appeal got very angry with me for doing it.

44MR McQUILLAN:  ‑ ‑ ‑ after you left the Bench.

45HIS HONOUR:  Last year, Justice Redlich, and (indistinct) ‑ ‑ ‑

46MR McQUILLAN:  Is that right?

47HIS HONOUR:  Apparently he is still going on about it, even though the High Court overturned him overturning me.  Thank you, 10 o'clock.

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