R v Wainwright
[2002] VSC 407
•9 September 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1483 of 2001
| THE QUEEN |
| V |
| GERARD WILLIAM WAINWRIGHT |
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JUDGE: | Bongiorno J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 September 2002 | |
DATE OF SENTENCE: | 9 September 2002 | |
CASE MAY BE CITED AS: | R v Gerard William Wainwright | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 407 | |
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CRIMINAL LAW - Intentionally causing serious injury – Plea of guilty – Undertaking to give evidence for the Crown at the trial of co-accused – 3/2 suspended
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. B. Kayser | Kay Robertson Solicitor for Public Prosecutions |
| For the Accused | Mr. O’Farrell | O’Farrell Robertson McMahon |
HIS HONOUR:
Gerard William Wainwright, you have pleaded guilty to one count of intentionally causing serious injury to Sean Dertilis on 1 March 2001 at Serpentine near Bendigo. The events which led to your being charged with this crime began in early February last year with a burglary in which you and Dertilis were principal participants at a farm near Serpentine. In that burglary three firearms were stolen. Eventually two of those guns were bought by an undercover police officer following which you were charged with offences which led to your serving six months gaol last year immediately after the event which gave rise to your being before this Court today.
Subsequent to the burglary Dertilis apparently told the person from whom the guns were stolen that you were the sole perpetrator of the burglary and that you still had one of the firearms. After this conversation, on 28 February 2001, a meeting occurred at a flat in Bendigo involving Dertilis, you and your now co-accused, Watt and Denson as well as a female called Natalie and her brother Darren. There were conversations at this meeting as to who should be blamed for the burglary and what the victim of the burglary should be told. A phone call was made to the owner of the guns, one Gary Martin, to the effect that the burglary had been perpetrated by Dertilis alone. Sometime after this phone call your other co-accused, Craig Guthrie was also present. After the phone call, Denson told Dertilis he would have to leave Bendigo and that arrangements would be made for him to go to Adelaide by truck.
Sometime in the early hours of 1 March, you, Dertilis, Guthrie and Watt left in your car, ostensibly to fill in time fishing before Dertilis was to be taken to where he would be picked up by someone who would take him to Adelaide. Although Denson did not go with you, Dertilis asserts that before you all left, Denson gave Guthrie a large butcher's knife which was placed in a fishing tackle box in the boot of your car. He told Guthrie that it might be needed. Before you all left, you were apparently asked by one of the others to bring a firearm it was believed you had. You didn't do so, but instead hid it so that it could not be used by any of the others on Dertilis.
The four of you then drove to a secluded fishing spot on a road near Serpentine where all of you proceeded to engage in threatening behaviour towards Dertilis, initially in an attempt to get him to self-administer some noxious substance containing battery acid, by injection and subsequently injecting that substance by force. Your part in these events for which your co-accused will be tried for attempted murder is said by Dertilis to have been somewhat less than that of the others although it is clear, as you admit, that you filled the syringes which were used to assault Dertilis with the battery acid, to which I have referred, by drawing it up from the battery in your car. How much you knew of the substance originally in the first syringe is, however, far from clear on the evidence.
As is obvious, Dertilis did not die as a result of this episode but was ultimately driven by you to another secluded location near what is called the Bears Lagoon Piggery. At this point, according to Dertilis, it was clear to him at least that Guthrie intended to kill him there and then with the knife originally provided by Denson. The Crown accepts that at this point you probably saved Dertilis' life by dissuading Guthrie from the course he proposed following. You made it clear that you were not going to support Guthrie in his intention to kill Dertilis.
Eventually you were arrested by police and interviewed at length on two occasions. On 15 March you made a lengthy statement, which the Crown accepts as being a substantially accurate account of the events surrounding the assault on Dertilis. You, along with your co-accused, Denson, Guthrie and Watt, were all charged with attempted murder and, in due course, committed for trial in this court. You indicated at a relatively early stage a preparedness to plead guilty to intentionally causing serious injury to Dertilis, and more recently a preparedness to give evidence for the Crown upon the trial of Denson, Guthrie and Watt.
The Crown has accepted your plea of guilty to intentionally causing serious injury presumably because, in accordance with the criteria followed by prosecution agencies in this country, it fairly represented an acknowledgment by you of the criminality in which you were involved.
You are 31 years of age. Your childhood was in Frankston where you were educated to Year 9. You worked then for your father, a builder, for some time until he moved to Central Victoria. You then had a number of jobs during which time you began drinking and taking drugs. It is said you limited your drug taking to cannabis and amphetamine.
You have prior convictions for being involved with drugs and for what appear to have been minor thefts. You were never sentenced to imprisonment for any offence strictly qualifying as a prior conviction for the purposes of the further presentment in this case but, as I have already noted, you served six months of a 12 months sentence for stealing the guns from the farmer, which was the initiating event for the offence with which the Court is now concerned, as well as for other minor drug offences.
You have had four children out of two relationships. The elder two of these children are effectively cared for by your mother and father with whom you live, the younger two being in the care of your former partner, Tania Russ, who gave evidence on your behalf to the effect that you have regular contact with her and those children in amicable circumstances. In the period you lived with Ms Russ you were gainfully employed at various local businesses, although she observed that you were not entirely free of drug taking.
Since shortly after being released from prison last year you have been employed by McPherson Printing at Maryborough, having commenced as a casual and having proceeded to permanency with the company in more recent times. Your superior at that job, Mr Leslie Casey, gave extremely impressive evidence of your application to your work and the faith and trust you have earned by your diligence.
One does not often see people achieving such a degree of success in the immediate aftermath of a prison sentence, one of the most soul destroying aspects of which is often a total inability for a prisoner who has finished his sentence to obtain any employment at all. You are indeed fortunate. You should be very well aware of that. Should you lose this job for any reason, your record, to which will now unfortunately be added the sentence which this court must impose, will make it extremely difficult for you to get another one.
The choice in this regard is, of course, yours. If you become re-acquainted with people whose attitude to society is to refuse to obey its laws by engaging in dishonest behaviour or behaviour that harms themselves or others by involvement in the distribution and taking of drugs, even if those drugs are thought by some ignorant people to be of lesser harm such that they might be able to be taken with impunity, you will undoubtedly lose that job and with it probably the chance of a decent future for yourself and your children.
You will also attract a substantial gaol term, measured in years, not months, as I will shortly explain to you. You will only be too well aware of what a return to prison will mean in your case, having agreed to give evidence against your co-accused in the trial soon to be undertaken. I need not elaborate further.
You are entitled to have taken into account in your favour the fact that you indicated a willingness to plead guilty to intentionally causing serious injury at a relatively early stage of these proceedings. You are also entitled to consideration for your willingness to assist the Crown in the prosecution of Denson, Guthrie and Watt. You have made a statement to police, to which I have referred, which statement was made as if on oath. You assert that that statement, and the records of interview in which you engaged, contain the truth. You have given this Court an undertaking to give evidence for the Crown in accordance with that statement and those records of interview on the trial of Denson, Guthrie and Watt.
I have already advised you of the effect of that undertaking. I repeat the warning. That is, this Court will impose a less severe sentence upon you than it would otherwise have imposed because of your willingness to assist the Crown in the way I have described. Should you not give such assistance by truthfully giving evidence in the forthcoming trial of Denson, Guthrie and Watt, the Director of Public Prosecutions may appeal to the Court of Appeal in respect of your sentence, which Court may increase your sentence significantly.
I have also read and noted a report from the Maryborough District Health Service, written by one Lisa Zambelli, a drug and alcohol counsellor, to whom you have reported on six occasions between 7 February this year and 16 April. Ms Zambelli reports as follows:
"Mr Wainwright presented as a cooperative, punctual and highly motivated participant during his six counselling sessions with the writer. He demonstrated insight into his past behaviour. For example, he stated that his alcohol and other drug abuse has been the contributing factor to his offending behaviour. Moreover, he was willing to identify the triggers that may lead to relapse and develop strategies towards relapse prevention. Mr Wainwright has also worked on personal skill development, such as stress management, assertiveness training, problem solving, and communication skills, as he believes these strengthen his ability to resist returning to drug use."
The sentencing criteria which must be taken into account in your case are the need to deter you and others from engaging in violence against others, and the need to once again denounce violent crime, whilst at the same time acknowledging that your rehabilitation as a useful member of society is of far greater benefit to that society than incarcerating you in a costly and violent prison. You are well on the way to such rehabilitation. This Court should do nothing to impede that process.
The crime to which you have pleaded guilty carries a maximum sentence of 20 years imprisonment. It almost always attracts a sentence of imprisonment, usually one requiring immediate incarceration. Because of the matters to which I have referred, and particularly because of your preparedness to assist the Crown, as I have described, you will not be required to serve immediately the sentence I am about to impose. Indeed, you will not be required to serve that sentence at all provided you obey the law for the period I shall fix.
It is the sentence of the Court that you be imprisoned for three years. It is further ordered that you serve a minimum of two years before being eligible for parole.
I am prepared to further order that the whole of such sentence be suspended for three years if you acknowledge that you understand that if you commit an offence, either in Victoria or anywhere else which carries a term of imprisonment, you will be brought before a court and you will be required to serve the whole of the period to which you are now sentenced, do you understand that?
PRISONER: Yes.
HIS HONOUR: A crime which carries a penalty of imprisonment is almost everything. Do you understand that?
PRISONER: Yes.
HIS HONOUR: It is not a crime for which you would normally be imprisoned, it is one which carries a sentence of imprisonment. That includes some of the more serious driving offences, do you understand that?
PRISONER: Yes.
HIS HONOUR: The court before whom you would be brought is required to impose the sentence that I am now imposing upon you and order that you serve it. It can only not do so if there are exceptional circumstances, do you understand that?
PRISONER: Yes.
HIS HONOUR: Very well, in that case I shall further order that the whole of your sentence be suspended for three years.
I declare pursuant to s.5, sub-s.2AB, of the Sentencing Act 1991, that this Court has imposed a less severe sentence upon you than it would otherwise have imposed by reason of an undertaking you gave to the court on 5 September 2002 to the effect that you would tell the truth and give evidence in accordance with your statement of 15 March 2001 and your records of interview of 8 March 2001 and 15 March 2001 on the trial of Nicholas Denson, Craig Anthony Guthrie and Paul Graeme Watt for having attempted to murder Sean Dertilis at Serpentine on 1 March 2001 and I order that this declaration and its details be noted in the records of the court.
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