R v Watts
[2015] VCC 120
•12 February 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-02310
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
PHILLIP DAMIAN WATTS
---
JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 February 2015 | |
DATE OF SENTENCE: | 12 February 2015 | |
CASE MAY BE CITED AS: | R v Watts | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 120 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Fallar | OPP Victoria |
| For the Accused | Mr M. Thomas | Sunshine Legal |
HIS HONOUR:
1 Phillip Damian Watts you have pleaded guilty to one charge of recklessly causing injury, Charge 1; and one charge of theft, Charge 2.
2 You were initially charged with more serious offending, namely aggravated burglary and intentionally causing injury. Your trial was listed for hearing last Monday. It was allocated to me from the reserve list on Tuesday. On Wednesday voir dire hearings were conducted with the complainant and another witness. Discussions occurred during the afternoon and I was informed towards the end of the day that the matter had resolved. A new indictment was filed over and you pleaded guilty.
3 The prosecutor, Ms Fallar, opened the circumstances of the offending by reading from a written prosecution opening for a plea hearing which was tendered.
4 In brief, the victim is your cousin. On 26 June 2013 you went to his house at about 11.30 pm to confront him about a debt of $15,000 that you had loaned him. A discussion escalated into an argument. You grabbed a knife and during the course of a struggle you stabbed your cousin twice on his left forearm. Your cousin then put up his left hand to grab the knife and was cut on his left middle finger. This constitutes Charge 1.
5 Before leaving you demanded a white Commodore that was being used by your cousin, having been loaned to him by his sister. You were given the car keys and drove the car to your premises. This constitute Charge 2.
6 Police attended your home just before 2 am the next morning. They were unable to locate you or the knife. The car key and vehicle were seized by police and later returned to your cousin.
7 The victim suffered two lacerations on his left forearm and a laceration to his left middle finger. He declined to make a victim impact statement.
8 You attended the Sunshine Police Station on 2 July 2013, where you were interviewed and arrested. In essence you declined to answer questions.
9 You have spent 154 days in pre-sentence detention.
10 You must benefit from your pleas of guilty. Although they came late, I need to keep in mind that both you and the prosecution have shifted ground and you now face considerably less serious charges. The discussions that resolved the proceedings came after I asked whether all possible efforts had been made to ensure there could be no resolution.
11 You are aged 45 and have an extensive criminal history, dating back to the mid-80s.
12 You have spent much time in prison. Your last sentence of imprisonment was imposed by me on 22 November 2008. On that occasion you were convicted of one charge of aggravated burglary, three charges of armed robbery, two charges of intentionally causing injury, and one charge of common assault. You were sentenced to a total effective term of five years imprisonment, with a non-parole period of three years.
13 The incident that gave rise to that offending occurred in 2004 and concerned a violent home invasion by you and others. The delay was due, in part, to a successful appeal.
14 Since the time I imposed sentence, you have also received an adjourned bond for possession and using cannabis, imposed on 13 March 2013.
15 You have a complex history. When sentencing you in 2008, I noted that to say I found your case difficult, was a considerable understatement.
16
I noted your extensive criminal history was typical of drug related offending.
I was told in 2008 that you began using drugs at 11 and began using heroin aged 18, but had been drug free since 2000.
17 MR THOMAS: Paragraph 71, Your Honour, since 2000.
18 HIS HONOUR: Yes, thank you.
19 A very considerable part of your adult life has been spent in custody and at the time of sentencing you in 2008, I think it fair to describe you as close to institutionalised, as your counsel submitted. You have been refused parole in the past because of pending charges. You had been in custody continuously since your arrest in early 2004, and were undergoing sentence due to expire in mid-2009, at the time I sentenced you. You had served about one year in pre-sentence detention for the offending I was then dealing with.
20 In 2008 you were desperate for release and the opportunity to demonstrate that you could avoid conduct that would put you at risk of imprisonment, which you told me you were “totally over”.
21 A psychological report from Carla Lechner was tendered and it, as well as a report from Ian Joblin were retrieved from court files to assist with sentencing today. Included in the report material were details of your personal history. You have had a disadvantaged and difficult upbringing.
22 I consider the sentence I imposed on you in 2008 to be merciful. I wanted to provide you with an opportunity to show that you could rehabilitate, although I had reservations about your ability to avoid criminal activity, given your history. The prosecution submitted that the prospects for rehabilitation at that time were bleak.
23 You were released from prison at the end of 2011. Since that time you have not been crime free. There are the current matters, some pending matter, the details of which neither party told me about, and the adjourned bond for cannabis offending, which I referred earlier.
24 Your counsel emphasised your efforts to rehabilitate, which have been encouraged by your commitment to your son, Zane, born on 25 October 2013 whilst you were in custody on remand for the current offending.
25 Understandably, after almost eight years in custody before your release in late 2011, you found it difficult to adjust, but were gradually able to engage with the community.
26 In 2014 you undertook drug counselling yourself to deal with your cannabis use and significantly, you assisted your partner to deal with her addiction to ice. Because of her addiction, your son, Zane, was taken into the care of relatives, pursuant to action taken by DHS. In April 2014, the child was returned to you and your partner, and you and your partner are currently subject to a Supervision Order to ensure the child is well cared for. You and your partner completed a parenting program between August and December last year.
27 You were seeing your son, Jamie, now aged 11, and to whom reference was made in 2008, but contact ceased when you went into custody on remand for the current offending, because it was decided not to inform him that you were in prison.
28 Just to interpose, have I got that right, Mr Thomas, has contact been resumed or not?
29 MR THOMAS: Not at the moment, as I understand it.
30 HIS HONOUR: I assumed from what you said that it had not been.
31 You have plans to move from Benalla to Kilmore seeking work, but the focus for you is on providing good care for Zane.
32
I will mark the reports from Carla Lechner and Ian Joblin as exhibits. I forgot who gave them to me, was it the Crown or the defence? They can be
Exhibits 1 and 2.
33 The prosecution submits imprisonment is appropriate. That is not in dispute. Your counsel argued for a sentence to equate with time served, or a partially suspended sentence.
34 Although I have considered whether a Community Corrections Order, in combination with imprisonment is appropriate, I consider a suspended sentence to be the appropriate penalty.
35 On Charge 1, recklessly causing injury, you will be convicted and sentenced to nine months imprisonment.
36 On Charge 2, theft, you will be convicted and sentenced to three months imprisonment.
37 The sentence on Charge 1 will be the base sentence. I order that only one month of the sentence on Charge 2 be served cumulatively on Charge 1, making for a total effective sentence of ten months imprisonment.
38 I order that all but 154 days of that sentence be suspended for a period of six months.
39 That means you have to serve 154 days in prison. However, this equates to the time spent in pre-sentence detention and I declare that this period has been already served under the sentence I have imposed.
40 Should you commit another offence, punishable by imprisonment in the next six months, you will have to serve the term held in suspension in prison, unless you can show exceptional circumstances why this should not be so.
41 Had you not pleaded guilty, I expect I would have sentenced you to about 15 months in prison, and required you to serve about nine months before being eligible for release on parole.
42 MS FALLAR: Can I just have a moment with my learned friend?
43 HIS HONOUR: Yes. Something wrong?
44 MS FALLAR: I needed to - well, I just wanted to confirm this. As I understand, I have to be corrected. The suspended should normally be longer.
45 HIS HONOUR: It is longer.
46 MS FALLAR: Than the total effective.
47 HIS HONOUR: I do not think so. I think it only has - yes, that is right. Yes, check it for me. You are quite right.
48 MS FALLAR: Yes, that - yes.
49 HIS HONOUR: I do not think it needs to be longer than the period of imprisonment in total.
50 MR THOMAS: No.
51 MS FALLAR: No, that's right.
52 HIS HONOUR: It needs to be longer, I think, than the portion suspended.
53 MS FALLAR: That is probably right, because - - -
54 HIS HONOUR: But you are quite right to raise it.
55 MS FALLAR: Sorry. It is actually ten months minus five, which makes it five months. The balance is suspended for essentially five months, that is suspended for six, so I may be right - - -
56 HIS HONOUR: Although I (expressed the term) in days, that was only because I wanted to be precise in round terms,
57 MS FALLAR: Yes.
58 HIS HONOUR: - - - it is a ten month sentence, five of which is suspended. And my recollection is that the period during which the sentence is held in suspension had to be longer than the period that was held in suspension, but I might be wrong and it might be that I am required to hold the sentence in suspension for a period that is no shorter than the total effective sentence, though check it for me.
59 MS FALLAR: Shall I read it?
60 HIS HONOUR: Yes, sure.
61 MS FALLAR: Section 27(2A), "The period for which the whole or part of a sentence of imprisonment may be suspended is the length of the suspended term of imprisonment, or another period specified by the court, which is not exceeding three years in the Supreme, or two years in the Magistrates' Court, whichever is lower", so it appears it is correct. The period (indistinct), that's suspended for five months, that is suspended is the length of the suspended term. But Your Honour did six months suspended, so I submit it's correct.
62 HIS HONOUR: Well I am not sure.
63 MS FALLAR: Do you want to have a look?
64 HIS HONOUR: Yes, please. Show it to me.
65 MS FALLAR: Two, capital A.
66 HIS HONOUR: Yes.
67 MS FALLAR: Mathematically, now that I'm an expert, ten months, which is total effective sentence, times 30 days, I'll just use that, it is 300 minus 154, which is the PSD, equals 146. The suspended sentence - - -
68 HIS HONOUR: Well I am not sure that it is 300, but - - -
69 MS FALLAR: The suspended sentence is six months, which is 180, so that's longer than 146 days.
70 HIS HONOUR: Well that is why I chose the six months. As I read the section, the period of, in which the sentence is held in suspension, has to be greater than the term that is held in suspension.
71 MS FALLAR: Correct.
72 HIS HONOUR: Six months is greater than - - -
73 MS FALLAR: Five months.
74 HIS HONOUR: In round terms, five months, so - - -
75 MS FALLAR: Yes, I mean we don't need to specify, the suspended sentence commences today, on the basis that you've done the PSD.
76 HIS HONOUR: It automatically will commence today.
77 MS FALLAR: As the court pleases. Thank you.
78 HIS HONOUR: Are you both confident that is correct?
79 MR THOMAS: Yes, Your Honour.
80 MS FALLAR: Yes. One other thing. I am sorry about this, I'm not really confident about my hearing, but just for the purposes of sentencing (indistinct), if I am wrong, Your Honour may have said, in relation to Charge 1, recklessly cause injury, that the factual basis was the two stab wounds, and you may have, and I could be wrong, included the victim grabbing the knife. Clearly the victim grabbing the knife does not constitute recklessly cause injury, on the two stabbings.
81 HIS HONOUR: Yes, I follow that.
82 MS FALLAR: Thank you.
83 HIS HONOUR: Thank you. All right.
- - -
0
0
0