R v Weinberg
[2014] VCC 2118
•10 December 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 14-01936
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GRADY WEINBERG |
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JUDGE: | His Honour Judge Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 December 2014 | |
DATE OF SENTENCE: | 10 December 2014 | |
CASE MAY BE CITED AS: | R v. Weinberg | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2118 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Kapitaniak | Office of Public Prosecutions |
| For the Accused | Mr S. Payne | VLA |
HIS HONOUR:
1 Mr Weinberg, you have pleaded guilty to one charge of intentionally cause injury. The maximum penalty for this offence is ten years' imprisonment.
2 The prosecution has provided a summary of the offending and you heard the prosecutor read that summary to me, I am not going to repeat that summary. It was tendered as Exhibit A.
3 Briefly, on 2 August 2014, you and your partner attended Dorevitch Pathology in Croydon for the purpose of undergoing urine screens. You saw Mr Robbins and Ms McCormick out the front of that place. You got into an altercation with Mr Robbins. He apparently suggested to you that he would get a third person to “fix you up”. Ms McCormick intervened to assist Mr Robbins. I was told that she made a comment about making a complaint to Department of Human Services that would affect your ability to see your children. You became infuriated and turned on her. You took a claw hammer from the car and attacked her. You pushed her against the car and threw her to the ground. You punched her twice. You then hit her twice to the head with the hammer. The police were called and an ambulance attended.
4 Ms McCormick was taken to hospital and underwent a CT scan. She had suffered a small depressed skull fracture that was glued together. There is no evidence of residual harm.
5 Mr Weinberg, this is serious matter. You assaulted a woman in a public place by pushing her, punching her and then striking her with a weapon. It is only by good fortune that she did not suffer serious injury.
6 Normally, general deterrence, just punishment and denunciation are central aspects of sentencing in this type of case. Given your prior court appearances, specific deterrence and protection of the community would also normally be given prominence.
7 Your counsel, Mr Payne, has submitted that these purposes of sentencing should be given reduced prominence because of your personal circumstances. He also submitted that there were compelling reasons why I should make an order that focuses on your rehabilitation rather than upon deterrence and punishment. I agree with his submissions and I do so for the following reasons.
8 You are a 21 year-old man. You are a young man. With a young offender, rehabilitation is nearly always an important sentencing consideration. Even though you have relevant prior convictions, I am satisfied that your circumstances are such that rehabilitation remains an important consideration in this case.
9 You have been on remand for 130 days. This is the first time you have been in adult prison. Your time in prison has not been easy.
10 You have pleaded guilty to a charge that is normally dealt with in the Magistrates’ Court. I do not mean by this comment to diminish the seriousness of your offending. However, it is the case that had this matter been dealt with in the Magistrates’ Court, the maximum penalty available would have been much reduced.
11 You come from a background of abuse, deprivation and social disadvantage. You were first placed out of your mother’s care as an eight year old. In 2005, you were placed on a Custody to Secretary Order. Between that time and your 18th birthday, you had multiple out of home care placements – many of them in residential units. Your life lacked the security and stability that all young people need. Your education suffered – it seems that you have had no schooling beyond grade 5. In addition, you have an intellectual disability that has had a profound affect throughout your life. In 2007, you were assessed by a psychologist from Berry Street as having a full scale IQ of 61. More recent testing by Mr Simmons, psychologist, has produced a similar assessment. In his report he says this – “Intelligence testing revealed that Mr Weinberg is an intellectually disabled man that is compounded by the fact that he has significant issues with his language ability. With that comes multiple deficiencies, which include an inability to understand what is happening around him, finding appropriate and sophisticated ways of managing events and occurrences as well as an inability to effectively control his emotional state.” This latter point, whilst not excusing your offending, puts your offending in context.
12 In January 2014 you appeared at the Ringwood Magistrates’ Court for a large number of offences. You were placed on a community corrections order with a justice plan for a period of 12 months. This current offending puts you in breach of the order. However, I do think that it is matter in your favour that you have complied with all of the other conditions of the order. You have reported as required, addressed your drug issues and worked with Disability Client Services (DCS) pursuant to a justice plan. I have read very favourable reports from YSAS and DCS. These reports show that you can engage with support agencies and respond to their support. Ms Bedson from DCS attended court to support you. I was impressed by the comments in the community corrections report that, on your own initiative, you sought an assessment for participation in a Men’s Behaviour Change Program run by Relationships Australia. You clearly understand that it is important that you learn to control your emotions so as to avoid responding to others in a violent or aggressive manner. Your promising progress on the community corrections order is one important factor that provides hope for your future.
13 I agree with your lawyer’s submission that your deprived background[1] and your intellectual disability[2] are important matters that mitigate your sentence.
[1] See William David Bugmy v The Queen [2013] HCA 37.
[2] See R v Verdins (2007) 16 VR 279.
14 Having read the report of Dr Simmons and taking account of your plea of guilty, I am satisfied that you are remorseful for your criminal behaviour. You pleaded guilty at an early opportunity. You have not required the victim to give evidence. You have avoided the cost and expense of a criminal trial – these are all matters that require me to give you an appropriate sentencing discount.
15 You and your partner have two young children. You are involved with DHS Child Protection. The oldest child is currently in out of home care and your partner has supervised access. Your partner has ceased drug use because of her responsibility towards your children. I am satisfied that this has had a positive impact on you. Clearly DHS support is likely to continue for some little while yet.
16 You have family members who are prepared to assist you. Your mother, your sister and a cousin have all attended court to support you.
17 Mr Weinberg, you now understand the consequences that attach to serious offending. You have spent 130 days in custody on remand. I am sure you have learnt from that experience.
18 Given all of the matters that I have just referred to, I have concluded that there is no benefit to the community, or to you, in ordering further gaol time for this offence and that I should make an order that allows you to be released with the support that Community Corrections can offer you. I have had you assessed as to your suitability to undergo a community corrections order. The assessment is positive.
19 You are convicted and sentenced to 130 days imprisonment together with a community corrections order (CCO) for a period of 12 months. I declare that you have served 130 days by way of pre-sentence detention. You are required under the terms of the CCO to attend the Lilydale Community Corrections Service before 4pm on 12 December 2014.
20 The community corrections order will have the following special conditions. You will be under supervision for the period of the order; you are to undergo assessment for programs that address factors related to your offending and you are to participate in such programs as directed; and that you participate in the services specified in the justice plan already in place on the order dated 23 January 2014.
21 Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to 15 months' imprisonment, with a minimum of six months before you would be eligible for release on parole.
22 I need to explain to you in a bit more detail your obligations under the community corrections order . What is going to happen, Mr Weinberg, is you are going to be taken downstairs, to get your property, so you will not be released from here, you will be released from downstairs.
23 You cannot at the moment have contact with family members, you will be taken straight downstairs, the family members can wait for you on the ground floor and when you are released, which will take a little while, you can go with them. Do you understand that?
24 OFFENDER: Yes.
25 HIS HONOUR: You will have to attend the Lilydale Community Corrections Office before four o’clock on Friday. The address of that office will be on the papers that we give to you. If I was you, I would go there first thing tomorrow.
26 All community corrections orders have a standard condition that you cannot commit any further offences. So for the next 12 months there can be no further trouble. If you do commit further offences, you will breach the order and you will come back before me. I will be very unhappy and I will deal with you again for these offences. Of course, you must comply with all of the conditions of the community corrections order. You did very well on the order that was imposed in January and I expect that you will do very well on this order. You have very good support from Ms Bedson and, clearly, you will still be required to attend for drug and alcohol counselling, I anticipate that will be through YSAS, we have a very good report from them.
27 So there really cannot be any excuses. You have to make this order work, you have to comply with all of the conditions and you have to make sure you stay out of trouble. Do you understand all of that?
28 OFFENDER: Yes.
29 HIS HONOUR: Do you have any questions?
30 OFFENDER: No.
31 HIS HONOUR: Just take a seat for the moment.
32 Are there any other matters that I need to attend to?
33 MR PAYNE: No, Your Honour.
34 HIS HONOUR: Mr Weinberg, I am going to reiterate what I said to you earlier. You are going to have to go with the officer now, I know you are keen to get out and see your family but you have property and things to collect downstairs so you have to go now with the officer back downstairs, once you are processed, then you will be released. Your family can wait for you down on the ground floor. If you go now with the officer, thank you.
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