DPP v Webster

2 The maximum penalty for these offences is as follows:

(d) recklessly causing injury: 5 years; imprisonment.

3 Tendered as Prosecution Exhibit 1 was the Summary of Prosecution Opening on the Plea dated 9 November 2020. In short, on or about 26 October 2019, you drove to a rural property in regional Victoria that consisted of a farm and a shed. The property was unoccupied, and you entered the house through the backdoor which was unlocked.

4 Inside the house was a homemade gun safe locked with two padlocks. You removed the padlocks and removed two firearms from the safe. The firearms were a .22 rifle and a double-barrelled shotgun. You exited the house with the firearms and entered the farm shed.

5 Inside the shed was a bench saw on a trailer and a Red Cox ride-on lawn mower. You hooked the trailer onto your vehicle and loaded the ride-on mower onto the trailer before driving home.

6 Later that day you contacted Robert McKenzie on Facebook Messenger and asked if he knew anyone who would want a fairly new excellent condition ride-on mower. Mr McKenzie attended your house and inspected the Red Cox ride-on lawn mower and bench saw. Mr McKenzie purchased the ride-on mower for $350.

7 On 30 October 2019, you attended Benjamin McCallum's address and asked if he would like to buy a bench saw. Mr McCallum attended at your address the next day and purchased the bench saw for $350.

8 On 4 November 2019, you were at home with your partner, Katie Summers[2] and your three children. Ms Summers woke you and asked if you could help with the children. You yelled at Ms Summers before punching her in the right arm, causing her pain and bruising.

9 On 7 November 2019, a search warrant was executed on your address. You were arrested and transported to the police station for questioning. You denied any involvement in the burglary and theft of firearms but did admit to selling the bench saw. You denied any knowledge of the ride-on mower and the assault of Ms Summers.

10 On 14 November 2019, police received a fingerprint report from the regional Victoria property. Your fingerprints matched those recovered from the outside of the window of the house. You were subsequently charged with the burglary and theft of firearms.

11 On 20 December 2019, you made a further statement to police admitting you committed the burglary and stole the two firearms.

12 The ride-on mower and bench saw have been returned to police however the stolen firearms have not been recovered.

13 Theft of firearms is an objectively serious offence. In my view this charge is the most serious of the four on the indictment. The theft of firearms can increase the illegitimate flow of firearms in the community and lead to very serious criminal activity. The offence carries a higher maximum penalty than the offence of theft.[3]

14 It is an aggravating feature of your offending that the firearms have not been recovered. I cannot conclude that the firearms you stole have in fact found their way into the hands of those intent on using them for criminal purposes. As a result of your actions, however, two weapons that were otherwise legally-owned and safely stored under lock and key are now unaccounted for.

15 The offence of burglary is also serious. Your offending involved some degree of pre-planning for you to attend a shed remotely located on a farm. Your actions were neither spontaneous nor opportunistic.

16 You entered with an intention to steal. You fulfilled that intention as reflected in Charge 3, theft. The property you stole was of relatively modest value, and ultimately recovered by its owner. Its loss, even if temporary, would still have been a considerable inconvenience for its owner.

17 The charge of recklessly causing injury can be committed in a broad array of circumstances. In this case, it was an act of unprovoked violence against a woman. You caused pain and bruising to Ms Summers with that single blow.

18 Ms Summers provided a victim impact statement which was read out in court.[4] Your actions in striking her in the arm contributed to her emotional distress and caused her to fear for her safety.

19 It was apparent from the Victim Impact Statement that Ms Summers was describing the effect on her of a variety of misdeeds she attributes to you, that go substantially beyond the single act that is the subject of Charge 4. I am careful in considering this material to ensure that you are not punished for anything beyond the single charge put before the court for which Ms Summers is the victim.

20 You were 37 years old at the time of the offending and are now 39. You are the youngest of 4 siblings who grew up in regional Victoria. You had a traumatic upbringing, mainly due to abuse you and your sisters suffered at the hands of your father.

21 You have reported to the author of the pre-sentence report that you were the victim of physical, sexual and emotional abuse from your father.

22 You have not previously addressed any of these issues by counselling nor any other professional treatment.

23 You left school at age 14. Since then you have worked mainly as a labourer and have found employment using your self-taught mechanical skills.

24 In 2001, while still a teenager, you were badly injured in a car accident that took the life of your then partner. This was an additional trauma inflicted on you in a life that had already seen its substantial share of difficulty.

25 Your involvement with illicit drugs can be traced to you being injected by a relative with an amphetamine-like substance at the age of 9.

26 You are now the father of 12 children, one of whom is deceased. Four of these children are from your eight-year relationship with Ms Summers in relation to Charge 4.

27 Your eldest child is now 21 and the youngest is 6 months old. Your youngest child was born with a hole in her heart for which she is currently undergoing treatment. This is understandably a significant emotional burden for you.

28 You remain close to your mother, and have been especially concerned because of her recent health challenges.

29 You have prior convictions dating from 2001. Substance abuse has been a long‑standing issue for you. Your prior criminal history has involved matters of dishonesty, driving offences, and violence. You have a prior conviction for recklessly causing injury for which you received a fine in 2018. You have previously been sentenced to, and breached, Community Corrections Orders. In 2018, you served 56 days imprisonment.

30 Significantly, however, your offending has always been dealt with in the Magistrates' Court. Your offending has been persistent, but it could not be said to have escalated to an especially serious level.

31 In recent times, your most significant issues before the courts have involved you breaching family violence and intervention orders. There are still matters of this nature pending, which will be dealt with subsequent to the sentence imposed in this court and about which I can draw no conclusions for the purpose of this sentence.

32 It is necessary to set out some details as to your dealings with the criminal justice system since the commission of Charge 4 on the indictment on 4 November 2019, some 21 months ago.

33 After being charged with recklessly causing injury, you were released on bail on 26 November 2019 and then later charged with the offences that are now 1, 2 and 3 on the indictment.

34 On 5 December 2019, an intervention order was made at the Magistrates' Court. Ms Summers was the aggrieved family member and you were the Respondent to this Order.

35 Between 17 December 2019 and 19 December 2019, you were charged with breaching that order. Only four days later, on 23 December 2019, you pleaded guilty to the persistent breach of a family violence intervention order and were sentenced to an 18-month Community Correction Order.

36 Between 25 December 2019 and 19 January 2020, you are alleged to have further breached that Order and were charged with related offences. These charges remain to be heard in the Magistrates' Court.

37 After being charged on 19 January 2020, you were remanded in custody on those matters until you were granted bail on 20 April 2020.

38 As of 4 May of 2020, that bail was varied to permit you to reside at the Cottage, Shepparton, which is a residential rehabilitation facility. Whilst at those premises, you undertook a three-month alcohol and drug rehabilitation course. A letter from that organisation, tendered on your behalf on the plea, confirms that you were a resident from 5 May 2020 and that you completed your 16-week course on 15 August 2020.[5]

39 Maria Hutchinson, CEO of the Cottage and an addiction counsellor, confirms that, 'You appear to make significant progress in [your] rehabilitation and recovery.' She says that you were, 'Actively involved in attending regular Narcotics Anonymous meetings and [were] noticeably gaining a lot of awareness around [your] addiction and gaining tools and techniques to use when [you are] experiencing emotions or cravings.'

40 Most significantly, Ms Hutchinson confirms that all of your urine tests produced clean results.

41 So successful was your time at the cottage, that I am instructed that you remained resident there in something of a mentoring role subsequent to the completion of your own treatment.

42 It is this period commencing with your attendance at the Cottage up until your appearance at the plea hearing that represents 15 months of abstinence from drug use. I consider that the time you spent subject to the restrictions on your liberty in the residential rehabilitation facility is a matter to be taken into account in moderation of your sentence in the manner described in Akoka.[6]

43 In the context of your long history with substance abuse, your commitment to the rehabilitation program was commendable.

44 The procedural history of this matter does however become somewhat complicated from that very optimistic point.

45 The matter the subject of this indictment resolved at an early stage in proceedings. You indicated a plea of guilty on 2 September 2020 at the committal mention, and the matter was adjourned for a plea at the County Court at Melbourne on 7 December 2020.

46 For reasons that have been expressed in this court as you being fearful of further incarceration, you failed to appear on 7 December 2020, as well as at the subsequent Magistrates' Court hearing on 1 March 2021. Warrants were issued accordingly.

47 You were arrested and remanded in custody on both of those warrants on 12 March 2021. You have been in custody on remand since that time, on both the County Court and Magistrate's Court matters. I note that the pre-sentence detention you have served on the current matter before this court is for the period from 12 March 2021 to the date of sentence today.

48 Whilst the decision not to attend the previous listing of your plea hearing was unwise, it is encouraging that during your time in custody you have continued to engage in matters to progress your further rehabilitation.

49 A report authored from Psychologist Tess Ryan from Marngoneet Correctional Centre dated 5 July 2021[7] was tendered on the plea. She confirms your participation in and completion of the drug and alcohol programs offered at Marngoneet Correctional Centre. She also notes that pandemic restrictions extended the waiting times and limited the places available in other courses that you had actively sought to participate in.

50 I also note that you have undertaken such educational and training opportunities as have been available.[8]

51 Paul Byrne, the owner of Paul's Rubbish Removal, has provided a reference stating that he is aware that you are in custody but notwithstanding that he is willing to offer you work with his firm upon your release.[9]

52 You have pleaded guilty to the charges on the indictment at the earliest available opportunity. Whilst your failure to attend did elongate the matter somewhat, the early resolution of the matter has saved the time and resources that would otherwise have been expended on contested proceedings. The utilitarian benefit of your plea is especially significant having regard for the impact of pandemic restrictions on court listings.

53 I consider that your plea, in combination with the somewhat belated admissions you made to the offending and, most importantly, the significant steps you have taken towards addressing the matters that led to the offending, is also evidence that you have some remorse. You expressed contrition in your letter to the court that was tendered on the plea.[10]

54 The length and ingrained nature of your substance abuse issues present a substantial impediment to your rehabilitation. There remain considerable reasons for caution about your prospects. Your prior history involves substantial recidivism. There are outstanding matters that involve offending relating to your relationship with Ms Summers. There are challenges clearly for you to abide with court orders and also to create a workable relationship with the mother of your four youngest children.

55 Notwithstanding these matters, there are reasons to think that at the age of 39 there is a genuine prospect that you can rehabilitate. You have made substantial efforts to engage with appropriate rehabilitation services. You have remained drug‑free for a significant period.

56 Having regard for all these matters, I consider that you have at least reasonable prospects of rehabilitation.

57 Your prior history does mean that specific deterrence retains some significance in the sentencing process.

58 The nature of these matters also requires me to impose a sentence that serves to deter others, to adequately punish you, to protect the community and to denounce your offending.

59 You have been assessed as suitable for a Community Corrections Order. Both your counsel and Mr Raimondo on behalf of the Director have submitted that a sentence that involves a period of imprisonment followed by a Community Corrections Order is both within the available range and appropriate in the circumstances of the case.[11] I intend to impose such an order.

61 On Charge 1, burglary, you are convicted and sentenced to 6 months' imprisonment.

62 On Charge 2, theft of a firearm, you are convicted and sentenced to 9 months' imprisonment.

63 On Charge 3, theft, you are convicted and sentenced to 3 months' imprisonment.

64 On Charge 4, recklessly causing injury, you are convicted and sentenced to 3 months' imprisonment.

65 I order that one month of the sentence imposed on Charge 4 be served cumulatively on the sentence imposed on Charge 2, and that otherwise all sentences are to be served concurrently.

66 That makes for a total effective sentence of 10 months' imprisonment.

67 On Charges 1, 2, and 3, I also intend to impose a Community Corrections Order of 12 months' duration.

68 Before I ask you to consent to such an order being made, I have to tell you about the order.

69 The following core conditions apply to all Community Correction Orders:

(a) You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.

(b) You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the Order.

(c) You must report to the Community Correction Centre at Bendigo within two clear days following your release from custody.

(d) You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change.

(e) You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.

(f) You must comply with any direction given by the Secretary that is necessary for the Secretary to give, to ensure you comply with the Order.

70 There are a number of other conditions attached to this Order, and they apply to you:

(a) You have to perform 100 hours of unpaid community work over a period of 12 months as directed by the Regional Manager (s48C). Fifty hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid work for the purposes of the unpaid community work condition (s48CA).

(b) You must be under the supervision of a Community Corrections Officer for a period of 12 months.

(c) You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee (s48E).

(d) You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager (s48D(3)(a)).

(e) You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager (s48D(3)(e)).

(f) You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager (s48D(3)(f)).

71 I can only impose a Community Correction Order if you agree to such an Order being imposed. And I should just make clear that this order is to commence upon the expiry of the 10-month period of imprisonment

72 I should advise that if you contravene or breach that order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach (s83A(d)).

73 You can also be re-sentenced for the offences that are before me. One of the options available includes a term of imprisonment (s83A(s)).

74 If you commit any further offences that might incur a term of imprisonment over the next 12 months, or so the 12 months from the commencement of the order, I should say, you could be back before the Court and re-sentenced on the charges that are before me.

75 I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer, as part of this order, a substantial fine can be imposed (s83A(e) and A(f)).

76 HIS HONOUR: So, Mr Webster are you aware of all that?

78 HIS HONOUR: All right, do you consent to the community corrections order on the terms I have just outlined?

80 HIS HONOUR: All right now, pursuant to s18(4) of the Sentencing Act 1991, I declare that there are 206 days of pre-sentence detention already served, up to and including yesterday 4 October 2021. I just want to check is that correct? If anyone is calculating?

82 HIS HONOUR: That's all right, you go, Ms Heley? That's all right, you're on mute Ms Heley, sorry.

83 MS HELEY: Sorry, Your Honour, when I just calculated it was 200 and - from 12 March until today, according to the between date calculator, it's 207 days not including today.

84 HIS HONOUR: All right, well Mr Raimondo I'll declare 207 days unless you're going to wildly argue with that?

85 MR RAIMONDO: I think Your Honour has to include today.

88 HIS HONOUR: Yes, all right. We'll go with 208, all right.

90 HIS HONOUR: Yes, all right I'll go through that again. So, I'll make that 208 sorry about that, I should have checked it before I started. Pursuant to s18(4) Sentencing Act 1991, I declare that there are 208 days of pre-sentence detention already served up to today.

91 Pursuant to 6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty I would have imposed a sentence of 21 months' imprisonment with a non-parole period of 15 months.

92 HIS HONOUR: Now, are there any further orders I need to make Mr Raimondo?

94 HIS HONOUR: Thank you. Is there anything further I need to address?

96 HIS HONOUR: Thank you very much, I'll adjourn the court now until 10.30.

[3] Benkic v The Queen [2019] VSCA 34.

[6] Akoka v The Queen [2017] VSCA 214.

[11] Prosecution Exhibit 3 and Defence Exhibit 1.