DPP v Whyte [2018] VCC 1465

4. Upon seeing you, Toomey armed herself with a knife from the kitchen saying "Stay away from me, don't come near me". You rushed at her, grabbed her and bent her right arm in which she was holding the knife behind her back. You bent her over with her face in the kitchen sink, holding her by her hair and took the knife from her. Apparently Melissa and Jacqueline Whyte were punching Toomey as you held her. Mr Wallace, who was waiting in the car heard screaming, ran inside, ran at you and grabbed hold of you causing you to let go of Ms Toomey. Wallace dragged you back into the garage taking the knife from you and then stood over you punching you. You described to police in your record of interview as being grabbed from behind and choked.
5. Toomey then grabbed the knife from the floor where you had dropped it and chased Jacqueline Whyte down the back of the house where Ms Whyte locked herself in the bathroom, Toomey banging on the door and yelling threats at her. By this stage, Melissa Whyte had crawled out the bedroom window with her son and called police. Toomey was hysterical and searching frantically for her phone and keys and you again told Wallace to get out of your house. Wallace came back into the house and told Toomey to leave saying "Leah's had enough and just wants us to leave".
6. Both Wallace and Toomey made their way to the front door via the hallway, at which time Toomey was still in possession of the knife and hysterical. As they passed the internal garage door, you were seen standing just inside it holding a firearm. You then fired a shot towards Toomey. These actions underlie Charges 1 and 2 on the indictment. Wallace grabbed Toomey, the two ran to their car, but realising the key was broken, were unable to leave. Whilst they were out the front, you got into your mother's car and left, it appearing to Toomey and Wallace that you had something under your arm, that being the firearm. Police arrived soon after, at which time Toomey was hysterical, became abusive towards police, was arrested and placed in a divisional van.
7. You returned to the address while police were still there. You got out of the car when ordered to. You were handcuffed on the nature strip, but on search, no firearm was located. You were taken to the Werribee Police Station where you were interviewed, stating that you had shot at Toomey because she was armed with a knife and threatening your mother.
8. You made admissions to firing at Toomey with a sawn-off .22 calibre rifle that you kept under the couch, stating, "I fucken shot at the knife, shot at her hand. Yes I did, I wanted her to put it down and get the fuck out of the house". You declined to tell police where you got the gun, but admitted you had owned it for a number of years. It was subsequently discovered that the firearm had been stolen in a burglary in 2012. You told police that you had left the house with the gun and taken it to an address in Werribee, which was a truthful answer as police located the gun soon after. The firearm was found to be a Sterling 1500 model .22 Magnum Calibre Bolt Action Rifle which had been stolen during a burglary between 15 and 18 January 2012.
9. Ms Toomey sustained multiple cuts and wounds to both hands requiring stitches, although it is not alleged that any of her injuries were caused as a result of you shooting at her. Both Melissa and Jacqueline Whyte sustained numerous injuries, including lacerations to the face and hand. You sustained minor injuries to your face as a result of being punched by Wallace. Ms Toomey was charged with offences arising from this incident and a contested Magistrates' Court hearing is now listed for early 2019. The maximum penalty for reckless conduct endangering serious injury is five years imprisonment. The maximum penalty for prohibited person using a firearm is 10 years imprisonment or 1200 penalty units.
10. The matter was booked in for a committal hearing on 25 September 2018, but adjourned in January, due to the unavailability of a magistrate and a bail application shortly thereafter was refused.
11. You pleaded guilty on the first day of the committal hearing which was listed for 23 and 24 April 2018, so that no witnesses have been subjected to cross-examination and the community has been spared the time and expense of a trial. It is conceded by the prosecution that your plea should be treated as an early one, attracting an appropriate discount pursuant to s.6AAA of the Sentencing Act. You have been remanded in custody since the commission of these offences.
12. I now turn to your personal history. You are now 32 years of age. You are the eldest of four children born to your parents. I was informed by your counsel that your brother Brannan has had a small amount of trouble with police but your two sisters Hayley and Melissa have never been in trouble with the law. You have a close relationship with all your siblings. Your sister Melissa works in real estate, your brother Brannan is a panel beater and your sister Hayley is still at school.
13. In March of 2017, you were living with your mother and siblings at the family home, having been released from prison. You had a difficult upbringing. Your father, it appears, was a minor criminal, and your parents separated when you were 13. Your father was killed by a prison guard when you were 16. Your counsel Ms Brown tendered some newspaper reports relating to this incident. It appears your father, after being charged with some offending, was being taken to St Vincent's Hospital for some medical treatment and opportunistically tried to escape and was shot dead by a prison guard.
14. Thereafter, in addition to the grief suffered by the family as a result of your father's death, a very difficult protracted legal scenario followed. The prison guard was discharged at committal on a charge of murder. After some years of hard campaigning, he was directly presented to the Supreme Court again on a charge of murder, but was acquitted by direction.
    1. No psychological material was tendered on the plea, but I readily accept the traumatic effect that would have had upon you, the oldest in the family, the age being a fairly critical one in terms of development. You have gone on to compile both a credible employment history, but also, quite an extensive criminal history. You completed Year 10 in 2001. Your family had moved frequently. You attended six different primary schools and two different high schools. You became a qualified panel beater in 2007 after starting an apprenticeship in 2002, which employment was during legal proceedings over your father's death. You also deferred part of your apprenticeship to cope with your grief and support your family. Between 2002 and 2014 you were employed almost continuously as a panel beater, working at three different businesses in that time.
15. You began drinking and using cannabis when you were 13. At age 21 you began using methamphetamine or ice and you were using this on a fairly continuous basis up until your arrest for matters prior to the commission of this offending.
16. Your offending history goes back to 2005, beginning with a charge of recklessly causing injury and reckless conduct endangering serious injury for which you were fined. You were dealt with in 2006 for trafficking ecstasy and possessing cannabis, being placed on a Community Corrections Order. There were then a series of driving offences, again for which you were fined. You engaged in a burglary and theft for which you were presented in the Melbourne County Court on 24 October 2008, being dealt with by way of a suspended sentence and a Community Corrections Order.
17. Thereafter followed further driving offences. There is a criminal damage charge, there are charges of being drunk. In 2012, you were given a suspended sentence for recklessly causing injury and unlawful assault. There are charges of resisting police, assault by kicking, assault police, again, dealt with by suspended sentences. In 2013, again you were dealt with on several occasions for criminal damage, recklessly causing injury, making a threat to kill at which time you were gaoled for the first time, having breached the suspended sentence.
18. It would appear that that gaol sentence had some effect upon you because for four years you remained out of trouble. You took up work for the same employer for several years, but then the business went under and you returned to drug use. In 2017, you received a term of imprisonment of 100 days and were placed on a Community Corrections Order, which was still in operation at the time that you committed this offending. In fact, it had only been in operation for two months.
19. Of concern to the court is the fact that you were dealt with in March 2017 on a large consolidation, comprising mostly driving offences, but also including reckless conduct endangering life, dangerous driving whilst pursued by police, possessing a dangerous article in a public place, and importantly, being a prohibited person in possession of a firearm.
20. As I commented during the plea, possession of a sawn-off shotgun is always an indication to the court of an offender having a fairly entrenched, or having had a fairly entrenched criminal lifestyle, the sawn-off shotgun being a hallmark of entrenched criminal offending, particularly around drug use and drug trafficking.
21. I am not in any way suggesting you are involved in either of those, but it is perfectly clear that you had been involved with serious offenders. I was informed by your counsel that in line with what you told police, you had had the gun for some years and very foolishly you failed to dispose of it on your release from prison. It appears on your release from prison you had remained drug free, you had not yet been the recipient of any drug treatment, but were working on a part-time basis. You have the very positive protective factor in your life of a mostly law abiding and very close family who continue to support you and indeed, there was a large number of family and friends present in court today on the hearing of this plea.
22. The prosecutor, correctly in my view, submitted that this offending and the possession by you of this dangerous weapon means that the issue of community protection is the main principle to which this court must have regard in sentencing you. She also correctly submitted that both general deterrence, that is a sentence designed to deter others from offending in the same way, and specific deterrence, that is a sentence designed to deter you from offending in the same way, are appropriate principles to be applied in this case and I agree with her.
23. However, in sentencing you, I take into account what I regard as the fairly peculiar and distinct features surrounding this case. I am satisfied that this whole appalling violent incident was initiated and pursued by Ms Toomey. I accept that she picked up the knife after you had taken it from her and continued on with it. The prosecution does not accept what you told police in the record of interview insofar as you told them that you were not sure whether or not

Ms Toomey was still attacking your mother. You were unsure whether or not she had been stabbed, the position being that at the time that you discharged this weapon, Ms Whyte was locked in the bathroom. However, I accept there may well have been some confusion on your part, given that on the prosecution summary, once Ms Toomey retrieved the knife, she stood outside screaming at the bathroom door, banging on it and threatening Ms Whyte within.

24. I also accept that whilst there is a fairly step by step detailed prosecution account of this, this whole incident would have been extremely chaotic and of fairly short duration. It was put by your counsel Ms Brown in a most helpful plea that really this was a case of excessive self-defence on your part. This is not a submission that I particularly want to discuss. The use of a firearm is always going to be seen as a very violent response, no matter what was occurring.
25. The prosecution position is that at the time that you let off this gun, Ms Toomey and Mr Wallace were walking out, albeit that Ms Toomey had a knife and was still hysterical. Can I simply say, the fact of the matter is you discharged a gun where the barrel had been shortened for the purposes of increasing its lethal capacity. No matter what the scenario, it should not have happened and here you are in gaol and looking at a sentence, which is not going to be entirely made up of the time you have already served.
26. However, it appears that your time in gaol has been usefully served by you. You are working as a laundry billet, working five days a week. It appears you have remained off drugs. You have undertaken a number of courses in line with your occupation in gaol. Your prospects for rehabilitation in terms of your re-employment I regard as good. I received several references from friends and family, including one former employer. You enjoy the support of your family. As I have said, you appear to have stayed off drugs for a good long period of time whilst in gaol.
27. Can I just say this to you, Mr Whyte. One of the problems about becoming addicted to a drug is that you lose the opportunity to deal with the normalities of life's ups and downs (and I am not referring to the incident that put you in gaol, I am referring to the fact that the business you were working for went under and you started using again, all right?) What I am saying to you is nobody has a perfect life. People lose jobs. Relationships break up. People experience terrible things, they have children die, they have people involved in car accidents, they have heartbreaking break ups, they lose their homes. Those sorts of things. Everybody has some level of trauma and difficulty in their life. It is a normal part of life.
28. When you are using drugs, you lose the capacity to learn how to experience loss and difficulty in your life, without the use of drugs, so that when something does go wrong, it becomes a trigger for you to use. Do you understand what I am saying?
29. OFFENDER: Yes I do.
30. HER HONOUR: Yes, that is the terrible legacy of drug use. I see so many people like yourself who come here, they want to get off drugs, they want life to go well, you know and they get out and there is an expectation that once they have given up drugs, life will be a clear blue sky and nothing bad will ever happen again. There is just an expectation that is going to happen. Life will be hunky dory, if you can put it this way, from now on. Life is never like that, as you well know.
31. I know I am repeating myself, but the problem with drug use is where people who are not addicted have to emotionally gird themselves, solider on, get through those difficulties, people who have used drugs find it incredibly difficult to do that because they are not practised at doing it and because difficulty sets off a desire to use. Am I making sense to you?
32. OFFENDER: Yes.
33. HER HONOUR: Very well.
34. OFFENDER: Your Honour, can I just something because I
35. HER HONOUR: I do not know that you should - because I will tell you this. I can see you shaking your head, I can see that you do not agree.
36. OFFENDER: No, I do agree with the drug thing and that.
37. HER HONOUR: No, no, I am worried about you saying something to me about the offending, because I can see you do not agree with the prosecution summary and you will not be doing yourself any favours.
38. OFFENDER: Yep.
39. HER HONOUR: That is why you have got a barrister.
40. OFFENDER: Yeah.
41. HER HONOUR: If you would like - you know, I hear what you are saying, I heard what you said to police and no doubt, that is your view of it to this day, but the fact is you have pleaded and if you are going to start telling me about your side of things and how the prosecution summary is not fair, you will not be doing yourself any favours. Is that what you wanted to do Mr Whyte? Did you want to talk about that day, because it is not a good time.
42. OFFENDER: Yeah, yeah basically, yeah.
43. HER HONOUR: Yes, all right.
44. OFFENDER: Basically, but they agree.
45. HER HONOUR: I know and look I can see your
46. OFFENDER: Yeah, they agree which is something.
47. HER HONOUR: I can see your family do not agree with it either, but the fact of the matter is, you pleaded up. You were never going to get off this on self-defence. You were always going to go down in some way and you have heard the sentence that I am going to give, all right? Now I was never going to let you out on a Community Corrections Order Mr Whyte, all right? It is never going to happen.
48. So I am sorry that you are not entirely happy with the way this has proceeded. At the end of the day, what you have got to look at is what you are going to walk out of here with and as I have indicated to you, you are going to be looking at doing three months more, all right? Are you happy for me to go on?
49. OFFENDER: Yep.
50. HER HONOUR: All right. You can have a bit of a rant - lucky old Ms Brown, after this is over when she comes down and sees you in the cells. Does that work all right for you? Yes, I know it will - look it will probably always stick in your craw and I am sure that you have got an entirely different view of it, but I am sure Ms Brown also explained to you that when you plead guilty, there is also an acceptance of the prosecution summary and the prosecution summary is by no means all the one way, all right?
51. The main point of agreement is probably where your head was, at the time you came out of that door with the gun and what you were thinking, all right? And I understand the difference because I hear the answer you gave in the record of interview. Can I say, on the mitigatory side, in terms of all this, is firstly your plea of guilty which I regard as having been entered at an early stage and you are entitled to an appropriate discount for this.
52. Secondly, I regard your record of interview as having been cooperative, insofar as your view of the offences are concerned and you readily told police about the existence of the gun and where it was, so that it could be recovered and that is always a good thing. The less sawn-off shotguns we have got floating around in the community, the better, all right? You have a strong law abiding and supportive family. You have an excellent prior work history. You have made a significant attempt, despite the trauma of your upbringing, to stay off drugs. You know, four years, that was a really good effort and I regard you as having reasonably good prospects of rehabilitation, as long as you can stay off drugs.
53. However, at the end of the day, it is conceded, and I accept, that only a term of imprisonment is appropriate in your case. Could I ask you this one thing as well Mr Whyte, stand up. When you get out, you will be out on parole, all right, you have never been on parole before have you? No.
54. OFFENDER: No.
55. HER HONOUR: Parole is, and you really got to watch yourself on parole, if you offend while you are on parole, you not only will get gaol for it, probably get gaol for it, but it will be on top of any time that you owe the Parole Board. So it is a really dicey time. It is just really important that you keep your nose clean. Can I suggest this to you, and it is just a suggestion, it is not my business, but you know I have been doing criminal law for a long long time and I was defence counsel for a long long time and dealt with a lot of blokes like you. You need to go and get some therapy about what happened with your dad, all right?
56. You are probably carrying particular grief and stress and I mean, I have never seen a bloke I have suggested this to go "Hooray therapy, I can't wait", all right. I know most men, particularly men like yourself do not like talking about your feelings and do not like bringing up the past because you feel like you have dealt with it and you have put it
57. OFFENDER: No I've done - I've done a lot of counselling.
58. HER HONOUR: Have you?
59. OFFENDER: Yeah.
60. HER HONOUR: Where have you done the counselling?
61. OFFENDER: Um, local like psychologists and counsellors.
62. HER HONOUR: Have you? How long ago since you did some?
63. OFFENDER: Pardon?
64. HER HONOUR: How long since you did some?
65. OFFENDER: It was a couple of - a few years ago, yeah.
66. HER HONOUR: Yes. I just reckon it is worth going back and having another go, all right?
67. OFFENDER: Yep.
68. HER HONOUR: All right. And also, you need to get your head right here about what happened with Ms Toomey because Ella is still in your life as well and unfortunately, you are all going to have to have contact with each other in the future and you cannot be having this happen again, all right?
69. At the end of the day, however - I hope you do not mind me just going that way, but you know it is put to me you had this difficult background. I have got no doubt that at the time of your father's death and what went on, you had to be a significant support to your mother. You probably had to do the eldest brother, you know, looking after everybody else and that can be a trauma in itself and you may well have snapped back into this role. That role, when this occurred - when the matters I am dealing with today occurred, I do not know. But those could well be issues for you, an over defensiveness of your family, something along those lines.
70. I am very interested that you told police you thought it was a run through, because of course, if you have been using for a long time, that is entirely what you would expect, all right, that is part of that life. All right, I have said enough in that regard. I have outlined the mitigating factors which in my view are applicable to your case. It is conceded a term of imprisonment is appropriate and I sentence you as follows.
71. On Charge 1, you are sentenced to eight months imprisonment. On Charge 2, you are sentenced to two and a half years imprisonment. I order that six months of the sentence imposed on Charge 1 be served cumulatively to the sentence imposed on Charge 2, giving a total effective sentence of three years. I order that you serve eighteen months of that sentence before becoming eligible for parole. I direct that - how many days was it?
72. MS BATE: Four hundred and fifty-seven, Your Honour.
73. HER HONOUR: Does that include today?
74. MS BATE: No.
75. HER HONOUR: I direct that 458 days of that sentence have already been served by way of pre-sentence detention. All right, have a seat sir.
76. MS BROWN: As Your Honour pleases.
77. MS BATE: As Your Honour pleases. And if Your Honour was minded to make the forfeiture and disposal orders, I understand there to be no
78. MS BROWN: By consent.
79. MS BATE: opposition to those.
80. HER HONOUR: No one wants the gun back?
81. MS BATE: We're not, nor the knife or anything, Your Honour, but those are the draft orders.
82. HER HONOUR: So make this your last outing Mr Whyte, all right? Can I also say, because I will be sending the sentencing remarks to the Parole Board, it is my view that you require a good well-structured drug program when you get out of gaol. It may be that, as would seem to be the case, you have successfully refrained from using drugs in prison which is not necessarily an easy thing to do, but the crucial part of drug counselling, which appears you have not had, is how to deal with triggers for use in the future.
83. It is all very well staying off drugs in the sort of strong external scaffolding that you get in a gaol situation, but you are not trained in how to stay off drugs when you get out, when you run into the old mates that you are going to run into the area that undoubtedly you have and if things go wrong in your life. Does that make sense to you Mr Whyte?
84. OFFENDER: Yes.
85. HER HONOUR: Very well, thank you very much.
86. MS BATE: Your Honour, the only final matter is the declaration pursuant to 6AAA.
87. HER HONOUR: Pursuant to s.6AAA I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of four and a half years and order that you serve a minimum term of two and a half.
88. MS BATE: As Your Honour pleases.
89. HER HONOUR: Thank you very much. So you got a year off for pleading. Thank you. Anything further that I need to attend to?
90. MS BROWN: No, Your Honour.
91. MS BATE: No, Your Honour.
92. HER HONOUR: Thank you, I will just hand back the certificates. Mr Whyte, can you stand up. I know you are not happy with this - I know you are not. It is all done and I know you are particularly not happy about the way this has been presented to this court, all right? Just get that I cannot fix it for you - can you just put that to one side, just get on with your life, do your next three months, just get out and get on with it, yes?
93. OFFENDER: Yes.
94. HER HONOUR: Yes, just sometimes concessions have to be made. You want this over and done with. You want this finished,
95. OFFENDER: Yep.
96. HER HONOUR: it is finished.
97. OFFENDER: I understand that, yep.
98. HER HONOUR: Are you all right?
99. OFFENDER: Yep.
100. HER HONOUR: All right, thank you very much. Thank you Mr Whyte. I thank the family for attending, in particular for counsels' assistance on the plea, thank you.
101. MS BROWN: Thank you, Your Honour.
102. HER HONOUR: All right. Very well, we will adjourn, 9.30 tomorrow morning. I will hand back the record of interview.
103. MS BROWN: Thank you, Your Honour.
104. HER HONOUR: All right, thank you very much. We will keep the plea. Can I keep the references?
105. MS BROWN: Yes, Your Honour.
106. HER HONOUR: I would like to send them off to the Parole Board, along with my sentencing remarks.
107. MS BROWN: Yes of course.
108. HER HONOUR: Thank you.