Director of Public Prosecutions v Abel
[2022] VCC 418
•29 March 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTION
CR 21-01988
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DENNIS ABEL |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Latrobe Valley |
DATE OF HEARING: | |
DATE OF SENTENCE: | 29 March 2022 |
CASE MAY BE CITED AS: | DPP v Abel |
MEDIUM NEUTRAL CITATION: | [2022] VCC 418 |
REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Hutton | Office of Public Prosecutions |
For the Accused | Mr V. Peters | Warren Graham & Murphy Lawyers |
HIS HONOUR:
1Dennis Abel, you have pleaded guilty to one charge of aggravated home invasion, one charge of false imprisonment and one charge of theft. Those crimes carry maximum penalties of 25 years, 10 years and 10 years respectively.
2You have also pleaded guilty to two uplifted summary matters of driving whilst unlicensed and failing to stop when told to by police. On each of those I simply give you three months' on each to be served concurrently with the sentence imposed on the indictment.
3You are now 35 years of age. You have pleaded guilty at a reasonably early opportunity. Remorse in your particular circumstances is somewhat problematic, and having read the report of Dr Ball, I will still give you the benefit of the doubt in respect of it.
4Clearly you must get the utilitarian benefit of that plea of guilty. You have clearly severely traumatised your victim in this matter and at least he did not have to go through the process of a committal.
5I also take into account that the sentence that you have undergone so far and will be undergoing will be to a very large extent done under COVID circumstances. I am well aware of the decision of Worboyes in terms of pleas in this time of need, if I can put it that way, for the court system and I take that into account.
6You have a very concerning criminal history. You have been gaoled on a number of occasions. You have priors for armed robbery and similar type offending. You have a number of priors for threat to kill.
7You have, at the age of 35, spent a significant period of time in gaol and it is pretty clear to me that the risk of you being in there basically for the rest of your life, the way you are going, is pretty high. You appear clearly to be institutionalised. During the course of the sentencing conversation you said that the only time that you function all right was when you were in gaol and you have never had any rehab, but ultimately at the end of the day, it is going to be a question for you, and entirely up to you really, whether you ultimately achieve rehabilitation or basically die in gaol.
8The offending here is very serious in my view, and is at the top end of the range of home invasions for a number of reasons.
9You were 34 years of age at the time of the offending. There are four other co-offenders. One - I will just use their first names - is Darcy[1], who was 15; Declan[2] who was 16; Lucas[3], who is 14 and Angus[4] who was 12.
[1]A pseudonym.
[2]A pseudonym.
[3]A pseudonym
[4]A pseudonym.
10The victim in the matter was a Joseph Ravagnollo. He was 65 years of age at the time of the offending and knew none of you. It appears that Darcy knew of him because he used to walk past his house and indeed, it appears that Darcy, it was at his suggestion that the attempt be made to steal the vehicle.
11In any event, the group of you met up in Sale and attended the victim's address in Sale with the intention clearly at the start of stealing his motor vehicle. Of real concern is that it seems that there were a number of knives involved, and at least three of you were wearing balaclavas.
12That indicates a degree of foresight, and I do not know where the balaclavas came from, but that is a worry in itself to have children taking on a job and being told to put balaclavas on.
13But, in any event, the victim heard talking out the front of his house, looked out and saw you standing at his front door. You knocked on the door. He yelled out that he was in bed and didn’t want to open the door. You had enough wherewithal to say that you thought it was a mate's place, and asked if you could take some lemons from the tree in the front yard. You had on a balaclava. As I indicated, so did two of the others.
14He told you to help yourself to the lemons, which you did, and you all walked off. It became clear that someone had tried to get into the garage where his 1990 Holden Calais was parked.
15The group of you walked away and then came back and apparently had a further discussion about stealing his car. You gave Lucas a white knife and told him to pull it on the victim in order to steal his car. As I have said, Lucas was 14 years of age.
16The group of you then began walking back towards Mr Ravagnallo's house. By that time, he had gone to his garage and was back. He had closed the garage door and saw the five of you walking up his drive. He believed you all had knives and there was a big one with a white handle, about 30 centimetres long. He asked you what you wanted. You, who he recognised from knocking on his door, said something along the line of, 'Give me the keys.' He thought you were joking. He was then told to go inside the house, walked in and you all followed. That is Charge 1 of aggravated home invasion.
17You told him to sit down on a chair for a minute or two and then he was told to move to the kitchen and sit down. You then grabbed a cable from his DVD player and tightly tied his hands behind his back. You were then handed a piece of flannelette shirt which you tied around his face, acting as a gag. That gives rise to Charge 2 of false imprisonment. The group of you remained in the house for about 10 minutes so the ongoing false imprisonment lasts, as indicated, for about that time.
18As he was tied up, he could hear all of you going through the rooms in his house looking for things. People kept asking where his mobile phone and wallet was, did he have any money? What was stolen was his car keys, his watch, his mobile phone and $300 cash. When you left you told him not to call police and to sit there for half an hour. You said that you would come back and kill him if he reported it.
19After he heard his car start up and drive off, he was able to get to the kitchen window and saw it being driven away. That is theft of a motor vehicle.
20While still gagged and tied to his chair, he managed to make his way over to a neighbour's house, Christine Ralston. He called out for help. She invited him inside and tried to help him. The gag and the cable was tied so tight she could not even remove them. Your brother was contacted and eventually he was able to untie you and remove the gag.
21Sometime after that, police arrived and obtained details. There was then a bit of driving that went on and the next day as I understand it, you were engaged - though you are not charged with this and I make it clear that I am not sentencing you for it - you were engaged in a pursuit which lasted several minutes and ended with you crashing the vehicle.
22The vehicle was written off and has cost the victim $15,000 to buy himself another second-hand car. After the collision, three of you ran away and various items were found.
23In terms of the investigation, police attended at the scene and I do not need to go through all the details of that. When arrested, you denied that you were at the house and you said it was not you in any of the CCTV and you were then charged with the offending. It, at one stage came out that apparently Darcy had said it would be a good idea and I have already mentioned that.
24In my view, this is a classic example of what the legislation is designed towards insofar as home invasion is concerned. It was a 65 year old man, utterly defenceless, surrounded as is terrifying for someone in that position, by a man as big as you with four teenagers with balaclavas, weapons and being threatened. It must have been an absolutely terrifying experience for him over about 10 minutes.
25Not only was he put through that ordeal gratuitously, because he could not have offered the slightest resistance to any of you, you left him tied in that circumstance where he could have been for hours. You are very lucky that he was able to move and did not suffer what often happens to people tied so tightly in those circumstances, of serious damage to their tissues and the like. Fortunately for you, that has not happened, though he did say his hands were sore for some time.
26It is, as I said, the top end in my view of home invasion and what makes it worse as the elders pointed out to you very clearly in Koori Court I do commend you for having gone through the experience of Koori Court, but to take children with you, particularly a 12 year old, on such an escapade is just disgraceful. Both the elders used that term, and it is hard to think of a more accurate term.
27The victim has provided a victim impact statement which was read out by the learned prosecutor. In that victim impact statement he describes the impact that this has had upon him and it has been life-changing, and I accept at his age, will take a lot of getting over.
28He said that on that night he felt shock and fear. He said he could not even believe it was happening to him, it was like something out of a movie. He said you were all agitated and he saw knives. He knew there was nothing he could do. He was surrounded and you told him to go inside. He said that, in his victim impact statement, that you were the one in charge and you were giving the orders. It was basically you who told the others what to do.
29He described being able to somehow get to a neighbour and get his brother to untie him. What happened after that is that he stayed at his brother's home in Sale for the next month as he could not bring himself to return back to his home. He ultimately, after about a month or so, moved into a rental unit and just simply could not go back to the house. The house had been bought by his parents in the 1950s and had been there in the family for something in the order of 50 years. He grew up there with his three brothers. He lived alone in the house, rent free and took care of the house and the large block. The house was never let out and was sold in about January of this year.
30He now pays rent for a unit which at the age of 65, has not got much to look forward to, and is given some Centrelink rent assistance. I have already indicated the car was written off. He did have it insured for market value but that still left him something in the order of $10 to $12,000 in debt.
31Obviously in this situation, various items were taken which have to be replaced. He had to buy another mobile phone. He said he still has trouble sleeping at night and sometimes has flashbacks of what happened. He feels unsafe, he just cannot believe that people could do that to somebody.
32He is a man who has been a volunteer in the Sale community for 17 years and is fortunate that people have been supportive of him and very caring, so that is his reward - to have the five of you break into his house, tie him up, terrify him, take his property, and as any man who has been in that situation will tell you, humiliated him.
33Gaol is inevitable. There is a mandatory minimum term of three years which in my view, in this situation, would be grossly inadequate.
34I then looked at the matters put on your behalf. Your counsel provided plea submissions and there is also a report from David Ball who, of course, is well known to me.
35You are of Aboriginal heritage from both parents. You were raised by your mother who is alcoholic and introduced you to alcohol around the age of 15. Your parents separated when you were two, and you have been brought up originally in Tasmania but your family came to the mainland where you have no connection to country or culture. Submissions were put on your behalf insofar as that is concerned, and I take those into account.
36At 16 you became a father to a son and had a further son. Your alcohol use from around 15 progressed to cannabis, heroin, methamphetamine before you were 20. You had undergone episodes of drug induced psychosis however as indicated during the course of the sentencing conversation, you appear to never have sought rehabilitation. You have presented at hospital for various psychosis and in particular for hearing voices.
37There is nothing to indicate that, on what is before me, a diagnosis which attracts schizophrenia or anything like that. There is no suggestion of command voices and it is clear from your behaviour that you were well in control of what was going on, on this day, and I do not think it contributes to the nature of the offending.
38The report of Dr Ball I will go to in a moment, and it is a situation where you did have a very disadvantaged background and to a certain extent the principles of Bugmy apply. You have clearly a serious personality disorder and to a certain extent, principles of Verdins apply, however as you made it very clear, basically the safest place from your point of view, a sad thing to say is, when you are actually in custody.
39I am sentencing you on the basis of your borderline IQ which brings into play some of the principles involved in Muldrock and I am very well aware of your aboriginality and the circumstances in which you were brought up, you saw alcohol and drug abuse at a very young age and I have no doubt that you also saw violence.
40The offending itself calls for the application of general and specific deterrence as well as denunciation and an appropriate punishment. You have reached the stage, unfortunately and I am well aware of the principles in Bugmy and the like, where community protection has to become a very significant sentencing factor. If you are going to go around doing this to people, the community does not want you to be amongst them. I think that was made very clear during the sentencing conversation.
41Mr Ball, the forensic psychologist's report has been tendered as Exhibit 2 and I have read it a number of times.
42You had difficulty communicating with him and it seems in many respects that the conversations he had with you did not really go far. You told him that you are on Olanzapam which I understand it is for schizophrenia-type symptoms, but being in gaol that does not necessarily mean that that is what you have been diagnosed with. You told Mr Ball that your health was okay, which does not seem to be consistent with the medical records that I have read, which are those of the Latrobe Valley Health, which will be Exhibit 3.
43You say you have telephone contact with your mother and partner every week. You said you are in a conversation that in terms of your drug use it always came first and in fact, your partner is even worse. You do have two children who would desperately, I have no doubt, need a father and you have clearly never put yourself in a position of doing that.
44Mr Ball said that rapport was difficult to establish, however he did make the estimation of a borderline IQ. He said that there was no frank mental illness such as psychotic ideation or hallucinations in either speech or demeanour but he did say that you reported hearing voices sometime and you would wake yourself up by talking but knowing what you have said. He goes through the admissions for drug-induced psychosis, sometimes symptoms would persist for several days and it might be a while before medication would start to take effect.
45You apparently reported impairment to function but were not able to articulate any insight and he detected no evidence of any acquired brain injury. Your Brain MRI that was carried out showed no evidence on an acquired brain injury.
46He said he was given minimal personal history and I do not need to go through that again. You have no contact with your father at all and he said you, 'Can't stand him.' Your half-brother you have no contact with. I understand from the material that you have a brother undergoing a sentence. Whether he is in the same gaol or not, I do not know.
47You went to school to about Year 10 level and left, were told to leave because of drinking. You appear to have never participated in any trade courses or professional training and you are unable to recall any employment details at all.
48You had two relationships that were indicated, there are two children. He again goes through the alcohol from around the age of 15, and describes the drug use since that time. The best that you could say to him was that you:
'Want to stay out of trouble.'
49and that you:
'Need rehab when I get out of prison.'
50In terms of the charges, you told him you had a vague recollection of events and said Darcy had come up with a good idea and you said you had just got out of the 'nut ward.' You said that he had been up for three days, using ice I would imagine. I have already indicated that it is clear to me on your behaviour that you were aware of what you were doing.
51Insofar as a professional opinion was concerned, Mr Ball said:
'Mr Abel has significant anti-social personality features. He presents as an individual with emotional dysregulation. He suffered psychological trauma and emotional neglect as a child, growing up in an unpredictable home environment and developed an insecure attachment style and poor coping skills. He presents as a socially detached individual with low esteem.
'Mr Abel has a pervasive pattern of disregard for, and violation of the rights of others. The anti-social features of Mr Abel's personality mean that he lacks empathy, is largely mistrustful and suspicious of others.
'Individuals who have anti-social personality disorder fail to conform to social norms with respect to lawful behaviour, tend to be consistently and extremely irresponsible in drug treatment. Individuals with antisocial personality disorders are likely to have difficulty obeying rules, staying in treatment and maintaining abstinence.'
52All those matters seem to apply to you unfortunately. He said later on in his report:
'Mr Abel's safe management in the community presents with a number of challenges related to his anti-social personality features, substance addiction and co-morbid episodes of drug induced psychosis. Even with treatment and management, Mr Abel is highly likely to be subject to recurrences for many years to come. Individuals with anti-social personality disorder tend to be consistently and extremely irresponsible, presenting difficulties for Mr Abel to rehabilitate and be safely managed in the community.'
53He then went on to recommend intelligence testing, but as I have indicated to your counsel, I am working on the basis that you are borderline and therefore Muldrock applies.
54The psychological report gives very, very cold comfort indeed, and gives one very little confidence in your prospects. As I have indicated, you did participate in Koori Court. I am not quite sure why, neither were the elders, but the fact of the matter is you did do that, and it does take a degree of courage to come out of the dock and sit there and be confronted by elders and told exactly in no uncertain terms what they think of you.
55The prospects of your rehabilitation are up to you. The risk of you reoffending has to be, in my view, regarded as high. If you get out and use which you almost certainly will, this sort of thing will happen again and it is going to get to a stage where somebody gives you a sentence so great that you will in fact die in prison.
56The average life expectancy is, as I understand it, in this State for an aboriginal man of your age is about 50, so you have not got that long to go, but it is really going to be up to you.
57The sentence has to be condign indeed for this sort of offending, and I take into account all the cultural matters that were put before me, but community protection it seems to me in this situation has become - well putting it bluntly - paramount.
58I am aware of the principles of totality. I am aware that it would be best if avoid a crushing sentence, and I do not think the sentence I impose is crushing, but you are reaching the stage where at some point in time, you are going to get such a sentence.
59In any event, taking all those matters into account, and of all the other principles in regard to sentencing:
60On Charge 1, you are sentenced to be imprisoned for a period of eight years.
61On Charge 2, three years.
62On Charge 3, six months concurrent.
63I direct that one year of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1 which gives a total effective sentence of nine years. In this situation, I am prepared to give you an extra year in terms of being able to apply for parole.
64Whether you can get yourself to a stage where you are acceptable for parole is a matter between you and the parole board. I have taken all those other matters into account and indeed, the minimum term I have reduced because of matters such as Worboyes and the like.
65I direct that 426 days be reckoned as having been served under this sentence. In this situation it is difficult to ascertain what of s6AAA would have involved, but doing the best I can, but for your plea of guilty, you would have been sentenced to be imprisoned for a period of 12 years with a minimum term of nine.
66Any other orders I need to make?
67MR PETERS: Your Honour ‑ ‑ ‑
68MR HUTTON: Sorry.
69HIS HONOUR: Sorry, nine years and six years' minimum term.
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