Director of Public Prosecutions v Aldous

[2014] VCC 537

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT BENDIGO

CRIMINAL JURISDICTION

CR 13-02393

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA HEATH ALDOUS

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Bendigo
DATE OF HEARING:	10, 11 April 2014
DATE OF SENTENCE:	16 April 2014
CASE MAY BE CITED AS:	DPP v ALDOUS
MEDIUM NEUTRAL CITATION:	[2014] VCC 537

REASONS FOR SENTENCE

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Subject: Criminal Law – sentence

Catchwords: 1 x aggravated burglary -1 x breach intervention order; home invasion at night with use of machete to threaten victim; pregnant victim aged 18, 17 year old friend with her; early plea of guilty; accused heavy poly-drug user suffering paranoia at times; already serving prison sentence imposed by Magistrates’ Court.

Sentence: 2 years’ imprisonment, non-parole period of 12 months.      

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P Jones	OPP
For the Accused	Mr L Docherty	Stuthridge Legal

HER HONOUR: 

1Joshua Heath Aldous, you have pleaded guilty to one charge of aggravated burglary and one summary charge of breaching an Intervention Order. 

2On 26 August 2013, you went with the co-accused, Joseph Berkeley, to the house where the 18 year old victim was living.  You had been in a de facto relationship with her for about 12 months, but that had broken down in June or July. She was pregnant and due to give birth in a few weeks and had  obtained an Intervention Order against you on 17 July 2013, but she allowed you to breach it repeatedly over the next few weeks by daily telephone calls and text messages.  You went to the house by arrangement to feed your pet snake, which was at the house, and you were asked to deliver cannabis to the victim.

3On 26 August it was agreed between you that you would leave food for the snake in the letterbox while the victim was out.  She returned home that evening and found the snake and its cage had been taken from inside the house.  She sent you several abusive text messages, in one of which she threatened to smash up your mother's house.  You became angry and decided to go to the victim’s house, with Berkeley, armed with a machete.  You entered the house using keys you had in your possession, which it is believed you had taken at an earlier time. 

4The victim was inside with her 17 year old friend.  You approached her, yelling and screaming at her, carrying the machete and threatened to slit her throat and kill her baby.  You threatened both girls that you would kill them if they called the police, and the victim pleaded with Berkeley to stop you.  He succeeded in calming you down and you dropped the machete, having held it over the victim’s head.  You started to walk to the back door and Berkeley picked up the machete and left with you.

5

The police were called and came to the house and while they were there you rang the victim and could be heard threatening her if she told the police.  The police went to Berkeley's house and arrested you, after a stand-off lasting

35 minutes.  You denied being at the victim’s  house, saying that you had not been there for a week and you had not assaulted the girls.  You were charged and remanded in custody.  The machete was later found in Berkeley's house. 

6

He was charged with other matters the next day and made full admissions to having travelled with you to the victim’s  house the night before, that was on

26 August, in the knowledge that you had a machete.  He said he was at the back door when you confronted the victim, but that his role was to try to stop you. 

7You were released on bail on 18 November, but were taken into custody again on 30 January this year, on a charge of having breached the Intervention Order and you have remained there since.  The 84 days in custody between 26 August and 18 November, are to be reckoned as already served, and I shall come to that later on in the sentencing remarks.

8At the time of these offences, you were aged 21 and you are now 22.  You were born when your parents were very young and they separated before you were born.  You did not know your father until you were 15 and it would appear that the relationship has not been easy.  Your mother brought you up with a much younger brother and your home life was difficult, although you did not suffer any physical abuse.  Both your parents were in court to support you on the day of the plea hearing. 

9You left school in Year 9 and continued to have problems with literacy.  You worked as a labourer with an uncle for about three years after leaving school, but then became heavily involved with drugs and have had no drug rehabilitation, partly it would seem out of fear of being committed to a psychiatric ward.

10Recently you were assessed by a forensic psychologist, Dr Simon Kennedy, who compiled a history of these matters.  You reported to Dr Kennedy that you had experienced psychotic symptoms, linked to drug use, chiefly methamphetamines and cannabis, and that since being incarcerated and having withdrawn from drugs, those symptoms were absent.  Dr Kennedy also reported that you have some insight into drug use having contributed to your offending and the need for rehabilitation in this regard.  However he noted that you have a significant problem with drug induced psychosis and combined with other factors, related perhaps to your background and childhood, there is a significant continuing risk of potential violent behaviour.  He considers you so unwell as to need careful monitoring in prison and with what he described as the need for ongoing follow-ups for psychiatric and drug rehabilitation over the next two to three years.

11I note that you have demonstrated suicidal behaviour in recent years, even to the extent of deliberately crashing your car, after an argument with the victim in this matter.  You had a volatile relationship with her and it was the repetition of explosive arguments between you that led to the Intervention Order being made.  Even after your arrest the victim continued to try to contact you and this continued when you were bailed, despite the fact that it was a condition of your bail that you not contact her.  There was an attempt to have the informant speak to her about it, and despite all this, you breached the order on 30 January this year, as I said, and you were remanded in custody. 

12You have now been in custody for 76 days, together with the 84 days from last year, this is a total of 160 days of pre-sentence detention, which is to be taken into account as already served, and I shall cause that to be noted on the court record. 

13As to your sentence, the invasion of a person's home when armed is a very serious crime.  You threatened the two young women who were vulnerable and according to Mr Berkeley, who was asked about this by the police, they would have been very scared.  No matter what the victim may have done to make you angry, she was entitled to feel safe in her own home, added to which you were under the constraint of a court order that you not contact her.  She had allowed you, indeed encouraged you to breach that and you took full advantage of that situation, taking no responsibility for the seriousness of the Intervention Order and the obligations it placed on you.

14Taking those matters into account, the need for general deterrence is a very important sentencing principle.  You are still a very young man and your urgent need for drug and psychological treatment point to the path your rehabilitation needs to take.  You also deserve to be punished in a manner that reflects the seriousness of your offending and helps to deter you from offending again. 

15I note that the maximum penalty for aggravated burglary is 25 years imprisonment. 

16There are a number of mitigating factors to be taken into account, including your early plea of guilty, which has facilitated the system of criminal justice, particularly by having avoided a trial and the need for witnesses to have to give evidence.  Your youth is the most important mitigating factor, in the sense that for a young or youthful offender, rehabilitation is of great importance and outweighs the need for the sentence to fully reflect the importance of general deterrence. 

17Your chances of rehabilitation are almost completely dependent on treatment for drug abuse, but will be assisted by your own insight and by living a stable lifestyle when released.  In addition, you now have a son, with whom you would like to have contact when circumstances permit.  You will need to have ongoing treatment and monitoring and hopefully that will be provided as part of your parole conditions upon your release. 

18Would you stand now please Mr Aldous? 

19For the charge of aggravated burglary, I sentence you to a term of imprisonment of two years.  For the summary charge of breaching the Intervention Order, I sentence you to six months imprisonment, to be served concurrently. 

20Because you were sentenced by the Magistrates' Court last week, 9 April, to a term of imprisonment of 19 months, with a non-parole period of eight months, I must fix a new non-parole period.  I order that you serve a minimum period of 12 months before being eligible for parole.  Having already served just over five months, you will probably have to serve approximately a further six and a half months, subject to being eligible for parole. 

21In making these orders I have taken into account the principle of proportionality and of totality to ensure the sentence is not a crushing one. 

22The prosecution seeks as Disposal Order in relation to the machete, which is not opposed by you, and an order under s.464ZF of the Crimes Act, for a forensic sample of saliva to be obtained.  That application is consented to and I make both orders.  I must advise you that the police have the power to use reasonable force to obtain the sample, but I trust that will not be necessary. 

23If you had pleaded not guilty to these charges, I would have sentenced you to two years and six months imprisonment, with a non-parole period of 18 months. 

24

Now I just want to check a couple of things with counsel.  160 days,

Mr Docherty?  Have you done a calculation to see if that is correct?   It does not include today.  

25MR DOCHERTY:  No, that's correct, Your Honour. 

26HER HONOUR:  All right, thank you. 

27MR DOCHERTY:  Yes.

28HER HONOUR:  And Mr Jones, I just want to make sure that the maximum penalty for aggravated burglary is 25 years.

29MR JONES:  25.

30HER HONOUR:  Yes.

31MR JONES:  Yes.

32HER HONOUR:  All right, that was correct.  All right, any further matters? 

33MR DOCHERTY:  No, Your Honour. 

34

HER HONOUR:  All right, thank you.  That completes that matter, so

Mr Aldous may be taken, thank you, Officer. 

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