Director of Public Prosecutions v Alford

[2022] VCC 310

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR 21-00886

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEITH ALFORD

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	11 March 2022
CASE MAY BE CITED AS:	DPP v Alford
MEDIUM NEUTRAL CITATION:	[2022] VCC 310

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Sonnet	Office of Public Prosecutions
For the Accused	Mr J. Lowy	Criminal Lawyers Geelong

HIS HONOUR: 

1Keith Edward Alford, you have pleaded guilty to one charge of causing injury intentionally, one charge of damaging property, one charge of home invasion, one charge of common law assault.  Those crimes carry maximum penalties of 10 years, 10 years, 25 years and five years respectively.  You have also pleaded guilty to one uplifted matter of commit an indictable offence on bail and on that matter I will simply sentence you to be imprisoned for a period of seven days to be served concurrently.

2You are 41 years of age.  You pleaded guilty to a settled indictment after prolonged negotiations, if I can put it that way.  I accept that there is an element of remorse involved in your ultimate plea of guilty and obviously you get the utilitarian benefit of that plea, particularly in the times, as described in Worboyes, where resolving trials such as this are of significance to the justice system and therefore the accused people pleading have to get the benefit of such pleas of guilty.

3You have a long criminal history, albeit it has tapered off in more recent years.  You have priors for violence, firearms, armed robbery.  You have been to gaol on more than one occasion and at first glance it does not fill one with a great deal of hope.

4The circumstances surrounding the offending are that you had been homeless for a period of time and met up with a Ms Anglin.  She apparently is around about 41 years of age as well.  You were both clearly of no fixed address at the time of the offending were living in a tent located near the victim's property.  He was a Mr Sharman and his partner was Ms Paton. 

5Mr Sharman had met you at the Corio train station approximately six months prior to the offending.  In the months leading up to it he saw you every couple of days and would occasionally give you beers, cigarettes and cannabis.  On the evening of Monday, 28 September, at about 10.30 pm, you and Anglin were at his property when you required treatment for a suspected drug overdose.  Triple 0 was called and you were taken to hospital for treatment.  I do not know what the end result of all that was, but after the ambulance had left Anglin stayed the night but told her that it was best that there was not any more contact.

6On 3 October 2020 Ms Paton was at her place of work and she saw you walk past looking drug affected.  CCTV confirms that.  She sent a message to Mr Sharman, concerned that you would be going to their house.  He was at home when he received the message but did not respond.

7Around about that time a neighbour came over to bring some screws to Mr Sharman and found him alone at that time.  He walked down the driveway and observed you, Ms Anglin and Mr Sharman arguing in that backyard of the victim's property.  You and Anglin were yelling out at Sharman, accusing him of being sexually involved with you and lying to Paton about it.  Anglin claimed then possession of videos of the victim performing oral sex on you and stated that the videos would be deleted if Mr Sharman provided them with marijuana and Valium.

8You demanded that Sharman give him your diary.  Anglin was also yelling that she needed to use the toilet inside the complainant's property and he told her she could use the one out the back.  She kept yelling that she wanted to use the one inside and you were yelling at Mr Sharman as well.  The neighbour noticed the argument and realised that Mr Sharman looked afraid.  He tried to calm it down.  You moved closer to Mr Sharman, stood within a metre of him, and closed the gap and head-butted him, connecting with the bridge of his nose. 

9It is clear at that point in time that, as was indicated during the course of the plea, there is some sort of milieu involved in all this.  The validity of what is claimed to be the cause of it all I am not too sure about.  It seems to me that Ms Anglin has played a significant part in bringing this all about.  She has yet to stand trial.  As I understand she intends to and I am reluctant to make any findings in relation to here, but it seems pretty clear that she is the one alleging that there are videotapes in existence and, on what is in this opening at least, attempted to blackmail Mr Sharman for marijuana and Valium.

10In any event you committed the head butt and you then stood back.  The neighbour left.  You then punched effectively Mr Sharman to the right side of the jaw and Anglin came from behind and punched him as well.  He retreated through his back door and entered the house, closing the door behind him, and told you two not to enter the house.  He picked up a broom and a kitchen knife to defend himself, then got rid of the broom.

11At that point in time Anglin picked up a pot plant and threw it through the panel of a glass door.  That gives rise to criminal damage.  The door was not locked and you pushed it open and entered the house and she entered the house after you.  His neighbour heard the argument and it would appear clear that a scuffle ensued inside the house between the three of you, from the banging and crashing, and the neighbour heard Anglin screaming 'Hurt him, hurt him' from inside the house.  The neighbour was afraid and did not go in himself.

12In any event Mr Sharman eventually answered one of Ms Paton's phone calls and said that you and Anglin were there, that you broke into the house and that you were bashing him and he was concerned that you were going to kill him.  Eventually Mr Sharman used the broom to push the two of you out of the house and into the backyard and again you and Mr Sharman were in the backyard yelling at each other and a further scuffle broke out.

13You lunged at him and the neighbour, who had come back, jumped in between.  You punched Sharman to the face, he fell to the ground.  You stomped on his head as he was hunched over.  You laid a few punches into him and Paton lay on top of him, trying to protect his heard.  At some point after that you deliberately kicked Sharman with a lot of force in the head around the side of his face and ear.  There was some contact with Paton, which gives rise to common law assault.

14The intentionally causing injury to Sharman involves the head butt outside, whatever occurred inside and certainly the nastiness of the assault that occurred outside.  It is my view here that even though it is charged as a home invasion it is at very much the lower end of it.  It seems to here that the real crime is the continued assault and your going inside was really just a part of what was an ongoing assault.  Clearly I accept that you at least - I do not know about Ms Anglin, there is no evidence - attended at the house with the intention of breaking into it.  Her conduct seems to indicate that she had such views, but again I will leave that probably for another judge I suspect.

15But in any event in my view it is a serious example of intentionally causing injury but a low-range example of home invasion.  With your prior convictions a sentence of imprisonment is irresistible.  Your counsel has argued it should be a period of imprisonment with a CCO to follow and the Crown say that it should be a head sentence with a minimum term.  I have been referred to the authorities in regard to that.

16The circumstances of home invasion are - I am not going to buy into what if you are charged - you are sentenced differently on different counts.  It is to be imprisoned unless there is substantial and compelling circumstances that are exceptional and rare that justify not making the order under division 2, which means that it cannot be, unless I am satisfied of that, a combination sentence.

17The authority that was handed up to me says that is to be not an onus of proof essentially on the accused to prove that, but it is an evaluative decision on the part of the judge.  That strikes me as a principle that is going to cause enormous inconsistencies, but there you go.

18I then look at the matters involved in all this and your history and essentially what is going on with community corrections orders and all those things at the moment.  When I started to look through this it became my clear view that I would be very, very reluctant to put a community corrections order in place here, even if the legislation did not exist.  In those circumstances it really does not get to first base, I do not think, in terms of ‑ ‑ ‑

19MR LOWY:  Sorry to interrupt, Your Honour. 

20HIS HONOUR:  Sorry?

21MR LOWY:  It's ‑ ‑ ‑

22HIS HONOUR:  Can't hear me?

23MR LOWY:  Yes, I think the microphone might be placed ‑ ‑ ‑

24HIS HONOUR:  No, it's too far away.  Sorry, that's my fault.

25MR LOWY:  Yes.  No, that's all right.

26HIS HONOUR:  Yes.

27MR LOWY:  Thank you.

28HIS HONOUR:  Yes.  So I do not think it even gets to the basis of going to s202H.  I think it is a situation which calls for a head sentence and a minimum term. 

29You have now been in custody, as I understand, for 524 days.  I am assuming there is some management days to be tacked onto that, though it is none of my business how much.  A significant amount of material was given to me on your behalf.  There are very helpful submissions from now and previously and also the various reports.  It is pretty clear, and I will go through the history in a moment but it is pretty clear that your circumstances at the moment are that NDIS are becoming involved and it has been my experience over the last year or so that they are very, very helpful people in these circumstances.  They actually assist in a hands-on way and can be of real assistance.

30It is pretty clear from the material that alcohol has been a problem for you for a long period of time, that in the years leading up to this offending you had been able to avoid alcohol but had started drinking again, got yourself into the homeless situation and met up with Ms Anglin.  It is in those circumstances that this offending occurred, as I said, in the milieu that I have described.  Obviously it calls for the application of general and specific deterrence, denunciation and appropriate punishment.

31The submissions put on your behalf support what I have just said in terms of your circumstances at the moment.  I have got no idea what really brought this all about.  I have, as I said, deep suspicions about Ms Anglin's involvement in all this in terms of winding you up, but in any event since you have been in custody this time you have been working at peer orientation for 14 months.  As I understand you have now been in a mentor position. 

32You had your teeth fixed, which is obviously of some assistance to you, a number of them removed.  Once you are released apparently accommodation can be organised with the supervision of Restart.  As indicated you will be dealing with the NDIS people and I understand the application will be resolved in the next couple of days, which is comforting indeed.  You are also engaged with a grew called Power in You program.  They can assist for counselling for you upon release and can also assist with budgeting, clothing and shopping when that occurs.

33Your childhood was such that you were sexually abused in foster homes.  I do not need to go through all the details of that.  You have got children.  You have missed them in custody and will continue for a short period of time anyway.  You take the view, and you express it fairly strongly, that this is the last you are in gaol and that you want to get your life on the straight again.

34All sorts of principles I think apply to you in these circumstances, but it is a situation where you have now reached the point, at 41, where if you are going to turn your life around you are going to have to do it.  I do not think Corrections are going to be of any great assistance here and I really think it is a circumstance where being on a community corrections order for an extended period of time where there is no immediacy involved in it may not be of benefit to you and may just drag the matter out.

35On a parole situation there will be a sense of immediacy.  You will still have the same supports available to you, assuming for the moment that you are granted parole, available to you as you would have with Corrections, being NDIS and the like.  I think the prospects of your rehabilitation are totally up to you.  The risk of you reoffending I think pretty clearly depends on you not drinking alcohol or using drugs.  You express, as I say, a very strong desire to reform and that is going to be up to you.

36I have read all the material, a report from Frances Lechner at Barwon Health, and the others, in terms of coming this decision.  What I have decided is the appropriate decision here is to give you a head sentence and a minimum term.  In the circumstances that you are in and bearing in mind cases such as Decava, I think this is your chance to come good.  Effectively what I am going to do is give you a head sentence with a few months to go and I will give a minimum term which places you already eligible for parole.

37It is in those circumstances you can get parole in the next couple of months, albeit if you cannot then you will be released into a situation where I am now confident that with NDIS and the like you will have support.  So I think that is of far better value for you and the community than putting you on a CCO in the present circumstances in particular.  Accordingly, as I have indicated, it is a serious example of intentional injury, in my view. 

38Accordingly on Charge 1 I sentence you to be imprisoned for a period of 18 months; on Charge 2, one month concurrent; on Charge 3, 18 months; on Charge 4, one month concurrent.  I direct that four months of the sentence imposed on Charge 3 be served cumulatively on the sentence imposed upon Charge 1.  That gives an effective head sentence of 22 months.

39I direct that you serve a minimum term of 16 months before becoming eligible for parole.  That means that you have now been eligible for parole on my calculations for something over a month and that can be a matter of discussion between you and the Parole Board.  I direct that 524 days be reckoned as having been served under this sentence and I am also aware that there may be more PSD from management time.

40Just so you clearly understand the benefit of your having pleaded guilty in this matter, but for your pleas of guilty you would have been sentenced to be imprisoned for a period of three years with a minimum term of two. 

41I do not think there is any other orders, gentlemen.  Sorry, I should point out as a matter of completeness I had you assessed for a community corrections order and point out that you were found to be suitable and that you are a medium risk of reoffending and I have taken that report into account in this sentencing process.

42Any other orders I needed to make?

43MR SONNET:  No, Your Honour.

44HIS HONOUR:  No.  All right.  Yes, I'll leave the Bench, Mr Lowy.  You can have a yarn to him.

45MR LOWY:  Thanks, Your Honour.

46HIS HONOUR:  But I've got another sentence coming up in a few minutes, so you can only have ‑ ‑ ‑

47MR LOWY:  Yes, I won't be long.

48HIS HONOUR:  ‑ ‑ ‑ a few minutes.  Yes, thanks for that. 

49MR LOWY:  Thanks.

50HIS HONOUR:  Thanks, Mr Sonnet.

51MR SONNET:  Thank you, Your Honour.

52HIS HONOUR:  Can I also thank ‑ ‑ ‑

53MR LOWY:  Thanks, Brett.

54HIS HONOUR:  I thank counsel for their persistence with this.  No, I am serious.  You know, I won't say anything about this - I tell you what, I'll probably disqualify myself if the co-accused comes before me.  I just don't ‑ ‑ ‑

55MR SONNET:  Well, I wouldn't say too much, Your Honour.  There might be some movement in relation to the co-accused, so we'll see.

56HIS HONOUR:  Well, that AAA is based upon a little bit of remorse; I don't know about hers.  She's the one with the mouth.  But anyway I'll leave that to you.

57MR LOWY:  Thank you, Your Honour.

58HIS HONOUR:  To you, Mr Lowy.

59MR LOWY:  See you next time.

60HIS HONOUR:  But I'm sure Mr Sonnet will have that well under control.

61MR SONNET:  If Your Honour pleases.

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