Director of Public Prosecutions v Anderson

[2019] VCC 304

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00661

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW ANDERSON

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2019
DATE OF SENTENCE:	18 March 2019
CASE MAY BE CITED AS:	DPP v Anderson
MEDIUM NEUTRAL CITATION:	[2019] VCC 304

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MS C. DUCKETT
For the Accused	MR L.K. BARKER

1HER HONOUR:  Matthew Gordon Anderson, you have pleaded guilty to three indictable offences, namely aggravated burglary, intentionally causing injury, and theft.  These offences were committed whilst you were on bail, and therefore you are also pleading guilty to a summary offence of committing an indictable offence on bail.

2You were 22 years old at the time of the offending and you are now 23 years old.  The victim in this matter is Thomas Kelly, a 38 year old man who you had met on a dating application in around August or September 2017.  You and he formed a friendship wherein he leant you money and allowed you to stay at his apartment.  Unfortunately, that friendship had soured by December 2017. 

3At one point Mr Kelly arranged alternative accommodation for you in Collingwood.  He drove you there with your belongings.  You apparently flew into a rage in the car, becoming abusive and threatening, violently pulling up the handbrake while the car was moving.  You got out of the car and started kicking it while threatening Mr Kelly.  Mr Kelly, was scared and accelerated away. 

4You and Mr Kelly made an arrangement on 19 December 2017 for you to meet him in order to repay some of the money you had borrowed.  You did not turn up. 

5Just after midnight on 27 December 2017, Mr Kelly was in his bed, asleep, but was woken by his dog barking.  Mr Kelly lived in a one bedroom apartment.  He heard a knock at the door.  When he opened it, no one was there, so he closed it again before going to the kitchen.  Upon a second knock, he opened the door and observed you standing there.  You told him you had come to give him some of the money you owed.  You also told him that the electric front gate to the apartment block was open and you offered to go and close it.  You disappeared, soon returning to Mr Kelly's flat.

6When you returned, you were behaving in a friendly manner and you told Mr Kelly that you had come by yourself in a friend's car.  In what was a real Judas act, you then hugged Mr Kelly, telling him, "I missed you, mate.  Hope you had a great Christmas.  Yeah, Merry Christmas, buddy."  You then told him you were going outside to have a cigarette, at which point, he turned to get a drink from the fridge.  He heard his security door slam shut and turned around.  You were right behind him and with you, an unknown male.  You walked towards your victim and said, "I told you me and my uncle would be back to fuck you up." 

7You then told the unknown male to deadlock the front door and immediately you started punching Mr Kelly to the face, head and chest, telling him to shut up and saying, "I'll fuck you up, cunt.  You shouldn't rape boys and you've been touching little boys, haven't you."  Mr Kelly was yelling to you, "Stop, please, stop."  None of what you said was making any sense to him. 

8You punched him approximately 20 times and you were also kicking him during that period.  The unknown male, grabbed Mr Kelly in a headlock and hit him a couple of times to his head and torso.  You kicked Mr Kelly.  This attack is estimated to have gone for approximately 15 minutes.  No doubt it felt like an eternity to Mr Kelly.

9During the incident shelves were broken, containing glassware and there was broken glass throughout the kitchen.  At one point, you pinned Mr Kelly up against the kitchen wall and he could not push you off.  You told the unknown male to grab Mr Kelly and hold him and while he did so, pinning Mr Kelly's hands behind his head, you then proceeded to punch Mr Kelly, using uppercuts into his face, directly into his eyes. He was completely defenceless.  He estimates you punched him approximately 15 times in that manner. 

10When you paused, Mr Kelly broke free and tried to escape.  He was yelling for help, however, the front door was deadlocked.  Around this time, his dog, Harry, came out and tried to protect him.  You then directed the unknown male to ‘shut the dog up’, at which point, your co-offender started kicking and belting the dog before taking out a 30 centimetre long metal object, whereupon he started to hit the dog.  The dog retreated to the bedroom. 

11Mr Kelly tried to protect the dog, but you continued to punch him until he fell to the ground.  He crawled towards the front door, but was grabbed from behind and forced onto the couch.  Your co-offender then hit him with the metal object while you said, "Shut your fucking mouth."  Both of you continued striking him.

12You then told the unknown male, "Let's get out of here", but as the prosecutor rightly said, adding insult to injury, before doing so you went into the kitchen and took Mr Kelly's iPhone and wallet containing $500 and a bankcard with PayPass.  You also took a laptop, three Georg Jensen bags and a Bang & Olufsen bag.  You took keys to a blue Volkswagen Golf, which Mr Kelly had hired a week earlier.  Mr Kelly heard the car start and drive away, smashing into the electric gates as you drove off.

13Your co-offender remained behind, still assaulting Mr Kelly.  Before leaving, he proceeded to take all of Mr Kelly's Christmas presents, which were wrapped and underneath the tree.  Mr Kelly watched your co-offender get into a car, parked in the apartment block and drive to the gates.  When he got there, another person got out of the passenger side of the vehicle and opened the electric gates.  They then drove away.

14Mr Kelly was left without a phone but remembered an old iPhone 4 in his possession.  He called 000 and spoke with police.  They had already been contacted by a neighbour, who had heard the assault.  At approximately 12.30 am, police attended and were met by Mr Kelly wearing only underpants and with his face covered in blood.  Photographs tendered on the plea depict both the damage inside the apartment and also Mr Kelly.  His face is bloodied and already swollen and bruised.

15Mr Kelly was taken by ambulance to the Royal Melbourne Hospital.  He remained there for ten days.  During that time, he was treated for a broken jaw.  It had been broken in three places, requiring three titanium plates.  He sustained a concussion, facial bruising, including two black eyes, which were swollen shut for three days, a grazed eyeball, lumps on his head, a cut to his head which required suturing, as well as a fractured wrist, a chipped or fractured elbow bone and bruising to his chest, back and legs.

16After being discharged from hospital, Mr Kelly was unable to eat solid foods for two to three months.  His jaw remains completely numb.  He has no feeling in his face from below his nose to the bottom of his chin.  He has been told now that feeling is unlikely to return, given the numbness has persisted for this long.

17He has also been told he will require further dental work as the roots of some of his teeth have been damaged.  The estimate given to him for that dental work is between $4 and $40,000.  In his victim impact statement sworn on 30 January 2019, being just over a year after these events, he states that his facial trauma including the reconstruction of his jaw has not healed correctly.  He has been told he will need further surgery, likely to include re-breaking his jaw.  And that he again go through a period of being unable to eat solid food.  He also has internal damage to his nose.  He also sustained a substantial and permanent reduction in the vision in his right eye.  He has had to get glasses and has been informed that the eye will require further medical attention.

18With regard to the charge of intentionally causing injury, that combination of injuries must place this at the upper end of that offence. 

19Mr Kelly's dog, Harry, spent approximately three weeks in hospital, apparently suffering a head injury which resulted in ongoing seizures.  The dog reportedly died as a direct result of the head trauma it suffered during this assault.

20Two days after the offending, Mr Kelly's hire vehicle was found abandoned in a laneway.  It had been left with the keys in the ignition, the gear stick had been broken off and placed on the passenger seat; an ice pipe was located in the car. 

21On 2 January 2018, police were called to attend Launch Housing in Hague Street, Southbank in relation to a report of a suicidal male, namely, you.  You were initially unable to be located.  When found you were observed to have a bandaged left foot and an infected forearm.  You told police you were no longer suicidal, however, when informed that you were to accompany them, you again stated you were suicidal.  You were placed under arrest. The record of interview in relation to this matter stopped and started but was eventually ceased.  You were remanded in custody and have been there since that date. 

22Your victim has outlined the significant impact on him of these events.  The physical impact I have already described, however, he goes on to describe the psychological, social and financial impact, all of which were immediate and remain ongoing. 

23He was someone who extended friendship to you and recognised you were struggling with the tumultuous relationship with your family and friends and really had no one.  He was generous to you in offering accommodation and lending you money.  He says your actions have ruined many aspects of his life and seriously jeopardised how he views his future.  He describes emotional trauma which is greatly impacting his ability to have any kind of interpersonal relationship, to trust people or to extend generosity to others. He says his self-esteem has been damaged by both his physical deficits and the question marks he now has of his capacity to properly judge people.  Unsurprisingly, he feels betrayed and angry. 

24His one constant in his life, beyond any family or friends, was his dog.  He viewed his dog as part of the family and cannot forgive himself for being unable to protect him.  To watch his dog be senselessly beaten and then observe its decline and eventual death in May 2018 has been a particularly difficult aspect of these events for Mr Kelly.

25Financially, he was forced to borrow over $6,500 to cover vet and medical expenses.  He says his current state means he is essentially unemployable and he is concerned for his financial future.  Your behaviour has indeed thrown his life's path completely off-track.

26It is trite to say these are serious offences.  The aggravated burglary was for the specific intent of committing an assault on Mr Kelly.  You then proceeded to carry out that intention in a sustained and vicious attack on him.  These events were planned, committed against a defenceless person in his own home and with the backup of your co-offender, and likely another person waiting outside.  The prosecution accept, as I understand it, there was no evidence you were aware that your co-offender had the metal bar before entering the premises.  You were lucky not to face additional charges in relation to the dog.  Injury to the dog, which you must have known was Mr Kelly's companion, is however, an aggravating feature of this offending.

27You were the main player.  Any issue with Mr Kelly was yours.  Whatever that issue was, this was vigilante action which cannot be tolerated.  Your co-offender, for the most part, followed your directions.  You deceived your victim into dropping his guard by feigning friendship and affection. 

28It is no surprise for me to read that your extreme behaviour on this occasion occurred in the context of a serious ice addiction.  The psychological erosion and aggressive behaviours caused by that substance are well known in these courts and increasingly in the community.  Although, I acknowledge the difficulty of beating an addiction, drug use is ultimately a choice and can never be an excuse for committing offences.  In particular, offences of interpersonal violence.  Denunciation, just punishment, general and specific deterrence are at the forefront of the sentencing considerations here.

29The path which led you to that moment of extreme decline are also matters which form part of my sentencing consideration.  In understanding your background, I was assisted by a number of documents including outlines of plea submissions prepared by your counsel and two psychological reports from consultant psychologist, Mr Tim Watson-Monroe.

30You were born into a life of significant disadvantage with your early life marked by domestic violence perpetrated by your father.  He was a violent alcoholic and a sufferer of bipolar disorder.  You, your mother and your sisters all suffered at his hand, either directly or by witnessing violence to each other.  The Department of Human Services was involved and at least one intervention order was required to protect you and your mother and sisters from him.

31Your parents separated and divorced when you were an eight year old.  Reflective of your dislocated early life, you attended 13 schools in total, namely seven primary schools and six secondary schools by the end of year 8, as a result of your mother frequently needing to relocate.

32At some stage, you were placed in foster care as well as spending time living with your extended family.  Your life was further destabilised by difficulties you experienced with a step-father who sexually and emotionally abused you and your two sisters.  This man was a physically foreboding and intimidating figure and his role in your background represents a highly traumatic period in your early life.

33The Department of Human Services were again involved and sought a protection application for you in the Children's Court.  At various times in your teens, you were placed in residential care units, however, constantly ran away.  You left school at the end of Year 8 to commence a carpentry apprenticeship but discontinued this after six months.  To your credit, giving the surrounding circumstances, you then obtained labouring work, laying out artificial grass as well as concreting and more recently as a shop fitter, approximately 18 months prior to these offences and which you did for six months. 

34In the context of your dysfunctional early life, you started abusing various intoxicating substances.  You commenced smoking cannabis at the extraordinarily young age of nine and you were abusing alcohol from about the age of 12.  By 13, you were experimenting with LSD and amphetamines, using those as a cocktail.  Your real undoing though it seems was the commencement of ice use from about the age of 17.  At the time of these offences, you were using it regularly.  You report that ice originally lifted your depressive feelings, but eventually became unmanageable.  In that context, you experienced a number of psychotic breaks involving auditory and visual hallucinations.  You could be sleep-deprived for up to six days and then sleep for a day.

35You have sought medical and/or psychological intervention at various times and from the age of 16 you have been treated on and off with the antipsychotic drug, Olanzapine.  However, the therapeutic impact of that drug was undermined by alcohol and substance abuse.  According to Mr Watson-Monroe, you have used alcohol to take the edge off the paranoia you experienced whilst on ice.  There was a substantial rebound depression when coming off that substance.

36Against the backdrop of your difficult childhood and adolescent years, it is a credit to you that you have attempted to rid yourself of drug addiction on a number of occasions.  At one point, you detoxified for over a week and at another time you had treatment at Maroondah Hospital.  I have a report from February 2016 from clinical psychologist, Dr Rachel Cousins.  You were referred to her by Eastern Victims Assistance Program and then by your general practitioner for management of mixed anxiety, depression and possible post-traumatic stress disorder following an assault where you sustained multiple facial fractures.

37Dr Cousins noted your complex history of difficulties.  At that time, Feb 2016, she opined that you were presenting with symptoms consistent with PTSD.  You saw her for four sessions of psychological intervention.  It is clear these were difficult for you.  She noted at that point, that you were itinerate, stating that you required stable living circumstances so that you could focus on better managing your anxiety and distress in order to adequately process issues of past trauma.

38At some later stage, during 2016, you undertook inpatient rehabilitation which initially seemed to result in some success but could not sustain you in a drug free lifestyle.  I also have a report from Eastern Access Community Health or EACH from February 2017.  This was a service engaged by your alcohol and drug worker after you were the victim of another assault in November 2016.  According to the EACH report author, you have a history of seeking support when it is needed.  He noted an admission to Box Hill Psychiatry Unit at age 16 and that you had continued on Olanzapine on and off since that time and been loosely reviewed by a GP. 

39It is apparent that you were at the point of his report, that is, February 2017, attempting to pursue some mental health supports as well as assistance with substance addiction.  In the eight months leading to these events in December 2017, you lost a friend who died tragically in a house fire and your long-term relationship, which was apparently partly responsible for your repeated attempts at becoming drug-free, finally broke down.

40You returned in those circumstances to significant ice use.  Ongoing difficulties with homelessness were a recurrent barrier to you beating your addiction.  The prosecution summary notes that at the time of these offences, you were living between a share house and a vehicle.  The victim also noted that you were struggling with tumultuous relationships and that you really had no one at the time of your relationship with him.

41Submissions were made by your counsel to the effect that your deprived background enlivens principles enunciated in the case of Bugmy v The Queen[1].  That is, the experience of extreme disadvantage in your formative years has left its mark on you.  Among other things, it may have compromised your capacity to mature and to learn from experience.  Such a mark has been said to be a feature of a person's make-up and remains relevant to the determination of the appropriate sentence, even where a person has a long history of offending. 

[1]Bugmy v The Queen [2013] 249 CLR 571

42I note in your case, despite your history, you in fact, have a very limited prior criminal record, namely, two appearances in the Children's Court when you were 13 and 14 years old.  You successfully completed probation orders.  You were on bail at the time of these events, however, as a result of breaching an intervention order by contacting a protected person. 

43The fact that many people who commit crime frequently come from backgrounds of disadvantage does not relieve the sentencing judge of the obligation to take such matters into account.  Such circumstances must be given due weight.  Mr Watson-Monroe opined that:

""It is clear that the confluence of his drug use, intense and protracted depression and the highly unstable life he led during his formative years have all contributed in a vicious cycle to his inability to effectively negotiate his life in the community, leading in turn to his offending." 

44He later elaborated, saying:

"It is clear in the lead up to the current matters that he was highly reliant upon ice as well as cannabis and attendant to this, he was experiencing fluctuating mood, psychotic breaks, rebound depression and poor impulse control."

45No issue was taken by the prosecution with the fact that the principles of Bugmy are enlivened in your case.  In my view, they clearly are, given the nature of significant disadvantage and dysfunction in your early life.  Your background circumstances affect, in my view, the assessment of moral culpability and also in my view, require some moderation of specific deterrence as well as having a bearing on your prospects of rehabilitation.

46In your case, I accept that you do have prospects for rehabilitation and that these are fair at least.  I make that assessment on the basis of a number of things.

(1)       Your relative lack of prior criminal offending and a life which might otherwise have seen you turn down a criminal path;

(2)        The fact that you are someone who has made repeated efforts to rid yourself of drug addiction;

(3)        You are now detoxified in custody, which should assist in the challenge of remaining drug free upon your release;

(4)        You are now medicated and compliant with a medication regime, you are expressing a keenness to resume psychological treatment;

(5)        According to Mr Watson-Monroe, who again reviewed you only recently, you have developed insight into your prior drug use as an ineffective means of repressing early childhood traumas.  You have also expressed to him that your mood state, judgment and physical health have all benefited from the circuit-breaker of being incarcerated.  You have done a number of courses while in custody;

(6)       You are someone who has had periods of some employment;

(7)       You have an offer to you from Michael Dexton and his wife of accommodation out of the Melbourne environment, and of employment with him.  He is someone who you met in a work setting and says in his reference he found you a generous and kind-hearted young man with a tremendous amount of aptitude for and skills in the construction industry.  He believes you are employable and says, if given the chance, ‘he would prove to be a valuable member of the community’;

(8)        I take into account that your mother and her partner and her sister were all present in court and remain supportive of you.  This is important because despite the fractious nature of your family history, it is a real positive that you have reconnected with your family and have them back in your life;

(9)       I take into account your early plea of guilty and I accept not only the general utilitarian benefit of that plea, but also the fact that it has saved the victim from re-living this traumatic event.  I find that it is a show of genuine remorse by you.  That remorse is attested to by your own statements to Mr Watson-Monroe, to Mr Dexton and also your statement made in court;

(10)   This is your first period of time in custody.  It is clear from the material that you are finding it a very salutary experience.  It will no doubt have a deterrent effect on you, which in turn should feed into your express desire to rehabilitate yourself.

47Obviously, your prospects of rehabilitating yourself are largely dependent on your ability to withstand drug addiction and that will be a matter for you to face upon your release.  

48It was submitted on your behalf that your young age should elevate the principle of rehabilitation as a sentencing consideration and I accept this.  However, rehabilitation as a focus and mitigating force is correspondingly reduced as the level of seriousness of the criminality increases. I do, however, take into account to the extent that I am able, your youth, alongside what I have described as your prospects of rehabilitation and your previous life of disadvantage.  

49As discussed during the course of the plea, the seriousness of criminality in this instance is high.  These events were premeditated, committed on a defenceless person in his home, committed in company with someone who has not been named, accompanied by a level of deception and aggravated by the vicious behaviour towards the dog.  The level of seriousness in particular of the causing of the injury was laid bare by the ongoing and permanent difficulties caused to the victim.

50In my view, the only available sentence is one of a term of imprisonment with a non-parole period.  I take into account your age, prospects of rehabilitation, sorry, and prospects of rehabilitation in determining the appropriate non-parole period.

51Although I will impose some concurrency in relation to the three indictable offences, given they arise out of the one incident, in my view they are all distinct events and should be reflected in the sentence.

52If you could stand now, Mr Anderson, please.  On Charge 1 of aggravated burglary you are convicted and sentenced to three years and 10 months' imprisonment.  That is the base sentence.  On Charge 2, of causing injury intentionally, you are convicted and sentenced to four years' imprisonment, two years of which will be cumulative on Charge 1.  On Charge 3 of theft, you are convicted and sentenced to one year imprisonment with four months to be served cumulatively on the base sentence.  In relation to the summary offence of committing an indictable offence on bail, you are convicted and sentenced to one month imprisonment and I make no order in relation to any cumulation. 

53The total effective sentence, therefore, is six years and two months' imprisonment and I order that a non-parole period of four years be served.  I declare that presentence detention of 434 days has already been served in relation to this sentence.  In relation to s.6AAA, but for your pleas of guilty, the sentence I would have imposed would have been a sentence of eight years with a non-parole period of five and a half years.

54I make the s.464ZF order and also the orders for forfeiture and disposal.  You can have a seat, Mr Anderson.  Any issues, counsel?

55COUNSEL:  No issues, Your Honour.

56HER HONOUR:  Thanks very much.  I will leave the Bench.

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