Director of Public Prosecutions v Armstrong
[2018] VCC 1754
•29 October 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-18-00279
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| DALE ADRIAN ARMSTRONG |
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JUDGE: | HER HONOUR JUDGE FOX | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 October 2018 | |
DATE OF SENTENCE: | 29 October 2018 | |
CASE MAY BE CITED AS: | DPP v Armstrong | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1754 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms P. Thorp | Mr P. Pathmariaj |
| For the Accused | Mr J. Mortley | Ms K. Hartman |
HER HONOUR:
1 Dale Adrian Armstrong, you have pleaded guilty to one charge of aggravated burglary and one charge of common assault. The maximum penalty for aggravated burglary is 25 years imprisonment. And the maximum penalty for common law assault is 5 years imprisonment.
2 A summary of prosecution opening was tendered on the plea and marked Exhibit A. I will only briefly summarise the facts here.
3 Both charges arise out of a single short incident on 12 November 2017. Over the preceding six months a dispute had arisen between you and the victim, your neighbour, over the neighbour's dogs digging and escaping into your property. On the day in question you believed your neighbour had again been over to get his dog and left your gate open. On 12 November 2017 at about 8 pm you went over and knocked on the victim's front door. The victim opened the door and you stepped about 1.5 metres inside. You were holding a kitchen knife in your right hand up near your own right cheek. You attempted to grab the victim's shirt with your left hand but he stepped back and avoided you. You yelled at him for entering your property and leaving a gate open earlier that day, and the victim replied that he had not been home.
4 The victim's partner, who was present when you entered, stood next to him and yelled at you to leave. Once she became involved you stepped back and left. The victim's two children were present at some point and started screaming. As you left you yelled that if you ever saw the dogs again you would stab them, meaning the dogs. The victim then called the police. Police attended and arrested the victim as he had outstanding warrants. Police also arrested you. They searched your premises but were unable to locate the knife. You were taken to the police station and given time to rest due to your level of intoxication. You were then interviewed in the early hours of the morning. You made a number of admissions including that you had drunk 14 beers since 5 pm. You told police you did not recall what you had in your hand. You said you were at the house for 20 to 30 seconds. You admitted that you should not have done what you did and you apologised to the victims.
5
There are no victim impact statements in this matter. You continue to live next door to the victim. An intervention order has been in place I am told since
12 November 2017 and you have conscientiously complied with this order, even when the victim’s dogs were again in your yard. On that occasion, rather than take matters into your own hands, you rang the police and dealt with the situation appropriately. You spent one day in custody before being bailed. You participated in the CISP bail program and engaged successfully with the supports you were offered. The CISP final progress report dated 24 April 2018 states that you demonstrated punctuality and excellent communication in relation to your appointments, and presented with insight and showed some understanding into the consequences of your alcohol use. The author found you to be honest, genuine and open towards engaging with the CISP program.
6 These matters resolved to a plea of guilty at the committal case conference. I am satisfied you have pleaded guilty at the earliest reasonable opportunity and this entitles you to a significant sentencing discount. Your plea of guilty has a utilitarian or practical benefit in that it has saved the community the expense of a trial, and it has spared the victims the need to give evidence in the matter. I am also satisfied that your plea of guilty is indicative of your remorse.
7 There is also evidence of your remorse in your sister's reference and your apologies to the victims in your record of interview. I am satisfied you are genuinely remorseful.
8 You have a single prior criminal matter from the Frankston Magistrates' Court in September 2011 for which you received a without conviction bond. That matter is of no relevance in sentencing you today. You are otherwise a 44 year old man with no criminal history.
9 I turn now to your personal circumstances. You were born on 11 March 1974 and have one older sister. She is older by three years. Your childhood was marred by your father's alcoholism and your parents separated when you were aged approximately 14 due to your father's drinking and physical abuse of your mother. You have a history of learning difficulties and misbehaviour at school. You attended Benalla West Primary School and then Benalla Tech until Year 10. At this point you left to live with your father in Albury and repeated Year 10. Mid way through Year 12, your father entered into a relationship with a 17 year old girl who was in fact younger than your sister, which resulted in you leaving your father's home. You went to live with a friend and their parents. You finished Year 12 but you did not pass. You have lived in 29 places in the last 28 years and have never really had a stable home. Your current address in Narre Warren represents the longest you have been in possession of a property, being three years. In the past you have resided at friends' houses, in pubs, caravan parks and share houses.
10 You have worked at a number of low skilled jobs. You worked for BHP in Albury for eight years until 2001 and you have worked at Apex Steel for the past 13 years. Your employer Kurt Stephens provided a character reference. He described you as a loyal and honest person but that you have a "few demons" which you are working hard to put behind you. He said you are hard on yourself about what you have done, and you have discussed the aggravated burglary with him, and he made it clear to you that you need to get some help.
11 Character references were also provided by your mother, your ex-partner and your sister. Your ex-partner Gwenda Armstrong is the mother of your two children. You are separated but she remains supportive and describes you as a wonderful father, always putting your kids first and spending every minute you can with them. You maintain a relationship with your mother although you do not regard her as supportive. Your father committed suicide in 2004 by setting himself on fire. It was also in 2004 you met Gwenda Armstrong who as I have just said is the mother of your two children.
12 In 2014-15 you managed to abstain from alcohol for a period of roughly 12 months. It was during 2014 that you met your now ex-wife and married in early 2015. You believed drinking was no longer a problem and recommenced drinking which rapidly grew to 14 stubbies of beer a night. As a result your relationship suffered and you became an argumentative drunk. In October 2017 you and your wife separated but remained under the same roof until she found her own accommodation. It was around this time on 12 November 2017 that this offending occurred.
13 You have a history of substance abuse, most relevantly a history of alcohol abuse since you were about 15 years old. Your father was an alcoholic. At the time of this offence you were drinking approximately 14 stubbies of beer a night and you continue to drink approximately that quantity of alcohol every day.
14 You pleaded guilty before me on 7 June this year. At the initial plea it became clear that the psychological and psychiatric material that had been obtained on your behalf was incomplete and not necessarily consistent. There was no clear diagnosis or diagnoses. As a result I ordered a Forensicare report, and the report of Dr Mark Joynt was provided to the court on 20 July 2018. Unfortunately this report did not entirely clarify the position. As a result your lawyers obtained a further report from Dr Phillips, a senior clinical neuropsychologist.
15 It is clear from all the reports that you have been, and remain, difficult to diagnose. Dr Evans, senior clinical neuropsychologist, provided a report dated 28 February 2018. She found that you demonstrated a neuropsychological profile consistent with a developmental disorder on the autism spectrum and proposed high functioning Asperger's syndrome as a diagnosis. In her view, you met the criteria associated with this syndrome.
16 Dr Joynt, a registrar in forensic psychiatry, found on the evidence available to him that the suggested diagnosis was either recurrent depressive disorder or bipolar affective disorder. He noted that you had received a diagnosis of Asperger's syndrome but was not in a position to say whether that diagnosis was correct.
17 Dr Phillips, senior clinical neuropsychologist, conducted a comprehensive assessment of you that took most of a day. He found you to be a man of average to high average intelligence who has had a difficult life. In his opinion, both now and at the time of the offending, you experienced the following conditions: adult ADHD, social communication disorder best thought of as an autism spectrum condition, a vulnerable personality structure with borderline and antisocial traits, chronically low mood consistent with a persistent depressive disorder, and a severe alcohol use disorder. In his view the question as to whether you meet the criteria for a diagnosis of bipolar disorder remains an open question. He found you to be extremely derogatory when thinking about yourself. You have low self regard and you continually criticise yourself.
18
I will turn now to the consideration of Verdins. Relying on the report of
Dr Phillips, your counsel argued that Verdins was enlivened. As I understood the submission, your counsel said Verdins principles 1, 2, 3, 4 and 6 were all relevant here. Dr Phillips found that as a function of your autistic and antisocial personality traits, you lacked natural empathy for others in the moment although you can reason things through later. This affects your moral reasoning in real time since you have less ready access to the intuitive break in inappropriate and aggressive behaviours that most of us have when interacting with others. Your counsel relied on this as enlivening Verdins principle 1 and argued that your moral culpability is thereby reduced. Your counsel accepted that you were also heavily intoxicated which is of course not mitigatory. But even taking that into account, your counsel argued that Verdins is enlivened by the presence of your social communication disorder, best thought of as an autism spectrum condition, and the impact it has on your moral reasoning in real time and consequent behaviours.
19 Your counsel also argued that limb 2 is enlivened. In relation to limbs 3 and 4, your counsel argued that both specific deterrence and general deterrence should be moderated to some extent. In relation to what your counsel described as "limb 6", he argued that there is a serious risk of imprisonment having an adverse effect on your mental health and leading to real risk of suicide and self harm. As discussed on the plea, based on the report of Dr Phillips, it would seem the major factor that may increase your risk of suicide and self harm if imprisoned is the fact that you would no longer play an active role in your children's lives. In Dr Phillips' view, if this were to happen, you would become even more rudderless, your readiness for treatment would fade and your maladaptive personality traits would set in.
20 Counsel for the prosecution did not concede Verdins applies in all five ways argued. She initially conceded that limb 5 would apply, in that imprisonment would weigh more heavily upon you. However she argued that limbs 1-4 do not apply because you do not have a mental impairment. The prosecutor relied on the decision of O'Neill as standing for the proposition that personality disorders are not relevant to Verdins. The prosecutor argued that autism personality traits do not equate to a mental impairment. I raised on the plea that if that was the position of the prosecution, it seemed inconsistent for them to submit that limb 5 did apply. The prosecutor then withdrew the concession that limb 5 Verdins applies in your case. Your counsel replied that whatever the label, there are two diagnoses, namely your behavioural issues and your social communication disorder, that both enliven Verdins.
21 I reject the submission that behavioural issues is a diagnosis that enlivens Verdins, or is even a diagnosis. As stated in Verdins, the real question is how the condition impacts on the capacity of the sufferer to perceive the world around him and respond to it. In your case the relevant condition is the social communication disorder best thought of as an autism spectrum condition. This is not a personality disorder as that expression was used in O'Neill. The condition reduces your capacity for judgment and your capacity to control inappropriate behaviours. It is not a description of a personality type. In the circumstances, I find Verdins has some application in sentencing you.
22 In particular, your condition impaired to some extent your ability to exercise appropriate judgment, think clearly in the moment and make calm and rational choices. In this way your moral culpability is somewhat reduced and specific and general deterrence are also somewhat moderated.
23 In relation to limbs 2 and 5, your condition has limited bearing on the type of sentence to be imposed. A sentence of imprisonment will weigh more heavily on you in part because of your condition but also in large part because you will be separated from your children. The latter does not enliven Verdins. However putting Verdins aside, I can and do have regard to the subjective impact being separated from your children would have on you.
24 There is no cogent evidence of a serious risk that imprisonment will have a significant impact on your mental health. Dr Phillips suspects it will for a number of interrelated reasons. Limb 6 is not enlivened. In applying Verdins I am not ignoring the substantial role that alcohol played in your offending. You were very intoxicated at the time of this offending and you have a longstanding and substantial problem with alcohol. As Dr Joynt stated, your intoxication may have impaired your judgment. For the reasons I have discussed Verdins is enlivened in your case, although your intoxication reduces the extent to which Verdins principles apply.
25 Your counsel on your behalf sought a Community Correction Order with no period of imprisonment. The prosecution submitted the only appropriate sentence is a term of imprisonment with a maximum and minimum term. The prosecution filed sentencing submissions dated 6 June 2018.
26 In my view this offence falls at the low end of the offence of aggravated burglary and common assault. You knocked on the front door and waited for it to be answered, which is an unusual way to commence an aggravated burglary. I accept that the offending was spontaneous and you took the knife with you because you had been using it at the time. The offending was of very short duration and when the victim's partner yelled at you, you left. There was no actual physical violence. The knife you had is a very serious weapon, but it was more of a prop, and you did not use it or actively threaten anyone with it. I note you had the knife in your right hand and you are right handed, but you used your left hand to lunge unsuccessfully towards the victim.
27 Aggravated burglary is a serious offence and general deterrence, denunciation and just punishment are significant sentencing factors. Entering another person's home and threatening them is rightly seen as serious criminal conduct. A Community Correction Order is of course punitive and can provide substantial general deterrence. You have reached the age of 44 with effectively no criminal history. As Dr Phillips states, you have had a difficult life and as a result of an untreated developmental disorder, being ADHD, you have struggled to achieve. Additionally you have struggled with social communication problems and resulting social ostracism. You have also suffered traumatic life experiences both as a child and later your father's suicide, and have had two suicide attempts yourself. Despite all this you have successfully held down employment, you are a good father and you have now had three years of stable housing. Whilst on CISP you participated well in the community based treatments you were offered. In my view the facts here justify a merciful approach. In saying that I am mindful that leniency cannot permit an inadequate sentence. It is a sentencing factor to be weighed alongside all other relevant factors.
28 In my view your prospects of rehabilitation are good, particularly if you engage in treatment. Your excessive alcohol consumption is a longstanding problem and you need assistance and treatment to stop drinking. Your conduct whilst on CISP bail shows a willingness to engage in court ordered community based treatments which is encouraging. I had you assessed for a Community Correction Order and you have been assessed as suitable. A number of conditions are recommended.
29 Section 5(4) of the Sentencing Act states,
"The court must not impose a sentence that involves the confinement of the offender unless effectively the purposes of sentencing cannot be achieved by a sentence that does not impose the confinement of the offender."
30 As stated in Boulton,
"A Community Correction Order maybe suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment such as aggravated burglary. Given the objective gravity of the offending and the personal circumstances of the offender, a Community Correction Order maybe capable of meeting the necessary sentencing requirements."
31 In this case, in my view, given the objective gravity of the offence, your lack of any relevant prior convictions, your early plea and remorse, your prospects of rehabilitation, and the application of some of the Verdins principles, albeit moderated, the purposes of sentencing can be achieved by imposing a lengthy Community Correction Order with conditions.
32 Mr Armstrong, if you could stand up please.
33 On both charges, you are convicted and placed on a Community Correction Order. The order will commence today and run for a period of three years and six months. The conditions of the order are as follows.
34 You are to perform 275 hours of unpaid community work. Pursuant to s.48CA of the Sentencing Act, I determine that hours satisfactorily undertaken for treatment or rehabilitation are to be counted as hours of unpaid community work for the purposes of this condition.
35 You are to attend for alcohol assessment and treatment as directed.
36 You are to attend for mental health assessment and treatment as directed.
37 You are to be under the supervision of Corrections for the duration of the order.
38
You are to attend for judicial monitoring as and when directed. That means
Mr Armstrong, that you come back before me and I want to see how you are going on the order. The first judicial monitoring will be on Friday, 3 May 2019 at 9.30 am before me. I am aware that you have served one day by way of pre-sentence detention but given my sentence there is no declaration of PSD.
39 Pursuant to s.6AAA of the Sentencing Act, I declare that but for your plea of guilty the total effective sentence I would have imposed is two years ten months with a non-parole period of 20 months imprisonment.
40 I will also grant the s.464ZF order sought by the prosecution.
HER HONOUR: Mr Armstrong, you may have a seat while the order is prepared. I will have my associate prepare that order. Mr Pathmariaj.
MR PATHMARIAJ: Yes Your Honour.
HER HONOUR: Do you have a copy of the 464ZF?
MR PATHMARIAJ: I do have a copy Your Honour but maybe you need to update the appearance, but apart from that it is ready Your Honour.
HER HONOUR: And that's a non-custodial, thank you.
MR PATHMARIAJ: It's a non-custodial copy yes.
HER HONOUR: Does anyone have any difficulty if I do the updated appearance by hand?
MS HARTMAN: No.
MR PATHMARIAJ: No.
HER HONOUR: I've written in "K. Hartman" for the respondent and I will make that order - the reasons for the order are the seriousness of the circumstances of the offending. My recollection Ms Hartman, is the order was not opposed.
MS HARTMAN: The order was opposed.
HER HONOUR: Was opposed?
MS HARTMAN: Was opposed Your Honour. I'm instructed by counsel who appeared on the last occasion that it was opposed on the basis of
Mr Armstrong's limited prior criminal history being one matter that was in Frankston a number of years ago in 2011. And secondly on the basis that it would not materially assist in despecting of crime or offending.
HER HONOUR: Well I reject that application and in my view the seriousness of the circumstances of the offending do warrant the order and the granting of the order is in the public interest. What that means Mr Armstrong, and it will be explained by your legal representative, is that a forensic sample will be taken from you, most likely a scraping from your mouth, and it will be placed on what is known as the DNA database and you must cooperate with that process. So I will make that order, in fact I have made that order.
MS HARTMAN: Yes Your Honour.
HER HONOUR: And just bear with me and I will have a look at the Community Correction Order.
MR PATHMARIAJ: Your Honour, may I just raise one thing with the s.464ZF.
HER HONOUR: Yes.
MR PATHMARIAJ: Your Honour will, because it's a non-custodial disposition, you will need to include where Mr Armstrong will need to report. I do have a list
of - - -
HER HONOUR: Do you have an electronic copy in those circumstances that you can forward to my associate.
MR PATHMARIAJ: Yes, yes I will.
HER HONOUR: Thank you. Ms Hartman, when you take that order back can you find out from your client which would be the closest police station for him to attend for the purposes of the 464ZF order.
MS HARTMAN: Yes Your Honour.
HER HONOUR: It's probably Dandenong, it's Dandenong Correction Centre so I would assume it's Dandenong Police Station.
MS HARTMAN: Dandenong would be the closest.
HER HONOUR: Thank you. And I'm not sure if Mr Pathmariaj has had a chance to review the Community Correction Order but perhaps if he could just do that before I sign it. Take your time Mr Pathmariaj, I realise I've got you doing two things at once.
MR PATHMARIAJ: That's all right.
HER HONOUR: I'll just have copies of the Community Correction Order made.
MS HARTMAN: Thank you Your Honour.
HER HONOUR: We can make three copies, one for the Crown and two for the defence.
MR PATHMARIAJ: In the alternative Your Honour, if it's taking time to come through.
HER HONOUR: It's just taking - it's just the time it takes for the email system to open.
MR PATHMARIAJ: Yes I appreciate that.
HER HONOUR: I'm watching it unfold before me and my associate is logging in now.
MR PATHMARIAJ: All right.
HER HONOUR: So I'm assuming it has appeared.
MR PATHMARIAJ: I did leave space on the original order for Your Honour to write it in.
HER HONOUR: I will write it in.
MR PATHMARIAJ: And I've also included the address for Dandenong Police Station behind it.
HER HONOUR: Thank you very much. So this is the order that I had already signed.
MR PATHMARIAJ: Had just signed yes.
HER HONOUR: I am adding in, "Report to the officer in charge of the Dandenong Police Station at 50 Langhorne Street." Thank you very much, I will hand that down. I can give you back your list of police stations and I will have – once I leave the Bench I'll have my associate make copies of that order.
Mr Armstrong, if you could stand please. I will see you for judicial monitoring on 3 May next year. Your counsel will explain the order to you but in particular I expect to hear that you have reduced or stopped drinking alcohol. And that you are engaging with all treatment that is required of you.
OFFENDER: Thank you Your Honour.
HER HONOUR: Thank you. We adjourn now until 10.30 please.
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