Director Of Public Prosecutions ; v ; Ashley Stevenson

[2019] VCC 1122

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00164

DIRECTOR OF PUBLIC PROSECUTIONS

v

ASHLEY STEVENSON

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 July 2019
CASE MAY BE CITED AS:	DPP v Stevenson
MEDIUM NEUTRAL CITATION:	[2019] VCC

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	Ms N. Burnett
For the Accused	Ms C. Woodward

HER HONOUR: 

1Ashley Stevenson, you have pleaded guilty before me to one charge of home invasion and one charge of common assault.

2The facts underlying this offending are as follows:  It occurred when you were 19 years of age and was committed with your co-offender, Dylon Minton-Green, who was a friend of yours and who at the time was living with his mother.  You were living at a boarding house in Peter Street, Springvale. 

3The victim in this matter, Mr Smith, lived at the same boarding house and you had known him for about three weeks.  About a week before the offending, he had lent you $20.  Mr Smith had not previously met Mr Minton-Green. 

4On 9 October 2017, Mr Smith was at home at the boarding house and you returned at about 10 pm with Mr Minton-Green.  On arrival, Mr Smith asked you for the $20 he had lent you.  You said you did not have the money and
Mr Smith went to his room and locked the door.  You and Mr Minton-Green were in your room, which was next to Mr Smith's and after some time, Mr Smith telephoned the landlord to complain about noise being made by the two of you and then went into the kitchen to do some dishes. 

5Whilst in the kitchen, Mr Minton-Green came out of your room and walked past Mr Smith, holding a green-handled knife with a blade about four inches long.  Mr Smith returned to his room and again locked the door and again rang the landlord to complain about your behaviour and noise.  He was told to call police. 

6The two of you began to shout at Mr Smith through his bedroom door.  He called 000 and the two of you told him to, 'Get off the fucking phone' and then the two of you forced open Mr Smith's door, breaking the lock.  Mr Minton-Green entered the room, closely followed by you.  Your actions in breaking into
Mr Smith's room underlie Charge 1 on the indictment, home invasion.

7The two of you grabbed Mr Smith by the collar and pushed him against the bedroom wall and Mr Minton-Green grabbed the phone from Mr Smith's hands, throwing it out the bedroom window.  A scuffle then took place during which
Mr Smith was punched by the two of you to the face and neck.  Your actions in this assault upon Mr Smith underlie Charge 2, common law assault.

8You pushed Mr Minton-Green away.  Mr Minton-Green then grabbed a pair of scissors that were in the bedroom, held them up and said to Mr Smith, 'I'll stab you to death, cunt.'  Mr Smith put you in a headlock and told Minton-Green to stand down.  Mr Minton-Green, who was still holding the scissors, again said, 'I'll fucking stab you to death, cunt' and, 'If we don't get you tonight, we'll send our friends to get you.'  Mr Smith then let you go and you tried to calm
Mr Minton-Green down. 

9Police arrived soon after.  At that time, the two of you ran out of the back of the house and climbed onto the roof of a shed on the property and ran away.  You were then approached by police and arrested.  You were taken to Dandenong police station.  You denied physically assaulting Mr Smith, but admitted to kicking his door open and having an argument with him in the room.

10You told police in your record of interview that you did not really remember what had happened because you had been drunk.  You told police you had tried to settle Mr Minton-Green down and that, 'It just got too hectic too quickly'.  You said, 'The whole night was not like meant to be the way it turned out.'  You denied punching Mr Smith and/or that Mr Smith had been punched or touched by anyone.

11You were remanded in custody and bailed on 17 November 2017.  The matter resolved at a committal case conference on 8 January 2018.

12I now turn to your personal circumstances.  You are now 21 years of age and will turn 22 in November.  Your parents separated when you were very young.  Both parents had substance difficulties and you were mainly raised by your father with the help of your paternal grandparents.  You were particularly close to your grandmother, who died in 2017.  Unfortunately when you were only 16, your mother died in tragic circumstances, essentially after losing what has been termed 'a battle' with drug addictions.  You also have a 24 year-old step-sister and an 11 year-old step-brother with whom you have no contact. 

13You grew up in the Dandenong area and attended Dandenong high school.  You apparently struggled there and were often in trouble and truanted and eventually you were asked to leave midway through Year 8.  You then attended the Gleneagles secondary college in Endeavour Hills, where you completed Years 8 and 9.  When you were about 15, you and your father moved to Quambatook in northern Victoria to be with you grandparents and you continued your high school education at Boort High School, but had trouble fitting in and were bullied on a daily basis. 

14You eventually left school and returned to Melbourne, living with an aunt and then with your girlfriend, Casey, and her family.  After about 12 months you were asked to leave the family home when you were caught smoking marijuana.  The two of you then spent about 12 months homeless and on the streets before police intervention, when Casey was sent back to live with her family and you spent the next few years living in various boarding houses. 

15You found it difficult to find permanent work.  You have had some short-term work in hospitality.  You were given an opportunity to work with a concreter at one stage. 

16You began experimenting with drugs when you were 16, starting with cannabis and then began drinking alcohol when you were 17 or 18 and this became quite a problem for you, particularly at the time of the offending, when you were drinking every day.  You apparently turned to alcohol to deal with the grief that you felt, both over your grandmother and your mother. 

17You became a client of Youth Support Advocacy Service (“YSAS”) in November 2017 and completed a 12-day detoxification program in January 2018. 

18You were diagnosed with ADHD as a child and were treated for this for about 11 years before deciding to cease the medication when you were 16 or 17.  As a result, you have a certain amount of impulsivity and a limited ability to engage in what is called 'consequential thinking', that is, thinking before you do something.  You have self-harmed in the past.

19Your criminal history goes back to 2013, when you appeared in the Children's Court on charges of handling stolen goods and theft of a motor vehicle, appearing twice on those sorts of offences in 2013 and 2014, at which stage you were dealt with by way of a probation. 

20In April 2015, you were placed on further probation by the Melbourne Children's Court on charges of breaching your probation, affray, recklessly causing injury, unlawful assault and intentionally damaging property. 

21Again, you appeared in the Melbourne Children's Court on charges of theft of a motor vehicle, theft, unlicensed driving and using an unregistered motor vehicle. 

22You were then dealt with on 17 January 2018 for offending which took place after the offending for which this court is dealing with you, they being charges of burglary, theft, intentionally damaging property, criminal damage, theft of a bicycle and going equipped to steal and you were placed on a Community Corrections Order for 12 months, without conviction.

23This matter has had a long history in this court.  You first appeared before this court on 7 June 2018.  At that time you had undergone detoxification via YSAS in February of 2018 and then in March of 2018.  In April 2018, you were referred to psychologist, Constantina Caramentos, who diagnosed you with post-traumatic stress disorder, depression, anxiety, grief and loss. 

24On 7 June, I deferred sentence of this matter because you were a young offender and because there were plans for you to receive appropriate treatment and assistance in finding housing. 

25On 11 September 2018, you fell from the roof of your home in wet weather and sustained a fractured ankle and you have had difficulties with that ever since.  You underwent surgery on your leg on 19 September 2018 and were not discharged until 30 September 2018. 

26You then underwent a further detoxification between 7 and 15 November 2018 and on 26 November visited Windana in the hope of being admitted to the residential rehabilitation facility.  The matter was returned to court on
29 November 2018.  The sentencing was further adjourned and you underwent another detoxification on 11 December 2018.  During this time you were still having troubles with drugs and alcohol. 

27The matter was further adjourned on 6 December 2018 because it was hoped you would get into Windana, but your application was refused due to your criminal history.  On 15 January 2019, you were assessed for treatment at Odyssey House.  On 16 January 2019, you had successfully completed the Community Corrections Order that had been imposed upon you, 12 months before. 

28Essentially the matter kept being adjourned by this court because so many options were being sought in order to get you into residential rehabilitation.  Ultimately Odyssey refused your application there.  There matter was returned to the court on 22 March of this year.  You were again admitted to the Glen Iris detox and you were assessed for a Community Corrections Order on 3 April 2019.  At that stage you were hoping to get into the Basin residential rehabilitation. 

29Sadly in mid-April of this year, your father died.

30On 23 May 2019, you attended Birribi Residential Rehabilitation Centre, which is run by YSAS and thankfully you have been accepted there. 

31Now, even though there was some further offending, it is my view that you actually managed remarkably well over a long period of time in that, even though you kept trying to get into residential rehab and were refused and were, at the same time, living in difficult and depressing boarding houses, you simply kept going and happily you have now been admitted to Birribi and you also have the support of a YSAS worker, Mr Alex Bigami, who attended court.  Mr Bigami is a youth alcohol and drug worker with Birribi.  You went into Birribi on 18 June and you will be there for six months.  All appears to be going well.  It is a really important environment for you, you are with other people, you are not just struggling on your own in a boarding house.  What is really important, you are learning skills, such as relapse prevention, strategies, harm minimisation, with information around substance abuse. 

32This has been important, because in latter years, you had also turned to ice, so ice and alcohol have been difficulties for you over a long period of time. 

33You are described as a pleasant, cooperative young man who responds well to direction and as a valuable member of the Birribi community. 

34Once you have completed the six-month residential program at Birribi, assistance can be given for you to obtain support of housing through YSAS, although it is your hope that you might receive further residential rehabilitation treatment at SHARC.

35So overall, the offending was very serious, but it was committed by a young man who has grown up, if I might put it in this way, in rather a solitary fashion.  The main support and stability in your life has been provided by your grandparents.  You suffered the loss of your mother in very difficult circumstances from a drug overdose in 2016 and then the death of your grandmother in 2017.  At this stage you were a very young man living in a boarding house with no supports and you were turning to substance abuse to assist you with the emotional difficulties you have suffered over a long period of time, which at that stage also included severe grieving problems. 

36Ordinarily, when one comes before a court charged with home invasion, the most likely outcome to be expected is the imposition of a term of imprisonment to be immediately served.  And indeed, it was submitted on behalf of the prosecution that this is a way in which I should deal with you, however, largely for the reasons I have already outlined, I am not going to take that course. 

37As I have said, you are a young man who has largely had to look after himself over a long period of time in difficult circumstances.  It was not surprising that you turned to substance abuse in those circumstances and I am satisfied that it was in the context of that particularly difficult time involving the death of your mother and your grandmother that the offending against Mr Smith occurred. 

38Rehabilitation is particularly important, even in matters involving County Court hearings, with young people and you are now making the sort of progress that, in my view, overall will serve the community better than if I sentence you to a term of imprisonment.  I do not want to interrupt your progress at a residential rehabilitation program, particularly given the enormous difficulties that have surrounded your being admitted to such a place. 

39Can I make the comment here that it is a matter of great frustration to the courts that organisations such as Windana and Odyssey, apart from providing virtually the only publicly funded residential rehabilitation beds in the State, become incredibly selective about who they will take in.  It was quite obvious from the start that a residential rehabilitation program was essential for your own recovery and rehabilitation and it has been an extraordinarily frustrating journey, both for you and for this court, to try and get you there.  It would seem to me to be almost ruinous to your chances of rehabilitation and reform were the supports that have finally been put in place be interrupted by the imposition of a term of imprisonment. 

40I also note that it seems quite clear from the prosecution opening that you made a number of attempts to calm Mr Minton-Green down.  That does not take away, however, from the seriousness of bursting into Mr Smith's room.  I have dealt with Mr Minton-Green by way of a Community Corrections Order, largely for the same reasons as those I have outlined in this sentence.  Mr Minton-Green is also a young man who has had considerable personal difficulties, who is finally in a residential rehabilitation drug program.  It is precisely the same situation for you, Mr Stevenson.

41In all those circumstances, I am prepared to place you on a Community Corrections Order.  I am satisfied that you are remorseful for your offending.  And that offending certainly marked an escalation in the type of offending in which you had previously engaged.  I suppose one way of putting it, Mr Stevenson, is that you have been rather a lost young man with not a lot of protective supports in your life and now that is finally being rectified. 

42As I said earlier, it has been a long, hard road to this point.  It has involved a lot of frustration, it has involved you again being largely unsupported.  There were difficulties with your father, for example, you would spend Christmases alone in your boarding house; it has been a difficult and lonely time.  However, I am satisfied that your placement at a drug residential rehabilitation facility is important, not just for your own future prospects, but as a safeguard for the community.  Obviously the community's best interests lie in your rehabilitation.

43I have had you assessed for a Community Corrections Order and you were found to be suitable for such an order.  The assessing officer said that you presented as willing and able to comply with a Community Corrections Order and as I have said, were found as suitable for placement on one.

44I am therefore going to place you on an order with certain conditions, which
I must outline to you, because I cannot place you on such an order without your consent.  How is your leg now, Mr Stevenson? 

45OFFENDER:  I have no problems.  A lot more better.

46HER HONOUR:  A lot better?

47OFFENDER:  Yes. 

48HER HONOUR:  Good, all right.  Is it all right if I - normally I ask people to stand at this stage.  Is that something that is all right?  Yes, all right. 

49The conditions of the order are: 

·That you must report to the Community Corrections office within two working days of the making of this order, that is, by Friday of this week;

·The order will last for 20 months and whilst you are on that order, you must not commit any offence punishable by imprisonment.  What that means is, if you commit any offence for which theoretically you could go to gaol, like knocking off a box of matches from Woolworths, that will breach the order and you will be brought back here and I will re-sentence you;

·You must report any change of address or employment to the Community Corrections office within 48 hours of the making of that change;

·You must not attend upon the Community Corrections office under the influence of drugs or alcohol;

·You must report to and receive visits from the Community Corrections office;

·You may not leave Victoria without the permission of the Community Corrections office;

·You must obey all lawful directions of the Community Corrections office;

·You are to undergo treatment for drug and alcohol use; and

·You are to receive treatment for mental health difficulties. 

50Because he is involved in rehabilitation, I am disinclined to impose community work hours. 

51MS BURNETT:  As Your Honour pleases.

52HER HONOUR:  So I will make the point, you are engaged in a full-time residential rehabilitation program, so I am not going to order any work hours.  All right, are you prepared to enter this order? 

53OFFENDER:  Yes, Your Honour.

54HER HONOUR:  Thank you, have a seat.  We will just prepare the documentation.   I thank counsel very much for their continued assistance in this and for Ms Burnett for being the same one all the time, so you were well-acquainted with the matters. 

55MS BURNETT:  Thank you, Your Honour.

56HER HONOUR:  Yes.  And thank you very much, Ms Woodward, you have just gone above and beyond, so thank you.

57Yes, and we'll have judicial monitoring.  I would like to see - what judicial monitoring means, is that every few months - you can remain seated,
Mr Stevenson, I will be getting a report from Corrections about how you are going and I will be checking on what is happening, all right?  So the first one will be - I will see you in three months' time. 

58OFFENDER:  Ah, yes, Your Honour.

59HER HONOUR:  All right?  Just keep up the good work, Mr Stevenson.  Everyone has finally got you there. 

60OFFENDER:  Yeah, terrific, thank you. 

61HER HONOUR:  Good. 

62MS BURNETT:  Your Honour, there's also an application for a forensic sample.

63HER HONOUR:  What do you say, Ms Woodward? 

64MS BURNETT:  Can I say, it was granted in respect of Mr Minton-Green.

65HER HONOUR:  Was it? 

66MS BURNETT:  Given the serious nature of the offending.

67HER HONOUR:  All right, well then I better be even.  Yes, all right, that is granted.  So I am going to order that police can take a swab from your mouth to obtain a DNA sample.  If you resist in any way, police are entitled to use reasonable force in order to obtain that.  All right? 

68MS BURNETT:  As Your Honour pleases.

69ASSOCIATE:  Do you want him to be here for JM, or ‑ ‑ ‑

70HER HONOUR:  No, no, he can be beamed in from whatever Corrections office it is. 

71ASSOCIATE:  Dandenong.

72HER HONOUR:  It will be at Dandenong.  So you just go to Dandenong Corrections on the date.  What date have we got? 

73ASSOCIATE:  29 October.

74HER HONOUR:  29 October at 9.30.  I would be very grateful if you would be on time, because I list all my judicial monitorings in the morning.  When people are late, it sort of messes up the whole day.  All right? 

75MS BURNETT:  Your Honour, just one matter.

76HER HONOUR:  Yes.

77MS BURNETT:  There was a condition recommended in respect of drug treatment, a residential condition, in terms of the drug facility.  I don't know whether that needs to also be included.

78HER HONOUR:  I am not going to.  Even though they have recommended it.

79MS BURNETT:  Yes.

80HER HONOUR:  Because he is there.

81MS BURNETT:  Yes.

82HER HONOUR:  It was based on what he said, because at that stage, he has always been hopeful of getting in her, getting in there, so as long as he is - and I just do not want to get in the way of what the - what is going on at Birribi, whether - you know, because it is going to finish in six months.

83MS BURNETT:  Yes, that's right.

84HER HONOUR:  In December and then there will be - I just want to give those who are handling Mr Stevenson as much room to move as possible. 

85MS BURNETT:  As Your Honour pleases.

86HER HONOUR:  If I do a drug residential rehab thing, then it has got to come back and be changed.

87MS BURNETT:  As Your Honour pleases.

88HER HONOUR:  So, you know - and it ‑ ‑ ‑

89MS BURNETT:  I thought I should just raise that, Your Honour.

90HER HONOUR:  No, I appreciate ‑ ‑ ‑

91MS BURNETT:  Given the recommendation in the report.

92HER HONOUR:  No, look, I appreciate it, but that simply means that if it changes from residential rehab, we have got to come back and re-look at the conditions, so I am just going to say he has to have treatment for it, and he is. 

93MS BURNETT:  Thank you, Your Honour.

94HER HONOUR:  Thank you, Ms Burnett. 

95Excellent, I will just get you to sign that, thank you.

96Now, did I - all right, done.  Thank you.  Was that ours, or is that the prosecutor's?  The prosecutor's?

97ASSOCIATE:  I think that's the one that was just handed up.

98HER HONOUR:  Yes, all right, we will give that back.

99All right, good luck with that, Mr Stevenson.  I will see you in three months' time.  It is just finally good to see you and Mr Minton-Green sorted, so stay sorted, all right? 

100OFFENDER:  I will, thank you, Your Honour.

101HER HONOUR:  That is quite all right.  Good luck to you, sir.          

102Again, I thank counsel very much for their assistance in this matter. 

103Thank you, we will stand down to 10.30.  Thank you.

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