Director of Public Prosecutions v Austin

[2020] VCC 1881

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01204

DIRECTOR OF PUBLIC PROSECUTIONS

v

CLINTON AUSTIN

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 November 2020
CASE MAY BE CITED AS:	DPP v Austin
MEDIUM NEUTRAL CITATION:	[2020] VCC 1881

REASONS FOR SENTENCE

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Subject:

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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Accused	Ms D. Price

HIS HONOUR:

1Clinton Austin, you are to be sentenced for one charge of aggravated burglary, one charge of recklessly causing injury and two charges of damaging property under s.197(1) of the Crimes Act.

2The applicable maximum sentences are 25 years' imprisonment for aggravated burglary, five years' imprisonment for recklessly causing injury and ten years' imprisonment for criminal damage. 

3You pleaded guilty before me on 20 November.   When interviewed by police on 28 January 2020 you made a number of admissions which form a significant, if not major part, of the evidence making out the four offences; particularly those at Charges 1 to 3 on the indictment.  There was a committal hearing on 1 October.  The aggravated burglary charge against you had to that time included the aggravating feature of carrying a weapon into the home you entered.  The matter resolved and you entered pleas of guilty to these four offences.  On Charge 1, aggravated burglary, the Crown does not allege possession of a weapon.  It was necessary to amend in accordance with that before arraignment. 

4You receive the benefit of your pleas of guilty and a high level of cooperation from an early stage.   You have facilitated the interests of justice.  Utilitarian benefit is high in this case; for example, there were deficiencies in the evidence identifying you as the offender without your admissions in police interview.  Your plea accepts responsibility and is a formal expression of remorse.  However, your attitude at police interview was not a remorseful one.  You maintained a grievance against your victim.  You committed Charge 4, criminal damage, nine months after the original offences in April 2019.

5At your plea hearing, also on 20 November,  Mr Moore for the Crown tendered a written Crown opening which included a short chronology of the proceeding and the victim impact statement of Sarah King.  Ms Price for you tendered this morning the neuropsychological report of Martin Jackson,  dated 13 November 2020.  Ms Price also provided a written outline of plea submissions.

6The circumstances of your offending are set out in the tendered Crown opening which is Exhibit A.  My own summary may therefore be shorter.  It is also informed by matters put on your behalf, not challenged by the Crown.

7You suffered an acquired brain injury in a very serious motor vehicle accident in early 2018.  Testing and assessment by neuropsychologist, Martin Jackson, places you as a result in the borderline range of intellectual disability.  Full score IQ is 72. 

8You committed Charges 1 to 3 on 24 April 2019.  Your primary victim was Robert Gates, not known to you but who lived opposite your sister in Trudewind Road, Wodonga.    There had been long term bad feeling between them.  On the evening of 24 April Robert Gates went to your sister's home drunk and behaving aggressively.  He smashed a window of the house.  There is some suggestion that he carried a knife.  I make no conclusive finding on that.  Your sister rang police.  She rang you saying that they had not attended. 

9Accordingly there were these circumstances of provocation.  However, you response was enraged, uncontrolled and led to serious offending.  You went to Robert Gates' home with an associate or friend, Dale Warner.  Inside the house were Gates' partner, her two young children and another female co-tenant.  I accept that you saw Gates outside and chased him into the house.  You damaged a front door handle and a wall.  At or upon your entry Gates attacked you with a knife causing a small cut.

10You overcame him punching and kicking him several times.  At one point you took a bottle and struck him over the head.  You stabbed him to the upper arm with the broken end, causing what I see to be on the evidence of photographs within the depositional materials superficial and minor cuts.

11You and Warner left.  Robert Gates' partner, Sarah King, and her children were inside the house.  They heard but did not see what happened staying frightened in a bedroom.  Robert Gates was injured but did not seek or receive treatment on the night.   There were bruises, abrasions and lacerations to the arm as I earlier described. 

12Police attended but neighbours did not identify you as the perpetrator.  There was DNA sampling given your own cut injury at the scene.  However, you are an identical twin which compromised the police investigation.

13As stated,  nine months later you damaged Robert Gates' car at his home.  He was away.  You were interviewed by police about all of the offending a few days after this.  As stated you made important admissions.  I was told that your co-offender, Warner, has not yet been charged.  Robert Gates was charged with the offending against your sister.  He received a non-custodial sentence.

14The victim impact statement of Sarah King speaks of the effects of your offending upon Robert Gates, herself and her children.  These include fear, anxiety and hypervigilance.  There are related problems with sleep and (for the children, she states) eating.  Her quality of life has been impacted.  The victim impact statement also states particular physical health symptoms of Robert Gates, for example, nerve and perhaps other damage to his arm and legs.  This was raised with counsel.  I find that there is no medical evidence upon which I could make such findings.

15I take into account the victim impact statement of your offending.  The episode would have been very frightening indeed for those in the house.  Significant ongoing emotional and psychological effects are hardly surprising.

16You are a 36 year old Aboriginal man of the Wurundjeri people, presently awaiting this sentence in remand custody.  You were raised in the Shepparton area,  one of seven children.  You are close to your twin brother and were living with him during the time prior to your offending.  The family suffered from your father's alcoholism.  He was violent towards your mother and to the children.  You were also close to your grandfather which helped connection to your Aboriginal people. 

17You only completed Year 7 at school and have poor literacy.  You have worked inconsistently in car mechanical work, scrap metal and construction.  You last worked in Darwin in 2014.  You receive a disability support pension.

18You have been married and have a five year old son from another, subsequent relationship.  He is presently in foster care.  You have the hope of proving your paternity and playing a role in his life. 

19You smoked cannabis at six and began to use amphetamines in teenage years and regularly used that until your mid-20s.   You were diagnosed with schizophrenia in 2004 but it seems that you have not received specialist treatment for that over many years.  You take medication including the anti-psychotic drug, Seroquel.  Over time there have been depressive symptoms which have included suicidal ideation.  You also take medication related to that. 

20Your criminal record is extensive and states prior court appearances mainly in Victoria but also in New South Wales and the Northern Territory, between 2002 and 2017.  Particularly there are driving offences, offences of dishonesty and against property and a number of drug offences.

21Offences of violence are not prominent.  There have been a number of prison sentences.  I was told by Ms Price of pending matters, alleged driving offences.  These are to be heard in December. 

22As stated, in 2018 you suffered an acquired brain injury.  A motor vehicle accident caused very significant other injuries, some symptoms of which remain.  As to your head injury there was a particularly low Glasgow coma score, three over 15.  Neuropsychologist, Martin Jackson, describes a severe traumatic brain injury.  I accept the opinion of Mr Jackson that there is a relevant connection between the offending and your acquired brain injury and its cognitive and behavioural impacts; for example, those related to impaired judgment and impulse control.  Further, the circumstances leading to the offending in April 2019 can be seen as raising a vulnerability to uncontrolled action not as likely in others without your brain injury and its affects.  In my view the Verdins' principles  (those related to some reduction in moral culpability and lesser importance of sentencing purposes such as deterrence and denunciation) have a role to play.  You are not placed in the category of impairment which means that you did not realise the wrongness of what you did.  However, the relevant Verdins' principles should to some extent moderate your sentence. 

23However, this was serious offending.  Frightening, enraged and uncontrolled you broke into your victim's home.  Present or close by were women and young children.  They had not offended against your sister.  You used a nasty and dangerous weapon.  It is fortunate the injury caused was not much worse.  Violent offending against people in their home is seen as a serious community problem.  Aggravated burglary attracts a high maximum sentence.  You have a substantial criminal record, albeit without strong emphasis on violence.  The provocation existing for you in April 2019 had long past when you committed Charge 4, damage to Robert Gates' car in January 2020.

24The objectively seen circumstances of offending make relevant sentencing considerations of moral culpability, deterrence, denunciation and the need for proportionate punishment.  Community protection is relevant, bearing in mind the nature of your offending and effects of your impairment.

25These purposes can only be met by a sentence of imprisonment with a minimum term. 

26Nevertheless, there are also important moderating factors, mainly personal to you, which should mean a lesser sentence than otherwise required, that is required;  by the objective seriousness of the offending.

27They include the following.

28(1)   Your plea of guilty and a high level of cooperation with the proceeding.

29(2)   Your personal history and circumstances.  This includes your early life experience and the considerable disadvantages caused.  It also includes your poor mental health.  Your cognitive impairment brings into play the Verdins' principles, albeit in the limited way I have described.  The latter limbs of Verdins also apply.  I see imprisonment to be more difficult for you because of your acquired brain
injury and also your mental health conditions.  There is a risk of
deterioration.  These findings are consistent with those of neuropsychologist, Mr Jackson;

30(3)    The fact of the COVID-19 pandemic and its restrictions have also made custody harder and will continue to do so.  For example, there is anxiety, restriction of movement, programs and family and other support.  I accept that your impairment and mental health conditions make your vulnerable in this context.

31(4)   To some extent the circumstances of and leading to the offending. As I have attempted to explain I find that the provocation of what happened to your sister made you vulnerable in your situation to a less controlled response
than others.  This is not to diminish the seriousness and harm of what you
did.

32(5)   It would be naïve to rate your prospects of rehabilitation highly.  However, it is also fair to say that you have used remand custody productively in some ways; for example, in your art.  You have stable accommodation with your brother upon release from prison.  As Mr Jackson states your cognitive impairment will make participation in rehabilitation more difficult.  It is to be hoped that parole release will be conditioned to assist you.  This is clearly in the interests of yourself; but also protection of the community.

33Having considered what I see to be the relevant matters I sentence you as follows.  On Charge 1 to imprisonment of two years and nine months.  On Charge 2 to imprisonment of 15 months.  On Charge 3 to imprisonment of three months.  On Charge 4 to imprisonment of six months.

34I direct that six months of the sentence for Charge 2 and three months of the sentence for Charge 4 be served cumulatively on the sentence for Charge 1 and upon each other.  That is a total effective sentence of three years and six months.

35I set a minimum term before eligibility for parole of two years.  I declare under s.18 304 days of presentence detention.  Under s.6AAA had you not pleaded guilty I would have imposed a sentence of five years with a minimum term of three and a half years.

36Are there other matters that I need to deal with, Mr Moore?

37MR MOORE:  No, Your Honour, that completes the matter.

38HIS HONOUR:  I will stand down now.  Thank you for your assistance in this matter.

39MR MOORE:  Yes, Your Honour.

40MS PRICE:  May it please the court, thank you.

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