Director of Public Prosecutions v Bailey
[2015] VCC 1560
•11 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01293
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATHEW ARNOLD BAILEY |
---
JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | 29 and 30 Melbourne | |
DATE OF HEARING: | 30 October 2015 | |
DATE OF SENTENCE: | 11 November 2015 | |
CASE MAY BE CITED AS: | DPP v Bailey | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1560 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords: One charge of aggravated burglary and one charge of common law assault; -
total effective sentence of 3 months’ imprisonment and Community Correction Order of 3 years
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C Picone | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms R Sleeth | Victoria Legal Aid |
HER HONOUR:
1 Mathew Arnold Bailey, you have pleaded guilty to one charge of aggravated burglary, which carries a maximum penalty of 25 years’ imprisonment, and one charge of common law assault, which carries a maximum penalty of five years’ imprisonment.
2 The circumstances of your offending are summarised in the prosecution opening (Exhibit “A”).
3 Your stepson, Tainz Harrison, who was aged 17 years, had become acquainted with your victim, Gordon Richardson, who was 40 years old. Apparently, Mr Richardson suffers some form of back disability and your stepson and some of his friends would go to Mr Richardson’s house to help him with chores, such as cleaning his house and shopping. In return, Mr Richardson would give them small amounts of money or cannabis.
4 On 26 October 2014, Tainz went to Mr Richardson’s house and asked for cannabis. Mr Richardson became annoyed because he had not seen Tainz for some time and told him to get out. Tainz asked for a bong and Mr Richardson told him to “fuck off”, otherwise he would belt him and told him never to come back. Tainz then posted a warning on Facebook to be careful of Mr Richardson “as he goes for 16 year olds” (that is, a warning that Mr Richardson had paedophilic tendencies).
5 A mutual friend told Mr Richardson about the Facebook message on 28 October 2014, and the same friend told Tainz to take the message down. The friend also contacted Tainz, indicating that Mr Richardson wished to see him and talk to him. Tainz told you of this and you offered to go along with him. You drove him to Mr Richardson’s house, where you arrived at approximately 7.30pm on 28 October 2014. Tainz knocked on the front door, which was open but the screen door was locked. Mr Richardson appeared on the other side of the screen door and stated “What’s this fucking shit on Facebook?”. You then stepped forward and pulled the screen door twice towards you. CCTV footage, tendered as Exhibit “C” by the prosecution, records you bellowing on top note at Mr Richardson “You want to get smart with a 17 year old?...Come up to a 17 year old and act fucking tough, do we?” You broke the screen door open and entered the premises. Police photographs show damage to the door frame from your actions in wrenching it open. (This is the conduct constituting Charge 1, aggravated burglary).
6 You then proceeded to grab Mr Richardson by the throat and pushed him up against the wall. You repeatedly yelled in a menacing, aggressive way, “Are we fucking tough now, are we?”, as you propelled Mr Richardson into his living room, causing him to land on the floor and knock over a speaker and a table. You punched him in the mouth with a closed fist, causing his lip to bleed, and tried to hit him several more times. During this time you were yelling and swearing at your victim that he had better not “fuck with my son again”. Mr Richardson sustained a bloodied lip, marks from where you had him around the throat, and cuts and grazes to his left arm, right and left shoulder area, below his left elbow and on his abdominal area. (This is the conduct constituting Charge 2, common law assault.)
7 On 1 December 2014 you were interviewed by police and made admissions that you had accompanied Tainz to the house because you were concerned that he may be assaulted by Mr Richardson. You stated that when you got to the house, Mr Richardson started abusing Tainz and that is when you stepped in, opened the door, and grabbed him. You agreed that you yanked the door open on him and pinned him to the wall and were moving him around the house. You stated that you had thrown a “jumper punch but not a punch” and it was “just scuffling”. You claimed that, as Mr Richardson had threatened Tainz, you were “aggravated by that” and became angry because the threat to Tainz took place “in front of my face”.
8 You are presently aged 38 years, having been born on 21 May 1977. You come before the court with a number of criminal convictions. On 13 May 1998, you appeared before Broadmeadows Magistrates’ Court on one charge of being unlawfully on the premises. You were given a without conviction bond. On 18 July 2014, you appeared at Werribee Magistrates’ Court and were convicted of one charge of careless driving of a motor vehicle and one charge of unlawful assault. You were convicted and fined $1,500 and suspended from driving for three months. Subsequent to the conduct for which I must sentence you, on 25 May 2015, you appeared at Sunshine Magistrates’ Court on three charges of driving whilst disqualified and three charges of exceeding the prescribed concentration of alcohol whilst driving. These offences were committed on 23 January 2014, 22 July 2014 and 17 October 2014. You were convicted and ordered to undergo a Community Correction Order for a period of 24 months with a condition that you perform 300 hours of unpaid community work. your licence to drive was cancelled and you were disqualified from obtaining a licence for a period of 30 months.
9 In a plea on your behalf by Ms Sleeth, the court was told that you have been in a stable de facto relationship with your partner, Kate Harrison, for 17 years. Tainz was one year old when you commenced that relationship and you have always treated him like your own son. You and Ms Harrison have two other children – a daughter, Atlanta (aged 15 years), and a son, Murphy, (aged four years). In addition, you have a son, Christopher (aged 20 years), from a former relationship, and you have continued to see him regularly and pay maintenance in respect of him.
10 Ms Sleeth stated that you left school part-way through Year 11 and commenced work with your father, who runs a business as a caravan repairer. You have a history of conflict with your father and ceased working for him in 1998. You moved out of home and did not have any contact with your father for 13 years, although you maintained a relationship with your mother. You lived in the western suburbs of Melbourne and, in particular, Sunshine for some 12 years. You then moved to New South Wales for 12 months in 2012.
11 In 2013 you returned to live in Melbourne at Wyndham Vale because you became aware that your father was unwell and you recommenced working with him in his caravan repair business. Tendered as Exhibit “2’ on the plea was a report from your father’s general practitioner, Dr Slesenger, dated 30 October 2015, which notes that your father suffers chronic obstructive lung disease and cardiomyopathy, which limit his functional capacity and exercise tolerances. It states that, although he works full-time hours in his caravan repair business, he is no longer able to use power tools and undertake manual handling or much standing and climbing, and largely confines himself to administrative duties.
12 Your father gave evidence that, since you returned to work with him, the business had become heavily reliant upon your manual labour to survive. He stated that two and a half years ago the factory in which he conducts his business had caught fire and he was not insured and he was still in the process of rebuilding it. The business has a turnover of $250,000-$300,000 per year and your father claimed that he has expenses by way of rent, rates and the like which total approximately $2,000 per week. He said that he would have to close down the business if you were incarcerated and he has no other source of income. He stated that your mother has limited work of three hours per week as a fitness instructor. He and your mother also have an onerous burden in caring for your disabled sister, Hannah (aged 30). She lives with them and attends Broadmeadows Special Development Centre from 9am to 3.30pm each day.
13 Ms Sleeth stated that, since returning to live in Melbourne and working in close proximity with your father, you had suffered increased anxiety. This was the subject of a psychological report from Ms Vicky Bablas, dated 20 April 2015 (Exhibit “1”). She had been asked to assess you in the context of your charges relating to drink driving and driving whilst disqualified, which were heard in the Magistrates’ Court in May this year. She noted a history of problematic alcohol use in the past which, at one stage, comprised drinking 24 cans a day in order to cope with emotional stress. She stated that your current alcohol consumption is controlled and non-problematic, being no more than six cans of beer in a sitting, perhaps two to four times per month.
14 Ms Bablas took a history that you felt increased stress and anxiety when you are around your father and she opined that this significantly impaired your judgment and decision-making abilities. She stated that you had an overwhelming desire to escape anxiety-provoking places or situations. On a self-report, she said your symptoms were in the severe range for anxiety and consistent with a panic disorder severity scale, which includes avoidance of crowded situations. You also described some symptoms of depression which she considered overlapped with anxiety. She stated that you meet the criteria for Panic Disorder and Agoraphobia. She opined that you show good insight into your current mental health needs and that you are motivated to attend therapy for your anxiety disorder.
15 It is of note that, prior to returning to live in Melbourne in 2013, you had not been before a court since 1998. Following your return, you have committed two unlawful assaults and one offence of careless driving (a road rage incident), three charges of driving whilst disqualified and three charges of exceeding the prescribed limit of alcohol, and the offences for which I must sentence you. I note that the aggravated burglary and assault on Mr Richardson were committed only two weeks after you were picked up for your last offence of driving whilst disqualified and exceeding the prescribed concentration of alcohol.
16 It does seem that you have suffered some stress and anxiety since returning to work with your father. It may be that, if your driving offences occurred in this context, that those conditions played a role in such offending. I am unable to say. However, I do not accept that your condition of anxiety, which Ms Bablas states causes you to avoid anxiety-provoking places or situations, in any way explains why you deliberately went around to your victim’s house. If anything, one would think that your anxiety condition would cause you to keep away from confrontational situations. You did not know your victim and, if you had concerns about your son’s welfare, you should have called the police. After all you are a man in his late thirties and the father of four children. You should be capable of some degree of maturity and good behavioural example.
17 Your behaviour in taking the law into your own hands and accompanying your son to your victim’s house was completely irrational and an appalling example to your son. It is apparent from the CCTV footage that, within seconds of arriving at the door of your victim, you began shouting aggressively on top note and wrenched the door open. Although your actual entry into the house and the assault are not captured, the audio component of the CCTV footage is truly shocking and you sound as though you were in a state of uncontrollable anger. I regard your answer to question 225 in your record of interview that you “had no plans on doing anything. I tried to subdue him at the door…” to be a lie. You went there in a vigilante-style, hyped-up state and launched into an attack which was completely disproportionate to any perceived threat to your son, particularly given that your son was under no compulsion to attend the victim’s home.
18 In your favour, I take into account that you pleaded guilty at the earliest opportunity, namely, the first committal case conference on 29 July 2015. By reason of your early pleas of guilty, you are entitled to a tangible discount upon the sentence which, otherwise, I would have imposed. However, I find no evidence of remorse. Not once in your record of interview did you show contrition for what you had done or empathy with your victim. There was no mention of remorse in the psychologist’s report or in evidence given by your father at the plea hearing or by your partner.
19 Your counsel called you to give evidence at the plea hearing, stating that it was for the purpose of showing that you were remorseful. However, the impression I gained was that you were justifying your position. Although you stated that you were shocked by having heard the overbearing bellowing of yourself on the CCTV footage for the first time in court, in your evidence, you maintained that the footage did not show that there were facial and hand gestures which the victim was making towards your son. You also stated “I didn’t hit him, I restrained him”. Although you claimed to be sorry for what you had done, you made no mention of what the victim might have felt by reason of you invading his home and throwing him around his house and making a mess of it. Moreover, you seemed still to be justifying why you went there, by stating “Tainz got three days of constant abuse” before the incident. You also minimised Tainz’s offensive comment on Facebook, stating “He didn’t say he was a paedophile, he said he likes 16 year olds”.
20 You were asked about your earlier offending, on two charges of unlawful assault. You seemed to blame the other party, stating “The other person’s anger got out of control on that occasion”. This was a situation apparently where you were aggrieved by the driver of a car in front of you not travelling fast enough. You overtook the vehicle and damaged it. When the vehicle pulled to the side of the road, a road rage incident ensued, following which you were charged with assault.
21 I was unimpressed with your evidence. Whilst you have accepted legal responsibility by pleading guilty to the charges and have stated that you acknowledge that this is not the way to behave, my impression is that you are sorry for the consequences that your appalling behaviour has had upon you and your family, rather than having any real insight about the impact of your behaviour on your victim or being concerned about any consequences he may have suffered.
22 On further questioning you stated “It was a stressful year of my life and I wasn’t thinking straight”. You maintained that your behaviour in committing the aggravated burglary and assault, for which I must sentence you, was out of character. Your de facto partner, Kate Harrison, also gave evidence to this effect, stating that in all the years that she has known you, she had never heard you yell as you did on the CCTV footage of the incident. She states that you are a good family man and a hard worker. Written references from your mother-in-law and father (Exhibit “5”) also state that you are not violent by nature and work hard to support your family.
23 On your behalf, Ms Sleeth stated that you have taken steps to address your substance abuse. Tendered as Exhibit “4” was a report from Miriana Lenart, alcohol and other drug clinician at ISIS Primary Care Ltd, dated 28 October 2015. The report confirmed that you had attended four counselling sessions in July and August this year to address what was described as use of cannabis and alcohol over a number of years. It recorded that you said that you had ceased use of such substances since the incident (presumably the aggravated assault and burglary) and were confident that you would maintain these positive changes. In addition, Ms Sleeth stated that your general practitioner, Dr Gutha, had developed a mental health care plan on 8 May 2015 (Exhibit “3”) and that you had been referred to Ms Vicky Bablas for counselling to improve your moods, anxiety, overall functioning and help develop strategies to cope better. However, in your oral evidence you stated that you had not yet managed to attend any counselling, having cited, in part, Ms Bablas’s unavailability and, in part, your unavailability due to two hours travelling from home to your father’s business and, then, back again, each day via public transport, as well as meeting your commitments under the Community Correction Order imposed by the Magistrates’ Court in May this year.
24 Ms Sleeth urged the Court to note that your prospects of rehabilitation were good. Further, she argued that, should you be incarcerated, exceptional hardship would flow to both your parents and your de facto partner and children. She relied upon the evidence of your father as to you being indispensable to his business, along with the report from his general practitioner, Dr Slesenger, concerning your father’s health issues limiting his ability to do physical work. She also relied on oral evidence from your de facto partner that, if you were incarcerated, given that she is not working at present until your youngest child commences kindergarten next year, she would have to go to live with her mother in Geelong, which would necessitate a change of school for your daughter, Atlanta. Ms Sleeth submitted that this combination of circumstances, coupled with the hardship that would be caused to your parents by not having an income from the caravan repair business, constituted exceptional circumstances.
25 It is plain that family hardship is not a mitigating factor, as such, since it does not concern either you, the offender, or the offences. It is a request for mercy. Although, a court is obviously aware of the impact of a sentence upon members of the family of an offender should he be sent to prison, only rarely will those circumstances be of a magnitude to satisfy the test of exceptional circumstances warranting the exercise of mercy on their account. It is almost inevitable that imprisoning someone will have an adverse effect on that person’s family but the primary function of the sentencing court is to impose a sentence which adequately reflects the gravity of the crime in question. The higher courts have indicated that it would be a paradoxical result if a guilty person benefited in order that an innocent person should suffer less. Further, it would be unjust to treat an offender who has needy dependents more leniently than one who has none.
26 In this case, you relocated yourself and your family from New South Wales to Victoria specifically to assist your father in his caravan repair business. By reason of your repeated drink driving and driving whilst disqualified offences, you have made it very difficult for yourself in that you now have to travel two hours to and from work each day by public transport. Having brought about that hardship on yourself, you then further offended only two weeks after having been charged with your third drink driving and third driving whilst disqualified offence. In any event, the material indicates that your son, Tainz, was working three or four days per week with you at your father’s business. Your de facto wife and father were somewhat vague about why he was no longer doing this and, it would appear that he is neither studying nor gainfully employed. Although he may not be as experienced in the work as you, it is difficult to understand why he would not be able to render some assistance to your father in order to help keep the business running.
27 Your counsel urged in all the circumstances that you should be dealt with by way of a Community Correction Order. Ms Picone, for the prosecution, stated that the Crown considered such a disposition to be within range. I decided to have you assessed for suitability for such an order, albeit that I made it plain that you should not take this as an indication that that was the only order that I would make.
28 Pursuant to my request for an assessment, I have been provided with a report from Mr Richard Temple-Camp, Assessing Community Corrections Officer, dated 30 October 2015 (Exhibit “D”). This report notes that, since commencing the Community Correction Order which you are presently undertaking, you have complied with conditions, but the report states as follows:
“The only area of concern is community work. At the time of this assessment, he has attended community work on eleven occasions and has completed 59 hours (out of 300 hours). However he has incurred 14 absences during this time, including one occasion where he left early to watch an AFL game. Of these 14 absences, seven have been considered acceptable, as he has provided valid reasons for his non-attendance. However there are seven unacceptable absences, including four consecutive absences between 26/9/2015 and 17/10/2015. Mr Bailey attributed his absences to lateness as a result of transport difficulties. This raises concerns about his ability to attend community work as directed.
However, as Mr Bailey has attended community work 11 times, and has complied with all other aspects of his CCO, he is tentatively considered suitable for a further order.”
29 Mr Bailey, the gravity of the offence for which I must sentence you is reflected by the maximum of 25 years' imprisonment which Parliament has assigned for the offence of aggravated burglary. In recent years, the penalty for this offence was increased by Parliament to reflect community concern about the prevalence of it. All people should feel entitled to feel safe in their own homes. Although a confrontational aggravated burglary like the one you have committed, is not necessarily in the most serious category of aggravated burglary offences, your behaviour was a quite serious example of a confrontational aggravated burglary. As I have already stated, it was irrational disproportionate, completely unnecessary and an appalling example to your son, whilst showing a cavalier disregard for the sanctity of another person’s home. You apparently went to your victim’s home out of a misguided sense of wanting to protect your son from a fear of assault by the victim, but, had your son stayed away from the victim, there was no real likelihood that an assault would have occurred.
30 Most confrontational aggravated burglaries occur because of the perpetrator having some sort of grievance. Yours is of this type and in sentencing you, the primary sentencing considerations should be denunciation of your conduct, and general deterrence, so that other people who are inclined to take the law into their own hands in a vigilante-type fashion will be aware that such conduct will not be tolerated and will be justly punished.
31 Although the Court of Appeal last year indicated that a Community Correction Order may be suitable, even in cases of relatively serious offences which might otherwise have attracted a term of imprisonment, such as aggravated burglary, it also made clear that an expression of that sentiment should not be taken as meaning that a Community Correction Order is some sort of “get out of gaol free” scenario. If I were to consider a Community Correction Order appropriate, it would have to incorporate an element of punishment by way of a significant amount of unpaid community work. In circumstances where your performance on your current order is unsatisfactory in that regard, I have considered that I should not order a Community Correction Order with unpaid community work. In any event, it is my view that the gravity of your offending calls for a term of imprisonment. However, taking into account all of the mitigating factors put on your behalf, I consider that the term of imprisonment should be a short one, coupled with a further Community Correction Order with conditions, other than unpaid community work.
32 I consider that a Community Correction Order should have a supervision condition because, frankly, you strike me as an immature person for your years and, notwithstanding that Ms Bablas states that you are motivated to do something about the mental health conditions that she describes, you have not made this a priority, although I do consider you should be given credit for taking steps to address your substance abuse issues.
33 I also take into account that, although I have not found exceptional circumstances to exist in terms of family hardship, I can understand that you feel guilt about the impact that your offending has had on your family. Given that you do suffer from symptoms of depression and anxiety, I have taken into account your concern that you will be unable to care for family members whilst imprisoned, as a mitigating factor. Apart from a condition that you undergo mental health assessment and counselling, it is desirable, also, that you should undertake an anger management program as part of a Community Correction Order. It seems to me that, if you can remain under supervision for a time and address your mental health issues, anger control and refrain from substance abuse, then your prospects of rehabilitation should be reasonable. Certainly the fact that you appear to have a good work history is a positive factor in this regard.
34 Would you stand up, please?
35 On Charge 1, aggravated burglary, you are convicted and sentenced to be imprisoned for a period of three months and ordered to undertake a Community Correction Order for a period of three years. The order will commence after you have been released from prison and will be concurrent with the order which you are presently undertaking.
36 The terms of the order are as follows.
(a)you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(b)you must comply with any obligation or requirement prescribed by the regulations;
(c)you must report to and receive visits from the Secretary during the period of the order;
(d)you must report to the Community Corrections Centre specified in the order within two clear working days after the order comes into force;
(e)you must notify the Secretary of any change of address or employment within two clear working days after the change;
(f)you must not leave Victoria, except with the permission of the Secretary, either generally or in relation to a particular case;
(g)you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.
37 In addition, the following special conditions apply:
(1)that you undergo treatment and rehabilitation by way of drug and alcohol assessment and treatment;
(2)that you undergo assessment and treatment for psychological conditions as directed by the Secretary to the Department;
(3)that you undergo programs to reduce your risk of re-offending, including an anger management program or any other programs directed by the Secretary.
38 Mr Bailey, I can only make a Community Correction Order if you consent to it. Do you consent to an order with the terms and conditions which I have outlined?
39 PRISONER: Yes, I do.
40 On Charge 2, common law assault, you are convicted and sentenced to be imprisoned for a period of one month. I direct that this sentence be served concurrently with the term imposed on Charge 1.
41 Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence would have been 18 months' imprisonment with a non-parole period of 12 months.
42 Pursuant s464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with sub-Division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I consider that this order is justified by reason of the seriousness of the circumstances of your offending. You need to understand that, if you do not consent to the taking of a mouth scraping, then police may use reasonable force to enable that forensic procedure to be conducted.
43 As far as the Community Correction Order is concerned, you need to understand that, if you do not comply with the conditions of that order or commit another offence during the term of the order, then you will have breached that order which, in itself, is a criminal offence should that occur, you will be charged with breaching the Community Correction Order and brought back to Court to be dealt with for that, as well as potentially being re-sentenced on the offence of aggravated burglary which may mean that you serve a further term of imprisonment.
- - -
0
0
0