Director of Public Prosecutions v Bailey, Daniel
[2013] VCC 369
•26 March 2013
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-01519
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL BAILEY |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Bendigo (Sitting in Melbourne) | |
DATE OF HEARING: | 25 March 2013 | |
DATE OF SENTENCE: | 26 March 2013 | |
CASE MAY BE CITED AS: | DPP v Bailey, Daniel | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 369 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Gray | Office of Public Prosecutions |
| For the Accused | Mr J. Gullaci | Greg Thomas Lawyers |
HER HONOUR:
1 Daniel Bailey, you have been found guilty following a jury verdict of one charge of burglary, one charge of kidnapping, one charge of blackmail and not guilty on a charge of armed robbery but guilty on the alternative of robbery.
2 The maximum penalties applicable to these offences are:
· burglary – 10 years’ imprisonment;
· kidnapping – 25 years’ imprisonment;
· blackmail – 15 years’ imprisonment; and
· robbery – 15 years’ imprisonment.
3 The jury, by their verdict, accepted the evidence led by the prosecution in relation to these charges. Specifically in relation to Charge 1, burglary, that on 22 July 2011, you and co-offenders, Curtis Brown and Joel Clark, attended at the home of Mark Kipping and Tia Kelson, and that you entered the backyard of the property at 11 Holly Street, Golden Square, entered the shed in the rear of that yard and attempted to steal guns and/or ammunition located in a gun safe in that shed.
4 Inside the shed, the gun safe belonging to Mr Kipping was found to have been rocked on its foundation bolts and had become loose. Nothing was taken from inside the safe.
5 On 12 September 2011, you were arrested and interviewed by police in relation to this. You denied any knowledge of the burglary and said you were not there. During that interview, you expressed frustration at the cost you had incurred in having to return to Victoria to answer that allegation.
6 In relation to the charges of kidnapping, blackmail and robbery, the jury accepted that at approximately 7.00 am on 18 January 2012, as Mr Kipping was leaving his home to go to work, you attempted to get him out of the vehicle or prevent him from entering it and at the time were armed with a knife. The account given by Mr Kipping was that thereafter you forced him to drive from his home address to Collins Street in Kangaroo Flat. You demanded money from him, $21,000 specifically, to cover your legal and relocation costs as a result of the allegations that you believed Mr Kipping had made involving you in the burglary on 22 July 2011.
7 At Kangaroo Flat in the car, or walking to the bank at Kangaroo Flat, the prosecution case was that you made threats to harm Mr Kipping and his family if he did not give you the $21,000 you were seeking.
8 Mr Kipping withdrew $2000 from the bank, being, as I understood it, all he could obtain from his Net Saver account in that one transaction. Mr Kipping gave evidence he saw you with the knife in the car and then after you left the car when it was parked in Collins Street and walking towards the bank. He saw you with the knife in your hand, part of it up your sleeve. The evidence was that Mr Kipping did not see you dispose of the knife in that journey from the car to the bank.
9 The jury, however, were not satisfied to the requisite standard that at the time the $2000 was handed over to you by Mr Kipping, that you were armed for the purposes of the offence of an armed robbery and thus returned a guilty verdict on the alternative charge of robbery. Mr Kipping, in his evidence, also stated he did not know if you still had the knife at that stage.
10 It is not necessary to further summarise your offending or the evidence, as this was thoroughly canvassed during your trial. Yours was very serious offending indeed.
11 You do have a prior criminal history, although it is somewhat limited. You appeared at Bendigo Magistrates’ Court on 29 April 2010 on a charge of dealing with property suspect of being proceeds of crime and possessing ammunition without a licence and two charges of failing to answer bail, for which you were, with conviction, fined an aggregate of $500.
12 You next appeared at Heidelberg Magistrates’ Court on 18 February 2011 on a charge of theft from a motor vehicle, fraudulently using a licence plate and using an unregistered motor vehicle and with conviction again you were fined in that case an aggregate of $100. Clearly, your prior criminal history does not include anything of the gravity of the offending that is before me.
13 Mr Gullaci, who appeared on your behalf both during the trial and your plea, submitted the jury verdict confirmed the jury accepted the evidence of Mark Kipping, with corroboration from the account given by Tia Kelson. At the time of your offending, in Charges 2 and 3, the jury, he said, may well have accepted that you had a knife with you, however did not have it at the time of the armed robbery.
14 Mr Gullaci correctly observed your offending occurred over two dates and that the offences involved were particularly serious. There was a link between the two dates in the July and January offending and such was an aggravating feature when sentencing. Your motivation for attending at the premises and committing Charges 2, 3 and 4 on 18 January were based on your earlier belief that you had been identified by Mr Kipping as the offender involved in the burglary the previous July.
15
I accept, consistent with the evidence before me, that at no stage was
Mr Kipping physically injured by you on 18 January, although, as conceded by Mr Gullaci, there were no doubt emotional issues that flowed to him from that incident.
16 I also accept Mr Gullaci’s submission that at no stage was Mr Kipping threatened with the knife, such as by having it waved in his face or pointed directly towards him.
17 Mr Gullaci submitted that as Mr Kipping was neither hurt nor threatened with the knife, this was not the worst example of kidnapping. I agree, it does not fall at the more serious end of the spectrum for this offence.
18 Mr Gullaci referred to some unusual elements of your offending at Kangaroo Flat. On a number of occasions you were not in the presence of Mr Kipping, that there were phone calls made by him to Tia Kelson when you were not present, and that Mr Kipping went to a café but did not sound any alarm in relation to what was going on. Having said that, however, Mr Kipping gave evidence he did not make any such attempt to bring attention to his situation because he feared, not only for himself but for his family if not then, in the future.
19 Mr Gullaci submitted, regarding Charges 2, 3 and 4, your offending was one continuing course of conduct, and I agree. He, however, conceded there should be some cumulation in relation to those charges, and I also agree.
20 Turning to the charge of robbery, Mr Gullaci submitted it was at the lower end of seriousness. It occurred on the main street at Kangaroo Flat and a weapon was not involved. Nevertheless, he conceded, as he had to, that the robbery had to be seen in the context of the fact that a knife had been produced earlier at some stage and there had been threats made to Mr Kipping and his family.
21
Regarding the burglary at the premises of Mr Kipping and Tia Kelson, he submitted I should take into account the sentences imposed on the two
co-offenders, Mr Clark and Mr Brown, who were placed on a Diversion in the Magistrates’ Court. Also, he submitted, were it not for Charges 2, 3 and 4 before me, the burglary charge would also have been dealt with in the Magistrates’ Court.
22
Whilst, of course, principles of parity do apply when sentencing co-offenders, see R v Taudevin (1996) 2 VR 602 and Postiglione v R [1997] 189 CLR 295, there are a number of matters that distinguish you from Mr Brown and
Mr Clark, including their pleas of guilty, that you were the organiser of this offending, they assisted the prosecution in your trial, and you had a prior criminal history, albeit limited and not of the same type of offending as before me.
23 In court to support you during the course of your plea hearing, were your mother and father, brother and sister, as I understood it. Mr Gullaci submitted the family had been interested in your trial and had been in regular contact with him during it to offer you support.
24 I was provided with a report from Dr Aaron Cunningham, Forensic Psychologist, dated 23 March 2013, who outlined some of your background and history.
25 You are 26 years of age at sentence. You were raised in Bendigo and have one younger brother and one younger sister. Your father was a police officer who worked long hours. You spoke in negative terms of your relationship with him. Your mother you described as kind-hearted but with her own issues. You said you basically raised yourself as a child.
26 Your parents separated when you were 17 years of age. When you were 18, you left the family home and relocated to Queensland, living in caravan parks or sleeping in your car.
27 You reported two prior significant relationships, the first for 18 months and the second for five and a half years. The latter relationship ending after you returned to Melbourne in 2011.
28 Whilst you continued to have contact with your mother, you said you did not have any other significant support in Victoria or when you were in Queensland.
29 You attended Kangaroo Flat Primary School, then a Catholic College for Year 7, then to Kangaroo Flat Secondary College, ultimately leaving in Year 9 to work as a brick labourer.
30 You worked as a bricklayer for a short time, before working in furniture removals. Otherwise you have been mainly unemployed whilst in Victoria. You did, however, have a medium rigid truck licence and mining tickets, and expressed a desire to own your own business.
31 You reported you did not have any alcohol or drug abuse issues.
32 At interview with Dr Cunningham, you presented as co-operative, but stated you suffered panic attacks, with you on occasions attending hospital as a result. You could not identify a trigger for those panic attacks.
33 You described having been threatened with a gun placed against your head at the age of 16 and that you were also sexually assaulted during primary school, the latter never having been addressed. You said you did not trust people and believed people were abusive and manipulative.
34 In custody, you described increasing paranoia and increasing difficulty getting to sleep, and were concerned you would be harmed in custody as a result of your father being a police officer.
35 You said you had previously been prescribed Diazepam and Prozac, although had never engaged with psychological treatment.
36 In the opinion of Dr Cunningham, your presentation was consistent with a diagnosis of Paranoid Personality Disorder. Dr Cunningham concluded there was no indication of intellectual impairment.
37 He also interviewed your mother, Kerry Bailey, who endorsed your account of your background. Following the separation of your parents, she said you became “quite lost” and went to Queensland.
38 Your mother described you as “very paranoid”, fearing you would be abused by authority figures and were prone to panic attacks. She said she has seen your anxiety escalate whilst you were in custody.
39 In Dr Cunningham’s opinion, psychometric testing indicated your cognitive functioning was in the average range. In his opinion, you presented with a Paranoid Personality Disorder, being predisposed to the development of that disorder as a result of childhood abuse. In the opinion of Dr Cunningham, if that disorder was left untreated a term of imprisonment would weigh more heavily on you than an individual without Paranoid Personality Disorder and that you had been experiencing increased paranoia and anxiety in prison. In his opinion, Paranoid Personality Disorder required long-term engagement with psychological and psychiatric intervention to be adequately treated and combined psychological and psychiatric treatment in custody would reduce your perceptions of paranoia and anxiety and improve your prospects for rehabilitation.
40 Mr Gullaci said that whilst in gaol you have been working as a billet and also in horticulture, the latter, a job you were able to undertake because you had not been causing any trouble in prison. Also, your accommodation at the Melbourne Metropolitan Remand Centre, I was told, had been in a four bedroom unit, which I understood was as a result of there not being any management issues with you whilst you had been in custody.
41 Regarding your rehabilitation prospects, Mr Gullaci submitted they were "reasonable". You had a work history, albeit it was "up and down" You had been bricklaying in a number of places and you had, in essence, almost completed an apprenticeship in bricklaying. This meant that you had a vocation and hopefully would be able, when released from custody, to lead a productive work life.
42 Regarding your rehabilitation prospects, I accept with guarded optimism that your prospects are reasonable. Of course, ultimately it is a matter for you. If you continue to offend, you will end up coming back to court and spending more and more time in custody.
43
Mr Gullaci submitted that based on the Report of Dr Cunningham, who diagnosed you with Paranoid Personality Disorder, that the principles in
R v Verdins(2007) 16 VR 269 were activated in the limited sense of the restatement of Tsiaris (1996) 1 VR 398, Principle 1, that the existence of this condition at date of sentence would weigh more heavily on you than on a person in normal health. I agree some moderation of sentence applies as a result.
44 Turning in summary to matters in mitigation, Mr Gullaci referred to your limited prior criminal history and your youth. Whilst not relying on R v Mills (1998) 4 VR 235 he submitted at your age rehabilitation remained of some relevance and I agree.
45 This was your first time in custody and, as Dr Cunningham observed, you required assistance for your Paranoid Personality Disorder. You would benefit from a longer period on parole to enable you to remain out of trouble and to receive assistance through the parole structure.
46 Mr Gullaci submitted the lower end of the range of sentences urged by the prosecution would not be outside the range of appropriate dispositions.
47 Mr Gray, on behalf of the prosecution, submitted the offences of kidnapping, blackmail and robbery were very serious and such were reflected by the maximum penalties applicable. The prosecution conceded your offending was not at the higher end of the scale of seriousness, however observed the kidnap involved deprivation of Mr Kipping’s liberty and had had a significant effect upon him.
48 Mr Gray submitted it was also concerning you may have been looking for firearms relevant to Charge 1. I discussed the limitation of that submission, and the transcript will reveal that discussion.
49 Mr Gray conceded there should be partial cumulation between the blackmail and robbery charge, with the deprivation of liberty occurring whilst you were armed.
50 There were two Victim Impact Statements before me. The victims of your offending have suffered considerably as a result of it.
51 There was a Victim Impact Statement from Mark Kipping. He has had to deal with many emotions, fear, anxiety, lack of confidence in himself whether socialising or at work. He had to relocate on the day of your offending and move interstate, that is following Charges 2, 3 and 4. They left family and friends behind and incurred significant financial cost.
52 He could not work for three months. He was referred to a psychologist before returning to Bendigo. He was only able to sporadically recommence work and unable to work on a work site on his own.
53 From Tia Kelson, she described the various emotions she had after your offending. She had watched a strong, independent and supportive man, ie. her partner, become someone who no longer trusted others and who was no longer confident in his ability to protect those he loved. It put a huge strain on their relationship. She felt fear, anxiety and trepidation. Jaelyn, who I assume is the child, has received counselling.
54 There was a huge impact financially upon them. They had to leave Bendigo and move interstate at short notice and at large cost. She had to spend some time apart from Mark Kipping, which left him with little support when he needed it most.
55 Further expenses were incurred when they returned to Bendigo. They continue to need to work on their emotions, and she hopes you take on board the support you need and take a better approach to life.
56 The effects upon a victim are relevant sentencing considerations (s.5 Sentencing Act 1991). I am conscious, however, I must not allow the effects on a victim to swamp the sentencing process.
57 As well as matters personal to you, including your prospects of rehabilitation, as I find them to be, I must also take into account matters such as general deterrence which is of particular importance in this case, and also specific deterrence, given that your offending occurred on two dates and that you do have a prior criminal history, albeit limited.
58 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending.
59 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
60 When sentencing you I take into account the principles of totality and proportionality.
61 You are sentenced as follows.
62 On charge 1, you are convicted and sentenced to 2 years’ imprisonment.
63 On charge 2, you are convicted and sentenced to 3 years and 6 months' imprisonment.
64 On charge 3, you are convicted and sentenced to 3 years’ imprisonment.
65 On charge 4, you are convicted and sentenced to 2 years’ imprisonment.
66 Charge 2 is the base sentence, and I direct that 7 months of Charge 1 be served cumulatively upon Charge 2, I direct that 6 months of Charge 3 be served cumulatively upon Charge 2, and I direct that 6 months of Charge 3 be served cumulatively upon Charge 2.
67 That results in a total effective sentence of 5 years and 1 months' imprisonment and I direct you serve a period of 3 years before you are eligible for parole.
68 For clarity, each order in relation to cumulation is cumulative upon each other and upon the base sentence.
69 The prosecution made application pursuant to s.86 Sentencing Act 1991 in the sum of $2000. This was not opposed by counsel on your behalf, and I make the order in the terms sought.
70 The prosecution also sought retention of a forensic sample. This was not opposed by counsel on your behalf, and I make the order in the terms sought based on the seriousness of your offending and your prior criminal history.
71 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 433 days in custody, up to and including yesterday, 25 March 2013, and I direct that this be entered into the records of the court as pre-sentence detention.
72 Obviously, for completeness, there is no s.6AAA sentence because this was following a trial. So I just make that quite clear that it does not apply.
73 Now, is there any help required with the figures? No. PSD, is that correct.
74 MR D'ARCY: Yes, Your Honour.
75 HER HONOUR: All right. I think that's it. Would you remove Mr Bailey, thank you very much.
76 MR D'ARCY: If it please, Your Honour.
77 HER HONOUR: Thank you both.
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