Director of Public Prosecutions v Banagan

[2017] VCC 486

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-02051

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID ANDREW BANAGAN

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February 2017
DATE OF SENTENCE:	28 April 2017
CASE MAY BE CITED AS:	DPP v Banagan
MEDIUM NEUTRAL CITATION:	[2017] VCC 486

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director	Ms E. Millar	OPP
For the Accused	Ms S. De Paoli	C Marshall & Associates

HIS HONOUR:

1       David Banagan, you have pleaded guilty to one charge of aggravated burglary, one charge of recklessly causing serious injury and one charge of theft.   

2       The maximum penalties for these offences are - aggravated burglary, 25 years' imprisonment; recklessly causing serious injury, 15 years' imprisonment and theft, ten years' imprisonment.

3       You have also pleaded guilty to two related summary offences of contravene a conduct condition of bail and commit an indictable offence whilst on bail.  The maximum penalty for each of these offences is 30 penalty units or three months' imprisonment.

4       I heard a summary of the offending.  It is not my intention to repeat the whole summary.  It has been tendered as Exhibit A in the plea proceedings.

5       

Briefly, in the early hours of Friday 24 June 2016, you and the co-offender,

Ms Hamilton, attended Mr Smith’s house, a friend of the victim.  Mr Smith did not know either of you, however, he had attended at Ms Hamilton’s house with the victim on an occasion to board up some windows.  Ms Hamilton was armed with a large kitchen knife and you were carrying a black long handled metal torch.  You demanded Mr Smith call the Mr Hay to ensure he was home.  You told Mr Smith that it was your belief the victim had broken into Ms Hamilton’s house and stolen her dog.

6       You told Mr Smith to get into your vehicle and at approximately 3.20 am, you arrived at the victim’s house.  You parked in front of the neighbour’s house and walked to the door carrying the torch.  Ms Hamilton was armed with the large kitchen knife.  One of you told Mr Smith to knock on the door, as it was more likely the victim would open the door if he saw a familiar face.  The victim did open the door and you and Ms Hamilton forced your way into the house.  This behaviour constitutes the aggravated burglary.

7       Ms Hamilton held the knife to the victim’s face and demanded he move to the bedroom.  He was told to sit at one end of the bed.  You then proceeded to strike him in the face numerous times with the torch.  Ms Hamilton then demanded he get onto his hands and knees on the floor and she kneed him in the face until he fell to the ground.  She then searched through the victim’s pockets and stole his wallet.  The victim managed to pick himself up and after a scuffle, you and Ms Hamilton left the premises.

8       The victim contacted a friend to call an ambulance and he was eventually conveyed to the Royal Melbourne Hospital with head injuries.  As a result of the assault, the victim sustained an open fracture of the left frontal bone (skull) with a laceration and contusions around the eye.

9       You committed these offences whilst on bail and in breach of the curfew condition of that bail.  You were arrested later the same day and you were found in possession of items from the victim’s wallet.  When Ms Hamilton was interviewed, she admitted knowing the victim and claimed that he was stalking her.  She denied attending his home or committing the offences.  

10      You admitted in your interview that you knew the victim and attended his home to confront him about stalking Ms Hamilton.  You claimed that the victim attacked you and that you were acting in self-defence.  You were remanded in custody on 24 June 2016.

11      

On 21 November 2016 at a further committal mention, the matter proceeded as a straight hand up brief and was then listed for a plea in this court.  The

co-offender, Ms Hamilton, pleaded guilty before Her Honour Judge Douglas on 22 November 2016.  The matter was adjourned for a psychiatric assessment and report from Forensicare.

12      

On 16 March 2017, Her Honour sentenced Hamilton as follows - aggravated burglary, two and a half years' imprisonment; recklessly cause serious injury, 15 months' imprisonment and theft, six months' imprisonment.  Her Honour ordered six months of the sentence on Charge 2 be served cumulatively upon the sentence on Charge1 and fixed a minimum term of 18 months before

Ms Hamilton would be eligible for release on parole.

13      Judge Douglas determined that when Ms Hamilton committed the offences, she believed the victim had been stalking her and knew the whereabouts of her dog.  Her Honour said -

“In the circumstances, taking into account that she was using methylamphetamines at the time, I am satisfied that she genuinely believed [the victim] had entered her premises without permission, and had removed her dog.”

14      I will come back to the sentence imposed on your co-offender a little later in these remarks.

15      Mr Banagan, this is very serious offending.  You forced your way into a man’s house in the early hours of the morning.  You used a friend of his to facilitate your entry.  Once inside the house, you and the co-offender engaged in cowardly acts of violence directed towards the victim.  You were armed with a weapon and you used that weapon to hit the victim in the head on a number of occasions.  Your co-offender ordered the victim to kneel on the ground and she proceeded to knee him to the head a number of times until he collapsed to the ground.  The victim described the first knee to the head as being delivered with huge force.   As a result of this assault, the victim suffered serious injuries.  Your co-offender then stole his wallet, and when later apprehended, you had his driver’s licence, firearms licence and Medicare card in your pants pocket. 

16      With offending of this type, general deterrence is the paramount sentencing consideration.  The court must send a message to others who may be tempted to behave in this way that such behaviour will not be tolerated.

17      It is an aggravating feature of your behaviour that you were on bail and in breach of a curfew condition of bail when you committed these offences.  For completeness, I note that your co-offender was in breach of a community corrections order when she committed these offences.

18      I move now to matters relevant to your background.

19      You have a very limited criminal history.  In 1998, you were fined for offensive behaviour and possess liquor.  In April 2015, you were placed on a six month bond for obstructing an emergency worker.  I do not attach any weight to these prior matters.

20      Your background history is set out in a report from Mr David Ball, forensic psychologist.  He says this about your family.

“Mr Banagan said he was one of three siblings with a brother and a sister.  He said that his mother suffered with schizophrenia but that the condition was well managed.  He described a functional and cohesive family of origin and that he and his siblings were well cared for.  He said they had appropriate boundaries set for them and had appropriate affection shown.  He reported no domestic violence, mental illness, substance abuse, criminality or excessive poverty among family members during his childhood.” 

21      It is clear that you were not a good student.  You left school after a failed attempt at repeating Year 9.  You have worked consistently as a labourer in various positions since leaving school.  This work history was disrupted about two years ago when a friend of yours died from a drug overdose.  You commenced using ice not long after that.

22      Mr Ball notes in his report that as a younger man, alcohol was a problem for you and that, in later years, you have variously used cannabis, heroin and methylamphetamine.  This explains his diagnosis of severe cannabis, opiate and stimulant abuse disorders.

23      In the time leading up to the present offences, you were using ice heavily.  You had taken up with Ms Hamilton some six months earlier.  I accept that you became involved in this offending at the instigation of Ms Hamilton. You believed that she was being stalked and harassed by the victim.  This offers some explanation for your participation in the offending.  It does not provide any excuse for your behaviour.

24      I now move to the matters in mitigation.

25      You have pleaded guilty to the offences. It was not an early plea and it is not indicative of deep remorse.  When Mr Ball interviewed you on 14 February 2017, you were still maintaining the position that you acted in response to the victim attacking you.  It has clearly taken you some time to accept full responsibility for the vicious attack upon the victim.

26      Nonetheless, you have pleaded guilty and you have not required the victim to give evidence.  This has saved the victim from the trauma of giving evidence and saved the costs involved in a criminal trial.  You must be given appropriate credit for these factors.

27      You do have strong family support.  Your father attended the plea hearing and gave evidence on your behalf.  He is prepared to continue to support you upon your release from prison.

28      It is in your favour that you have a limited criminal history.  You have never been in custody before and your counsel submitted that your period on remand has been a salutary lesson for you.  You are not using illicit drugs and you are currently on a methadone program.  If you are able to remain drug free upon your release, you will be a good prospect for rehabilitation.  I note the assessment by Mr Ball, that upon release, you will require intensive and structured drug relapse prevention treatment, supervision, monitoring and support in the community. 

29      Parity is a relevant issue.  In dealing with this issue, I must make due allowance for the respective criminality of you and Ms Hamilton, and I must make due allowance for your differing antecedents, personal circumstances and mitigating circumstances.

30      The prosecution submitted that you and Ms Hamilton are equally culpable for the offending.  I agree with that submission.

31      There are two factors that are to the advantage of Ms Hamilton.  First, she was very remorseful for her offending and secondly, the fifth principle of Verdins applied to mitigate penalty.  However, she was the instigator of this offending and she had a significant prior history, including a prior appearance in 2001 for aggravated burglary.  This latter fact meant that specific deterrence and protection of the community were matters of some significance in her case.  In this regard, you are in a much stronger position to her.

32      Given these circumstances, I have concluded that you should be dealt with in a similar way to your co-offender, Ms Hamilton. 

33      Will you stand please?

34      On Charge 1, you are convicted and sentenced to two and a half years' imprisonment. 

35      On Charge 2, sentenced to 15 months' imprisonment.

36      On Charge 3, sentenced to six months' imprisonment.

37      On the summary charge of commit an indictable offence on bail, sentenced to be imprisoned for one month.

38      On the offence of failing to comply with a conduct condition of bail, sentenced to be imprisoned for one month.

39      I order six months of the sentence on Charge 2 and the one month sentence for committing an indictable offence on bail, be served cumulatively upon each other and upon the sentence imposed on Charge 1.

40      This makes a total effective sentence of 37 months.  I fix a minimum term of 19 months before you will be eligible for release on parole.

41      I declare 308 days pre-sentence detention.  

42       If you had pleaded not guilty and been found guilty after trial, I would have sentenced you to a total effective sentence of three years and ten months with a two year and four month minimum.  

43      Is there anything else, Ms Millar or Ms De Paoli?

44      MS MILLAR:  No, Your Honour.

45      MS DE PAOLI:  No, Your Honour.

46      HIS HONOUR:   Mr Banagan can be removed. 

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