Director of Public Prosecutions v Bellamy (a pseudonym)

[2019] VCC 1204

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID BELLAMY (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	5 August 2019
DATE OF SENTENCE:	6 August 2019
CASE MAY BE CITED AS:	DPP v Bellamy (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1204

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	Mr D O’Doherty	Office of Public Prosecutions
For the Accused	Ms T. Theocharous	Kurnai Legal

HIS HONOUR:

1David Bellamy,[1] you have pleaded guilty to one charge of destroying property, one charge of aggravated burglary, one charge of causing injury recklessly and one charge of possession of a drug of dependence.  Those crimes carry a maximum penalty of 10 years, 25 years, five years and one year, respectively.  You have also pleaded guilty to a number of summary matters, a weapon, harass a witness and a breach of an intervention order. 

[1] A pseudonym.

2Insofar as this matter is concerned, on the weapon charge, you are convicted to one month to be served concurrently.  The charges of harass a witness and breach an intervention order I find proved and are dismissed.

3You are 22 years of age.  You pleaded guilty after a contested committal.  I am assuming therefore you have pleaded guilty to a settled indictment.  You were 21 years of age at the time of the offending. 

4Remorse is problematic but I give you the benefit of the doubt in regard to that.  Clearly, you get the utilitarian benefit of that plea of guilty.  Having seen the material presented on your behalf and the circumstances under which all this occurred, I take into account the milieu in which this offending apparently took place.

5You have an extensive criminal history which is concerning for one so young.  The most serious of that is a 30 month sentence you received in the County Court - sorry, 30 month youth justice order that you received in the County Court for a very serious assault indeed. 

6In this particular set of circumstances, there is no victim impact statement and it is not up to me to speculate.  I will just simply give you the sentence which everybody agrees seems to be the appropriate one in these circumstances.

7You were in off and on relation with a Kay Richard.[2]  You had been locked up, she had been locked up and, in any event, by May 2018 you had been released and she had been released.  In those circumstances, you went around to her house knowing that the relationship was ended but, being unable to accept that, you had an argument with her at the house and ultimately, you broke a bedroom window; that is Charge 1 of criminal damage.

[2] A pseudonym.

8In July 2018, she woke up and turned the TV on, received a phone call from a private number which she did not answer.  She then heard you say, 'Babe, can we talk', while you are doing this.  She told you to 'fuck off'.  You went to the front door and said, 'I can't hear you, what did you say?'  And she said, 'Your stuff's on the porch, just fuck off.' 

9At that point in time, you then broke into the house through a window.  You rushed at her, pushed her onto the bed and pinned her down, put your hand over her mouth and sat on top of her.  She was able to move her body, she pressed against the wall next to the bed.  You were yelling that you loved her, 'Why are you like this', then pinned her back down on the bed, grabbed her jaw and chin area, squeezing tightly and said, apparently, 'Fuck, I hope I got to gaol for this, you cunt'.

10You then said that all you really wanted was your hat, so you grabbed your hat and left.  The complainant obviously was distressed by this.  She had put some of your property outside.  That gives rise to the possession of the weapon.  That is Charge 2 of aggravated burglary and the recklessly cause injury.  You were also found in possession of some buprenorphine and that gives rise to one of the - is that proceeding? 

11That is on the indictment is it or not?  I was just trying to work out.  I mean to ask when I first came onto the Bench.  Is the buprenorphine, is that one of the summary matters or is that what the indictment is about?

12MR O'DOHERTY:  It is not on the indictment.

13HIS HONOUR:  I have not got ‑ ‑ ‑

14MR O'DOHERTY:  I did not think it was on the indictment, I thought it was a summary.

15HIS HONOUR:  No, no, sorry, I apologise for this, this will be edited out when I do it, but I need come straight and answer this.  I thought the possession of the drug of dependence was the buprenorphine on the indictment.

16MR O'DOHERTY:  That was what I thought it was.

17HIS HONOUR:  Yes.  No, no, I am simply saying that the actual summary ‑ ‑ ‑

18MR O'DOHERTY:  That is right, yes.

19HIS HONOUR:  That is right.  All right, I can forget it then.  Yes, the harass a witness was simply you sending an apology and the breach of intervention order is a similar sort of a concept; as I have indicated, I am going to dismiss those.  They are technically made out but I do not see any point, any punishment being imposed for them. 

20The offending is a home invasion, it is an aggravated burglary, it is unprovoked, it is on a female who was in the situation of being relatively defenceless, I would have thought.  It calls for the application of general and special deterrence, denunciation and appropriate punishment, a custodial sentence is appropriate. 

21The submission on your behalf was that a combination sentence was in range; the Crown do not disagree with that and I think that is a very sensible approach and it is one that I agree with.  I have had you assessed for a community corrections order and you are found to be acceptable, and so what I am going to do is sentence you to time served with a community corrections order to commence today. 

22Just for the purposes of the record, the circumstances of your upbringing are that you are one of five children.  Your mother is indigenous, you were brought up in Charleville. Your father is Greek.  They separated when you were four years old.  You were “taken care of”, is the expression, by your father for a period of time, who was a very serious substance abuser. 

23You went to numerous different primary schools.  You suffered extreme neglect and exposure to your father's drug use, there is violence in the household.  At the age of 13, you shifted out from your mother's address, you are then in foster care, residential care units and the like. 

24It is the sort of upbringing which, unfortunate, you see so often with young Aboriginal men in these circumstances.  It calls for the application of the principles outlined in Bugmy, and I do not need to go through all that. 

25You were totally illiterate until you did a period of detention at Malmsbury Youth Justice and, to your credit, you were able to access a literacy program and that helped.  You did go to Queensland on youth parole for about five months mustering and then, however, that turned out to be a breach of parole and you were then recalled and underwent sentence. 

26You have been drinking alcohol since and early age and drug use since an early age.  There is nothing here which attracts Verdins, you just simply have, because of your background, a pretty short fuse and an inability to really cope when under stress. 

27What is of real concern is that you have indicated to the psychologist, and that report has been tendered, that you find gaol to be a bit easier because of not having to organise your life and, effectively, decisions are made for you; that is almost the definition of institutionalisation and, for a 22-year-old, is indeed alarming. 

28That being the case, it is to be everybody's benefit if there can be a situation organised where you do not spend periods of time in active custody.  Unfortunately, if you do not turn it around now it is going to be a situation where you spend half the rest of your life in gaol.  It is for this sort of offending and one day someone is really going to give you a sentence and half for what you have done if you do this again.

29All those matters get taken into account and, in the end, I think the simplest bet is that on the matters on the indictment, you are sentenced to be imprisonment for a period of 384 days.  I direct that 384 days be reckoned as having been served under this sentence.  The summary matters are already disposed of. 

30Also, on the matters on the indictment, not the summary matters, you will be then to be released on a community corrections order. Counsel have seen the assessment. That order will be with no work hours because you have already done the gaol.  You will have treatment and rehabilitation for drug and mental health, programs to reduce re-offending and supervision.

31I make it clear in these sentencing remarks that what I am hopeful of is that in your particular circumstance, once you have been out of a little while and under supervision, that you will be able to assessed for Wulgunggo Ngalu, which is known to all of us.  And I think that would be a very beneficial place for you to spend some time as a transition between the, in your situation, protection of the prison and the rigors of the community.  That is a matter for Corrections.  I cannot direct that but I sincerely hope it can be organised.

32Prospects of your rehabilitation are a bit nerve-wracking.  The risk of you re-offending, I think is probably still high, it was the last time you re-offended.  But at your age and in your circumstances you have got to try and turn things around.  The CCO will be with conviction will be over a period of two years if you agree to do it. 

33I have got to do a 6AAA too, do I not?  Yes, two with a one.  All right, you just print it off and take it down.  If you would not mind going with him? 

34MS THEOCHAROUS:  Yes, Your Honour.

35HIS HONOUR:   With her, sorry.  No, I meant him.  All right, well I will sign that.  I am doing this on the understanding that upon release he is going to go and reside with his mother in Yarragon, so there is stable accommodation?

36MS THEOCHAROUS:  Yes, Your Honour.

37HIS HONOUR:  That is already made.  Just stand up just for a second.  Look, I cannot turn your life around, only you can do that.  The trouble that you are going to run into is, all right, at some stage someone is going to give you a massive whack, all right, and you are not going to get parole, you are going to do the lot.

38OFFENDER:  Yep, I understand that.

39HIS HONOUR:  Yes, and gaol might seem like an easy option but you do not want to be 45 years of age, sitting in a gaol, talking about the best units you have ever been in. 

40OFFENDER:  Yeah.

41HIS HONOUR:  All right, pretty boring conversations at that age.  So do your best.  Thanks for that.

42MS THEOCHAROUS:  As Your Honour pleases.

43HIS HONOUR:  Yes, you will have to be taken back, they cannot release you from there, you have got to go back and then the paperwork is done at the station.

44OFFENDER:  Yeah.  All right, thank you.

45HIS HONOUR:  I will send that over as soon as I can, fellows.  Yes, all right.  Yes, thanks.

46MS THEOCHAROUS:  Thank you, Your Honour.

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