Director of Public Prosecutions v Bellingham
[2014] VCC 2233
•18 December 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01849
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GARY ARTHUR BELLINGHAM |
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JUDGE: | His Honour Judge Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 December 2014 | |
DATE OF SENTENCE: | 18 December 2014 | |
CASE MAY BE CITED AS: | DPP v Bellingham | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2233 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Sedgwick | OPP |
| For the Accused | Ms La Movie | VLA |
HIS HONOUR:
1 Gary Bellingham, you have pleaded guilty to one charge of aggravated burglary, two charges of common law assault and one charge of criminal damage. The maximum penalties for these offences are:
· Aggravated burglary- 25 years' imprisonment;
· Common law assault- 5 years' imprisonment; and
· Criminal damage- 10 years' imprisonment
2 The Prosecution has presented a summary of your offending. I do not intend to repeat all of it. It will be attached to these sentencing remarks as Exhibit A.
3 Briefly, you and the primary complainant in this matter, Ms Dunn, were in a relationship. You had known each other for some years but in more recent times the two of you had become much closer. It was your hope that the relationship would develop into a lasting one.
4 Around the time of the offending, Ms Dunn was living with her mother and you would visit her at that address. On 18 March 2013 at approximately 2 pm, you went to see her. You entered the house. This initial entry to the premises was through the unlocked front door. No complaint is made about this entry; you had entered in this way in the past.
5 You walked to Ms Dunn’s bedroom where you saw her asleep in bed with Mr Pratt. Ms Dunn woke to see you standing over her. You asked, "What the fuck are you doing?" She got out of bed and you followed her asking who the person in her room was. She told you it was someone that she was seeing and that she had not had feelings for you in a while. You asked her to follow you as you walked to the kitchen. You started going through the kitchen drawers. You found a kitchen knife and said, “You can fucking watch this”. Ms Dunn was crying and asked you to stop. She went outside and tried to climb over the back fence in an effort to get away from you. You pulled her down from the fence and forced her to watch you as you cut your throat. Ms Dunn ran inside the house and you set off after her. You still had the knife in your possession. You picked up a mallet that was next to the door and went into the house. This is the conduct that constitutes the Aggravated Burglary.
6 Mr Pratt was awake by this time and he opened the bedroom door to see what was happening. You ran down the hallway towards him with the mallet raised. Mr Pratt just closed the door in time and the mallet hit the door. This conduct is the subject of Charge 2, common law assault.
7 You then demanded your personal property and persisted in harassing Ms Dunn. At one stage, you grabbed her throat and asked, “Why are you doing this to me?” You were apparently trying to remove a necklace that you had given her. She told you to leave and you let go of her throat. You hit a tallboy with the mallet. Ms Dunn was distressed by your behaviour and kept asking you to leave. Over a period of time you searched her belongings, swore at her and started ripping the sheets. Ms Dunn slapped your face. You hit her left cheek with the inside of your closed fist. This caused her to fall down hitting her back on a chest of drawers and her head on a door. The actions of grabbing Ms Dunn by the throat and later striking her constitute Charge 3, the rolled up charge of common law assault.
8 During the course of your criminal behaviour you damaged furniture items and a mobile phone. As you left the premises you jumped onto the bonnet of Ms Dunn’s car and then used a hammer to smash the windscreen, driver’s window and the rear window of the car. The damage you caused constitutes the rolled up charge of criminal damage.
9 You then left the scene on your bike and police subsequently attended.
10 You were arrested and interviewed on 27 July 2013 after attending the police station for an unrelated matter. You made broad admissions.
11 I have read Ms Dunn’s victim impact statement. She has suffered significant emotional harm as a result of your criminal behaviour. She is unable to reside with her mother because she no longer feels safe at her mother’s home. Her living arrangements are unstable and she is suffering from anxiety and depression. She has lost the use of her car and this has impacted on her independence. Her psychological state is such that she is unable to currently work. Clearly, your criminal behaviour has had a profound effect on her life and well-being.
12 The prosecutor indicated that she had met with Ms Dunn on multiple occasions and that Ms Dunn is still understandably angry and upset at what happened to her. The prosecutor did discuss with her the possibility of a rehabilitative outcome arising from the Koori Court process. Ms Dunn charitably responded very positively to the possibility of you receiving assistance to address the problems in your life.
13 Mr Bellingham, this is serious offending. You armed yourself with a knife and forced Ms Dunn to watch as you cut your throat. You chased her into the house whilst armed with a knife and a mallet. You then engaged in a quite frightening period of behaviour where you confronted Mr Pratt, laid hands on Ms Dunn and damaged property. It undoubtedly was a terrifying situation for Ms Dunn.
14 I have already referred to the maximum penalty for the offence of aggravated burglary. It indicates how seriously such offending is regarded. In a number of recent cases the Court of Appeal has said that in aggravated burglaries involving family violence, general deterrence is a paramount sentencing consideration. Just punishment and denunciation are also highly relevant sentencing considerations. My understanding of current sentencing practice is that only in rare cases will a person avoid jail in circumstances where they enter premises with the intent of assaulting their partner.
15 In assessing the objective seriousness of the offending, I acknowledge the following matters. This was not a planned aggravated burglary. You attended the premises to see Ms Dunn and you entered in the usual fashion. It was the middle of the day and no complaint is made about your initial entry. You had been in a relationship with Ms Dunn for some time and some items of your property were at her home. You did not expect to see her with another man. You reacted in a spontaneous and emotional way. This does not excuse your conduct but it does offer an explanation for it. Fortunately, you made no physical contact with Mr Pratt. You directed much of your fury towards Ms Dunn’s property and your personal assaults upon her did not result in major physical injury. Shortly after the incident you contacted the victim’s mother and told her what had happened. You apologised for what you had done. After telling your mother what happened she attended at the complainant’s home and made an offer on your behalf to pay for the damage. When the police interviewed you, you made admissions.
16 You have pleaded guilty to the offences. The plea was not entered at the earliest possible date. The matter was initially listed for contested committal in the context of on-going plea negotiations. The matter was adjourned for a committal case conference and resolved at that stage. The victim did not have to give evidence in the matter. You are entitled to a sentencing discount for your plea of guilty.
17 In addition, I am satisfied that your plea of guilty is indicative of remorse. I have had the opportunity of witnessing your responses when spoken to by the Elders of the Koori Court. I am satisfied that you are genuinely remorseful for your offending and the harm it caused Ms Dunn.
18 Your plea has also saved the victim from the trauma of giving evidence. Given Ms Dunn’s emotional state, this is a strong matter in your favour. The plea has also avoided the cost and expense involved in running a criminal trial. You are entitled to credit for these matters.
19 I now move to a discussion of your personal circumstances.
20 You are 37 years old. You have a limited criminal history. There are two appearances in the Magistrates' Court in the 1990s for relatively low level offending. I attach little weight to those matters. You appeared in the Sunshine Magistrates’ Court in February 2007 for drug offences and serious driving offences. All but one of those offences occurred in 2005. You received an aggregate imprisonment term and you appealed that decision. In August 2007, you again appeared at the Sunshine Court and you were convicted and fined for drug offences. Clearly, drug abuse was a significant issue for you between 2005 and 2007. Your appeal was allowed in September 2008 and rather than serve an immediate term of imprisonment, you were allowed to serve the term by way of an intensive corrections order. The order was breached – but not by further offending - and the order was extended. You completed the order without further problem. Given your relatively limited criminal history, rehabilitation is a relevant sentencing principle.
21 Your life has not been easy. You are one of five children. Your mother, who identifies with her Aboriginal heritage, lives in Melton and works for Centrelink. You have an older brother, Shane, and two step brothers; Brad who is a year younger than you and Jayden who is 17. You had little, if any, contact with your father. All you really know about him is that he committed suicide when you were five years' old. You did not have a positive adult male role model during your childhood and adolescence.
22 Your eldest brother Shane was born with cystic fibrosis. He has had health issues throughout his life and he spent regular periods in hospital while you were growing up. He has had two lung transplants. Your younger brother Brad has multiple disabilities arising from a brain tumour. He has cognitive impairments; he is blind and suffers from epilepsy. He is unable to live independently and resides with your mother. He is in respite care four days of the week. Shane and Brad’s health problems have had a profound influence on your life. You grew up in an environment where your mother was understandably preoccupied with the health needs of these two children.
23 You were very much affected by the death of another brother, Craig, in a car accident about 20 years' ago. Craig was three years older than you. It appears that you still have unresolved issues of grief concerning your brother’s death. After he died you first became involved in drug use.
24 Notwithstanding these challenging family circumstances, you completed year 11 at Kurunjang Secondary College. You then obtained employment with a company making canvas goods. You worked for approximately four years until the company closed down. Since that time you have worked predominantly in unskilled positions. You do have qualifications as a fork lift driver. Your last fulltime job was two and a half years' ago. You are currently unemployed.
25 You have wrestled with drug and alcohol problems since your late teens. I have already highlighted the influence drugs had on your life between 2005 and 2007.
26 In 2005 you were prescribed Zoloft for depression. You apparently ceased taking the drug after several months because of the effect it had on you. In September 2014, your local GP prescribed anti-depressant medication. Mr Simmons, psychologist, has provided a report in which he states, “Mr Bellingham presented with clear evidence of a depressive disorder which has been present for some time, and may well have had its genesis at the time of the offence”. I accept that your depressive disorder would make any jail sentence more onerous for you than it would be for someone without such a disorder.
27 Mr Bellingham, I do consider you a good prospect for rehabilitation. I do so for the following reasons.
28 You have a limited criminal history. You have no prior convictions for offences of violence. This offending was spontaneous, unplanned and a product of emotional distress. It happened in March 2013. You have been on bail since that time and there has been no further offending.
29 You have strong family support. On this point I note that both your mother and older brother attended court and participated in the sentencing conversation. Your brother is a most impressive man. Notwithstanding his major health issues he has completed a PhD in genetics. He is employed as a research fellow at the University of Melbourne. He is married with two children aged four and two. He is clearly concerned for your welfare. He told the court that you are not a violent man. He described you as a good uncle. He told the court that you were a private man who had difficulty disclosing his emotions and feelings. Some of the matters relevant to your background were first revealed to him when he heard them in the sentencing conversation. He stands beside you and offers you very strong support. Your mother told the court that the offending was totally out of character. You rang her after the offending and told her you were very sorry for what you had done. You wanted to pay for the damage. You live close to your mother and you visit her daily. She is very concerned about what would happen to Brad if you were in prison and something happened to her.
30 I am satisfied that you now have insight into your past problems with drugs. You also now realise that you need support to deal with your depressive disorder. In September, your local GP put you on anti-depressant medication and referred you to a clinical psychologist. You did not initially take up the referral. Your counsel advised me that you did attend your first appointment earlier this month and you have a further appointment later this month.
31 Finally, I give you credit for your decision to participate in the Koori court process. The Court of Appeal has recognised that the ‘sentencing conversation’ in the Koori Court is designed to further the reformation of an Aboriginal offender.[1] Participation in this process is not easy. Indeed it is challenging. Your active participation in the process is a factor that mitigates punishment.
[1] See The Queen v Steelie Morgan [2010] VSCA 14 at page 11.
32 Given all these matters, I am satisfied that you are a person who has good prospects of rehabilitation.
33 This is not an easy sentencing exercise. I accept that this is serious offending. Ms Dunn has suffered significant and ongoing emotional harm. The damage to her car was not insubstantial.
34 However, I am satisfied that this case is an unusual one and the offending is at the lower end of seriousness for offences of this type. It was unplanned and driven by emotion. It occurred in the middle of the day. Fortunately, Mr Pratt did not suffer physical injury and Ms Dunn suffered modest physical injury. You are not a man with a violent history. The offence is not aggravated by a breach of a family violence order. You contacted Ms Dunn’s mother after the incident and apologised. You offered to pay for the property damage. You made admissions to the police. You are a good prospect for rehabilitation. There has been an early plea of guilty and Ms Dunn has not had to give evidence. You are genuinely remorseful.
35 Please stand Mr Bellingham.
36 You are convicted on all charges and placed on a Community Corrections Order for 24 months. The order has the following conditions attached. You are to perform 240 hours of community work; you will be under supervision for the period of the order; you are to undergo assessment and treatment, including testing, for drug abuse or dependency; and you are required to undergo mental health assessment and treatment.
37 Had you pleaded not guilty to the charges and been found guilty after trial, I would have sentenced you to an immediate term of imprisonment. It is always difficult, in this hypothetical way, to determine what that period would be, but I would say it would be somewhere in the range of 2 years with a 12 month minimum.
38 I make the disposal order sought by the prosecution.
39 Mr Bellingham, you need to understand this, a community corrections order requires you to be of good behaviour. Should you commit any offence in the next two years then you will breach the order and will come back to court, and you will understand why I would deal with you severely. Having been given this opportunity you need to continue in the next two years in the same way that you have continued since March 2013. That is, stay out of trouble, and do not commit any further offence.
40 This order will require you to attend the Community Corrections Centre, and I think that will be the centre at Melton, within two working days. If I was you I would go there tomorrow. Those who administer this order will explain to you that you have to attend appointments and you have to do the things that they require you to do. You need to understand that that means if you have an appointment for ten o'clock you attend at ten o'clock and not 10.15 or 10.30 or some other late time.
41 You organise your affairs so that you make sure you get to the place that you are supposed to be at the right time, because the Office of Corrections have many people to see, when they give you appointment times, if you turn up late, they will not see you, and they will mark it down as a breach and I will be told about it. So you make sure that you do everything required under this order. You have been given an opportunity that you should seize and make the most of. You have got, as I said, very strong support from your family and if you are looking for a positive male role model you cannot do much better than your brother.
42 Just take a seat for a moment.
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