Director of Public Prosecutions v Biss

[2020] VCC 443

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00896
CR 19-00897

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL BISS
TIPENE RITCHIE

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2020
DATE OF SENTENCE:	17 April 2020
CASE MAY BE CITED AS:	DPP v Biss & Anor
MEDIUM NEUTRAL CITATION:	[2020] VCC 443

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Baxter	Office of Public Prosecutions
For Accused Biss	Ms L. Kelly	Bayside Solicitors
For Accused Ritchie	Ms C. Hollingworth	Gallant Law

HER HONOUR:

1Daniel Biss and Tipene Ritchie, you have pleaded guilty before me to one charge of home invasion.  You, Mr Biss, have pleaded guilty to one charge of intentionally causing injury.  You, Mr Ritchie, have also pleaded guilty to one charge of recklessly causing injury.

2The facts underlying your offending are as follows.

3You, Daniel Biss, had previously lived with the victim, Thomas Kuhnl, in Safety Beach with Mr Kuhnl’s partner and her four children.  Problems arose in the flatmate relationship and after nine months, you were asked to leave by Mr Kuhnl and you moved out in about August, September in 2018 to premises in Seaford.  You thereafter had no further contact with Mr Kuhnl.

4Tipene Ritchie you were friends with Mr Biss and had met the victim a couple of times while Mr Biss was still living with him.

5In the early hours of December 29, 2018, both of you were drinking at Strike Bowling in Frankston and then you, Mr Ritchie, were ejected from the premises at midnight and the pair of you went back to Mr Biss's home where you both consumed more alcohol.

6At about 3 am, the two of you left Mr Biss's premises in your car, Mr Biss, driving to the victim's house in Safety Beach arriving there at about 3.40 am.  By this time, Mr Kuhnl, whose relationship with his partner had ended, was alone asleep in an upstairs bedroom whilst two of his friends were asleep in a downstairs bedroom.

7The two of you entered the property through an unlocked front door and Mr Kuhnl awoke to the two of you assaulting him in the bedroom.  The pair of you assaulted him at the same time, kicking Mr Kuhnl when he was on the ground, stomping on him and punching his head.  Mr Kuhnl began bleeding from the nose and he recognised both of you.

8You, Daniel Biss, told Mr Kuhnl, 'You think you can talk about me and get away with it.  You will be quiet now', and you threatened Mr Kuhnl saying something to the effect that you would be back.  You, Mr Ritchie, apparently told Mr Kuhnl something along the lines of, 'You shouldn't talk shit'.

9Mr Kuhnl ended up on the floor of the bedroom during the assault and you, Daniel Biss, lifted his queen size bed and turned it over and several holes were smashed in the plaster wall of the bedroom as a result of Mr Kuhnl being thrown into the wall.  You, Mr Ritchie, then told Mr Biss that it had been '30 to 40 seconds already' and that the two of you had to go.

10The other people sleeping at the house woke to the commotion hearing a male voice saying things such as, 'You fucking dog', 'I'm gonna fuck up your friends', and, 'I'm coming back', as well as stumping and yelling and the victim yelling, 'Please stop, please stop'.

11Police were rang during the incident.

12The two of you then left Mr Kuhnl’s house.  One of the people staying at the house estimated the incident lasted in total 7 minutes from the time she was awoken by voices and stomping until she heard the two of you departing.

13Mr Kuhnl was taken to Frankston Hospital where he was treated for a nose fracture, swelling, cuts and abrasions and chipped upper teeth although it was conceded during the plea that this may have been a pre-existing condition.  I was shown photographic evidence of the state of Mr Kuhnl’s teeth prior to this incident and I am satisfied that he in fact suffered from a chipped tooth in precisely that area prior to this attack and I am not satisfied that that injury was caused during it.  He also had general bruising.

14Inspection by police of the property found no signs of damage or force to the front door but it was noted that the bedroom door had been forcefully removed off its hinges, the bed and mattress had been flipped on its side, there were two holes in the plaster wall and there were blood stains on the carpet of the room.

15The next night on 29 December, police attended your home, Mr Biss, where you were arrested and interviewed but you denied the offending saying that you had not been at the house nor had you assaulted the complainant and generally your record of interview was uncooperative.  You were charged and bailed.

16On 13 February, you, Mr Ritchie, were arrested and interviewed and you made full admissions saying that after a few drinks, the two of you had gone to Mr Kuhnl’s house, you said the pair of you were drunk, that Mr Biss wanted to give Mr Kuhnl a scare because he thought Mr Kuhnl was a 'chick basher and a drug dealer'.  You had thought that Mr Biss was just going to have words with him.  You were still drinking while driving to the house, that you told Mr Biss to stop once he started assaulting the victim.  You said you might have kicked the victim but you could not remember.  The pair of you had worn gloves to avoid fingerprints.  You had gone to sleep and the next day, you told Mr Biss that the two of you should go to police.

17Significantly, in my view, in your record of interview, you told police you felt terrible, that the incident had been preying on your mind, you had lost a lot of sleep.  You said that you should have talked Mr Biss out of it, that you would be distraught if someone had done to you what was done to Mr Kuhnl and that you would like to apologise to him.

18The maximum penalty for home invasion is 25 years' imprisonment; the maximum penalty for intentionally causing injury is 10 years' imprisonment; and the maximum penalty for recklessly causing injury is five years' imprisonment.

19Both of you pleaded guilty at an early stage before witnesses were called in this matter.

20In his victim impact statement, Mr Kuhnl wrote that the effect of the attack on him had been profound, that he has difficulties sleeping, that he constantly feels unsafe in his own home. He described this incident as 'the most horrible, scary, confusing and heartless thing I have ever been through'.

21I will now proceed to deal with the provisions of the Sentencing Act which govern the way in which a court must deal with this kind of offending.

22Pursuant to s.5(2H) of the Sentencing Act, a charge of home invasion which is a category 2 offence, requires a court to impose a term of imprisonment. There are exceptions which can be applied to this mandated response to this offending pursuant to s.5(2H)(e). A non-custodial disposition may be imposed if there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order.

23Pursuant to s.5(2H)(c), in determining whether there are substantial and compelling circumstances pursuant to paragraph (e), the court must have regard to general deterrence and denunciation of the offender's conduct as having greater than the other purposes set out in s.5(1) of the Sentencing Act which is generally the section that sets out matters to which a court must have regard when imposing a disposition; (b), must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and (c), must not have regard to; (i), the offender's previous good character (other than an absence of previous convictions or findings of guilt); or (ii), an early guilty plea; or (iii), prospects of rehabilitation; or (iv), parity with other sentences.

24Additionally, to s.5(2H)(c), if the offender proves on the balance of probabilities that (ii), 'The offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater risk than the ordinary burden or risks of imprisonment', a court may if so satisfied proceed to the imposition of a non-custodial disposition order.

25Pursuant to s.5(2H)(b), impaired mental functioning has the same meaning as described in s.10A which then refers to the definition of impaired mental functioning pursuant to s.4G of the Mental Health Act,

'Mental illness is a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory.'

26That outlines the legislative confines relating to sentencing by a court dealing with the charge of home invasion and I now turn to the personal circumstances of each of you beginning with you, Mr Daniel Biss.

27You are now aged 36, were born in New Zealand where you grew up on a farm, you have a 34-year old sister who is married with a child and lives in Queensland as do your parents.  Your family moved to Australia in 1993 and because of your father's work in the construction industry, the family moved around to some degree and your schooling was disrupted.

28You completed Year 10 at Palm Beach Secondary College.  You immediately began work and indeed you have a very good work history.  You started off as a labourer on construction sites, then for four years worked for a scaffolding company, you undertook an engineering apprenticeship and you have been constantly employed by labour hire firms.  You have never been on Centrelink.  You have always been gainfully employed.

29You moved to Melbourne in 2006 at which time you were in a relationship of which a son was born.  That relationship then broke up.  You became aware that you were suffering depression and left the construction industry and you began working in garden and maintenance on the Peninsula.  You then worked for five years in a quarry working on heavy machinery and then obtained very good employment with a firm which contracted to Yarra Valley Water. I received an excellent reference dated July 2009 from that firm, Ventia, talking of your skills. It was considered by that company that those skills were of such a level that you were to be moved to management of five people within that organisation and in that time, you were earning a high income of about $130,000 per year.

30You have only one prior conviction which related to an incident when you were 19 when you became involved in an altercation involving a number of people. You were dealt with in Queensland for a charge of assault occasioning bodily harm in company in 2003 and you were placed in prison for four months and then placed on probation for two years.  The conviction, in my view, is of such an age that I do not regard it is particularly relevant to the sentencing exercise I must undertake essentially in terms of you being generally a violent person or of concern in terms of the principle of the protection of the community.

31The stress of the upcoming proceedings in this Court weighed so heavily upon you that you felt unable to continue in the employment that you were in and essentially since that time you have gone back to working via labour hires.

32The circumstances relating to your living conditions with the victim are worth mentioning.  I received on the plea evidence from Mr Kuhnl’s previous partner, Grace Arlen.  She attended court in order to support you but also gave evidence about the difficulties that she experienced in the relationship that she had with the victim.

33Ms Arlen gave evidence that whilst you were living in the household when she was in a relationship with Mr Kuhnl that you had been extremely supportive to her in what was she described as an extremely abusive relationship.  It appears that Mr Kuhnl was a daily user of methylamphetamine. Ms Arlen experienced a great deal of emotional abuse at his hands and ultimately she was forced to leave those premises and ended up in a refuge.  She described the impact of the relationship she had with Mr Kuhnl as extremely deleterious.  She in fact had been the person who originally rented the premises.  She was running a home business which she was forced to give up and, as I said, forced to leave the premises.

34Ultimately, after she left those premises as did you, the two of you were in a relationship for about 18 months.  That relationship ended but on amicable terms and she regarded you as an invaluable support during a time of great difficulty.

35It would appear that at the time of this offending you were in a position where you had again become depressed.  Again, this is worth mentioning.  You were involved in a car accident when you were 17 and your best friend was thrown from the car and died. You discovered his body in very difficult circumstances.  You have never sought treatment for the emotional response that you experienced at the time and your counsel submitted to me that your view is that you have suffered depression on and off ever since.

36The situation is, I accept, that you are a person of limited criminal history.  I accept that you indicated an early plea of guilty notwithstanding that you were not cooperative with police.

37In terms of determining whether or not I should impose a custodial sentence, it is my view that there are not circumstances present in your case which allow me to deal with you other than by way of a term of imprisonment.  However, it also my view that in having made that decision that I must sentence you to a term of imprisonment, there are a number of circumstances which, in my view, mean that you should receive a more than lesser minimum term of imprisonment.

38They are, as I have said, your lack of previous criminal history, your otherwise very responsible and constructive work history, your very early plea of guilty, I note that there is now Supreme Court authority to the effect that a plea of guilty in this particular situation in relation to in COVID-19 crisis has more than usual utilitarian benefit giving the effect that the impact this has had upon the criminal justice system.

39You have entered a very early plea of guilty notwithstanding your uncooperative response in your record of interview.  I regard you as a low risk of reoffending.  I had you assessed for a community corrections order whilst I considered whether or not you did fall into the exceptional category which would allow a court to deal with you by way of a non-custodial disposition.

40The view of the assessing officer was that you were a low risk of reoffending.  I do not regard protection of the community as being a live issue for this court.  I also do not regard specific deterrence as being a principle to which this court must have particular regard.  I regard your prospects of rehabilitation as excellent.

41I also take into account that service of a term of imprisonment is going to be more difficult for you because, you will be subject to isolation for two weeks, your service of imprisonment will be rendered more difficult firstly by the fact that normal programs available to prisoners will be limited, you will be unable to receive visits and there will be the anxiety of the possibility of contracting this virus should it erupt within the prison system.  I note of course that to date it has not.

42I might add that you had you not been caught by the provisions of s.5(2H) relating to the charge of home invasion, I may well not have proceeded to sentence you as I have but, in my view, the circumstances relating to the offending, which I should add I regard as falling at the lowest end of the scale by comparison to other forms of offending under this section, as well lead me to the conclusion that I should deal with you in a more than usually lenient fashion in terms of this sentencing.

43Could you stand up, sir?

44For these reasons, I sentence you as follows and it is going to be an aggregate sentence for the two charges because they both arise out of the same incident.

45In relation to the charge of home invasion and the charge of intentionally cause injury, I sentence you to 12 months' imprisonment but I order that the minimum term you serve should be a term of four months' imprisonment.

46Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of two years and order that you serve a minimum term of 10 months' imprisonment.

47Thank you.  You can have a seat.  Thank you, Mr Biss.

48I now turn to you, Mr Ritchie.

49You are now 24 years of age; you were 23 at the time of this offending.  You are the second of eight children born to your parents.  You also were born in New Zealand and you came to Australia with your family when you were nine.

50You had a difficult family history.  Both your parents abused alcohol and according to what you told psychologist Carla Ferrari whose report was tendered on the plea, you were exposed to domestic violence essentially that being violence inflicted by your father on your mother.

51On arrival in Australia, your father's drinking alcohol abuse improved but your mother's worsened.  She then became emotionally violent towards her children and you were also subjected to fairly extreme physical discipline.

52When you were 17, your paternal grandmother died and it would appear that your father's response to this was to turn on you, the oldest boy.  You were evicted from the house to the garage and you eventually moved out with friends and remained estranged from your family for a while.

53During that time, your parents separated which you only discovered after your father returned to New Zealand.  He has had very little contact with the family since and has been of no financial support.

54Whilst you struggled academically dropping out from Frankston High School in Year 9, you have also gone on to compile to a very good work history.  You worked in a factory for six months where you received extreme physical and verbal abuse from your employer to the extent that you reported it to police and your former employer was then charged.

55You worked as a car detailer for 18 months, then that company went bankrupt.  You then worked for two years with a gas company which also closed.  You then worked in a steel company for six months.

56Ultimately, you trained as a renderer and have been successful in that career where, according to what you told Ms Ferrari, you have been constantly employed on a contractual basis.

57You have no prior convictions.

58Your situation is, in my view, quite different to that of Mr Biss.  When you were 19, you formed a relationship with a young woman called Lauren who suffered from mental health difficulties to the point that she has been at times considered to be bipolar. She was also a drug user. Shortly after you began that relationship, she became pregnant and gave birth to your son who is now aged four.

59Despite the difficulties in your upbringing, you did not appear to have much difficulty with drugs and alcohol until after the relationship between you and Lauren was on foot.  The difficulty arose during the pregnancy.  At the time you were living with your mother who had been left to support seven children and were in fact contributing financially to that household.

60You then moved out to live with your girlfriend and supported her through the pregnancy. The relationship was clearly very difficult from the start.  Following the birth of your son, your partner developed post-natal depression, became mentally and physically abusive toward you and then evolved a situation which I am satisfied was an extremely stressful one where you would move in and out of the relationship with Lauren, basically seeking to support her in dealing with the raising of your son.  Eventually, the relationship became so difficult that you were forced to leave.  Your partner became ever more abusive.  She would attend on you both socially and at work, creating scenes to the point that at one stage, you lost your job.

61This weighed heavily upon you.  You became almost reclusive as a result.  You also developed depression and anxiety and you turned to alcohol as a form of self-medication.  This was something you had been anxious to avoid previously because of your experience at the hands of your parents.  You had been using cannabis on a fairly regular basis from the time you were about 12 but you stopped this when your partner was pregnant although she apparently continued to use cannabis throughout the pregnancy which was a further cause of anxiety to you.  It would appear that you developed depression during this time.

62At the time of this offending, the relationship with your previous partner was at a low ebb and she was preventing you from seeing your son.  You went to visit Mr Biss who you also knew was experiencing some difficulties with his depression and at this time your drinking had, for the first time in your life, become quite extreme.  You were, according to what you told Ms Ferrari, drinking daily and you were drinking about a cask of wine every night.

63On this occasion, as was clear from the prosecution opening, you and Mr Biss had been drinking.  You continued drinking and it was estimated by you that each of you had drunk about a cask of wine each.  This is not a mitigatory factor that I can take into account but it does give an indication of the level to which your drinking had developed.

64You drank so much that in fact you have very little recollection of what occurred.  You woke up about 3 pm the day after the offending when you were informed by Mr Biss what you had been involved in and, according to Ms Ferrari and according to your counsel, you have had some fragments of memory since.

65The depression that you had developed through this long term and acrimonious relationship with your previous partner deepened.  You developed a suicidal ideation and in fact made a suicide attempt.

66I should add, and I apologise, this goes back to Mr Biss, both you and Mr Biss in the aftermath of this offending realised that each of you had to deal with the personal problems pertinent to each of you.  Mr Biss attended on his GP and undertook a mental health plan and has been prescribed antidepressant medication.

67You did the same.  In particular, you realised how problematic your alcohol consumption had become.  I was informed by your counsel and you told Ms Ferrari, you have not drunk since.  You were also going through a period of homelessness.  You experienced very little support from your own family during this period of time which added to your situation.  You are now residing in stable accommodation with an elderly couple on a rural property living in the bungalow at the back.

68Relations with your ex-partner have improved.  You are now having access to your son; however, it was quite clear from extensive testing conducted by Ms Ferrari that you continue to suffer from what she described as fluctuating moderate to severe depression and anxiety, in particular depression.

69She diagnosed you as suffering from a major depressive episode and some form of PTSD.  You also reported to her your difficulties at school relating to a particular difficulty with concentration.  It was her view on testing that you also suffer from ADHD.  She also found that at the time of this offending, you were suffering an Alcohol Abuse Disorder.

70It was Ms Ferrari's view that the factors relating to your life at the time and your impaired functioning had a causal link to the offending.  I am not inclined to examine that in terms of a moral culpability but I am satisfied that you were at the time of this offending and have since continued to suffer from a mental impairment pursuant to s.4 of the Mental Health Act.  That is you suffer a mental illness characterised by a significant disturbance of thought, mood, perception or memory and indeed it is accepted by the prosecution that you did and continue to suffer such mental health impairment.

71In your situation, I am also, pursuant to the legislation governing sentencing considerations for this offending, able to take into account the fact that you have not previously offended.

72It is accepted by the prosecution that you have shown extreme remorse for your offending which was indicated at the very earliest stage in the comments that you made in your record of interview as to the personal shame and remorse that you feel over this offending.  I am satisfied that this offending is very much out of character for you.

73The issue appears to be whether or not the mental functioning that you have would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.

74It was the prosecution submission that you would not satisfy this category.  I am satisfied, however, that that would be so in your case.  I accept that this is so firstly because, indeed, this would appear to be the opinion of Ms Ferrari in the first case. 

75Firstly, (and I am departing from the topic in some sense) it was Ms Ferrari's view that your,

'Self-medication with alcohol during this period, heightened Mr Ritchie's risk of engaging in impulsive and reckless behaviour as well as further impairing insight, decision making and judgment'.

76She believed that this ultimately affected your usual function as well as worsening underlying mental health issues.  This is in relation to your ADHD.

77She regarded you as having insight into your problems and understanding that your mental health remaining untreated was likely to cause you issues in the future. You had clearly acknowledged the destructive role that alcohol had played in your life.

78It was her view that your mental health issues may be exacerbated by imprisonment.  She stated,

'He is a young and vulnerable individual who has never been in the prison environment previously nor had exposure to criminal individuals.  Given his young age and naivety in the sense of criminal behaviour, there is a high risk that he may be seen as a target by others and peer-pressured into complying with demands or requests.'

79She also believed that it was unlikely you would receive the specific treatment that you required in custody for PTSD or ADHD.

80She also stated,

'There is also the significant risk that Mr Ritchie's mental health would deteriorate in custody, not only due to environmental factors but due to the effect of a custodial sentence on his future prospects on his ability to maintain a strong relationship with his son who is at a critical stage in his development.'

81In addition, I am satisfied that the more difficult conditions of any prisoner in relation to the COVID-19 imprisonment would be such as to further substantially impact in an adverse way your experience of imprisonment, that is I am satisfied that you would be subject to 'substantially and greater than the ordinary burden or risk in imprisonment' by me by virtue of your mental illness.

82As I stated, I am able by virtue of the fact that I am satisfied you fall into that category to take into account your lack of prior convictions, your extreme remorse, the assessment of Ms Ferrari that you are a low to moderate risk of reoffending, I regard your prospects of rehabilitation to be very good.  I do not regard you as a danger to the community as you have entered an early plea of guilty.  I am satisfied you are extremely remorseful for your offending and in those circumstances, it is my view that I can deal with you by way of a non-custodial disposition, that is by means of placement on a community corrections order for which you have been found suitable.

83Could you stand up please, sir?

84In the circumstances therefore, I am placing you on a community corrections order in relation to both charges for a period of two years.  Before I can place you on such an order, I must first obtain your consent to an order and I must outline to you the conditions of such an order.

85They are that you must report to community corrections within two working days of the making of the order, that is by Tuesday of next week.

86Whilst on the order, you must not commit any offence punishable by imprisonment.  That does not mean you have to be imprisoned for reoffending; it means that if you are charged and found guilty of an offence for which you could theoretically be gaoled, like stealing a box of matches from Woolworths, that would constitute a breach and I would deal with you in terms of resentencing for this offending if that were to occur.

87Whilst on this order, you must report any change of address or employment within 48 hours of such a change.  You must not leave Victoria without the permission of the community corrections office whilst on this order.  You must not attend upon the community corrections office under the influence of drugs and alcohol.  You must report to and receive visits from the community corrections office and you must obey all lawful directions of the community corrections office.

88Because of the conditions that currently exist, I am not going to order that you undertake unpaid community work since it is simply not being carried out.  However, there is going to be a condition that you attend for assessment and treatment for mental health difficulties.

89I accept that you are no longer using alcohol.  I am not going to order that you undergo treatment for alcohol use.

90Are you prepared to enter the order?

91OFFENDER RITCHIE:  Yes.

92HER HONOUR:  I am also going to order that there is going to be supervision which is a more than usual management of you by Corrections.  All right?  And you are prepared to enter the order.  We will just prepare the documentation.  Thank you.

93OFFENDER RITCHIE:  Yes.

94HER HONOUR:  Thank you.  Have a seat, Mr Ritchie.

95OFFENDER RITCHIE:  Thank you.

96HER HONOUR:  I do not need to make a s.6AAA declaration.

97Is there anything that I have failed to attend to?  All right.

98I thank counsel very much for their assistance.

99I probably should add given that I did not set out very clearly, I am satisfied that Mr Ritchie suffers from a major depressive disorder, ADHD and post-traumatic stress disorder and at the time was suffering from an alcohol abuse disorder.

100Thank you.  Mr Ritchie, you can come out of the dock and sit behind his counsel.

101We are going to the wonderful world of WebEx next week.

102All right.  Thank you very much.  Counsel are excused.  We will just get the next ones in if that is all right.  Thank you, Kim.  I said 11 o'clock, did I?  All right.  Yes.  We will stand down.  Thank you very much.  Thank you.

103I do apologise.  Sorry.  It does not matter if Mr Biss is not here.  It is all right.  That is fine.

104I should have mentioned, in relation to Mr Ritchie, I am satisfied and I note that the prosecution has accepted that he played a lesser role in the offending than Mr Biss which, in my view, is a significant matter. 

105Thank you very much.

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