Director of Public Prosecutions v Boon (a pseudonym)

[2019] VCC 1534

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00679

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEVAN BOON (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	12 & 20 September 2019
DATE OF SENTENCE:	20 September 2019
CASE MAY BE CITED AS:	DPP v Boon (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1534

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Aggravated burglary; Make threat to kill; Intentionally cause injury; Offender intoxicated at time of offending; Early plea of guilty; Offender victim of institutional sexual abuse; Mental health severely compromised; Verdins principles applied; Prospects for rehabilitation now good; Community Correction Order imposed.

Legislation Cited:                   Mental Health Act 2014 (Vic); Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic).

Cases Cited:R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Lim v The Queen [2019] VSCA 182.

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr C. McConaghy	Office of Public Prosecutions
For the Accused	Mr M. Reardon	Victoria Legal Aid

HIS HONOUR:

1Bevan Boon[1], you have pleaded guilty to one charge of aggravated burglary, two charges of making a threat to kill and one charge of causing injury intentionally.  You have also pleaded guilty to the related summary offences of unlawful assault, carrying a controlled weapon and assaulting an emergency worker on duty.

[1] A pseudonym.

Summary of offending

2At the plea hearing of these matters, Mr McConaghy, on behalf of the prosecution, tendered an amended summary of prosecution opening which set out your offending in some detail.  In brief compass, that offending involved the following.  At the time of these offences, you were residing at a rental property on Belmore Road in Warrnambool.  The real estate agency responsible for managing this property was Homeseeka Real Estate Agency located at 40 Kepler Street in Warrnambool.

3On 1 August 2018, you received a Notice to Vacate from the Belmore Road property.  At about 2:15 pm on 7 August 2018, you contacted the Homeseeka agency by telephone and spoke with John Warren who worked there.
Mr Warren made it clear to you that the owner was going to sell the property and that you needed to vacate.  In response you said, ‘You’re weak as piss. You're a shit agent and I’m going to come down right now and beat the shit out of you’.  Mr Warren asked whether you were threatening him and you replied, ‘Are you being all tough now! I’m coming down to beat the shit out of you’.

4A little later that day, at about 3:50 pm, you entered the Homeseeka Real Estate offices and walked past reception and directly into an internal office where
Mr Warren was working.  At the time you did so, you intended to assault
Mr Warren.  That conduct constitutes charge 1 on the Indictment, aggravated burglary.

5You then confronted Mr Warren.  You abused him, grabbed him and pushed him against the wall and then repeatedly punched him to the face and chest areas.  In assaulting him in this way, you caused bruising, swelling and soreness to his face.  That conduct constitutes charge 4 on the Indictment, intentionally causing injury.

6As you inflicted those injuries, Mr Warren tried to avoid the blows by covering his head with his hands.  You said to him, ‘I told you I was going to fucking bash you, kill you’.  That conduct constitutes charge 2 on the Indictment, making a threat to kill.

7Mr Warren’s colleagues, Daryl Kenna and Peter Hebert, heard the commotion and rushed into the office and tried to restrain you.  Mr Kenna grabbed your left arm, whilst Mr Herbert placed you in a headlock.  Even so, you continued trying to throw punches at Mr Warren.

8Another colleague, Paul Jellie, came into the room and when you saw him, you directed your aggression towards him by yelling, ‘You’re a liar, I want to kill you, I’m going to kill you’.  That conduct constitutes charge 3 on the Indictment, making a threat to kill.  Mr Jellie then left the room.

9A ‘000’ call was made by another employee and when police arrived, you were arrested and handcuffed.  As you are being led down the hallway, you saw Mr Warren and Mr Jellie again and attempted to break free from police and yelled threats towards them.  In particular, you said to Mr Jellie, ‘I told you I was coming, I will be back, I will bash you’.  That conduct constitutes the related summary offence of unlawful assault.

10Once at the police van, you were searched and a knife was located in your pocket.  The possession of that knife constitutes the related summary offence of carrying a controlled weapon without lawful excuse.  I should indicate that in summarising these events, the prosecutor made clear that it was not contended that there was any nexus between the possession of that knife and the conduct which constitutes charge 1, the offence of aggravated burglary.

11Once you were taken to the police van you were asked to sit on the edge of the van, at which time you again resisted and when further restrained, kicked out at the door to the van, which in turn made contact with Senior Constable Wass. That conduct constituted the related summary offence of assault of an emergency worker.

12When dealing with you, police noticed that you smelt strongly of alcohol and once you were taken to the police station, you were assessed as not fit to be interviewed because of your state of intoxication.

Victim impact

13As to the impact your offending has had, six victim impact statements were tendered by the prosecutor.  They were made by John Warren, Paul Jellie, Daryl Kenna, Tracey Wake, Lena Quirk and Jacinta Douglas.  Each of the deponents of those statements was working in the real estate agency at the time.  The consistent theme which emerges is that each of those people had, until this incident, felt secure and comfortable in their workplace.  Afterwards, however, they had become anxious, even fearful, when going about their normal day-to-day activities.

14Your actions shattered their sense of security at work and also impacted their personal lives.  Moreover, as Mr Kenna makes clear in his statement, there was a substantial financial impact on the business, through reduced productivity and the necessity of having to install a security door in the building, as well as additional security cameras.

15Mr McConaghy contended that your actions left the people working in this business feeling vulnerable and much more security conscious.  It is not unreasonable to suggest, he said, a flow on effect to other businesses who would likely also feel vulnerable, and had become, or were likely to become, more security conscious.  Those understandable concerns are, or were, generated by the fear created by offending of this kind.

16You should understand that those matters are important considerations in the formulation of the sentence that must now be imposed.

Procedural history

17Turning to the procedural history associated with this matter.  You were charged with these offences on 7 August 2018 and then placed on bail.  There were committal mentions on 2 November 2018 and 11 January 2019, after which the matter was set down for a contested committal on 5 April 2019.  On that day, you pleaded guilty to these offences and no witnesses were cross examined.

18Your counsel characterised your plea of guilty, in light of that history, as having been entered at an early stage in the proceeding, and submitted that there was significant utilitarian value in the plea.  I should say now that I accept that submission and that, in consequence, the sentence to be imposed in this matter will be substantially reduced because of your plea of guilty.

Prior convictions

19Before dealing your personal history, I need to explain something of your criminal history, aspects of which are relevant for the purposes of imposing this sentence.

20On 26 and 28 June 2003, you committed the offences of dishonestly obtaining property from another and entering a dwelling and committing an indictable offence.  Those offences were dealt with at the Proserpine Magistrates’ Court in Queensland on 22 September 2009, where you were fined without conviction.  You were also dealt with for failing to appear in accordance with your bail at the Wynnum Magistrates’ Court in Queensland in April 2008 and received a conviction fine.  Those matters, it should be said, are of little relevance to the matters before the court now.

21However, on 22 May 2013, you were before the Ballarat Magistrates’ Court for a charge of unlawful assault.  In respect of that incident, it was alleged that you were about to hit another patron at a hotel when a staff member intervened and you punched that person to the side of the head.  In respect of that matter, you were placed on a 12 month adjourned undertaking without conviction, which you successfully completed.

22Perhaps most relevantly, you were dealt with at the Warrnambool Magistrates’ Court on 22 January 2018, in respect of two charges of unlawful assault and failing to answer bail.  You committed those offences on 8 June 2017.  As to those matters, you were purchasing some items in a local supermarket and you were asked by the female checkout operator to open your bag for the purposes of inspection.  You became upset, abused her and threatened to wrap the bag around her head.  When the manager intervened, you abused him aggressively.

23In light of these matters, the prosecutor submitted, not without some justification in my view, that your offending on this occasion suggested a continuing trend of aggressive behaviour in public places which required emphasis on the sentencing purposes of specific deterrence and protection of the community.  I will return to that contention shortly.

Personal history

24Turning to your personal history, you were born in January 1979 and are now 40 years of age.  You were 39 at the time of this offending.

25You were born and raised in the Ballarat area.  Your father worked as a concreter and gardener, although he is now retired, and your mother worked as a dressmaker.  Your parents divorced when you were 24 years of age and since that time, you have kept some contact with your father, but do not have contact with your mother or elder sister.

26You attended primary school at Our Lady Help of Christians in Wendouree, then Sebastopol Secondary College, and briefly at Ballarat North Secondary College. To say the least, your schooling was unhappy and you did not complete year 9.  After leaving school, you worked for your father in landscaping and gardening and also had jobs in factories, hospitality and maintenance.  Although there was a period of unemployment between the ages of 17 to 19, you have otherwise generally maintained employment.

27When you were 21, you moved to the Whitsunday Islands where you lived for 10 years.  You worked there as a cleaner during the daytime and as a musician in local bars during the evening.  You have a son from a previous relationship who is now 19 and lives in Cairns with his mother.  You still maintain contact with him.

28Eventually, you were unable to sustain that lifestyle in Queensland, so returned to Victoria where you initially lived with your father in Ballarat, before moving to Geelong.  You lived there between 2012 and 2017.  During that time, you managed a home brewing supply store for a year or so, and then worked as a landscaper.  You moved to Warrnambool in 2017, and obtained some casual work in a local hotel for a short time.  You were unemployed in the three months or so leading up to this offending.

29A significant feature of your personal history is the fact that you were sexually abused by a Catholic priest whilst at primary school, when you were five or six years of age.  The offender was a notorious paedophile who was sentenced by this Court in 2016 to more than 18 years’ imprisonment.  A component of that sentence included the offending perpetrated on you.  Throughout your schooling and later life, you have suffered the impact of that abuse, displaying symptoms consistent with post-traumatic stress disorder, severe anxiety and depression.

30In 2014, you and eight other victims of that priest made statements to police describing his offending.  Contrary perhaps to conventional wisdom, you did not find the disclosure helpful.  As you told your assessing psychologist,
Ms Elizabeth Warren, the sexual abuse had impacted miserably on your life, but you felt worse after you had spoken of it. You ruminate and think about it.  Whilst you do not regret contributing to that priest’s incarceration, you suffered further through making the disclosure and, as you stated to the psychologist, ‘Everything started to unravel’.

31You had to wait approximately two years before trial and it was only at the time of trial that the priest finally pleaded guilty.  During that time, you were isolated and received very little in the way of support.  The litigation regarding compensation remains ongoing, which serves as a constant reminder of the abuse and continues to impact you negatively.

32Understandably, confronting your abuse resulted in the deterioration of your mental health. Your abuse of alcohol escalated to the extent of drinking approximately three to six bottles of wine a day. Your medical records tendered on the plea demonstrate that you suffered from persistent and clinically significant depression, anxiety and alcoholism. As a measure of the seriousness of your condition, those records show that you were apprehended by police under s 351 of the Mental Health Act 2014 on 30 April 2018, in circumstances where you were severely affected by alcohol and threatening suicide.

33The psychologist Ms Warren made the following findings regarding your condition at the time of the offending.  She stated:

At the time of the offending Mr Boon can be considered to have been suffering from an acute stress reaction consequent to negatively changed life conditions.  He would also have been suffering from chronic alcohol dependence with associated depression and anxiety.  However his status as a survivor of childhood sexual abuse and discomfort during early schooling are other factors that impact negatively upon mood and anxiety states, fluctuating throughout his life, to varying degrees, depending on life circumstances at the time. The psychological sequelae of the sexual abuse is that he has suffered symptoms of Posttraumatic Stress Disorder at least intermittently since the abuse occurred, some decades earlier. 

He acknowledged some difficulty with experience and expression of excess anger but not to an extent that it would be regarded as formal disorder of impulse control. 

The nature of an acute stress reaction is that this individual felt overwhelmed by certain circumstances to an extent that he was unable to behave in a controlled manner.

34Further on in her report, Ms Warren states:

His alcohol was excessive to extent of abuse and on the night before the incident of 7 August 2018.  He stated he had been drinking all night and had not slept.  Thus he was acting without sleep in a state of acute alcohol intoxication with effects of impairment in memory, attention and judgment leading to impaired social functioning.  The background condition of depression means the individual and in this case this man, is likely to have been operating with steady doubts about capacity and with limited optimism for the future with an overall feeling of malaise.  The anxiety broadly indicates that he would have been frequently worrying and overreacting to even minor life stressors.

35Ms Warren further formed the view that:

The connection between his conditions and the offending is that his coping resources were chronically then acutely depleted and he overreacted impulsively after a period of brooding and feeling unfairly treated by both his former girlfriend and the real estate agent.  His clarity of thinking and overall cognitive capacity was reduced as his feeling states were accompanied by negative ruminations which make focusing on other things more difficult.

36As noted in the medical records of Cambourne Clinic, you attended for various medical ailments, and were noted as suffering from excess alcohol consumption, homelessness, anxiety and depression and that you varyingly accepted assistance.  The notation on 24 August 2018 states, ‘Not keen to see Mental Health Team’ and ‘Not keen to see psychologist’, but noted you were ‘very motivated to quit’ drinking.  Similarly, notes from Southwest Healthcare noted intermittent crisis with suicidal ideation and varying degrees of willingness to accept professional help.

37Finally, Ms Warren states that:

As noted above, Mr. Boon regards his behaviour of assault towards the estate agent and staff as - it's the worst thing I've ever done - which is expression of remorse.  He regrets his behaviour and is apologetic.  Closer in time when he was still behaving aggressively, including towards police, in an uncontrolled manner, he was still alcohol intoxicated.

Defence submissions

38It was submitted on your behalf that the bouts of anger and aggression, comprising your prior history and this offending, need to be seen against this background of being re-traumatised with respect to the sexual abuse and consequent decline in mental health. With respect to your current circumstances, Mr Reardon who appeared on your behalf, called oral evidence from your fiancé Chloe Leddin, with whom you developed a relationship after this offending.  Ms Leddin described you as a changed man who no longer drinks alcohol, has held down employment with a timberyard in Terang, has stable accommodation and is working towards a future with her and her nine year old son.

39Mr Reardon submitted that your mental functioning at the time of this offending was compromised by the effects of the trauma you had re-experienced.  Accordingly, the principles set out in the decision of Verdins[2] were engaged such that the weight to be given to general and specific deterrence should be moderated, and that for you, imprisonment was likely to be far more burdensome than the norm.  He also submitted that your prospects for rehabilitation were good, having regard to your solid history of employment, limited criminal history and the stabilisation of your mental health since this offending.  Given that you have never had the benefit of a community based disposition, where you were placed under the supervision of the office of corrections, it was submitted that was appropriate now.

[2]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269.

Prosecution submissions

40On behalf of the prosecution, Mr McConaghy submitted that your offending was not spontaneous.  You made the phone call at 2:15 pm threatening Mr Warren, but it was not until an hour and a half or so later that you carried out your threat.  It was contended that your assault on Mr Warren was particularly serious because it continued until colleagues intervened to physically restrain you.  Even then, you remained aggressive and threatening.  Moreover, there were a number of people at the agency going about their daily tasks who were frightened and quite affected by your conduct, as the victim impact statements attest.

41On behalf of the Crown, it was submitted that no other sentence other than a term imprisonment was appropriate, albeit that it was open to impose such sentence in combination with a Community Corrections Order (‘CCO’).

Consideration

42As to my consideration of these submissions, it was recently affirmed in the decision of Lim v The Queen[3], that whilst prior convictions cannot aggravate the charged offences, they are relevant to sentencing in ways such as informing an increased importance of specific deterrence, or perhaps heightening moral culpability. In this instance, however, I have formed the view that your two relevant prior convictions and this offending are symptomatic of your personal decline in the wake of having to confront the abuse you suffered as a child through the legal process I have described.

[3][2019] VSCA 182.

43I make clear, however, that in no way does that excuse your offending on this occasion.  To have attacked Mr Warren in the way that you did, and to have exposed so many others to your violence is completely unacceptable and cannot be tolerated.  However, I must accept that in sentencing you, I need to be mindful of the fact that your mental functioning was impaired at the time and had been in decline for some months, if not years.  It is necessary therefore to moderate the emphasis that I would otherwise place on general and specific deterrence.

44Both your legal representative and the prosecution acknowledged the appropriateness of placing you on a CCO for this offending. The issue to be resolved between the parties was whether that Order should be combined with a term of actual imprisonment. To assist in the resolution of that issue, I sought, and was provided with a pre-sentence report, from the office of corrections that addressed the criteria set out in s 8B of the Sentencing Act 1991 (‘the Act’).  The report is favourable, it assesses you as suitable, motivated and committed to undertake such an order.

45Section 5(4) of the Act directs that I must not impose a sentence that involves your confinement, unless I consider that the purposes for which the sentence must be imposed in this case cannot be achieved by a sentence that does not involve your confinement. I am acutely conscious that there is a significant risk that if you were to be imprisoned now, much of what has been achieved over the last year, in terms of stabilising your mental health and getting you back on the road to recovery, will be undone. The unfortunate experience of this Court is that for victims of child sexual abuse, that road is long and arduous.

46Accordingly, with some hesitation, given the seriousness of this offending, I have determined that the longer term community interest is best served by releasing you back into the community, under a strict supervision and treatment regime, with an additional requirement that you perform voluntary work for the community.  The order will be need to be long and it will need to significantly intrude into your daily life, to ensure that you are justly punished for this offending.  Would you now please stand Mr Boon.

Sentence

47With respect to the offence of aggravated burglary, two charges of making a threat to kill, causing injury intentionally and the related summary offences of unlawful assault, carrying a controlled weapon and assaulting an emergency worker, you will be convicted and placed on a CCO for a period of three years.  The Order will require that you be under the supervision of the office of corrections and that you undertake assessment and treatment for both alcohol abuse and for your mental health.  

48In addition, you will also be required to perform 300 hours of community work over a period of two years and I will direct that 80 hours of the work undertaken, with respect to assessment and treatment, may be counted as part of the community work component of the Order.

49I will declare pursuant to s 6AAA of the Act that but for your plea of guilty, you would have been sentenced to a total effective sentence of three years’ imprisonment, with a non-parole period of eighteen months. Mr Boon, it is important that you understand what the conditions of this Order is and that you, having understood what those conditions are, agree to undertake to perform them. Do you understand that?

50OFFENDER:  Yes, Your Honour.

51HIS HONOUR:  Now, those conditions require that you must not commit another offence for which you could be imprisoned, whilst the Order is in force.  You must report to and receive visits from the office of corrections.  You must report to the community corrections office in Warrnambool within two clear working days of the Order starting.  You need to notify the office of corrections should you change your address or your job.  You must not leave Victoria without permission and you must obey all lawful instructions and directions of the office of corrections.  As I have indicated, the Order is to be with conviction for a period of three years and it involves the performance of 300 hours of community work, supervision, treatment and rehabilitation with respect to alcohol abuse and mental health.  Now do you understand those conditions Mr Boon?

52OFFENDER:  Yes, Your Honour.

53HIS HONOUR:  What you need to bear in mind, before you sign this document, is that if you were to breach these conditions, you would be brought back in front of me.  You would be then at risk of being resentenced in respect of all of the offences that I have dealt with you for today, and you would be dealt with also for the separate offence of breaching the Order.  The probabilities in those circumstances of you being returned to prison would be very high.  You need to consider all of that before you sign this Order and what will happen now is that you will be invited to have a look at this document and if you do agree to those conditions, and I will allow counsel to confer with you for that purpose, then you can sign the Order.  Do you understand?

54OFFENDER:  Yes, Your Honour.

55HIS HONOUR:  Could that be provided to Mr Boon please.  Thank you.  Well Mr Boon, you agree to be bound by the terms of that order?

56OFFENDER:  Yes, Your Honour.

57HIS HONOUR: One other matter I need to inform you of is that I have made an order under s 464ZF of the Crimes Act 1958, which provides that you must undergo a forensic procedure.  That is, by providing a sample of saliva to police and I must inform you that if you do not consent to that process, then an authorised member of the police force may take a blood sample from you and for that purpose, may use reasonable force.  Do you understand that?

58OFFENDER:  Yes, Your Honour.

59HIS HONOUR:  I am making that order on the basis that through counsel you have consented to that order and in my view, the seriousness of the circumstances of the offending warrant the making of that order.  I have signed the CCO and that can be copied and provided to counsel.  Could I ask of counsel whether there is anything else arising out of those sentencing remarks that need to be attended to?  Mr McConaghy?

60MR McCONAGHY:  No, Your Honour, nothing.

61HIS HONOUR:  Mr Reardon?

62MR REARDON:  No, Your Honour.

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