Director of Public Prosecutions v Boyle
[2021] VCC 725
•3 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-20-01601
CR-20-01598
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAYDEN BOYLE AUSTIN DONALD-HAULER |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 June 2021 | |
DATE OF SENTENCE: | 3 June 2021 | |
CASE MAY BE CITED AS: | DPP v Boyle & Anor | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 725 | |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Common assault; attempted aggravated burglary; damaging property
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: Boyle: 444 days imprisonment & 12-month community correction order (drug treatment and programs to reduce reoffending); Donald-Hauler: 12-month adjourned undertaking to be of good behaviour.
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APPEARANCES: | Counsel | Solicitors | ||
| For the Director of Public Prosecutions | Mr A. Grant (for Sentence) Ms D. Guesdon (for Plea) | Office of Public Prosecutions | ||
| For the Offender Boyle | Mr R. Backwell | Greg Thomas Barrister & Solicitor | ||
| For the Offender Donald-Hauler | Ms J. Pisasale (for Sentence) | Slades & Parsons Solicitors | ||
| Mr W. Barker (for Plea) | ||||
HER HONOUR:
1Jayden Wayne Boyle, you have pleaded guilty on indictment to common assault, attempted aggravated burglary and damaging property.
2You, Austin James Donald–Hauler, have pleaded guilty on a separate indictment to a single charge of common assault.
3Your offending arises from the same incident which occurred on 11 November 2018.
4For each of you, the charge of common assault is a rolled-up charge reflecting two victims, Brendan Rossignoli and Emma Phelps, the circumstances of which I will come to.
5In sentencing you for your respective crimes, I must have regard to the maximum penalty for the offences which you have committed. The charge of common assault carries a maximum penalty of five years imprisonment, attempted aggravated burglary carries a maximum of 20 years imprisonment and the charge of damaging property carries a maximum of 10 years imprisonment.
6The circumstances of your offending are set out in document entitled "Summary of Prosecution Opening for Plea" dated 27 May 2021. It is a detailed document and represents an acceptance by you of all the elements of the offences to which you have each pleaded guilty, as well as the factual basis on which I am to sentence.
7There were four offenders alleged to have been involved in an incident which occurred at an address in Gaydon Street, Ferntree Gully. Apart from each of you, the prosecution presently alleges that Brendan Jenkins and Jason Tuttleby were also involved. This fact is yet to be determined but each are referred to in the Crown outline on your pleas.
8I will not repeat that document in its entirety, as it is a matter of record, but in brief terms, at the time of the offending, alleged co-accused Brendan Jenkins lived with his family at a house in Ferntree Gully. You, Mr Boyle, were also staying at the house at the relevant time. You were and are in a relationship with Brendan Jenkins' mother, Tracey Simmonds.
9Jenkins had previously bought marijuana from the victims in the matter, Brendan Rossignoli and his partner Emma Phelps, neither of whom were known to you at all, Mr Boyle, or you, Mr Donald-Hauler. In the week leading up to 11 November 2018, Rossignoli had sent abusive messages to Jenkins.
Offending
10On Sunday 11 November 2018 you, Mr Boyle and Mr Donald-Hauler, were at Jenkins' house. You, Mr Boyle, saw abusive Facebook messages sent by Rossignoli to Jenkins. This was clearly not your problem, yet you perceived it was in a desire to remonstrate on behalf of Brendan Jenkins, your de facto stepson.
11You, Mr Boyle, and Jenkins agreed to go to Rossignoli's residence in Gaydon Street, Ferntree Gully to confront him. You, Mr Donald-Hauler, drove Mr Boyle, Jenkins and the other co-accused, Jason Tuttleby, to the address, arriving around dinnertime. Rossignoli and Phelps lived in a unit at the rear of the property.
12The prosecution contend in the Crown document that it was contemplated by all that there would be a physical assault. Given the context of the decision to attend the premises, I accept that this is likely to be accurate, although I would not be able to determine at which point each of you reached that stage of contemplation.
13As you arrived, Rossignoli looked from his window and recognised Jenkins near the front door with three other males. He went outside his front door to speak to Jenkins and asked him what he was doing there. He said that if he had a problem, he could call him. Rossignoli understandably felt threatened by the four men standing there. That really should have been the end of the matter.
14However, Jenkins said "You think you're tough, I've got all my mates with me". This is quite ironic. It is hardly tough to attend with three mates at someone's private residence.
15Phelps also came outside and saw three men crowding around Rossignoli. The males were yelling abuse such as "I'm going to fuck you up". Phelps was telling them to go and indicated that at least Jenkins knew it was a family home. Jenkins said "It's because of that fucking dog, he's a smart arse".
16Rossignoli said he was going to call the police and began to walk back inside to get his phone. As he did so, he was struck to the left side of his head by either Jenkins or you, Mr Boyle; the Crown are not in a position to say who. (Charge 1 – Common assault (rolled up) – BOYLE and Charge 1 – Common assault (rolled up) – DONALD-HAULER)
17
Whilst not said to be responsible for any physical assault, your presence,
Mr Donald-Hauler, together with the other accused was intimidating to the victims, who were obviously outnumbered. You accept you were complicit in the assault that followed by crowding around the victims and yelling, effectively providing support to both Mr Boyle and to Jenkins.
18Phelps observed that you, Mr Boyle, had a black eye and were holding gold or metal knuckledusters with spikes on the side. She heard you activate a taser and yell "I want the fucking dog in there!" At this point, the Crown allege, Jenkins knew that you, Mr Boyle, had the knuckledusters and the taser.
19Phelps tried to hold the accused back as Jenkins and you, Mr Boyle, came up to the door and were trying to get inside. Phelps was trying to close the front door; however your foot, Mr Boyle, was blocking the closing of the door. When your foot moved she was able to close the door after a struggle. You, Mr Boyle, used the knuckledusters to strike the front door, the force shown in the fact that it caused several cuts to the door, as you and Jenkins physically attempted to get inside the unit to assault Rossignoli. (Charge 2 – Attempted aggravated burglary – BOYLE; Charge 3 – Damaging property – BOYLE). The attempted aggravated burglary is particularised as entry with an intent to assault a person therein and at the time having with you offensive weapons, that is the knuckledusters and a taser.
20Phelps put her hands over head as you, Mr Boyle, struck the door over the top of her. She was hit a couple of times to the side of her head. Rossignoli was leaning against the door from the inside. He opened the door to try and get Phelps back inside and was punched three times to the head, although he did not see by whom. He saw Phelps punched to the head by Mr Jenkins and others before he closed the door. (Charge 1 – Common assault (rolled up) – BOYLE and Charge 1 – Common assault (rolled up) – DONALD-HAULER)
21Jenkins said "If you call the police I'm coming back to fuck you all up". He asked if they had any jewellery and dope and there were other demands for property apparently, forming the overall context. It was Tuttleby that said "Let's go", and left. Before doing so Jenkins spat at Phelps, before all the accused left the scene.
Subsequent events and investigation
22Mr Rossignoli called 000.
23Police then attended and took photographs of the holes in the door caused by the knuckledusters, which were 1.7 metres off the ground.
24The next day Rossignoli received phone calls from Jenkins, and when he asked who the dickhead was with the taser and black eye you, Mr Boyle, got on the phone and threatened to return. Rossignoli sent messages to Mr Jenkins' mother, Tracey Simmonds, asking her to call him.
25That afternoon you, Mr Boyle, sent messages back to Rossignoli using Simmonds' Messenger account, identifying yourself by name. You called Rossignoli names such as a "Lying rat cunt", and threatened to come back.
26
Rossignoli and Phelps viewed Jenkins' Facebook account and identified you,
Mr Boyle, as the main offender.
Arrest and interview
27On 22 November 2018, Knox police executed a search warrant at Jenkins' residence in Ferntree Gully.
Boyle
28You, Mr Boyle, were present and were arrested. During a search of your bedroom, police located a pair of brass knuckledusters with spikes, consistent with those described by the victims, and a pair of black knuckledusters.
29You participated in a recorded interview and made admissions to being present and being involved in pushing and shoving; however stated that you and the others then left. You denied the presence of weapons.
Donald-Hauler
30
You, Mr Donald-Hauler, became a suspect when named as being present by
co-accused.
31You were arrested on 2 April 2019 and taken to the Knox police station. During a recorded interview you answered "No comment", as is your right.
Gravity of the offending
32
You, Mr Boyle, are in a different category than the offending attributed to
Mr Donald-Hauler in terms of what you have pleaded guilty to and your role in the offending.
33The attempted aggravated burglary is a serious matter. This was not your argument and it is, quite frankly, cowardly to show up at another's premises with a gang of four and in possession of weapons.
34It is of concern that in the face of what appears to be a relatively minor slight you acted in this way and you had clear difficulty in the circumstances overall in calming your anger, given your communications the following day. These circumstances raise obvious concerns for your future. You were particularly aggressive and are attributed by your victims as being the main offender.
35I accept that Mr Donald-Hauler played a relatively minor role, as outlined in the Crown opening, and has had no further intersection with the criminal justice system since these events of November 2018. Either way, you, Mr Donald-Hauler, appear to have been there to make up the numbers and simply should not have been present. This was not your fight either.
36Whilst there is no victim impact statement, I accept that, in terms of each of you, it is likely that your victims would have been frightened by both your presence and your demeanour.
Plea of Guilty
37The Sentencing Act obliges me to take into account the stage at which you entered your respective pleas. You indicated your willingness to plead guilty to these charges on each indictment as a result of the court's response to the COVID-19 pandemic through the case conferencing process.
38Given each of you were committed for trial on far more serious charges, the resolution which ultimately unfolded, in effect, represented your first opportunity to plead guilty. In that sense, it is a plea at an early stage and this fact is recognised by the Crown.
39While satisfied that the decision was partly pragmatic, it has had utilitarian value in saving the court the time and expense of contested proceedings. There is, in my view, additional value in resolving matters when the COVID-19 pandemic has led to a significant backlog in trials. Your respective decisions to plead guilty have finalised these proceedings, which is in the interests of your victims and will also be taken into account in your favour.
40
I accept that each of you, through the efflux of time, has had the opportunity to reflect on your behaviour and that you take responsibility for your actions of
11 November 2018.
41This will also be taken into account in your favour.
42I turn now to your personal circumstances
Personal circumstances - Boyle
43You, Jayden Boyle, are 25 years of age.
44I am told that you had a particularly difficult upbringing and your parents separated shortly after your birth. You have had little or no contact with your biological father.
45Your mother re-partnered and both she and your stepfather were drug users and provided little by way of positive role model or support.
46By the age of 14 years, you had left home and stayed with a friend for a period of about two years, and you have experienced periods of homelessness.
47Not surprisingly, in the circumstances, you struggled at school. In addition to your personal circumstances already described, you were diagnosed with both ADHD and dyslexia in Grade 6. You effectively finished your secondary education by Year 8.
48This, of course, has limited your employment opportunities. You have had work as a labourer and as a metal fabricator but have not worked since aged 21 years.
49You have also been unfortunate to be afflicted by drug addiction. You have a long-term drug habit which commenced with the use of cannabis and alcohol and progressed to the use of Xanax and GHB from age 16 years. At the time of your offending in November of 2018 you were a regular user of the drug ice.
50This background provides some explanation for your admitted criminal history.
51On 20 March 2013 you appeared at the Ringwood Children's Court in relation to charges of obstructing police, theft, burglary, theft of motor vehicle, fail to answer bail, theft from motor vehicle, trespass and possess a drug dependence. You were placed on a period of probation for 12 months.
52On 18 June 2014 you appeared at the Melbourne Children's Court for breach of the probation order and the probation order was confirmed.
53
One month later you had your first appearance in the adult jurisdiction, on
9 July 2014 at Ringwood Magistrates' Court, in relation to charges of theft of motor vehicle, commit indictable offence whilst on bail, contravene a conduct condition of bail and theft. At that time, you were placed on an adjourned undertaking with conditions.
54You then appeared at the Melbourne Children's Court on 22 July 2014 in relation to an extensive range of dishonesty offending, driving and other offences and were placed on a youth supervision order for a period of seven months.
55On 27 November 2014 you appeared at the Ringwood Magistrates' Court in relation to a range of dishonesty offending and received a number of Youth Justice Centre orders which amounted to, effectively, one month in detention.
56On 8 July 2015 you again appeared at the Ringwood Magistrates' Court, this time in relation to a range of dishonesty and driving offences. You were placed on a community corrections order for a period of 12 months with conditions.
57On 2 March 2016 you appeared at the Ringwood Magistrates' Court for a charge of handling stolen goods and were fined.
58You next appeared at the Ringwood Magistrates' Court on 26 July 2016 for a charge of criminal damage and were again placed on an adjourned undertaking.
59On 30 August 2017 you appeared at the Ringwood Magistrates' Court for contravening the community corrections order that had been imposed upon you on 8 July 2015. That order was confirmed. You were also dealt with for other offending which included possessing GHB, contravening a family violence order and assault. For those matters you were fined.
60
Whilst remanded in relation to your offending of 11 November 2018 on
24 January 2020, it would appear from criminal records filed that there have been a number of sentences imposed upon you subsequently.
61On 14 November 2019 you received a 58-day sentence of imprisonment, reckoned as having already been served, in relation to dishonesty and weapons offences from the Ringwood Magistrates' Court.
62On 16 March 2020 you received a three-month sentence of imprisonment from the Ringwood Magistrates' Court for charges of theft of motor vehicle, handling stolen goods, deal property suspected to be the proceeds of crime, commit indictable offence on bail and going equipped to steal. A hundred days were reckoned as having already been served.
63These intervening sentences give additional weight to the principle of totality, a principle which requires that where an offender is being sentenced to multiple terms, or is otherwise to serve multiple sentences, then the sentencer should ensure that the total sentence remains "just and appropriate" for the whole of the offending.
64You are certainly not to be punished for your prior, nor subsequent criminal history, a second time. Its relevance is in the assessment of your prospects for rehabilitation, the need for specific deterrence - that is, putting you off further offending - denunciation and indeed, and of course, protection of the community. Your offence history contains a range of offending and, to date, it would appear that neither short sentences or supervisory orders have assisted you to change your ways.
65However, the time you have spent on remand directly referable to the offences on the indictment and combined with the intervening sentences represents your longest period in custody.
66You have instructed your counsel that this has given you an opportunity to become drug-free and to rethink your future direction.
67You have completed one drug course whilst in custody and a number of occupational-type courses. You have apparently obtained a billet's position.
68The time that you have served to date has also included the Corrections response to the COVID-19 pandemic. In general terms this has meant less access to freedom of movement, less access to rehabilitative courses and less access to family and loved ones. In your particular case, you did not see your partner at all for a period of 12 months. I accept this does represent a more difficult custodial situation, and it will be taken into account in a general sense.
69Your partner, Tracey Simmonds, has provided a reference for you and was present for your plea hearing and is indeed present today. In that document she speaks of your regret for your offending and desire for a different way of life. She offers you her continued support and somewhere to live. In addition, she has found you potential employment as a truck jockey in her place of work.
70In theory this gives you the opportunity that you say you want to change your life around. The ball is effectively in your court. It is perhaps obvious that your future prospects will involve you seizing the opportunity offered to you in your drug-free status and the supports Ms Simmonds can provide.
71In terms of sentencing you, your counsel contends that the time you have spent in custody directly referable to this matter, a period of some 444 days now, would represent sufficient punishment.
72The Crown contend that a combination sentence - that is, a period of imprisonment combined with the community corrections order - would properly reflect all the relevant sentencing considerations.
73In the course of those submissions being made, I expressed my genuine concerns about the need for you to be supported upon your release into the community given your long-standing drug addiction. In order to be better informed I have had you assessed as to your suitability for a community corrections order.
74An assessment report dated 1 June 2021 has been provided. Not surprisingly, you are assessed as presenting with a high risk of reoffending. You cooperated well throughout the assessment and showed insight into your offending behaviour and the reasons for that offending. You have been assessed as suitable for a community corrections order.
75I will return to that at a later stage.
Personal circumstances – Donald-Hauler
76You, Mr Donald-Hauler, are also aged 25 years. You were born in Melbourne to parents Rebecca Donald and Leon Hauler. Your parents also attended your plea hearing and are supportive of you.
77You have a younger brother, Tyler, 21 years, and a younger sister, Shelby, 14 years.
78Until November of last year you resided with your family. You completed Year 12 at Upwey High School and entered the workforce.
79Initially, for a period of around six months, you worked as a mechanic. Since then you have worked as a labourer on construction sites.
80On 5 January 2018 you were involved in a motorcycle accident in which you suffered serious injuries and came close to severing an arm. You have been fortunate to recover but it has been a slow process and you now have a deformity in one hand.
81At the time of your offending you were recovering from your injury and had an established cannabis addiction.
82There has been a lot that has changed for you since that time.
83You have had one subsequent court appearance.
84
On 23 October 2019 you appeared at the Ringwood Magistrates' Court in relation to charges of traffic cannabis, fail to stop a motor vehicle on request, unlicensed driving, failing to answer bail, theft of motor car, reckless conduct endangering serious injury, drive in a manner dangerous, and drive a motor vehicle exceeding the prescribed concentration of a drug. For this offending, you were placed on a community corrections order for a period of 12 months with work and treatment conditions. I am told that all of that offending pre-dated your offending of
11 November 2018.
85You have therefore had a period in excess of two and a half years without any further intersection with the criminal justice system. It may well be that this corrections order you completed assisted with this pathway.
86In addition, in late 2020 you moved to Bonnie Doon with your partner and young child, Lily, aged three years.
87Your fiancée, Megan Byrnes, has written a reference on your behalf in which she speaks of your deep regret and your shame for your offending. To her eyes, you have completely turned your life around, particularly since moving to Bonnie Doon, and you have her ongoing support.
88Your parents have also written a reference. They describe you as a caring and loving father and that it fills them with joy to see you looking and doing so well, particularly since you moved to Bonnie Doon. They see you as having made good choices in your life and that you are learning how to be your "best self".
89You have found full-time employment in the local community as a subcontractor to various building and other trades companies, including in agricultural work and property maintenance. You have stopped using cannabis completely.
90
Given your lack of criminal history, your limited role in the offending of
November 2018, the extensive period of compliance with community expectations, your ability to comply with court orders, family supports, employment and every reason to maintain a positive path, there appears to be little need for specific deterrence or the need to protect the community from you. Your prospects of rehabilitation would appear to be excellent.
91Your counsel contends that the matters to which I have referred would lead to a proper sentence being one of an adjourned undertaking. The Crown do not cavil with this submission and I accept that it is an appropriate outcome in all the circumstances of your particular case.
Delay
92
For each of you, I take into account the largely unexplained delay between the offences being committed on 23 October 2018 and not being charged until
August 2019. Certainly for a period of time you would have had the burden of this matter hanging over your head without being in a position to move forwards.
Sentence
93I do make the ancillary orders as sought for disposal of the knuckledusters.
94The basic purposes for which a court may impose a sentence are punishment; general deterrence (sending a message to the community), specific deterrence (as I have already outlined, sending a message to each of you), rehabilitation, denunciation and protection of the community. In sentencing each of you, I must have regard to a range of matters. This does include the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims.
95I am also required to balance the interest of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.
96I have taken into account the relevant sentencing guidelines referred to in s5 of the Sentencing Act 1991 where relevant to your respective cases. I have taken into account current sentencing practices for the offences to which you have each pleaded guilty, as well as the principles of totality and proportionality.
97Dealing with Mr Donald-Hauler first, on the single charge of common assault you are convicted and placed on an adjourned undertaking for a period of 12 months. This, in effect, requires you to sign a promise to this court to be of good behaviour for that period and that you attend before the court if called upon to do so. This is unlikely to occur if you remain of good behaviour, and I have every reason to expect that this will be so.
98I need to check with you, Mr Donald-Hauler, whether you are prepared to sign a document to that effect.
99OFFENDER DONALD-HAULER: Yes, I am, Your Honour.
100HER HONOUR: Thank you. Documents will be forwarded to you through your legal representatives.
101In your case, Mr Boyle, I accept that you have every intention to live a different way of life upon your release from custody. However, in my view, you will need considerable assistance with this over and above that offered by your partner and possible employment. This is in the face of a long-standing drug addiction which will, in all likelihood, still pose challenge to you upon release.
102I propose to impose an aggregate sentence as I am satisfied that the offences are founded on the same facts, or form, or are part of, a series of offences of same or a similar character - indeed, the charge of damaging property is part and parcel of the attempted aggravated burglary. In so doing, I do bear in mind, as I have already announced, the principles of totality and proportionality.
103In relation to the three charges on your indictment, you are convicted and sentenced to 444 days imprisonment, and I reckon 444 days as having already been served.
104This is in combination with being convicted and placed on a community corrections order for a period of 12 months. This order will be therapeutic only and requires you to be supervised by the office of corrections, submit for drug and alcohol treatment as directed and for offence specific programs. Might I suggest anger management would be of assistance.
105In addition to the conditions that I have imposed, there are standard conditions. You are probably familiar with them, but in any event, the first and foremost of those is that you must not commit any other offences during the 12-month period which could be punished by imprisonment. You must report within two working days of your release to the nearest community corrections office. You are also required to advise your supervising corrections office of any change of address of where you are living or working and do so within two clear working days. It is a term of all community corrections orders that you must submit to visits as directed and you must obey all of the instructions and directions of a community corrections officer. You are not able to leave the State of Victoria without the prior permission of your supervising community corrections office.
106In essence, you will not break that order if you stick to it, and you will not break that order if you do not reoffend with an offence punishable by imprisonment.
107In my view, the order presents you with a chance to change your life in a positive fashion should you choose to take up that opportunity and the supports that would be made available. If there is a breach, you will have to come back before me, charged with breaching that order. I may have to resentence you on the original charges, as well as on the offence of breach.
108Now, Mr Boyle, I can only place you on a corrections order if you agree to do so. Do you wish the opportunity to speak to Mr Backwell about that?
109OFFENDER BOYLE: No, that is fine.
110HER HONOUR: All right, do you agree to being placed on that order?
111OFFENDER BOYLE: Yes.
112HER HONOUR: All right, thank you.
113For you only Mr Boyle, s6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges. If not for your pleas of guilty, I would have sentenced you to a total effective sentence of 20 months imprisonment, with an 18-month community corrections order attached.
114All right, Mr Grant, anything I missed?
115MR GRANT: No. Excuse me, no. Thank you, Your Honour.
116HER HONOUR: Ms Pisasale?
117MS PISASALE: Nothing from my end, Your Honour.
118HER HONOUR: Mr Backwell?
119MR BACKWELL: Nothing, Your Honour.
120HER HONOUR: All right. Well, very shortly I will close the court, but I will give you the opportunity to speak with your client, Mr Backwell.
121MR BACKWELL: Thank you.
122HER HONOUR: And indeed, with the presence of Ms Simmonds if that is also to be preferred. That will be an entirely private conversation, everybody else will be removed, just give my associate time to deal with the technology.
123MR BACKWELL: As Your Honour pleases.
124HER HONOUR: Otherwise thank you to each of you for your assistance and I will close the court until 2.15, thank you.
125MR GRANT: Thank you, Your Honour.
126MS PISASALE: Thank you.
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