Director of Public Prosecutions v Campbell

[2023] VCC 1345

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No-23-00134

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW DENNIS CAMPBELL

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JUDGE:	HER HONOUR JUDGE GYWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	14 JULY 2023
DATE OF SENTENCE:	3 AUGUST 2023
CASE MAY BE CITED AS:	DPP V CAMPBELL
MEDIUM NEUTRAL CITATION:	[2023] VCC 1345

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:              Aggravated Burglary; Causing Injury Recklessly

Legislation Cited:      Sentencing Act 1991; Crimes Act 1958

Cases Cited:Hogarth v The Queen [2012] VSCA 302; DPP v Meyers [2014] 44 VR 486; Worboyes v The Queen [2021] VSCA 169

Sentence: Convicted and placed on a Community Corrections Order for 2 years; Disposal Order made; s6AAA: TES of 12 months imprisonment in combination with a 2-year Community Corrections Order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms E. Rutherford	Office of Public Prosecutions
For the Accused	Mr D. McGlone	James Dowsley and Associates

HER HONOUR:

1Matthew Dennis Campbell, you have pleaded guilty on indictment to a charge of aggravated burglary and of causing injury recklessly. The charge of causing injury recklessly is a ‘rolled up’ charge.

2In sentencing you for these crimes, I must have regard to the maximum penalties for the offences you have committed. Those maximum penalties are as follows:

·     Aggravated Burglary – 25 years; imprisonment

·     Causing Injury Recklessly – 5 years imprisonment

3These maximum penalties reflect the seriousness with which Parliament regards each of these offences.

4The circumstances of your offending are set out in a document entitled 'Summary of Prosecution Opening' dated 1 July 2023. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.

5I will not repeat the entire summary as it is a matter of record but in brief terms your offending that gives rise to these charges occurred on 28 May 2022, at which time you were 41 years of age. The victim of your offending, Mark Bennett, is known to you through your relationship with his ex-partner Melissa Mizzi. At the time of the offending, the victim was living with his mother at an address in Boronia Avenue, Wallan.

The offending

6At approximately 4.15 pm on 28 May 2022, Mr Bennett was driving past Ms Mizzi's address in Lisa Place, Wallan, in a white Toyota Hilux utility. You and Ms Mizzi exited her address and got into your blue Ford sedan. You had reversed from the driveway and faced south when Mr Bennett drove past. He then conducted a U‑turn and drove towards your vehicle. Mr Bennett intentionally swerved and collided with the right front side panel of your car. The damage caused was described as moderate.

7Ms Mizzi told you to drive to the victim’s address as she wanted to speak to the victim’s mother about what had just occurred. Unfortunately, you agreed and drove to Mr Bennett’s address travelling north, passing Mr Bennett who was travelling in the same direction.

8You stopped your vehicle on the footpath immediately outside Mr Bennett's address. Seconds later, he drove up onto the nature strip on the east side outside his address.

9You saw Mr Bennett's vehicle approaching your vehicle head on and you put your vehicle into reverse, however, he managed to drive his vehicle straight into your vehicle, colliding head on and pushing it backwards. This caused your vehicle to spin out onto Boronia Avenue in reverse. The damage caused to the front of your vehicle was described as extensive.

10Mr Bennett stopped his vehicle on Boronia Avenue and exited it armed with a wooden bat. You exited your vehicle armed with a 2-inch round metal pole. Mr Bennett swung the wooden bat at you and struck you in the upper left arm. You retaliated by striking the victim with the metal pole to the upper arm and head a couple of times. These acts form the basis for Charge 2, Causing injury recklessly, which as I have previously described, is a ‘rolled up’ charge.

11Mr Bennett then ran into his house via the unlocked front door. You chased him still armed with the metal pole and with the intention of further assaulting the victim. This act forms the basis of Charge 1, Aggravated burglary.

12You followed the victim into the garage where you slipped on a piece of cardboard and fell on the ground, which resulted in you dislocating your shoulder. The victim jumped on top of you where you both wrestled over the metal pole. You were both soon separated by Mr Bennett’s mother and Ms Mizzi.

13You and Ms Mizzi then left the residence and attended the Wallan police station to report your vehicle having been rammed by the victim.

14Mr Bennett was conveyed to the Northern Hospital by ambulance. As a result of the offending, he received a 3 x 1 centimetre laceration to his head and a small laceration to his forearm.

Arrest and Interview

15You were arrested by police on 28 May 2022 and participated in a record of interview. You told police of the background to the offending, outlining the circumstances and making admissions to the offending itself which is to your credit. Your account in that interview is not challenged by the Crown. You were then remanded into custody.

Offence Gravity

16I now turn to the gravity of the offending.

17In assessing the gravity of the offending, I am inclined to take into account the unusual context of the offending and the contribution of the victim’s actions to the context of the offending. Nonetheless, the offences are serious in nature.

18Both prosecution and defence concede that the offence of aggravated burglary can be described as a confrontational type.

19Regardless of the description, in terms of a charge of aggravated burglary, I am assisted by the decisions of Hogarth v The Queen [2012] VSCA 302 and DPP v Meyers [2014] 44 VR 486. In Meyers, Justices of Appeal, Maxwell P and Redlich and Osborn JJA stated that [47]:

'Determining the sentence to be imposed for any particular offence of aggravated burglary will in a large part depend on a careful assessment of the (relative) seriousness of the offence.'

20Meyers also included a non-exhaustive range of factors to be considered in assessing the objective gravity of an aggravated burglary. The factors referred to include:

(a)   firstly, the offender's intent at the point of entry;

(b)   secondly, the mode of entry, such as by forcing a door or breaking a window;

(c)   thirdly, whether the offender was carrying a weapon;

(d)   fourthly, whether the offender was alone or in company;

(e)   fifthly, the time of day at which the burglary took place;

(f)    sixthly, what the offender knew or believed about who would be inside and/or about the person(s), where they would be; and

(g)   finally, whether the offender was someone of whom the victim was particularly frightened. 

21In your case, you entered the garage of the residence during the day, alone, via an unlocked door with a metal pole. You intended to assault the victim. You clearly knew that the victim was inside the residence given the immediate lead up to your entry. With entry into a private residence in circumstances of violence such as this, general deterrence is an important sentencing objective.

22Your offending unfortunately took place in the presence of others, including the mother of the victim and Ms Mizzi, each of whom were unfortunate witnesses to what you did. I note that your offending occurred in the immediate vicinity of and in Mr Bennett's own home, an environment in which he and his mother were entitled to feel safe.

23Whilst there is no victim impact statement, I accept the Crown submissions that your offending would have the capacity to concern the victim and obviously those exposed to your violence.

24I do accept that your offending was spontaneous and without premeditation in a state of high emotion. It was relatively short‑lived, but clearly not without consequences as both you and the victim sustained various injuries.

25It was you who chose to drive the short distance to Mr Bennett’s premises where the offences took place when you could have simply gone straight to the police station after the initial ramming of your vehicle, an observation which, through the efflux of time, is probably not lost on you.

26I accept neither offence is at the higher end. I accept that at least in relation to Charge 2, you may well have had a defence available. The injury Mr Bennett suffered was fortunately relatively minor.

27Whilst not relevant to the sentencing exercise, I understand that Mr Bennet has also been charged as a result of his alleged actions of 28 May 2022.

Plea of Guilty

28The Sentencing Act obliges me to take into account the stage at which you entered your plea. This matter resolved at a contested committal hearing on 3 February 2023 prior to any witnesses being called.

29There is clear value in saving the victim the need to give evidence, and utilitarian value in saving the community the expense of contested proceedings.

30Your decision to plead guilty in the context of the COVID-19 pandemic has additional utilitarian value as it provides certainty and finality to all parties in circumstances where the court's operation was significantly disrupted by the pandemic and the court is still recovering from its effects.

31Based on the materials before me, I accept that you are remorseful for your actions.

32These factors will all be taken into account in your favour.

Personal Circumstances

33I turn now to your personal circumstances.

34You are currently 42 years of age and were born in Kyneton. You have 5 sisters, and I am told you are the middle child.

35You live with your parents on their 81-acre hobby farm in Romsey, residing in a separate dwelling at the property with your 19-year-old son.

36Your parents are in their early 70s and have maintained their relationship. Your mother has always been involved in home duties, whilst your father operated an earth moving business and now works as a farm labourer. You report that you are very close with your mother and 'close enough' with your father. You state your relationship with your parents is one that is 'open and honest', and that they are aware of the proceedings which you face today. You also maintain regular contact with your sisters who all live in the local area.

37I note that your mother and sister were present for your initial plea hearing and again are present here today for your further plea and sentence.

38You had what can be described as a stable upbringing.

39You attended Romsey Primary School then Kyneton Secondary College until the commencement of Year 11, having completed Year 10. You reportedly found difficulty with reading, writing and comprehension skills, the latter being something you still struggle with today.

40On leaving school, you began work as a motor mechanic in Romsey for approximately 6 months and then proceeded to do rural fencing work for several years, after which you worked as a fencer. You state that your personality forced you to 'be a bit of a perfectionist' and that you find it 'hard to communicate with others'. You also state that you have developed arthritis in both of your hands because your work.

41You ceased working full time in fencing approximately 10 years ago and then worked as a truck driver and excavator operator for approximately 6 years after. You report feeling depressed and unmotivated in the last 3 years. Until the last 3 years, you have otherwise been in constant employment. For the last 6 months, you have been in receipt of Centrelink benefits having exhausted your savings.

42You had a carcinoma removed from your right ear, and alongside arthritis, suffer from gout. You do not smoke cigarettes and limit your intake of alcohol. You were a casual smoker of cannabis when aged between 18 and 30, and occasionally experimented with amphetamine and methamphetamine.

43You have not been married but were in a de facto relationship for 10 years which resulted in the birth of your son, with whom you have a close relationship. That de facto relationship ended approximately 12 years ago due to mutual infidelity.

44You are, as I understand it, currently in a relationship with Ms Mizzi and have been since May 2022.

Criminal History

45I turn now to your criminal history.

46Your first appearance was at the Kyneton Magistrates' Court on 12 November 2001 for charges of being drunk in a public place, assault police and resist police. Without a conviction being recorded, you were placed on an adjourned undertaking for 12 months and ordered to pay $400 into the Court Fund.

47On 25 November 2002, you were fined $1000 as an aggregate by the Kyneton Magistrates' Court for driving offences, assault in company and behave in a riotous manner in a public place.

48On 7 April 2003, at the Kyneton Magistrates' Court you were brought back in relation to your appearance on 25 November 2002 for the same offences and appear to have been convicted and fined an aggregate of $1380. This would appear to be in the context of a fine conversion.

49There was a gap of some 7 years in offending.

50On 2 August 2010, the Kyneton Magistrates’ Court convicted and sentenced you to a 12-month community corrections order for a combination of dishonesty offences, driving offences and offences against persons.

51There was then a gap of some 8 years before you appeared at the Castlemaine Magistrates' Court on 26 February 2018, where you were discharged without conviction, and you entered into a $500 recognisance order for a period of 12 months in relation to one charge of use a carriage service to offend.

52Whilst not to be punished for your criminal history a second time, it is relevant to the assessment that needs to be undertaken by me as to the weight that should attach to specific deterrence, denunciation and protection of the community, all of which do carry importance to your sentencing exercise. It is also relevant to the assessment as to your prospects for rehabilitation.

53Your criminal history does include relevant offences of violence and property damage, reflecting some difficulty controlling your behaviour and/or responses, although you do appear to have complied with court orders. This augers well for future compliance.

Prospects for Rehabilitation

54In terms of your future prospects, until the matters the subject of the indictment, there had been no offending by you since 2018, a period of some 4 years. I understand there is nothing pending.

55Your criminal history overall is of some 5 court appearances over a 21-year period including gaps where you have clearly complied with the community's expectations versus offending when you have been, as previously observed, less in control of your behaviour. The offending on 28 May 2022 was such a day

56There is clearly some context to your offending, as mentioned previously, as Mr Bennett had rammed your car twice and hit you with a baseball bat immediately prior to you recklessly causing Mr Bennett injury and then entering his home with the relevant intent for aggravated burglary. Nevertheless, this event and your prior history would indicate a need to think before you act.

57As a direct consequence, you were remanded into custody on 28 May 2022 and bailed on 29 May 2022 at a filing hearing for this matter. Whilst a very short period, I accept that for you there is some sanction and deterrent in this experience. 

58There are mutual intervention orders in place protecting Mr Bennett from you and you from Mr Bennett. You have been compliant with this order and with bail conditions.

59You do not presently have any issues with either drugs or alcohol. It is not suggested that the offending before me occurred whilst you were under the influence of either.

60You, Mr Campbell, are fortunate to be well supported by family. Your partner and relatives attended your initial plea, and your sister and mother are here again today.

61References have been tendered on your behalf from your mother Rhonda Campbell, your sister Ashleigh Frankcombe, and your friend Glenys Johnston. I have had regard to their contents.

62Your mother speaks of how remorseful and disappointed you were immediately after the offending, and states that you are currently being treated for depression and seeing a professional to give you the tools you need in bettering your life. She says you have always been helpful in nature and assisted in family chores and notes the challenge you face in your relationship with your father who she describes as 'a hard and unforgiving man'.

63Ms Frankcombe echoes similar sentiments and says that you are extremely remorseful for your offending and that you seem a lot happier. She has noticed positive changes since you have been referred to a medical professional.

64Finally, Ms Johnston has observed you to be a polite, hard-working and helpful person. She has also described you as enthusiastic, sensible and honest.

65Tendered on your behalf was a psychological assessment of you dated 23 June 2023 authored by Mr Jeffrey Cummins. He sets out much of your personal history. You apologised for your offending.

66You have felt intermittently depressed for the whole of your life, largely related to the way you have been treated by both your father and his twin, your uncle. This has impacted on your self‑esteem. Reference material tendered would support that you were poorly treated.

67Mr Cummins opines there is probably some nexus between your relationship with your father and your offending because of pent up feelings of anger, frustration, hurt and rejection, and that you have genuine and moderately severe mental health problems. He expresses concern for you if incarcerated. If your family members are right. you are seeing benefit from a current treatment regime. I can only encourage you to continue.

68Your counsel does not call into your aid the principles in R vVerdins & Ors (2007) 16 VR 269.

69Mr Cummins did see merit in you accessing an anger management program and assessed your risk of further violence as moderate and trending towards low-moderate. There does not appear to be any impediment to your rehabilitation.

70Overall, your prospects for rehabilitation would appear to be good.

71There was context to your offending, there have been consequences for it, you are remorseful and you are well supported by your relationships and willingness to access relevant assistance. There would appear to be less need to give great weight to the principles of specific deterrence and protection of the community in the circumstances of your sentencing.

CCO Assessment

72Your counsel contends that given the gravity and nature of your offending, your early plea of guilty and your mental health, that all relevant sentencing considerations can be reflected in the imposition of a community corrections order.

73The Crown submit that your offending warrants the imposition of a gaol sentence which could include a term of imprisonment in combination with a community correction order.

74Given the degree of some similarity in submission, I have had you assessed as to your suitability for a community corrections order.

75An assessment outcome report dated 14 July 2023 advises that you expressed a willingness to comply with the community corrections order and that you could not identify any real difficulties in doing so. You were assessed as presenting with a medium risk of re-offending. You were assessed as suitable for a community corrections order.

76A Mental Health Advice and Response Service assessment dated 14 July 2023 recommends that ongoing assessment or treatment of your mental health be made a condition of any community corrections order in order to promote your well-being and reduce your risk

77Now I just want to check with each of you whether there are any factual errors or anything that you wish to draw my attention to. Ms Rutherford?

78MS RUTHERFORD:  No, Your Honour.

79HER HONOUR:  Mr McGlone?

80MR McGLONE:  No, Your Honour.

Sentencing Calculation

81HER HONOUR:  I do make the ancillary order if I have not already made it, for the disposal of the metal pole.

82The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of matters which include the seriousness of the offending, your culpability for it, your personal circumstances and of course, those of your victim. I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure where possible that offenders are rehabilitated and are reintegrated into society.

83I have taken into account the relevant sentencing guidelines referred to in s5 of the Sentencing Act. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the important principles of totality, proportionality and parsimony.

84Courts now have more discretion in terms of choosing a sentencing disposition which does enable all the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to the option of imprisonment which is skewed towards retribution and deterrence, factors which have less weight in the overall sentencing mix for you.

85I propose to impose an aggregate sentence as I am satisfied that the offences are founded effectively on the same facts, indeed, occurred as part of the one event.

86For Charges 1 and 2, aggravated burglary and causing injury recklessly, you are convicted and will placed on a community corrections order for a period of 2 years.

87During the 2-year period, you will be supervised by the Department of Justice, you will be assessed and treated for your mental health, you will be assessed for programs designed to reduce your offending, and you are to complete 150 hours of community work. 50 hours of community work can be offset by treatment conditions, therefore, more treatment, less community work.

88In addition to the conditions I have imposed there are standard conditions. The first and foremost of those is that you must not commit any other offence during the 2 year period which could be punished by imprisonment. You must report within two working days to the nearest Corrections office. You are also required to advise your Corrections office of any change of address of where you are living or working and that you must do so within two clear working days. It is a term of community corrections orders that you must submit to visits as directed and obey all of the instructions and directions of a Corrections officer. You are not able to leave the State of Victoria without the prior permission of your Corrections office.

89The order can be contravened if you do not comply with it in terms of its conditions or reoffend by an offence punishable by imprisonment whilst it is in place. If you do, you will have to reappear before me for breaching the order and I may have to resentence you on the original charges and for a separate offence of contravening the corrections order. I can however only place you on this corrections order with your consent  In a moment I will give your legal representation the opportunity to speak with you about that.

90However, in my view, this order presents you with a chance to continue to change your life in a positive fashion should you choose to take up that opportunity and the supports that should be made available.

91Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty to the charges. If not for your plea of guilty, you would have been sentenced to 12 months imprisonment in combination with a community corrections order of 2 years duration.

92So Mr McGlone, I'll have a copy of that order provided to you, you can discuss it with your client and come back to me about his position.

93MR McGLONE:  Yes.

94HER HONOUR:  In order to facilitate that I'll just down temporarily.

95ASSOCIATE:     (Short adjournment.)

96HER HONOUR:  Mr McGlone.

97MR McGLONE:  Thank you for that opportunity, he has instructed me that he's consenting to the order.

98HER HONOUR:  Thank you very much, well we'll have that signed. Just while that is being undertaken, is there anything further from you at this stage, Ms Rutherford?

99MS RUTHERFORD:  No, there's not, Your Honour.

100HER HONOUR:  Thank you, Ms Rutherford, for your assistance both on the previous occasion and today.

101MS RUTHERFORD:  Thank you, Your Honour.

102HER HONOUR:  And Mr McGlone, thank you for your assistance. Mr Campbell, you've heard about the circumstances in which you'll come back, you either don't do the order or you re‑offend whilst it's in place by an offence punishable by imprisonment. In the nicest possible way, I don't want to see you again. All right? Thank you and thank you to your family for their support as well. I'll stand down temporarily, thank you.

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