Director of Public Prosecutions v Campbell

[2019] VCC 1046

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00101

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEAN CAMPBELL

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	Plea: 26 April 2019 Further Plea:10 July 2019
DATE OF SENTENCE:	10 July 2019
CASE MAY BE CITED AS:	DPP v Campbell
MEDIUM NEUTRAL CITATION:	[2019] VCC 1046

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE

Catchwords: Plea – Aggravated burglary – armed robbery – intentionally causing injury – serious offending – in company – some relevant prior convictions – high degree of culpability – history of long-term drug abuse - significant medical issues - issue of parsimony – parity considerations – delay – community interest in rehabilitation - some remorse.

Legislation Cited: Crimes Act 1958; Sentencing Act 1991

Cases Cited: Hogarth v the Queen [2012] VSCA 302; Hi v The Queen [2017] VSCA 315; Whelan v The Queen [2018] VSCA 59; Wood v the Queen [2019] VSCA 39

Sentence: Total Effective State Sentence: 6 years imprisonment with a 3 year and 3 month non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K. Hamill	Office of Public Prosecutions
For the Accused	Ms M. Brown	Peter Lunt Lawyers

HIS HONOUR:

1Dean Charles Campbell you have pleaded guilty to one count of aggravated burglary, one count of armed robbery, these offences carry a maximum penalty of 25 years imprisonment, and one count of intentionally causing injury, maximum penalty 10 years imprisonment.

Circumstances of the offending

2The circumstances of the offending were set out in the prosecution opening which was read in open Court on the plea, which I incorporate by reference.

3In brief outline, this was a daylight aggravated burglary in company. You were known to the complainant.  You and the two co-offenders Ms Briffa and Mr Flowers attended the property of Mr Jarvis in Woori Yallock.  You had lived in the same street as him a couple of years previously.   A friend of yours had bought a car from him a year before.  The complainant had seen your co-accused previously but did not know them.  You are were not living in Woori Yallock at the time, and indicated to the police you were living with your co-offenders in tents near Warburton.

4The complainant was at home on the morning of Saturday, 28 January 2017.  He heard footsteps outside.  He had his backdoor blocked with a piece of wood.  He heard noises thinking that someone may have been trying to break in and went to the back door where he saw three people outside.  He called out to ask what they were doing and they said they wanted a bucket to get water for the dog.  He told the three people, one of whom was you, that his brother was in the police force and that his home was under surveillance.

5They told him that this was not going to stop them and he was going to get robbed and beaten pretty bad.  He rang 000 at 9:10 AM that morning and told the people outside that he was calling the police and he yelled at them not to break into his house.  They told him that they had a knife, he would be tortured and to put the phone down.  He rang the police two minutes later and banging can be heard on the call and the words “get out of my house” can be heard.

6The complainant held a mattress against the door as the intruders, two men and one woman pushed past it and gained entry.  You were one of those men.  The prosecution case is that Mr Flowers, who has not gone to trial at this point, and Ms Briffa, who has pleaded guilty were the co-offenders.  One of the co-offenders, Mr Flowers had a jemmy bar which was used to force the door and then to lash out at the complainant.  The complainant’s phone was taken and you pushed Mr Jarvis towards his bedroom, holding him by the heavy gold chain that he was wearing around his neck.  He had difficulty breathing while this occurred. 

7You told him that he was going to get ‘done over’ because he had ripped them off over a car. He denied this. You demanded to know where more jewellery was. The co-offenders told Mr Jarvis to hand over his money and jewellery. He told them that he had no money and the only jewellery he had was what he was wearing. He saw Mr Flowers take rings from the bedroom dressing table and put them in his pocket.

8The offenders, including you, punched Mr Jarvis repeatedly. Mr Flowers went to the kitchen and retrieved a steak knife which he handed to you and you pushed the knife into his throat. Mr Jarvis thought that he was going to be killed. He managed to take possession of the knife, but Mr Flowers hit him with the jemmy bar a number of times causing laceration injuries to his head. Mr Flowers then struck him over the head with pots pans and other personal items, including a statue of a silverback gorilla, a large kitchen plate and some Star Wars cups, all of which shattered over his head. He sustained injuries to his head which bled profusely leading him to be covered in blood.

9Ms Briffa was observed by the complainant walking around the house looking for valuables and telling the complainant to do what he was told or he would get hurt worst. You and Mr Flowers told the complainant to sit on the bed and stay put while the offenders searched the house stealing items of custom-made jewellery, collections of memorabilia, some movies and bags of loose tobacco. Mr Jarvis was warned by the offenders not to try following them or they would make it worse for him.

10These events constitute the offences of aggravated burglary[1], armed robbery[2] and intentionally causing injury.[3]

[1] contrary to s. 77 of the Crimes Act 1958

[2] contrary to s. 75A of the Crimes Act 1958

[3] contrary to s. 18 of the Crimes Act 1958

11The offenders left through the back door and over the gate to the front of the property.  The stolen property they were carrying was in part, in plastic boxes that had been taken from the complainant’s house. As the offenders left the property they dropped the plastic boxes at the front and left. Neighbours reported a disturbance to 000. The next-door neighbour saw two men coming out the front door putting things in their pockets.

12One of the neighbours had a conversation with one of the offenders who he later identified as you, where you said “he owes me $2300, I’m on a pension, what would you do”.

13You were arrested short time later in Woori Yallock.

14At that time you did not have in your possession any items stolen. When you were questioned by the police you admitted that you had assaulted Mr Jarvis by punching him twice with your left hand and once with your right hand as well as wrestling with him. You stated to the police that the assault was as a result of Mr Jarvis owing you $2000 by way of a drug debt and that when called upon to pay, Mr Jarvis had threatened your children. You maintained to the police that your were alone in the house, having been dropped off by friends.  You also said you only used your fists when assaulting him.

15In a record of interview conducted by the police you effectively declined to confirm what you had told the police in a field interview.

16The other two co-accused were arrested a short time later.  The female co-accused Ms Briffa has pleaded guilty and been dealt with by another Judge of this Court and as I have said Mr Flowers is going to trial later this year.

Victim Impact Statement

17The complainant has filed a victim impact statement in which he indicates that he is frightened and anxious as a result of these offences.  He is paranoid that the offenders were coming back again and these emotions still affect him.  He said he ended up with 12 cuts on his head and had stitches.  He lost 1.8 L of blood.  He was scared that he was going to be stabbed by a knife.  He suffered migraine headaches for three months after the offence.  He had trouble sleeping and suffers stress, high blood pressure, and night sweats.  He says that he lost approximately $30,000 value of jewellery.  The metal chain cost him $7000 and one of the rings was worth $8000.  He said that the crime had deeply affected him and he did not want to go out in public. He still has difficulties nearly 2 years later. 

18It is clear from the victim impact statement that your offending has had a very significant impact on a vulnerable complainant which must be considered in sentencing.

Seriousness of the Offences

19This was a serious case of aggravated burglary.  First, you were in company.  Next you were fully aware that the complainant was present in the house and notwithstanding his protests proceeded, with your co-offenders to break into the house.  Further Mr Flowers was armed with a serious weapon, namely a jemmy bar.  Your motivation for the offence was an intent to steal.  The prosecution case is on the basis that there was some dispute over the purchase of a car.  As I said, you asserted to the police in a field interview, which you refused to confirm in a record of interview, that there was a difference over a drug debt.  

20At all events your culpability can be ascertained by the conduct that was undertaken upon your entry into the property.  You and your co-accused made a determined effort to rob the complainant.  You grabbed the gold chain around his neck, making it difficult for him to breathe and demanded further information as to his jewellery.  Your co-offenders proceeded to steal jewellery from the bedroom, and you then put a knife to his neck in order to obtain more jewellery.  In addition, on your own admission you punched the complainant to the head at least three times and Mr Flowers proceeded to hit him in the head with the jemmy bar and other objects.  Thus your actions in both robbing and assaulting the complainant show a high degree of culpability overall.

21I accept the prosecution submission that this was a relatively serious example of aggravated burglary.  The complainant  was vulnerable and from the victim impact statement it has had a significant impact on him.

22The armed robbery was also serious, in that a significant amount of jewellery was taken and significant force was used. The precise value of the amount is in dispute but it must have been of significant sentimental value to the complainant, who was on a disability pension.  You must have been aware that he collects jewellery.

23The offence of intentionally causing injury is not of the higher range.  However you must accept responsibility for the conduct of Mr Flowers as you were acting in concert with him in the burglary, the armed robbery, and the assault on the complainant.  This is notwithstanding that Mr Flowers was wielding the jemmy bar and the various items that he was hitting the complainant over the head with. 

24

Prior Criminal History:

25Turning to your prior convictions, they are numerous.  You are now 45 years old.  Your offending in Victoria began in 1999 when you were aged 25.  You have prior convictions in Tasmania mainly for street offences. 

26Your offending in Victoria includes convictions for possession of cannabis, cultivation of a narcotic plant (cannabis), failure to comply with a CBO intentionally damaging property and multiple offences of fail to answer bail. 

27In 2010 at the Ringwood Magistrates Court you were convicted of a spate of offences including intentionally damaging property, assault with an instrument, contravention of a family violence intervention order, possession of cannabis, driving while suspended, driving unlicensed, intentionally cause injury, failure to comply with a CBO, intentionally cause injury and assault with a weapon.  A Total effective State Sentence of 5 months was imposed and you were placed on a 12 month Community Based Order.  For the offence of intentionally causing injury, you received 3 months imprisonment (concurrent) wholly suspended.  For the offences of driving while suspended and driving a motor vehicle without a license you received an aggregate 40 day sentence (concurrent)

28On the 9^th of January 2015 you were back before the Ringwood Magistrates Court for offences including recklessly causing injury, unlawful assault, wilfully damaging property and failing to answer bail.  For this offending you were convicted and placed on a Community Corrections Order for 6 months.  Conditions of the order included 120 hours community work, assessment and treatment for drug use and dependency, mental health assessment and treatment, as well as the condition to undertake a program to reduce aggression. 

29You contravened the above Community Corrections Order on the 12  October 2015, and you were fined $300.  You were placed on a further CCO for 12 months with conditions including unpaid work assessment for drug abuse and dependency, mental health assessment as well as anger management programs.

30The above order was contravened by offending and on the 12 April 2016, you were fined $500 with conviction for breaching a Family Violence Intervention Order.  For the contravention of the CCO you were sentenced to two months imprisonment wholly suspended for nine months. 

31Less than three months later on the 1 July 2016 you were convicted of the offence of recklessly cause injury where the Magistrate fined you $500.

32You have been sentenced to four Community Corrections or Community Based Orders which have been breached by further offending.  Both Community Corrections Orders have had conditions for assessment and treatment of mental health and drug issues, as well as anger management or as  ‘Aggression Reduction Programs.’

33You have been sentenced to a number of terms of imprisonment not more than four months.  You have also received suspended sentences for your offending in 2016 and 2010.  You had only just completed a nine month period of suspension of the sentence imposed on 12 April 2016, when this offending occurred. 

34Overall, your prior offending shows that you have not responded to a number of dispositions and you do have a number of prior convictions for assault type offences.  In addition, it is clear from your prior convictions that you have had prior problems with drug use.

Personal Circumstances

35Your personal circumstances were set out in the sentencing submission of your counsel[4] and in the report of Mr Cummins[5] the forensic psychologist, which I incorporate by reference.

[4] Exhibit 1 on the plea

[5] Exhibit 2 on the plea

36You are now aged 45 and hail originally from Tasmania.  Your father died when you were approximately seven and you were placed in State care from the age of eight or nine.  You were never reunited with your mother. You were the subject of sexual abuse whilst in State care.

37You started using illegal drugs from the age of 12 or 13 and have had a long-term addiction to heroin.  You were in a significant motor accident when you were about 21 and have been on a disability support pension for the last 12 or 13 years due to depression, anxiety, panic attacks and lower back pain.

38Prior to this offending you were on OxyContin and using heroin.  You have been using heroin on and off for 10 years prior to the offending.  You had been placed on a methadone program.  Before the offending you were also using cannabis and alcohol to excess.

39In terms of your personal relationships for approximately, 21 years you were in a relationship with a woman and have two daughters from that relationship.  In the last few years you have had little to do with the two daughters who are now in their 20s and live in the Yarra Ranges area.

40You are in contact with your mother who remains in Tasmania and is single.

41You explained to Mr Cummins the drugs had been part of your life virtually since you were aged 12 or 13.  You have three siblings but you have no ongoing contact with those siblings.

42You left school at age 15 and worked in farm work and labouring work.  After arriving in Victoria you worked as a spray painter and a welder, as well is in farm work. You were then placed on the DSP for mental health, drug, and back pain reasons.

43You have never received ongoing psychiatric or psychological treatment as an adult.

44Prison medical records indicate that you have been diagnosed as having diabetes, carpal tunnel problems, depression, anxiety, bipolar disorder, as well as colon and bowel cancer.

45This latter condition is hereditary.  You have previously had surgery for that condition.  In late 2018, while on remand, you had to have major bowel surgery that left you with a colostomy bag.  The plea was adjourned pending further surgery and I was advised that this surgery is to take place in approximately two weeks. According to the report the prospects for recurrence are minimal. You will require a short period in hospital, and then approximately a month for recuperation. 

46The prosecution accepted that over the period that you had the colostomy bag, which is from late last year, is such that your imprisonment would be more onerous than for a person without your condition.  This is a significant matter which I do take it into account.  Your activities within the prison system have been more limited and you would be vulnerable.  It was not put that your condition could not be properly managed within the prison system, however I do allow some leniency due to your condition. 

Prospects Of Rehabilitation

47Your prospects of rehabilitation must be regarded as at best, fair.  You have been dealt with previously, yet you have continued to reoffend.  On the other hand you have never been given a significant sentence of imprisonment.  Mr Cummins regards your risk of reoffending as moderate.  He is of the view that you require anger management assistance.  Your risk of reoffending is ultimately related to whether you are in a position to remain heroin free, control your alcohol intake and not abuse opiate medication. 

48Given your long-term misuse of both drugs and prescription medication you will require considerable assistance to resume a law-abiding life.  I regard it as appropriate to reflect this in a longer than usual period during which you will be eligible for parole. 

Sentencing submissions

49The chronology in this matter is that you have been on remand since you were arrested on 28 January 2017.  There was a filing hearing on 2 February 2017.  There was delay in the committal commencing and you were committed for trial on 17 January 2018.  There was further delay as there were discussions relating to a possible resolution of the matter.  You were finally arraigned on a plea indictment on 12 September 2018.  The plea date was adjourned as a medical report was unavailable and you were hospitalised and the plea was finally fixed for 26 April 2019.  The matter was then adjourned until today pending clarification of the surgery in relation to the colostomy bag.

50You are entitled to the benefit of a plea of guilty.  There was some discussion on the plea to whether the plea was at the earliest possible opportunity.  There were negotiations as to the relevant charges and as to the prosecution summary.  I give you credit for your plea.  You have facilitated the course of justice and obviated the need for a trial.

51The plea is also some evidence of remorse, and there is some evidence of remorse in the statement that you made to Mr Cummins.

52You have been on remand for nearly two and half years.  You are not responsible for the delays in having the matter resolved. You are entitled to have the delay, the more limited programs available on remand, and your vulnerability since the surgery is taken into account in your favour.

53I do extend some leniency to you on the basis that imprisonment has been more onerous is than for an able-bodied younger person.

Relevant Cases

54The learned prosecutor put that the case of Hogarth[6] had made it clear that in the case of confrontational aggravated burglaries, current sentencing practices, according to the Court of Appeal have been too low.

[6]Hogarth v the Queen [2012] VSCA 302

55I was also referred to two other cases of Hi[7] and Whelan.[8]  It was said that those cases involve more serious offending.  I was also referred today to the case of Wood[9] as being possibly of assistance.  I have considered that latter case is reflecting current sentencing practices.  There are a number of distinguishing features and the sentence in any particular case is not a precedent.

[7]Hi v The Queen [2017] VSCA 315

[8]Whelan v The Queen [2018] VSCA 59

[9]Wood v the Queen [2019] VSCA 39

56You are to be sentenced for your role in the offending as a whole, and the individual counts.  The case against you was put as one of joint criminal enterprise, and your individual role must be reflected in the individual counts.   Immediately after you were apprehended you accepted responsibility for the offending and from this I must infer that the offending was your idea.  Although you did not wield the weapon, the burglary was in company and I regard it as having been at your instigation, as you knew the complainant and that he had jewellery in his possession.

57Next you were significantly involved in the armed robbery.  Also in the assault, on your admission you punched the complainant three times, and stood by as he was assaulted by Mr Flowers. 

Parity Considerations

58Your co-offender Ms Briffa has been sentenced by His Honour Judge Carmody.  I have had regard to the individual sentences imposed of three years each for aggravated burglary and armed robbery, noting that she also pleaded guilty to the charge of recklessly causing injury and was sentenced to one year’s imprisonment.  The total effective sentence was four and a half years with a non-parole period of two years and three months.

59Ms Briffa had a criminal record mainly related to drug offending and it was not as extensive as yours.  Further, His Honour accepted that she had a lesser role.  He regarded her prospects of rehabilitation as fair.

60It is necessary that the sentence imposed upon you does not give rise to an unjustified cause of grievance having regard to your respective roles.  As I’ve indicated I regard you as the instigator of the aggravated burglary and significantly physically involved in both the armed robbery and in the assault.  Thus, while Ms Briffa was also a participant I regard her as having lesser culpability and this is, in my opinion, reflected in the sentences imposed upon her.  Thus, I do not regard those sentences as having decisive weight in sentencing you, but I must have regard to them. 

Purposes of sentencing

61     The basic purposes for which a Court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.

62     in this case the learned crown prosecutor emphasised that the offences of aggravated burglary and armed robbery are such that general deterrence is very significant.

63In considering issues of general deterrence, I have had regard to your relatively deprived upbringing and also your medical conditions and thus have given the matter less weight than would otherwise be the case.

64Further given your prior convictions for assault type offences, specific deterrence has some salience here.

65Considerations of denunciation are very important here.  Your conduct in forcefully breaking into the house, in company, where you knew there would be a vulnerable victim, when your co-offender was armed, was absolutely outrageous and must be utterly condemned.

66All these matters would weigh in favour of a heavy sentence, but must be balanced against the interests of the community in your rehabilitation.

67Weighing those competing considerations and taking into account all the submissions made on your behalf I sentence you as follows:

68Could you please stand.

69On the Charge of aggravated burglary you are sentenced to four years imprisonment.  That is the base sentence.  On the Charge of armed robbery you are sentence to three and half years imprisonment.  On the Charge of intentionally causing injury you are sentenced to two years imprisonment.  I order that 15 months of the sentence on Charge two be served cumulatively on the base sentence and nine months of the sentence on Charge three be served cumulatively on the base sentence and on the 15 months on Charge two.  This makes a total effective sentence of six years imprisonment.  I declare that you must serve a period of three years and three months imprisonment before being eligible for parole. 

70I declare you have served 893 days pre-sentence detention. 

71I declare that had not pleaded guilty I would have imposed a total effective sentence of seven and half years imprisonment with a five year non-parole period. 

72The prosecution have sought a forfeiture order, a disposal order in relation to the jemmy bar and the knife.  So I will make that order as being sought. 

73Are there any other orders sought Madam Prosecutor?

74MS HAMILL:  No Your Honour.

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