Director of Public Prosecutions v Campbell

[2017] VCC 1980

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-00781

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL CAMPBELL

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 December 2017
CASE MAY BE CITED AS:	DPP v Campbell
MEDIUM NEUTRAL CITATION:	[2017] VCC 1980

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Burnett
For the Accused	Mr G. Thexton

Pages 1 - 9

 

 

HER HONOUR: 

1Michael James Campbell, you have pleaded guilty on indictment to a charge of aggravated burglary, intentionally cause injury and criminal damage.  You have also pleaded guilty to a related summary offence of unlawful assault.  All of your offending is said to have occurred on 20 September 2016.

2The maximum penalty for Charge 1 is 25 years.  Charges 2 and 3 carry a maximum penalty of ten years' imprisonment and the summary charge carries 15 penalty units or imprisonment for three months.  Those penalties reflect the seriousness with which Parliament regards these offences.

3The circumstances of your offending are set out in a document labelled Summary of Prosecution Opening on Plea, dated 25 August 2017 and marked as Exhibit P1.  The contents of this document are not disputed by your counsel.  Photos were also exhibited. 

4The facts essentially are that at approximately 2.15pm on Tuesday 20 September 2016, you were walking along the rail access track adjacent to the train tracks north of Francis Street in Brooklyn.  V/Line employees Andrew Mayer, Cobey Stowe-winder and Peter Harvey were passengers in a white 2007 Isuzu Tray driven by another V/Line employee, Mr Mircevski.  Mayer, Stowe-winder, Harvey and Mircevski were in the area undertaking work for V/Line when they noticed you stacking scrap metal and they approached you.  Stowe-winder thought you were trying to steal the scrap metal.  He got out of the vehicle and challenged you, telling you that he was going to contact police.  You said "If you're gonna call the cops, I'm gonna get you done for assault."

5You moved towards Stowe-winder who backed away and said, "All right, I'm not calling them, just leave."  You then charged at Stowe-winder who turned around and slipped over.  You threw punches at him which did not make contact. 
You stood over Stowe-winder and grabbed his shirt before being fought off.  Stowe-winder got up and then bent down to look for his sunglasses when he felt a blow to the right side of his face.  Those facts describe the summary offence of unlawful assault.

6You then threw ballast rock in the direction of the group.  Stowe-winder approached you in an attempt to diffuse the situation.  You threw a number of punches and fought with him before he punched you in the face.  You continued to throw ballast rock which cracked the front windscreen of the V/Line vehicle.  That fact comprises Charge 3, that of criminal damage and it is as a result of that damage, that I have made the compensation order as sought.

7Stowe-winder then collected a spanner from the V/Line vehicle and approached you.  You and he struggled over the spanner and you were hit in the face with the spanner. You have produced medical evidence of your injury. 
Stowe-winder videoed and photographed you using his mobile phone.

8Harvey, Mayer, Mircevski and Stowe-winder  then departed and drove to the V/Line F Gate located on Footscray Road, approximately 8.3 kilometres away.

9You then called your father, Michael Lindsay Campbell and told him that you had been bashed by V/Line workers.  Your father, perhaps unwisely, then drove to Francis Street, Brooklyn, collected you and then drove to V/Line F Gate, a location that was known to him through knowledge gained whilst working in the towing industry.

10It was at approximately 2.46 pm that you both arrived at the V/Line F Gate. 
You saw Mayer on the veranda attached to the front of the V/Line building.  You got out of the passenger seat of the vehicle with a baseball bat and chased Mayer through the door of a V/Line building.  That behaviour constitutes
Charge 1, aggravated burglary.

11Mayer attempted to run through the first room of the V/Line building but slipped and fell to the ground as he entered the adjacent hallway.  You then stood over him, holding the baseball bat and struck him ten to 15 times with that bat. 
Mayer managed to get his legs and boots in the air and take most of the blows.  He suffered abrasions to his knees and bruising to his legs.

12V/Line employee, James Wallace, who was sitting in his office, overheard the commotion and ran out.  Wallace observed Mayer on the ground and you swinging the baseball bat at him.  Your father had followed you in the V/Line building a few minutes later and retrieved the baseball bat from you. 
You walked further into the V/Line building in search of Stowe-winder .  You were followed by your father and Wallace.  Wallace managed to calm the situation before you all walked out of the rear entrance.

13At approximately 2.49 pm, your father returned the baseball bat to his vehicle and you returned to the passenger seat of the vehicle.  At approximately
3.24 pm, police arrived at V/Line F Gate in response to emergency calls from V/Line employees, Rohan Skiborus, John McNamara and Stowe-winder . 
You were arrested at approximately 4.47 pm.  During your subsequent record of interview, you answered questions and made partial admissions but essentially denied the allegations that you had thrown rocks or to using the baseball bat.

14It is submitted, and conceded, that for offences of their type, yours are towards the lower end of the scale.  As an aggravated burglary, it is complete at the time of entry. I note that you had an intention to assault (I am informed by the subsequent charge of your intention) and that you were carrying a weapon.  Your entry was during the day, through an open doorway and you were on your own. 
Given these facts and the contribution of your intellectual capacity is likely to have had to your offending, I accept that this characterisation of the aggravated burglary as being less serious.

15The injury charge is concerning and it is certainly of good fortune more than good management that the harm you caused to Andrew Mayer was not worse or to Cobey Stowe-winder was not worse.  Whilst a spontaneous act while emotionally distressed, this does not excuse your actions and you should be very aware that your offending is not without its impact.  It has brought you to court on very serious charges.  Your behaviour has impacted on your family and other family members and people who had to witness your behaviour.  More so, your victims have also been affected.

16I have had recourse to a victim impact statement provided by Andrew Mayer, marked as Exhibit P3.  In that document, he describes feeling nervous and somewhat scared with concerns that you will come after him again. 
He is anxious when working in the area where the incident occurred. 
Your actions have consequences, not just upon you but clearly on those who you profess to care about and on those who in no way deserve what you did to them.

17You have no prior criminal history, which does point to a set of circumstances giving rise to your resort to offending.  It is certainly hoped that it will not occur again.

18One of those circumstances which has contributed has to be your level of intellectual functioning to which I will refer later.

19I have taken into account matters personal to you and raised by your counsel during his plea.  These include that you are now 30 years of age and are the only child of your parents, but the fourth child to your mother who had three children prior to you.  I am told you parents separated not long after your birth but remain on amicable terms.  It was recognised from a relatively early stage that you suffered from a mild intellectual disability.  As a result, you attended Jackson School in St Albans, which caters specifically for students with mild intellectual handicap and you attended that school until the age of 18 years.

20You self-referred to Westgate Community Initiatives Group, an employment agency in Sunshine which has helped you gain employment at various stages.  You remain actively involved with them in trying to find work.

21In 2016, you were diagnosed with anxiety and depression and as a result, were referred to psychologist, Dr Michael King, for treatment.

22I have had recourse to a number of reports and letters which have been tendered on your behalf.  I have read them all regardless of whether or not I refer to them in this sentence.

23A letter from Kate Muscat of WCN Jobs dated 10 April 2017 tells me that you have been regularly attending appointments to discuss job opportunities and training.  In that context, she describes you as being polite and able to build a good rapport.

24A confidential report from the Director of School Education dated
28 August 1996 confirms that tests were undertaken at that time to assess your cognitive ability.  You were found to have a mild intellectual disability. 

25A letter from Dr Haripersad, a general practitioner, dated 29 August 2017 confirms that you have an intellectual disability, a learning disorder and major depression.  He refers to the fact that you have psychological counselling with Dr Michael King.  Indeed, I believe he was responsible for that referral.

26Dr Michael King, clinical psychologist, has provided two reports, dated
5 April 2017 and 10 August 2017.  His first report in time confirms that you were referred to him by your general practitioner in April 2016 to deal with depression and an underlying problem of anger outbursts and difficulties controlling your actions during negative moods.  He says you were making progress until this incident and then you abandoned therapy.  Dr King opines that under confusing and complex situations, you will have diminished capacity to make decisions and will make errors.  He says that you returned to therapy in 2017 and that he once again regards you as making progress in regaining the control that you had been developing.  He refers to you being medication for depression which is also assisting your improvement.  His work with you is designed to assist you, not to respond with impulsivity and anger. 

27In his report dated 10 August 2017, Dr King reports you continue to attend sessions with him and that you have stable response to life events. 
He indicates that you should continue to work together to consolidate the gains that you have already made.

28I have also been provided with character reference on your behalf. 
The reference from Kim Campbell tells me that you are well supported by family and will continue to be.

29The principles of R v Verdins were relied on at the time of your initial plea.  I am not satisfied that your mental health in terms of your diagnosed anxiety and depression has a role to play in the sentencing mix.  I am satisfied that your reduced intellectual capacity does.  Your reduced capacity to reason in such situations as you found yourself on 10 September 2016 such as an ordinary person might as to the wrongfulness of your conduct lessens your moral culpability for the offence.  I accept that it does in your case, although your culpability was somewhat reduced and not entirely eliminated.

30You have also pleaded guilty at an early stage at a committal case conference on 19 April 2017.  I accept your plea as one which accepts responsibility for your actions, is of utilitarian benefit and spared the time and cost of contested committal and trial.  It is one of limited remorse, but certainly one which still deserves credit.

31The basic purpose 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 such as seriousness of your offending, your culpability for it, your personal circumstances and those of your victims.  I am satisfied that given your diminished intellectual capacity, the general deterrence should be modified.  Given the fact that you have no criminal history, good family supports and the work you have done with Dr King, I am satisfied that I need give less weight to specific deterrence and the need to protect the community.

32I am also required to balance the interest of community in denouncing criminal conduct in the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and reintegrated into society.  There are good reasons for your sake and for that of the community why your continued rehabilitation should be supported into the future.  I am satisfied that your prospects for rehabilitation are good and should have that support.

33I am of the view that supportive rehabilitation should take primacy in the sentencing mix and that, as I have said, it is in yours and the community's interest that it be so.

34As I was considering releasing you on a community corrections order, I have had you assessed as to your suitability and for a justice plan.  A pre-sentence report from Julia Calandro, from the Department of Health and Human Services, dated 30 November 2017, and confirms that you attended all appointments as required and are willing to work with the Department of Health and Human Services.  It also confirms that as of October 2017, you have been issued with a statement that you have an intellectual disability as defined by the
Disability Act 2006.

35Ms Calandro is also the author of a justice plan dated 8 December 2017, which recommends that you meet with a case manager to discuss your goals and to participate in programs as directed, that you continue to attend appointments and accept supports from Dr King and that you are to get a new mental health care plan if, for whatever reason, you cannot keep working him. 
She recommends that you continue to attend appointments with
WCIG Employment and explore literacy courses to improve your literacy and that you participate in job ready programs and utilise opportunities to obtain employment to provide a higher sense of self-worth and build on your independence.

36It appears to me that this proposed justice plan would be of assistance to you and to further reduce any risk that you do present of reoffending.

37I note that as of today, both parties agree that a community corrections order with a justice plan would adequately reflect sentencing considerations that need to be taken into account.

38I propose to impose an aggregate sentence as I am satisfied that the offences are founded on the same facts or form or a part of a series of offences of the same or similar character.  In so doing, I bear in mind the principles of totality and proportionality.

39Mr Campbell, I am going to place you on a community corrections order for a period of 22 months with the justice plan attached.  The first aspect of that order is that you need to attend upon Sunshine Community Corrections at 2 pm tomorrow, which is 19 December.  So you need to make that appointment and that will start the ball rolling effectively with the justice plan.

40Now, I could only place you on that order if you are happy to sign a document to that effect, are you happy to do that?

41OFFENDER:  Yep.

42HER HONOUR:  Well that will print off shortly and Mr Thexton can assist you with that.

43There are a number of core conditions such as you cannot leave the state of Victoria without getting permission from the Office of Corrections.  There is a number of core conditions which you will see attached.  Mr Thexton can take you through those.  If you have any questions, let me know.

44MS BURNETT:  As Your Honour pleases.

45HER HONOUR:  That will be with conviction.

46MS BURNETT:  Thank you, Your Honour.

47HER HONOUR:  I will just take you through very briefly the mandatory conditions and what I mean by mandatory conditions is that every single corrections order has these.  But you need to be aware of them.  You cannot commit another offence whilst the order is in place.  Hopefully you have already figured that one out anyway.  You must report to and receive visits from the Secretary or their delegate.  That may not happen.  You must report to the Community Corrections Centre within two clear working days.  You have got an appointment at 2 o'clock tomorrow at Sunshine Office of Corrections.  You have to let the Community Corrections officer know within two clear working days of changing your address or changing your job.  You cannot leave Victoria without getting permission and you must obey all lawful instructions from or directions of the Office of Corrections.

48So they are the standard conditions.  They should not trouble you too much.  The main aspect of the order is it hangs over your head for that 22 months and you need to comply with that justice plan.  So I will not see you again if you stick to the order.  I will not see you again if you do not reoffend.  In the nicest possible way, Mr Campbell, I hope I do not see you again.

49Once you have signed that, you are free to go.  Do you want to attend with him, Mr Thexton?

50MR THEXTON:  Yes, thank you, Your Honour.

51HER HONOUR:  So is there anything further?

52MS BURNETT:  No, Your Honour.

53HER HONOUR:  All right, well I thank each of you for your assistance.

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