Director of Public Prosecutions v Carroll

[2023] VCC 526

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00072

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL CARROLL

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JUDGE:	HER HONOUR JUDGE MARICH
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2023
DATE OF SENTENCE:	3 April 2023
CASE MAY BE CITED AS:	DPP v Carroll
MEDIUM NEUTRAL CITATION:	[2023] VCC 526

REASONS FOR SENTENCE

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Subject:  SENTENCE

Catchwords:  Sentence – one charge of threat to destroy property; one     charge of make threat to kill; one charge of attempted criminal damage; four related summary charges -plea of guilty

Legislation Cited: Sentencing Act 1991 (Vic):

Sentence:  Total effective sentence of 12 months imprisonment; 291

days of pre-sentence detention declared as time already served under this sentence; 6AAA declaration -total effective sentence of 18 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Sevdalis	Office of Public Prosecutions
For the Accused	Ms R. Greensill	Robyn Greensill & Associates

HER HONOUR:

1Daniel Carroll, you have pleaded guilty to an indictment containing one charge of threat to destroy property, which carries a maximum penalty of five years' imprisonment; one charge of make threat to kill, which carries a maximum penalty of ten years' imprisonment; one charge of attempted criminal damage, which carries a maximum penalty of five years' imprisonment.

2Related summary offences were uplifted into the plea and you pleaded guilty to those charges namely two charges of contravene family violence intervention order, each of which carries a maximum penalty of five years' imprisonment or 600 penalty units or both, and two charges of commit indictable offence whilst on bail, each of which carries a maximum penalty of three months’ imprisonment or 30 penalty units.

3I have read and considered all documents filed in the court, as well as listening carefully to matters addressed in the various days of oral hearing.

4The facts of alleged offending are contained in summary of prosecution opening (“Exhibit A”).

5They allege that at the time of the offending, which was 15 June 2022, you were living with your parents, Peter and Filomena Carroll, at their home in Wantirna and your brother also lived there.  Some 12 months earlier, two family violence intervention orders had been taken out against you – one where your father was the protected person, with conditions including you not commit acts of family violence upon him, or intentionally damage his property, and the other with your brother as the protected person with the same conditions.  They had been served on you and explained.

6At about 6.15 pm that night, you were present at the family home with your parents and brother.  Your brother heard you behaving erratically, yelling and making loud noises and talking to yourself, and your mother also observed you behaving in an irrational and angry manner and 'ranting and raving at a wall' and not making sense, and she asked you to be quiet and I understand that you take issue with some of these facts.  These are the facts that are relied upon by the prosecution.  You then came into the kitchen to eat and were in an agitated state, yelling and swearing, and your brother told you to shut up which made you angrier.  Your father came into the kitchen and he was afraid you were going to hurt your mum, and your mum asked you to leave the home and started pushing you out towards the laundry door.

7You went to your bedroom to get some belongings and said, 'This house is gonna get destroyed and burnt down', which is the offending referable to Charge 1 of threat to destroy property, and also the breaches of each intervention order charge, and your first breach of bail.

8You left the house yelling and swearing via the side door, and your father called police.

9Shortly thereafter, at about 6.30 pm on 15 June 2022 Archimedes Villaluz had just finished work and was returning to his motor vehicle parked on the street of your family home.  Approximately 10 to 15 metres away from his vehicle he observed you sitting across the other side of the road on the ground.  As he walked past you, you stood up and began to follow him, yelling and swearing.  You approached him as he opened his car door and said, 'Is that your car?', to which he answered, 'Yes, this is my car', and he said that he was a nurse at Knox Hospital.  You said to him words to the effect of, 'I'm going to kill you, I swear I'm going to kill you and you will be dead'.  This is the offending referable to Charge 2, make threat to kill, as well as your second breach of bail charge.  He backed away as you continued to swear and yell at him.  He got into his car, and you attempted to open the door of the car and punched and kicked the driver’s side door multiple times and said, 'Open the door, I will kill you'.  He drove away and reported the matter to police.  There was no visible damage to the victim’s vehicle.  The latter is the offending referable to Charge 3, of attempted criminal damage.

10You were located by police about 45 minutes later and police used OC spray in the process of arresting you.  You were remanded into custody on 15 June 2022 and have been in custody ever since.

11You were on bail at the time of your offending for criminal damage of two parked motor vehicles, commit indictable offence on bail and a summary charge of descending onto a railway track.

12You pleaded guilty to the charges before me in part after I indicated that I would not impose more than three months’ further imprisonment in addition to the more than nine months’ pre-sentence detention you had served.  I take into account your pleas of guilty, the stage of proceedings which was well before the court could list the matter for trial, and your cooperation in the process and interest in putting the matter behind you.  Your plea is of special significance at the moment as the court is still dealing with a backlog of trial cases caused by the COVID pandemic.

13You are now 37 and were 36 at the time of your offending.  You completed Year 10 at Wantirna Secondary College and finished a diesel mechanics apprenticeship and worked with motor vehicles for five years.  You left home at 18.

14Bernard Healey examined you in August 2022 and has given the opinion that you presented as being psychotic, as well as noting other clinical syndromes.  Dr Lester Walton examined you and saw some signs but no clear-cut diagnosis of psychosis or schizophrenia.  You have been placed on the antipsychotic medication olanzapine whilst in custody and you do not accept that you are mentally ill.

15You have the assistance of Xavier Smith, your forensic case worker from ReStart (an assertive outreach support program delivered by the Australian Community Support Organisation) who will be able to help you with transitional supports for housing and independent living skills once you are released from this sentence which will be of help given that your family are not able to assist you anymore.

16You have a limited criminal history of one breach of intervention order for which you were placed on a bond in 2019, charges of damaging property, drunk and disorderly, and commit offence whilst on bail in January 2022 for which you were placed on a bond, and then you were sentenced to imprisonment in March 2022 for resist emergency worker on duty, threat to inflict serious injury, and bail offences.  Though you were on a bond at the time of committing these offences, this is a limited criminal history compared to many matters before the court.

17Having regard to the reports tendered before me, and your unusual behaviour on the night of your offending, I consider that you have setbacks in your mental health that influenced your behaviour on the night and which I take into account in mitigation.  Unfortunately your behaviour was very frightening to your victims.

18I need to punish you and denounce your behaviour, but I consider that your moral culpability was affected and reduced by your mental health and I reduce the weight that attaches to general deterrence as I have concerns about your mental health presentation at the time of your offending.

19I had you assessed for your eligibility for a community corrections order, but you have indicated clearly to the Office of Corrections that you do not want to be placed on such an order and accordingly I do not intend to impose that order.

20In relation to your related summary offences, in each case I have considered that those charges aggravate your main offending on the indictment, so I have imposed complete concurrency to avoid the appearance of any double punishment.

21On Charge 1, of threat to destroy property, you are convicted and sentenced to nine months’ imprisonment.  This is the base.

22On Charge 2, of threat to kill,  you are convicted and sentenced to nine months’ imprisonment and I order that two months of that sentence be served cumulatively upon the base and upon other sentences imposed this day.

23On Charge 3, of attempted criminal damage, you are convicted and sentenced to two months’ imprisonment; one month to be served cumulatively upon the base and upon other sentences imposed this day.

24On the related summary offences of the two charges of breach intervention order, you are convicted and sentenced to an aggregate of six months imprisonment and on the two related summary offences of breaching bail, you are convicted and sentenced to an aggregate of one month imprisonment.  Those sentences will be served wholly concurrently with one another and with other sentences.

25The total effective sentence is therefore 12 months' imprisonment.  I take into account 291 days pre-sentence detention. 

26I will indicate that were it not for your pleas of guilty, had you proceeded to jury trial and been found guilty, I would have imposed 18 months' imprisonment as a total effective sentence.

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