Director of Public Prosecutions v Caves

[2019] VCC 420

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00305

DIRECTOR OF PUBLIC PROSECUTIONS

v

CALLUM CAVES

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2019
DATE OF SENTENCE:	1 April 2019
CASE MAY BE CITED AS:	DPP v Caves
MEDIUM NEUTRAL CITATION:	[2019] VCC 420

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. McGregor
For the Accused	Ms S. Lacy

HIS HONOUR:

1Callum Caves, you have pleaded guilty to one count of aggravated burglary and one count of causing injury intentionally.

2The circumstances of your offending were summarised in a prosecution opening which was tendered.  The exhibits will be retained in the court file.  I will describe the circumstances in brief terms.  They were agreed facts upon your plea.

3You have been in a relationship with Kerry Ramanauskas for about two years, a relationship which ended in February 2017.  At that time she was living with her brother, Bradley, in Pakenham, along with her new partner, Jesse Ahearn.  You had lived with her at that address and you had a key to the house during the relationship, which you retained.

4On the 19^th and 20^th of July you sent a number of text messages to her in which you said, "Sorry about everything", and one in which you asked whether her "new bloke” was there with her.

5On the late evening of 20 July, Kerry and Jesse were asleep in the house.  At about 10.30 pm you entered the house using your key.  You were followed into the house by a man who had covered his face and was carrying a firearm.  He went to the lounge room where Bradley Ramanauskas was listening to music and pointed the gun at him.  The prosecution fairly does not allege neither that you knew this man that followed you inside, nor that you knew he had a gun.

6You went to the bedroom occupied by Kerry Ramanauskas.  You climbed onto the bed where she was asleep with Ahearn and you stood over them.  You asked if, "this is your new man", and then began striking him on the head.  As she tried to intervene she was struck also on the arm and body.  You then ran out of the house.

7A neighbour recognised you as you were leaving.  Ahearn sustained six lacerations to his head and was taken by ambulance to hospital.  Around 2.35 am police arrested you.  At your home police found some Wild Turkey cans.  A similar can was found near the letterbox of Kerry's home which had your DNA on it.  You had left the key you had used in the door.  It also had your DNA on it.  Police interviewed you and you denied the offences.

8Kerry Ramanauskas' three young children also live at the address. Aggravated burglary committed with intent to assault a person where a person was present in the building and the accused knew that a person was so then present or was reckless as to whether not a person was then so present, carries a significant maximum penalty under s.77 of the Crimes Act. So does intentionally cause injury. The legislation makes clear that these are serious offences. They are a good starting point for a consideration of the sentencing principles to apply in this disposition.

9Aggravated burglary carried out in the home of a former or past partner at night with intent to assault a person while persons and children are present is very serious criminal behaviour.  Such conduct is not only terrifying to those in the house but is committed in this case in breach of the security and integrity of a person's home, a place that a person is entitled to feel safe in, a place in which citizens are entitled to feel protected and safe.  The community looks to the court to denounce such criminal conduct and to protect it from such behaviour which causes consternation and fear.

10This offence was accompanied by significant violence to a defenceless person asleep in bed at night.  That man suffered injuries as shown in the photographs taken of his head, head wounds, the swelling and bruising on his face, shoulder and chest.  This behaviour is also serious criminal conduct.

11A victim impact statement was prepared by Kerry Ramanauskas' brother, Bradley, who describes the impact of the offences upon him as having affected his life, his mood into frustration and anger, lack of sleep and anxiety.  These and many other sort of impacts which the court routinely sees in victim of violence which such profound impact often are operative long after the matter has been disposed of by the court.  I take the statement into account and although I have no victim impact statement from Ahearn or Kerry Ramanauskas, I can reasonably infer that the trauma, damage and impact on each of them would have been significant and commensurate to the circumstances, fearful and violent as they were, of your behaviour on the night.

12I take your plea of guilty into account.  A committal mention proceeded in October 2017 and in February 2018 a committal hearing took place and you were bailed.  Pre-trial arguments were held in October 2018 and the next day, the 24th, the matter settled into a plea before a trial jury was empanelled.  You pleaded guilty and a plea was listed for early December and ultimately the plea proceeded on 20 February of this year.

13The delay in the disposition of this matter is due to the intent to proceed to trial, so although ultimately you pleaded guilty, this plea was not early in the proceedings.  The plea nevertheless has some utilitarian value of having avoided a trial but it is to be noted that the victims were cross-examined at committal.  The plea will attract a reduction upon your sentence but not a significant a discount if such a plea had been offered early on in the process.

14I accept that to the extent to which remorse can be assessed that the plea itself may be evidence of some remorse and that you have expressed regret for your offending.  I accept that you have remorse for your behaviour.  Nevertheless in my view your moral culpability for the offending is high.

15I take your personal circumstances into account.  Although they were expanded upon in some detail upon your plea, your personal circumstances can be stated briefly.  You are 29 years of age.  You are one of eight children born to your mother.  The three older siblings share a father.  You and your twin brother and three younger siblings all have different fathers.  You and your brother were raised in foster care until the age of three when you were adopted.  This placement was not a happy circumstance for you and you left your adopted parents’ home at age 17.  Thereafter you were homeless and began offending and abusing alcohol and drugs.  Both of your biological parents died of drug overdoses.

16In 2014 two years before she died you met your biological mother and siblings, and you have recently met your remaining siblings.  This newly found family unit is a positive and protective factor supportive of your future reclamation and a factor that I give significant weight in assessing your prospects of rehabilitation.  In your early years you were diagnosed with ADHD and were medicated until high school.  When you left home you also left your schooling.  You completed a VCAL course while serving a sentence of imprisonment only in 2010.  I will return to your prior criminal history in a moment.

17You have, however, been in regular work when in the community, unskilled and semi-skilled labouring jobs.  Since November 2018 you have been employed as a full time casual in a carpet factory.  Leading up to these offences you drank heavily on a regular basis although you instruct that you had not used drugs since 2014.

18You have a significant prior criminal history and it would appear that your use of alcohol, speed and ice as well as other illicit substances is a common theme in those series of offences.  I have heard evidence from your sister, Nicole, relevant to your remorse as expressed to you by you to her and as for the hardship of your childhood and formative years as well as the later reconnection with family members.

19The disjointed and dysfunctional background contributes to your displacement and offending lifestyle, coupled with alcohol and drug use.  You have lived with her now for a period and though she confirmed your abstinence from drugs, she was candid about the current ongoing impact of alcohol use.  She spoke of your current partner and the positive nature of that relationship, your recent work with your partner's stepfather and a measure of stability you have reached which are positive measures towards your future rehabilitation.

20She had to admit that although you had apologised to your own family, discussions about the circumstances of the offending had been sketchy and did not extend to any detailed description of the injuries which you inflicted or of the assault.  Nevertheless I was impressed by her evidence.

21Your priors are relevant not because in any fashion you are to be punished again for those offences, but they are relevant to your prospects and background.  In 2008 you have a number of appearances in the lower courts and you were dealt with by a supervision order and a bond.  In 2009 you were ordered to be detained in a Youth Training Centre for weapons, theft, drugs and threat of serious injury offences.

22Then in early February 2010 for offences which included theft and dealing with proceeds of crime, you were imprisoned for some two months where the court noted issues of depression and drug use and you were sentenced to 20 months with a non-parole period of a year in the County Court in July 2010.  I have read the sentence of His Honour Judge Smallwood, a very experienced criminal judge.  Your sentence was imposed for two counts of attempted armed robbery.  You were 20 years old at that time.  You were a young offender and that was taken into account.  His Honour noted your background, circumstances of your upbringing and concluded that your prospects of rehabilitation would depend entirely on drug use and alcohol use and that your risk of re-offending was dependent on those two matters.

23He was proved right, unfortunately, by subsequent events.  Despite that significant sentence and consequent imprisonment you came before the court again in August 2011 to be dealt with for armed robbery counts and intentionally causing injury counts.  On that occasion Her Honour Judge Hannan sentenced you.  On that occasion you had robbed and assaulted a number of people and you were on parole at the time for the earlier sentence of this court.  The sentence was again tempered by your relative young age and background. You were sentenced to three years with a non-parole period of two years.  This record is poor and would of itself be cause for concern as to your future prospects.

24The offences for which you received the sentence in 2011 were committed less than a month into your parole period.  However, your more recent pursuit of a more stable lifestyle, reconnection to family, healthy relationship, family support, commitment to work and abstinence from drugs, are significant matters that I take into account.  There is a gap of some years between your 2011 sentence and these offences, and although you have some priors in 2016 for driving offences, and in 2017 again for driving offences, it appears that up to these events you had managed to stay away from violence and criminal conduct, perhaps marking a notable break from your past behaviour.

25A psychological report and update was received by the court.    The first was dated 6 February 2019 and the latter dated 18 February.  In them consultant psychologist, Carla Ferrari, writes of her assessment of you and prefaces her opinion by comprehensive family and personal history, educational and occupational history, relationship history, alcohol, drug, mental health and medical history, all of which I have read in detail.  She describes significant disadvantaged, abusive childhood and adolescence, consequence homelessness and displacement.

26While in prison you obtained a forklift licence, white card, certificates in horticulture and other vocational training but your employment history has been sporadic due to your return to prison and other stressors.

27You describe the relationship with Ramanauskas as toxic in spite of which you fathered four children.  In 2016 you were prescribed Lexapro to deal with your history and passing of your mother, although you did not report any other significant medical issues.  Your alcohol and drug use was recounted by you to
Ms Ferrari, which ceased after your release from gaol and subsequent to some brief drug courses whilst in reclusion.  You recounted your motivation for your behaviour and linked it to your sense of betrayal and disappointment, coupled with alcohol use in relation to the collapse of your relationship with Ms Ramanauskas.

28Since these events you report nightmares and flashbacks and insomnia, having withdrawn socially and experiencing anxiety.   You expressed some shame and remorse particularly in relation to your ex-partner, the victim, and your children.  In my view, although post-offence psychological disturbance is notable and relevant to your current circumstances to be taken into account, this reactive condition does not, in my view, of itself require a further reduction by way of lessening the need for general and specific deterrence.  You are, in a sense, the author of your own predicament.

29However, I accept that a conventional analysis of the material declares that you are remorseful for your conduct.  Ms Ferrari did not find evidence of perceptual or cognitive abnormalities, memory or other deficits of difficulties.  In the first report she formulated, "A diagnostic impression of a major depressive disorder of a moderate type.  Your inability to cope with some significant life events exacerbated by alcohol use leads you to irrational, aggressive and impulsive behaviour.  There was", she wrote, "no evidence of an entrenched personality disorder, psychotic or manic disorder".  Medication in the future may assist you and a second report updated the first to confirm that you are depressed and anxious and that psychotropic medication may help reduce your risk of relapse, particularly given your risk range for relapse into alcohol and drug use, and post-offence criterial which you meet for post-traumatic stress disorder.

30It was not argued properly, in my view, that such disorder impacts to diminish your moral culpability but I accept that it may be another indicator towards remorse being genuine.  References by Ms Creighton, employer, and two other personal references were tendered and I take their expression of support into account.  In my view, given these factors, imprisonment is warranted, but the aspects which would encourage further rehabilitation potential should be given some weight.  The community is put at greater risk where a man with your history and background is on the cusp of reformation potentially after adequate punishment.  Without ongoing supervision and active engagement with treatment and rehabilitative measures you are in danger of recidivism and institutionalisation.

31Some measure of cumulation is required in relation to the offending but I am persuaded that a combination sentence, as we argued, is appropriate.  Although such a disposition is, on one view, lenient, given the severity of your offending it is really imposed as an opportunity for addressing both the need for punishment and a structure for reformation.  I note that you have served 244 days by way of detention before this sentence but I will not declare such time as formally going to the sentence to be imposed.

32The plea, in my view, as was accepted by the prosecution, was of significant value and a combination sentence in the circumstance was said by the prosecution, on balance, to be not outside the available range.  A submission with which I agree.  Would you please stand.

33On aggravated burglary you are convicted and sentenced to ten months' imprisonment.  This is the base sentence. On intentionally cause injury you are convicted and sentenced to eight months' imprisonment.  I order that two months on Count 2 be cumulative on Count 1, making a total effective sentence of 12 months to be followed upon you release by a Community Corrections order for which you were assessed and found suitable.  The order will be in place for 12 months with conditions that you undergo treatment and rehabilitation for drug, alcohol, mental health and supervision.  Upon your release you will report to the Pakenham office of the Correctional Services. As I understand, you consented to such an order.

34I should warn you today, Mr Caves,  that during the period of this order after you finish your period of imprisonment you need to be of good behaviour, attend appointments and follow directions and supervision.  If you breach that order a penalty can be imposed on that breach.  If you commit further offences the order will probably be breached. You can be punished for those offences and for the breach and be re-sentenced on these offences probably with a much longer gaol sentence.

35I have signed disposal orders as to the items in the schedules attached and I declare that but for your plea I would have sentenced you to three and a half years' imprisonment with two and a half years of non-parole period.

36Are there any other orders that are required?

37MS McGREGOR:  No, Your Honour.

38MS LACY:  No.  As Your Honour pleases.

39HIS HONOUR:  Mr Caves, you will have to sign a document before you can go.  Just take a seat for a moment.  Ms Lacy, is the effect of this sentence clear?

40MS LACY:  Yes, it is, Your Honour.  Just that the Corrections order was for a period of?

41HIS HONOUR:  Twelve months.

42MS LACY:  Thank you.

43HIS HONOUR:  Yes, Ms Lacy.

44MS LACY:  Could I approach Mr Caves

45HIS HONOUR:  Yes, certainly.  Yes, thank you. Mr Caves can be removed.

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