Director of Public Prosecutions v Dallen
[2021] VCC 694
•21 May 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00326
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER DALLEN |
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JUDGE: | HIS HONOUR JUDGE CAHILL |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 May 2021 |
DATE OF SENTENCE: | 21 May 2021 |
CASE MAY BE CITED AS: | DPP v Dallen |
MEDIUM NEUTRAL CITATION: | [2021] VCC 694 |
REASONS FOR SENTENCE
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Subject: Aggravated burglary
Catchwords: Guilty plea at earliest opportunity – abusive childhood – history of depression and substance abuse – relevant prior convictions – period of no offending and drug abstinence prior to this offending – drug relapse shortly prior to this offending – remorse – reasonable prospects of rehabilitation
Legislation Cited: Sentencing Act 1991 (Vic); Confiscation Act 1997 (Vic).
Cases Cited: Hogarth v The Queen [2012] 37 VR 658; Director of Public Prosecutions v Meyers [2014] 44 VR 486; Director of Public Prosecutions v Shane O'Brien [2019] 280 A Crim R 1; Director of Public Prosecutions v Craig Simmonds [2019] VSCA 288.
Sentence: Aggregate sentence of 16 months imprisonment and 2-year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Farrell | Director of Public Prosecutions |
For the Accused | Mr J. Irwin | Jon Irwin Legal |
HIS HONOUR:
1 Christopher John Dallen, you have pleaded guilty to one charge of aggravated burglary, two charges of recklessly causing injury and one charge of damaging property.
2 Your offending occurred on 15 November 2020.
3 The circumstances are set out in the summary of prosecution opening on plea, which is Exhibit A. They are agreed facts.
4 You were living in a unit at Horsham with your partner, Kirsten Rumble.
5 Corey Klotz was your neighbour. His mother, Amanda Duffin, was staying overnight with him.
6 Around 2.15 in the morning, they were woken by the sounds of loud music, and yelling and banging on the walls, which were coming from your unit. Klotz called 000. Police responded, checked on you and then left. A short time later your partner, who was concerned you were drunk and possibly drug affected, called 000 again. Around 3.10 am, police and an ambulance arrived at your unit. Ambulance officers assessed you and decided you could remain at home in your partner's care.
7 After police and ambulance left, you walked over to Klotz's unit where you yelled and banged on his wall. You called him a dog and accused him of sleeping with your missus. You told him to come outside. When Klotz opened his front door, keeping the screen door was closed, you continued to insult him. He told you that he had not slept with your partner, and to go away.
8 You had a knife and you lunged at Klotz with it. It hit the screen door and pierced the flywire. Klotz closed and locked his front door. You banged on the outside wall of his unit and smashed the front window. You then kicked open his front door and, armed with an axe, you stormed into his unit. Klotz had picked up a weights bar, which he swung at you. As you lunged at him with the axe, Klotz and his mother wrestled you to the ground. The axe got caught in Ms Duffin's hair. Klotz headbutted you and Duffin punched you to try to disarm you. Eventually Klotz was able to take the axe from you. By this time your partner was standing in the doorway. Two other neighbours had also come to the unit and one of them, Chris McKenzie, had pulled you outside.
9 Duffin and Klotz stayed inside their flat. McKenzie remained with your partner and you outside. When police arrived, you ran away and hid behind some rubbish bins. After a short time you stood up, police arrested you. You had various grazes and cuts to your hands and body, and bleeding from your head. You appeared substance affected.
10 Ms Duffin had a sore head where a large clump of her which got caught in the axe blade during the struggle had been torn from her head. She also had minor cuts and bruising to her arms.
11 Police found the knife inside the flat. Mr Klotz had lacerations to his third and fourth right fingers and thumb and a headache from headbutting you.
12 At interview, you told police you could not remember much of the incident. You said you had used ‘a point of ice’ and drunk half a bottle of spirits. You said you remembered arguing with your neighbour about sleeping with your partner at his front door. You said you could not remember having weapons and forcing your way into the flat. You said you did remember his mother was trying to protect him and he hit you on the head with a weight.
13 You were charged and remanded in custody.
14 You entered a plea of guilty to the charges at a committal mention.
15 I have received the victim impact statements of Mr Klotz and Ms Duffin.
Mr Klotz feels anger and frustration with your unprovoked attack. He has ongoing problems with sleep and appetite as a result of your crimes. His mother cannot get rid of the memory of you yelling abuse at her son. Your voice plays over and over in her head and she continues to feel angry, scared and anxious at times.
16 I have viewed the police photographs of their injuries, the damage you caused to the flat, the weapons you carried and your injuries.
17 You have admitted a criminal record of summary convictions, between
27 February 2002 and 18 April 2017, in New South Wales local courts. Relevantly, you have four convictions for common assault in 2002, 2008, 2012 and 2013. You also have two convictions for custody of a knife, in November 2016 and April 2017, and a conviction for damaging property in 2008. The penalties imposed include fines, a community service order, and for stalking in 2009, an eight-month suspended term of imprisonment. Your last appearance was in April 2017 at Maitland local court, when you were fined $1500 for carrying a knife.
18 This is your first time in prison.
19 You were born on 15 May 1983 and are aged 37 years.
20 Your personal circumstances are set out in the psychological report dated 29 April 2021 of Ian McKinnon.
21 You are an aboriginal man. Your mother was from the Wiradjuri tribe in the Dubbo region, and your father the Wonnarua in the Maitland region. You grew up mostly in the Maitland and Singleton areas. Both your parents were heavy drinkers. They separated when you were young. You remained with your mother. You rarely saw your father. You have a half-brother with your mother and a half-brother and half-sister with your father. During your childhood, your mother and you suffered domestic violence at the hands of her various partners. When you were 12 years old, your sister, who was two years older committed suicide. When you were 14 years old, your mother's then partner was incarcerated and she left the home. You stayed in the house alone at Singleton for a time, and then moved into other accommodation with your mates.
22 You had attended more than 10 different primary schools in New South Wales, Victoria and South Australia. You went to Singleton High School, where you completed Year 9. You said you can read okay, but your spelling is not good.
23 You have four children, aged 20, 19, 16 and 14. Around 2013, after a relationship of about 15 years, you separated from their mother. The children live at Maitland with her.
24 When you left school, you worked for an Aboriginal community organisation. From around 2007 to 2017, you worked at the Steggles food processing plant in Newcastle. You got sacked after drinking at work, and you subsequently moved to Horsham with Ms Rumble. You stayed out of trouble from February 2017 until this offending on 15 November last year.
25 You have a history of substance abuse. You told Mr McKinnon you started smoking cannabis supplied by your mother and her friends when you were 10 years old. At 14, you started drinking alcohol. At 15, you started injecting amphetamine. Over the years you have abused methamphetamine, alcohol and cannabis. You stopped using methamphetamine when you met your partner. She is not a drug user. You described her as a good influence on you. You said, you had abstained from illicit drugs for two years until you offended. In the days beforehand, you had formed a belief your partner had been unfaithful and you relapsed into substance abuse.
26 After your arrest, you were remanded in custody at the MRC where you worked in horticulture and kitchen programs, exercised daily and completed several rehabilitative and vocational courses. You regularly made calls to your partner, children and father. Recently, you were transferred to Barwon Prison. You enjoy drawing and have applied to join the Koori art program there. It seems your health has improved in prison. While on remand you have put on more than 15 kilograms in weight. In relation to your offending, you told Mr McKinnon, you are disappointed in your actions. You said you were friends with Ms Duffin. You said, because you were on drugs and alcohol, you blacked out a bit. You said, 'I want to say sorry to them.'
27 You told Mr McKinnon, you have always had low self-esteem and a bit of depression. In the past you have been prescribed anti-depressants by your general practitioner.
28 In Mr McKinnon's opinion, you are suffering clinical depression which is related to childhood exposure to emotional and physical abuse, suicide of your 14 year old sister, your parents' substance abuse, your introduction to cannabis by your mother and parental neglect and abandonment. You presented to Mr McKinnon as a person with a conscience and a good sense of parental, family and personal responsibilities.
29 He wrote:
'Mr Dallen's history of offending appears to be rather chaotic and mostly unplanned, not reflecting a desire to pursue a criminal career, but rather reflecting an unstable and troubled character, often acting under the influence of alcohol and other substances.'
30 In his opinion, provided you are sober, you have reasonable prospects of rehabilitating yourself. I accept his opinions which are unchallenged.
31 You embrace your Koori identity and Mr McKinnon believes you will benefit from Koori-based counselling and substance abused programs. In his opinion, you have reasonable prospects for complying a community correction order or parole supervision.
32 Mr Irwin who appeared on your behalf, in written and oral submissions, acknowledged the seriousness of your offending. He submitted it is to your credit, after your last offending in February 2017, that you had moved away from bad influences in New South Wales to Horsham, Victoria, with your partner where she has family ties and had found work. He said you stopped drinking and abusing drugs and were living a law-abiding life. In the days before your offending, when your partner disclosed an affair, you went on a methamphetamine and vodka binge, and, in that context, you confronted Mr Klotz. You told Mr Irwin, that Mr Klotz and his mother were nice people, that you knew Mr Klotz had nothing to do with your partner's infidelity and you had no reason to attack him. You have no recollection of doing so, but do not deny it.
33 Mr Irwin told me you are very remorseful. You have accepted you must be punished and you did not apply for bail following your arrest and remand in custody. He also told me your partner will stick by you. She intends, upon your release from prison, that you will live at Ararat with her and her family and take up an offer she has found for you of labouring work.
34 In mitigation of penalty, he relied on firstly, your guilty plea entered at the earliest opportunity. Secondly, your remorse, thirdly, your background of disadvantage, fourthly, your law-abiding period, from February 2017 until you committed these crimes. Fifthly, the ongoing support of your partner and sixthly, your good prospects of rehabilitation provided you abstain from abuse of alcohol and drugs.
35 He submitted I should impose a combination sentence of imprisonment, which he acknowledged would require you to serve additional time in custody, with a community correction order with therapeutic conditions to assist you to deal with your drug, alcohol and mental health issues.
36 Ms Farrell, who appeared for the prosecution, in written and oral submissions, submitted because of the seriousness of your offending, I should impose a term of imprisonment which requires me to fix a non-parole release period. She referred me to Myers' case, where the Court of Appeal emphasised the importance of general deterrence in cases of confrontational aggravated burglary. She submitted your crimes, committed in early morning darkness, were a terrifying experience for the victims. She accepted their injuries were at the lower end of the range. She submitted, considering your history of four convictions for common assault and two for carrying a knife, specific deterrence is of some importance.
37 In deciding the sentence I should impose, I have regard to the matters set out in sub-s.5(2) of the Sentencing Act including current sentencing practices. I have had regard to the principles stated in Hogarth v The Queen [2012] 37 VR 658 and the Director of Public Prosecutions v Meyers [2014] 44 VR 486 and to the guidance of the Court of Appeal in the recent decisions of the Director of Public Prosecutions v Shane O'Brien [2019] 280 A Crim R 1, and the Director of Public Prosecutions v Craig Simmonds [2019] VSCA 288. I have also taken into account a number of sentences, including composite sentences imposed by this court for aggravated burglary, with proper adjustment for the differing circumstances of the offending and the offenders.
38 The offence of aggravate burglary, is inherently serious as demonstrated by the maximum penalty. As the Court of Appeal said in Meyers' case [2014] 44 VR 486, at paragraph 6:
'Aggravated burglaries, which involve confrontation and violence, or threats of violence should be viewed seriously, whether the target of the attack is a former domestic partner, or a person against whom some other grievance is held.'
39 Your victims were entitled to feel safe in their home at night. The weapons you carried were dangerous. Your unprovoked attack on them will have been frightening.
40 Because of the seriousness of your offending, a term of imprisonment is warranted.
41 However, you are entitled to a sentencing discount for your guilty plea made at the first opportunity; it has high utilitarian value. And, in mitigation of penalty, I accept against a background of a traumatic upbringing, you offended when you relapsed into methamphetamine and alcohol abuse, to deal with your partner's disclosure of infidelity. I also accept you bore your victim's no malice, but, under the influence of ice and spirits, you lost control. I accept your attack upon Mr Klotz was not premeditated. I also accept you were genuinely remorseful for your offending and, considering the good influence of your partner, who continues to support you, and that you have not offended since February 2017, your prospects of rehabilitation are reasonably good provided you remain drug and alcohol abstinent.
42 To enable me to consider the sentencing options, I have had you assessed for a community correction order, and you have been found suitable. You expressed remorse for your actions and showed motivation to undergo a community correction order to better equip yourself with harm minimisation strategies. You confirmed, on your release from prison, you will live with your partner and her family and you have an offer of work.
43 A Forensicare psychiatric nurse also assessed you under the Mental Health Community Correction Screening Program. In her opinion, you require ongoing mental health care and would benefit from mental health support provided by a culturally safe service. She recommended a referral to psychological treatment for your depression, to improve your self-esteem and address your trauma history.
44 In all the circumstances of the case, I have concluded all the relevant objectives of sentencing can be best served by the imposition of a combination sentence of imprisonment and an intensive community correction order.
45 Because your offending arose out of a single episode, I will impose an aggregate sentence for the four offences.
46 Mr Dallen, by the sentence I impose I must denounce your conduct, I must punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
47 Taking into account, the circumstances of your offending, and its effects, your personal circumstances and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you: on the charge of aggravated burglary, two charges or causing injury recklessly and the charge of damaging property, I impose an aggregate sentence of 16 months' imprisonment, in combination with a two year community correction order, which is to commence on your release from prison. In addition to the core conditions, I impose the following special conditions: supervision, drug treatment and rehabilitation, alcohol treatment and rehabilitation, mental health treatment and rehabilitation.
48 I declare your pre-sentence detention is 187 days.
49 While there is some artificiality in the process, I declare, but for your plea of guilty, I would have sentenced you to three years' imprisonment with a non-parole period of two years and three months.
50 I make an order pursuant to sub-s.78(1) of the Confiscation Act, for disposal of the axe, the knife and a knife sheath.
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HIS HONOUR: Now Mr Dallen, in order for me to make that community correction order, it requires your consent. I understand that you had indicated to the community correction assessment officer, that you would consent to the making of such an order, is that correct?
ACCUSED: Ah, yes, Your Honour.
HIS HONOUR: And do you understand that the principle core condition of your community correction order, is that you not re-offend during the period of the order?
ACCUSED: Yes Your Honour.
HIS HONOUR: And if you do re-offend you're liable to be charged with a breach of the community correction order and also liable to be re-sentenced on these charges?
ACCUSED: Um, yes.
HIS HONOUR: And do you understand that I've imposed special conditions of your order that you attend for supervision, and that you will also attend for treatment of rehabilitation for drug, alcohol and mental health issues?
ACCUSED: Yes Your Honour.
HIS HONOUR: All right. And do you confirm that you consent to such an order being made?
ACCUSED: Yes.
HIS HONOUR: All right. We'll have to have a copy of the order conveyed to the prison so that you can sign it, but relying on your assurance to me now, I will make that order. Ms Farrell are there any matters arising?
MS FARRELL: No, Your Honour. Just, I'd like to express my gratitude for accommodating the earlier start.
HIS HONOUR: Thank you. Mr Irwin, any matters arising?
MR IRWIN: Nothing further Your Honour, I'll telephone Mr Dallen in the next day or so and speak to him, so we can discuss what's happened and he gets an understanding but nothing further sir.
HIS HONOUR: All right. Thank you. Well Mr Dallen, you are now excused.
Mr Irwin, will contact you by phone as soon as he can. Counsel thank you for your assistance and Mr Jackson adjourn the court please.
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