Director of Public Prosecutions v Dalvean

[2019] VCC 403

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02156

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL DALVEAN

---

JUDGE:	HER HONOUR JUDGE FOX
WHERE HELD:	Melbourne
DATE OF HEARING:	29 March 2019
DATE OF SENTENCE:	29 March 2019
CASE MAY BE CITED AS:	DPP v DALVEAN
MEDIUM NEUTRAL CITATION:	[2019] VCC 403

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms J. Malobabic	Ms L. Blackie
For the Accused	Mr M. Reardon	Ms A. Glikson

HER HONOUR:

1Michael Dalvean, you have pleaded guilty to one charge of attempted armed robbery and two uplifted summary offences, being one charge of unlawful assault and one charge of possess a controlled weapon without lawful excuse.  You have also admitted your criminal history.  The maximum penalty for attempted armed robbery is 20 years imprisonment.  The maximum penalty for unlawful assault is three months imprisonment and the maximum penalty for possess a controlled weapon without lawful excuse is twelve months imprisonment.

2A summary of prosecution opening was tendered on the plea and marked Exhibit A and I will confine my remarks here to a brief summary.  This offending, Mr Dalvean, occurred on 19 June 2018.  At about 2pm, the victim was making his way home from work.  He was rolling a cigarette and you approached him and asked him for a cigarette in an aggressive tone.  He refused and you responded "I'll beat your fucken head in".  An altercation then ensued.  You lunged toward the victim and he punched you in self-defence.

3You then punched the victim in the face, hitting him in the mouth.  He slipped over and fell onto his knees on the grass.  He received a swollen lip and minor lacerations to his hand.  When he got up, you told him that you had a knife and said something about stabbing him for cigarettes.  He backed away and you pulled out a folding utility knife from your pocket.

4It is not put that you unfolded the knife and the victim did not see the blade.  You then followed the victim towards a 7-Eleven store.  He was asking to be left alone and you started tapping your left pocket which is the same pocket you had pulled the knife from and the victim could see the outline of the knife.  You then lunged at the victim and in response, he punched you in the face.  You tried to grab him and he moved backward, but you kept coming towards him.  He then kicked you in the chest area. 

5Witnesses intervened and the victim went inside the 7-Eleven store.  You followed, but then left.  You were spoken to police minutes later.  Police located a folding utility knife in your pocket, as I understood it, in an unfolded position.  They also located two other pocket knives in your backpack.  You were arrested and interviewed by police.  You said you carry the knife for protection.  You denied threatening the victim and stated "He started it" and that you followed him to 7-Eleven to teach him a lesson.  You were remanded into custody and have remained in custody since this offending.

6Attempted armed robbery is a serious offence as reflected by the maximum penalty of 20 years imprisonment.  Your counsel submitted that this offending is at or toward the lower end of the scale for this type of offence.  It involved no planning or disguise.  You were a sole offender.  The item you were attempting to steal had minimal value and the offence was short lived.  I do accept that this offence falls towards the lower end of the scale for offences of this type.  The victim in this matter declined to make a victim impact statement.  However, he told police that he could not believe it had happened to him in the middle of the afternoon and he felt it was no longer safe to walk outside alone.

7You pleaded guilty at the earliest reasonable opportunity and your plea of guilty does entitle you to a substantial sentencing discount.  You have spared the victim the need or ordeal of giving evidence.  You have accepted responsibility for what you did and I accept that your plea of guilty, is evidence of some remorse.

8I turn now to your personal circumstances.  You are now 45 years old and at the time of this offending, you were living with your maternal aunt in Lilydale.  She provided a character reference on your behalf.  She said you have been a wonderful help to her around the house and garden.  She remains supportive of you and has visited you regularly in custody.  She believes that you are remorseful and committed to making positive changes when back in the community.

9You were born in Mordialloc and grew up around Chelsea and Frankston.  You have three siblings, but have little contact with any of them.  You have an on again, off again relationship with your younger sister who currently lives with your mother in Shepparton and you have limited contact with your mother, although I am told she is supportive.

10Your parents separated when you were around two years old.  You saw your father on weekends, but he had substantial issues with alcohol.  You understand there was domestic violence between your parents, but you were too young to recall it.  You attended primary school until aged 10 and left partway through Grade 6.  After that, you were home schooled by your mother, which does not seem to have been successful.  You have basic literacy and can read a newspaper, but would not attempt a novel.  You have very basic numeracy.

11As a result of leaving school, you missed out on the socialisation of being at high school with other children.  You started working at an extremely young age.  At age 11, you were doing odd jobs around the caravan park where you were living.  You later found work sweeping floors, washing cars and any other odd job you could find.  You did this in order to help your mother with the family's financial situation.  Your biological father died in 1990, when you were around 16. 

12It seems your childhood was quite reclusive, until your mother met your step-father when you were about 14 years old.  Your step-father was a significant and positive influence in your life and when you were 25 or 26, it was him who encouraged you to get your truck licence, which you did, and you have generally worked as a truck driver since then.  Your longest period of employment in the same job was four years and at the time of this offence, you were unemployed.

13You commenced alcohol and drug use at a very young age.  You first drank alcohol at the age of 10 and first smoked cannabis at age 14.  By 16, you were smoking cannabis frequently.  You first used heroin at age 21 and used it regularly until 2017.  Drug use it seems has been an issue for you for your whole life.  I am told you did cease using heroin for a few years, but recommenced when your step-father died.  Your counsel pointed to the gap in your prior convictions between 2012 and 2016, being the years in which you had stopped using heroin. 

14You do have a significant prior criminal history, largely for offences of dishonesty and all dealt with in the Magistrates' Court.  Your only previous offending for violence was back in 1998 and you have previously been in custody twice:  fourteen days in 2017 for dishonesty and bail offences, and four months back in 1998 for dishonesty and other offences including intentionally causing injury.

15Your counsel said you have not worked since January 2017 and that you commenced using methamphetamine or ice in 2017.  However, you told Corrections that one of the reasons you started using methamphetamines was because you were long haul truck driving and if this is true, then you were using that drug prior to 2017.  You were certainly using ice at the time of this offending and I am told had used the day before.  It is perhaps, or maybe likely, that this explains your aggressive behaviour on the day.

16At the time of this offence you were on two community correction orders.  I am told you commenced quite positively, but deteriorated.  In August 2017, you commenced drug and alcohol counselling and completed ten sessions and were exited in February 2018.  However after this, it seems your drug use escalated.  You also did not attend your urine analysis appointments as required and I am told by your counsel that from Corrections' point of view, they noticed a marked deterioration in your presentation from February 2018.

17You have already served 283 days on remand by way of pre-sentence detention, which is by far the longest period of time you have served in custody.  Your counsel submitted that a combination of imprisonment and a community corrections order would be appropriate in all the circumstances.  The prosecution conceded that such a disposition is within range in all the circumstances.  Not without some reservation, I had you assessed whilst in custody for a community corrections order.  I say not without reservations because you have a history of breaching court orders.

18According to the report, you are suitable for an order, despite your very poor history of compliance.  You have also been assessed as high risk of reoffending.  On a positive note, you do show some insight into your offending and take responsibility for your actions. 

19Attempted armed robbery is a serious offence and general deterrence and denunciation are important sentencing considerations. People are entitled to go about their daily lives without being threatened with weapons, robbed and assaulted.  It is important that the message is received, that if you use drugs such as ice and/or commit offences of this type, it will result in actual imprisonment.  Specific deterrence is also of significance in your case.  As I commented on the plea, it seems you commenced using methamphetamine or ice in your forties, which is particularly concerning.  You were also on two community corrections orders, but despite this, you continued to use drugs and you committed these offences.

20You have a history of breaching court orders and quite frankly, it does not seem that you have been taking them as seriously as you should be.  As your counsel submitted, your prospects of rehabilitation are very much tied to you ceasing drug use.  If you do not do that, you will continue to breach orders and commit offences and you will find yourself serving longer and longer periods of imprisonment. 

21In my view, your prospects of rehabilitation are very guarded.  It is positive that your auntie is here today and remains supportive.  However, you were living with her when you were using ice and when this offence occurred.  Your rehabilitation as I have said is very much tied to your ability to permanently stop using drugs and so far, you have not been successful in doing that.

22Whilst your background has had disadvantages, you are now 45 years old and your current offending seems directly linked to the fact that you still have not stopped using illicit drugs, and that is why you continue to appear before the courts.  You have made positive use of your time in custody.  You told Corrections that you completed some drug and alcohol courses and according to your auntie, you have been reading and undertaking learning based classes which you enjoy.  These matters speak positively of your prospects of rehabilitation.

23In all the circumstances, I have determined that a combination sentence of imprisonment, followed by a lengthy community corrections order, is able to satisfy all the requirements of sentencing in this case.  Mr Dalvean would you stand up please.

24On all three charges, you are convicted and sentenced to an aggregate term of ten months imprisonment and a three year community corrections order.  The community corrections order will commence immediately upon your release from custody and it will have the following conditions:  that you are under the supervision of Corrections.  That you undergo drug treatment and rehabilitation as directed.  That you undergo mental health treatment and rehabilitation as directed, and that you attend for judicial monitoring, and that first judicial monitoring will occur before me on 16 December at 10 am.  I will say something more about that in a moment. 

25Mr Dalvean, if you breach the community correction order, you will be brought back before me. A community correction order is a court order.  It is not optional.  It is not for you to choose whether you do it and to what extent you comply.  You must do everything that you are lawfully required to do and you must not use drugs while you are on the order.

26I have imposed a judicial monitoring condition and what that means is that you must appear back before me at the date and time I said, which is 16 December at 10am, and I will have received a progress report from Community Corrections.  So I will know how you are going on that order.  If you are not complying with your order I will hear about it then, and no doubt Corrections will breach you if you do not comply.

27If that happens, Mr Dalvean, I will have to resentence you and it is highly likely, most likely, that you will go back to gaol.

28OFFENDER:  Yes, Your Honour.

29HER HONOUR:  So you need to comply with that order, everything that you are asked to do.  So I will just have the order - I can also indicate that I will make the disposal order sought and that is for the three knives and just while that order is prepared, I also declare - sorry, the pre-sentence detention is 283 days, not including today and I declare that but for your pleas of guilty Mr Dalvean, the total effective sentence I would have imposed is a sentence of three years imprisonment, with a non-parole period of two years.

30OFFENDER:  Yes, Your Honour.

31HER HONOUR:  As I said, it is a serious offence.  It seems you have some other matters you need to deal with, so when you are released onto the community corrections order, I cannot overstate it, you must comply.

32OFFENDER:  Yes, Your Honour.

33HER HONOUR:  The Corrections Centre that you will be attending is Lilydale.  I understand that is the closest because you will be living back with your auntie.  All right, I will just have that handed to the parties and if they are happy with it, I will have it taken by my associate to Mr Dalvean and Mr Reardon if you want to accompany her, please do.  I will just have copies of the order made, so that Mr Dalvean can take one with him when he is taken back to the cells.  All right, so a copy can be given to the Crown, Mr Reardon and also Mr Dalvean.  Thank you, Mr Dalvean can be removed.

34I would like to thank counsel for their assistance.

‑ ‑ ‑