Director of Public Prosecutions v Daniels

[2017] VCC 1321

IN THE COUNTY COURT OF VICTORIA

 Revised

(Not) Restricted

Suitable for Publication

AT WARRNAMBOOL

CRIMINAL JURISDICTION

CR -17-00891

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW DANIELS

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	13 September 2017
CASE MAY BE CITED AS:	DPP v Daniels
MEDIUM NEUTRAL CITATION:	[2017] VCC 1321

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Bolton
For the Accused	Mr D. Gibson

Pages 1 - 7

 

 

HER HONOUR: 

1Matthew Brian Daniels, you have pleaded guilty before me to one charge of attempted armed robbery.  The facts underlying your offending are as follows.

2On evening of 26 November 2016, you were with friends and you drank a very large amount of alcohol, apparently involving ten cans of Jack Daniels, eight to nine Strongbow ciders, six to seven shots of whiskey and you also smoked two to three milligrams of marijuana.  You could barely walk.  Neighbours complained about noise at the house.  You were outside, police attended and they arrested you for being drunk and disorderly and you spent four hours in custody.

3You were released the next morning from Warrnambool police station.  You live in Camperdown and you had no idea how you were going to get home.  It was your decision as to how you were to get home that has led to this very serious offending.

4At about 6 am, you walked from the police station to a taxi rank on the corner of Liebig and Lava Street in Warrnambool.  There, Mr Deimetry, the victim and taxi driver was seated alone in his car.  He was cleaning his taxi while waiting for a new fare and cleaning the console between the seats with his back to the driver's door.  You walked up to the driver's door of Mr Deimetry’s taxi, opened the door and got inside the door between yourself and Mr Deimetry.  You produced a screwdriver and pointed it to Mr Deimetry’s stomach saying, "Get out of the car,” it being your intention to steal the taxi.

5Mr Deimetry asked if you wanted money and you simply demanded again that he get out of the taxi, keeping the screwdriver pointed at Mr him.  Mr Deimetry panicked and got out and this prompted you to back away.  He told you to, "Go away, go away," and while holding the screwdriver, you continued to back away from him in very small steps.  Mr Deimetry stepped forward towards you as you were stepping back and as he stepped towards you, you stabbed him with the screwdriver in the stomach.  This did not penetrate the shirt that Mr Deimetry was wearing but it did cause pain and bruising to his stomach area, although there was no bleeding.  You then ran away and back along Lava Street.

6The incident was reported the next day and you were identified as the offending on CCTV footage.  Your mother was contacted, you were taken to the Warrnambool police station on 2 December 2016 and in a record of interview, made full admissions, stating you had decided to steal the car when you found a screwdriver in the street and had no way of getting home.  You said you only failed to succeed in stealing the taxi because you were frightened off by what you thought was a police car approaching.  You apologised to the victim in the record of interview.

7Mr Deimetry has submitted a victim impact statement which makes it perfectly clear that what you did to him is still having a negative effect upon him.  He is still scared and anxious every day when he goes to work.  He gets particularly anxious when his taxi is parked in an area where there is not much traffic. 
He said that his wife became extremely upset and wanted him to stop taxi driving, but as this is all he knows how to do so he told her was going to keep taxi driving and this caused a lot of problems and arguments between he and his wife.  He said he simply could not leave his job.

8He was upset also because there was another taxi driver in a taxi nearby who did not come to his help.  He feels completely vulnerable when he is out. 
He feels scared, he feels anxious, this is the only job he knows how to do and because of what you did, he continues to feel anxious and upset.  His marriage was affected, his feelings about the other taxi drivers who he works with has been affected and he worries all the time that this could happen again.  So this was a very damaging thing that you did to another person.

9I now turn to your personal circumstances.  You are now 21 years of age. 
You have no prior convictions.  I received a number of reports about the various difficulties that you have.  Essentially, you suffer from neurofibromatosis, autism and cognitive impairment.  What that means is that you have got cognitive or intellectual disabilities, which were noticed from a very, very early age.  A neuropsychological assessment by clinical neuropsychologist
Dr Danny Sullivan, whose report dated 7 April 2017 was tendered on the plea, found that you have an overall IQ of 78 which puts you in the borderline disability functioning range.  You managed to complete some VCAL subjects, but you've never really had employment.  You are on a disability support pension.

10You live with your mother and stepfather who are clearly very responsible parents.  As soon as your mother found out what had happened, she made sure you were taken to the police station.  It appears that at the time of this offending, you had got in with a group of young people in your area who were using ice.  Apparently you were using ice two to three times in this period of your life. 
You were also using ecstasy and marijuana.  Since this offending basically your parents have not let you out unless you are with them.  You are allowed to drink at family functions but only under supervision.

11What you do during the week is attend the Cooinda Terang Day Program from Monday to Friday.  That is a disability service which offers supports and programs to adults with intellectual disabilities.  You have been involved with Cooinda for about 18 months and since December 2016, you have been working at one of their enterprises, the Little Acorn Café.  You work alongside their chef three mornings a week doing food preparation for the café and then in the afternoons, you work in hospitality, customer services and food handling.  You are described by Philip Hose, the general manager of Cooinda as a valuable participant.  He described you as trustworthy, capable and valued.  He said you had learned new skills and he also said that you took part in exercise, yoga and walking programs at Cooinda.  He said he had seen you develop and show greater maturity in the past year.

12Normally, someone who commits the offence that you did would go to gaol.  There would be no question.  That would be the only way a court could deal with you.  Courts have to think about the safety of the community and what you did was very dangerous and had a very bad effect on the person you attacked.

13I do accept that you are sorry about your offending.  You entered a plea of guilty at an early stage and I accept that you are remorseful.  I note also that you apologised to the victim and when you were talking to Dr Sullivan, you expressed remorse for what you did and expressed concern about Mr Deimetry and how he was managing after what had happened to him as a result of your offending.  It has been submitted that I should deal with you by way of a community corrections order and I note the prosecution also regards this as an appropriate disposition.

14I am going to put you on a community corrections order.  You are not going to go to gaol, but you have to understand if you do this again, you will go to gaol, because if you get into trouble and come to court again, Mr Daniels, the court will have a record of this offending with the screwdriver and Mr Deimetry.  It will say here is a person who was given a chance and who did not take that chance.

15I note that Dr Sullivan believed that your cognitive impairment, together with your autism and associated behavioural language and social impairments,
"Are highly likely to have contributed to his offending behaviour."  He believed that your pre-existing impairments would have been exacerbated by alcohol and marijuana and, "Together resulted in Matthew's inhibitory control, judgment, problem solving, reasoning being significantly impaired.  His ability to consider and fully appreciate the likely consequences of his offending behaviour in the moment would also have likely been compromised. 
Notably, Matthew is placed in a very vulnerable and unfamiliar situation at the time of his offence in that he was released from custody without his parents being aware of his whereabouts and therefore left without any supervision or access to his phone or money in a potentially intoxicated state."

16I accept that to some extent, your moral culpability for this offending has been reduced by your pre-existing condition when combined with the substance intake you had engaged in together with being released on the street from the Warrnambool police station without any means of getting home.  I accept that Limbs 1 and 2 of Verdins have application in this case.  I also accept that if I were to imprison you, you would find imprisonment far more difficult than the normal prisoner.  So Limbs 6 and 7 of Verdins also have application in this case.

17I am satisfied that in addition to your remorse, you are well supervised living with your parents, who have taken a very responsible attitude towards you. 
You are under the care of a local psychologist.  You attend a day program so that you are gradually being upskilled employment wise.  You have an occupation during the week and in that current situation, it is my view that you do not present a danger of repeating this offending.

18However, if you decide you are going to hang around with people and use drugs, Mr Daniels, there is every chance you will offend again and if you do, you will go to gaol.  So if you want to hang around with those sorts of friends and you want to drink alcohol and you want to use drugs, you better have a good think about the fact that that will probably lead you to gaol.  Do you understand?

19OFFENDER:  Yes, Your Honour.

20HER HONOUR:  Thank you.

21In all the circumstances, as I have said, I have decided to place you on a community corrections order.  Before I place you on a community corrections order, you have to agree to me placing you on that order.  So I need to explain what the conditions are.  The first condition is that within two working days, that is by Friday of this week, you have to attend the Community Corrections Office.  While you are on the order, and it will last for 15 months, you must not commit any other offending for which you could be gaoled.  So if you steal something, you could be gaoled for that and that would be a breach.  A breach means that you have mucked up on the order and if you have mucked up on the order, you will come back in front of me and I will sentence you again for this offending and you will probably get gaol if that happens again.

22The third condition is that you must tell the Community Corrections Office of any change of address or employment within 48 hours of that change.  You are not allowed to leave Victoria without the permission of the Community Corrections Office.  You must report to and receive visits from the Community Corrections office.  You must not attend on Community Corrections if you are under the influence of drugs or alcohol and you must obey all lawful directions of the Community Corrections Office.  A special condition is that you are to be under the supervision of Community Corrections.  Are you prepared to enter that order?

23OFFENDER:  Yes, Your Honour.

24HER HONOUR:  Thank you.  We will just get the documentation ready. 
Which would be closer, Colac or Warrnambool?

25OFFENDER:  Warrnambool.

26HER HONOUR:  All right, we will make it Warrnambool, thank you.

27MS BOLTON:  Your Honour, whilst that is being drawn up, I neglected to tender the original victim impact statement.

28HER HONOUR:  Yes, thank you.

29I am going to ensure that Mr Deimetry receives a copy of my sentencing remarks.  It is important he understands why he was attacked, what sort of person you are and that the court is very sympathetic to the fact that he has suffered so much and I need to make it very clear, Mr Daniels, this was really serious offending.  If you do something like this again, you will end up in gaol. 
Thank you.

30I am hoping it will not upset him, do you think it is a good idea?

31VOICE (from the body of the court):  Yes, I think he agrees with that.

32HER HONOUR:  Yes, I just want him to know.  Sometimes when someone is attacked as randomly as Mr Deimetry was, they can feel as if the world is a very unsafe place and that there is monsters from Mars, basically ready to attack him and at least it will give him some idea about what occurred and also understand that the court very seriously takes the injuries, the emotional injuries in particular that he suffered.

33All right, thank you.  Detective Senior Constable Craig Wastell will make sure when my sentencing remarks come out and I have revised them, that they are to be forwarded to you to be forwarded to Mr Deimetry.

34VOICE (from the body of the court):  Yes, thank you.

35HER HONOUR:  All right, thank you very much.  I will just hand you those original reports and the materials back.

36MR GIBSON:  Thank you, Your Honour.

37HER HONOUR:  Thank you.  We will make sure that these other documents are forwarded to Corrections.  Thank you.

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