Director of Public Prosecutions v Dart

[2018] VCC 801

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00117

DIRECTOR OF PUBLIC PROSECUTIONS

v

BILLY DART

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	28 May 2018
DATE OF SENTENCE:	1 June 2018
CASE MAY BE CITED AS:	DPP v Dart
MEDIUM NEUTRAL CITATION:	[2018] VCC 801

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:             Aggravated burglary - commit indictable offence whilst on bail

Legislation Cited:     Sentencing Act 1991

Cases Cited:

Sentence:3 years' imprisonment, non-parole period 18 months

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APPEARANCES:	Counsel	Solicitors
For the DPP at hearing For the DPP at sentence	Ms S. MacDougall Ms C. Tulloch	Office of Public Prosecutions
For the Accused at hearing For the Accused at sentence	Mr J. McQuillan Mr S. Parker	Theo Magazis & Associates

Pages 1 - 7

 

 

HIS HONOUR:

1Billy Dart, you have pleaded guilty to one charge of aggravated burglary and one transferred summary charge of committing an indictable offence whilst on bail. 

-     Aggravated burglary carries a maximum penalty of 25 years’ imprisonment. 

-     Committing an indictable offence whilst on bail carries a maximum penalty of 3 months’ imprisonment or 30 penalty units 

2You were born on 12 May 1993 and are now 25 years old.  You were 23 at the time of the offending in March last year. 

3You do have a criminal record, about which I go into more detail shortly. 

By way of background

4You were charged with committing the offences on this indictment together with a co-offender, Jack Braudigom.  Mr Braudigom entered a plea of not guilty at a committal hearing and is contesting these matters at trial. 

5There are two victims of the offending, one female and one male.  The male victim, while present and injured during the offending, has however refused to participate in the criminal investigation of this matter and did not provide a statement to police. 

6The offences occurred on 30 March 2017 at the female victim's house in Sunbury.  All of the parties were known to each other at the time of the offending.  The two victims were partners at the relevant time. 

7You, Mr Dart, and Mr Braudigom were friends and lived together at
Mr Braudigom's home.  You and the female victim were previously romantically involved and have a son together.  The male victim was previously in a relationship with Mr Braudigom's girlfriend. 

The circumstances of the offending are as follows

8At approximately 8.30 pm on 30 March 2017, the female victim's mother spoke with you on the telephone.  You discussed your son and that her daughter would be spending the night together with him at her mother's place in Taylors Lakes.  During the conversation it became known to you that in fact the two victims would be spending the night together at the female victim’s home in Sunbury.

9At about 10.45 pm on 30 March, the two victims were asleep on the couch in the Sunbury home.  You and your co-offender entered the house through an unlocked back door and found them on the couch asleep. 

10A blanket was thrown over the female victim's head, which caused her to wake.  One of you two offenders sat on her thighs, which prevented her from getting up off the couch.  This cause bruising and a scratch to her right thigh. 

11At the same time, an altercation took place between the other offender and the male victim.  While held under the blanket, the female victim could hear thumping sounds coming from the direction where the male victim was sitting on the couch.  After a short time, the offenders made their way to the front door.  The female victim removed the blanket from her head and recognised the offenders as you and Mr Braudigom. 

12As the two of you walked out of the lounge room, the female victim saw Mr Braudigom punch a hole in the plaster wall with his closed right fist.  Both of you then left the house through the front door. 

13It is this conduct which represents Charge 1, aggravated burglary, person present, intent to assault.

14The female victim returned to the couch to find that the male victim had not moved and was injured to his head.  A considerable amount of blood was coming from his head.  The jumper he was wearing was also ripped.  The two victims then left the house and spent the night with other family members.

15The following morning on 31 March, the female victim's mother arrived at the Sunbury home to find a large bloodstain on the couch and a hole in the wall.  She reported the matter to police, who took out intervention orders protecting both victims.

16After the incident, the female victim had numerous conversations with you.  You told her that you would be in a lot of trouble if you were discovered as having committed the offences and you were sorry for putting her through what you had.  You also contacted her mother by text message to request that she withdraw her statement. 

17You evaded the attempts of police to speak with you.  You attended, ultimately, with the assistance of Mr Braudigom's father, at the Broadmeadows police station by appointment on 2 May 2017.  You were interviewed by police and denied committing the offences.  You told police that you were not at the Sunbury house the night of the offending because you were at home, which
Mr Braudigom's father would be able to confirm.

18You were on bail at the time you committed this offence.  On 1 February 2017 a bench warrant was executed at the Melton police station, from which you were bailed to attend at the Sunshine Magistrates' Court on 18 April 2017. 

19This event is represented by the Summary Charge 4, committing an indictable offence whilst on bail.

20You were remanded in custody on 2 May 2017.  Full interim intervention orders were made at the Melbourne Magistrates' Court on 4 May 2017 in which both victims were listed as aggrieved family members.

21You indicated that you would plead guilty to these charges on 18 January 2018 at a special mention in the Magistrates' Court ahead of the adjourned committal.  It is acknowledged by the prosecution that this plea can be considered by the court as having been entered at an early opportunity.

22As already mentioned, you do have relevant prior criminal history.  The offending on the indictment was committed in breach of a community correction order imposed by the County Court of Victoria on 19 March 2014.  That order was varied on 27 May 2015 and scheduled to expire on 26 December 2017.  That order was imposed for offending that included an aggravated burglary.  This forms an aggravating feature of your current offending.

23As I said, you were remanded in custody on 2 May 2017 and you have remained in custody since that date.  You have served 127 days by way of pre-sentence detention on this matter. 

24Your co-offender Mr Braudigom was charged with aggravated burglary, false imprisonment and criminal damage.  He has a trial listed in the County Court on 15 October 2018. 

25I turn now to your personal circumstances.  As I noted earlier, you are now 25 years old and at the time of the offending you were aged 23.  You were raised in Bacchus Marsh and describe your home life as good.  You have a sister and other step-siblings. 

26Your parents separated when you were 13 and that caused some disruption.  You initially lived with your mother and you missed your father, then moved in with your father when you were 15.  You have maintained a good relationship with both parents and your sister.  Your mother is now being treated for breast cancer. 

27You were educated to Year 9 before commencing a plumbing apprenticeship.  You are not yet formally qualified but have worked at it for seven years as a tradesman.  You are the father of a three-year-old boy who resides with his mother, one of your victims in this matter. 

28You have generally enjoyed good physical health and do not have any history of serious head injuries or psychiatric treatment or the like. 

29You have, however, developed a lengthy period now of substance abuse, beginning at age 15 when you started smoking cannabis and consuming alcohol.  Soon after, you began using amphetamine and ecstasy, and on a regular basis.  By 18 you were smoking methylamphetamine, sometimes in combination with GHB.  Up until you were remanded, you were smoking ice on most days, typically half a gram of ice per day. 

30A report from Mr Ian Mackinnon, consultant psychologist, was tendered on your plea.  Mr Mackinnon reported that you do not exhibit any psychological disorder, but at the time of offending were probably suffering from Post-Traumatic Stress Disorder as a result of an earlier assault upon you, and Polysubstance Abuse Disorder as a result of your long-term substance abuse.  It is probable that these conditions degraded your ability to reason and elevated your impulsivity. 

31As I noted earlier you have a criminal history, commencing in the Ballarat County Court in March 2014 when, at the age of 20, you were sentenced to a two-year community correction order by His Honour Judge McInerney for violence offences including, as here, aggravated burglary.  You then breached that order and a year later that order was essentially confirmed and you were fined $2000 for the breach offence itself. 

32In January 2017 you were again fined, this time $750 for trespass and theft, in the Sunshine Magistrates' Court.  You appeared there again in March 2017 and were fined an aggregate of $3000 for drug, driving, dishonesty and weapons offences.

33I note that there has been subsequent offending and you are currently serving a 16-month prison term, which will be completed on 3 January 2019.  

34Aggravated burglary is a very serious crime, as is reflected by the maximum penalty imposed by Parliament.  Ordinarily, denunciation by the court of such conduct, together with general and specific deterrence and the protection of the public, are considered prominent principles in the sentencing discretion.  The current circumstances of your entry and assault in company whilst the victims were asleep must have been truly terrifying to them. 

35In mitigation, I take into account the submissions of your counsel and, in particular:

·    your plea of guilty and the early time it was entered, both for its utilitarian effect as well as an expression of remorse; 

·    your expressions of remorse to people you have spoken to;

·    your relative youthfulness;

·    your reliable and responsible employment history, and the fact that your employer is willing to re-employ you on release from prison;

·    your long-term substance abuse, whilst accepting that being affected by alcohol or drugs when committing an offence is never an excuse for a crime;

·    the close and caring support that you have from your family, your friends and your employer, several of whom have observed a commendable development of insight, and perhaps maturity, on your part into the causes that have brought you before this court; and

·    the efforts you have made towards your rehabilitation through the courses you have completed whilst in custody. 

36I am conscious of the sentencing principles regarding young and youthful offenders, and that in the case of a youthful offender, rehabilitation is usually far more important than general deterrence.  A youthful offender should not be sentenced to adult prison for any extended period if such a disposition can be avoided. 

37However, in the case of serious offending and the particular circumstances of the case, the mitigating circumstances must, to a degree, give way to the principles of punishment and deterrence. 

38In the current circumstances, I am satisfied that the gravity of the offending, balanced with your background of offending of similar nature and your personal circumstances, are such that the purpose or purposes for which the sentence is imposed is best represented by a sentence of imprisonment which involves a head sentence with a non-parole period.  That period will reflect a shorter period that I otherwise would have directed to give effect to programs for substance addiction whilst you are on parole in the community once you are released from custody. 

39I accept that you have insight into your issues and with appropriate application on your part, together with professional assistance, there are some reasonable prospects of your rehabilitation, and it will be very much up to you in how you apply yourself to that through your period of imprisonment and your parole period. 

40Mr Dart, would you please now stand? 

41On Charge 1 of aggravated burglary, you are convicted and sentenced to three years' imprisonment. 

42On Summary Charge 4 of committing an indictable offence whilst on bail, you are convicted and sentenced to one month’s imprisonment.

43I make no order for cumulation on the basis that I have taken into account the summary charge as a matter of aggravation in the penalty imposed on
Charge 1. 

44The offending on Charge 1 was further aggravated by the fact that you were subject to a community correction order at the time of the current offending. 

45I have also taken into account principles of totality in formulating this sentence, taking into account the sentence that you are currently serving. 

46I direct that you serve a minimum period of 18 months' imprisonment before eligibility for parole. 

47Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 127 days be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.

48Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, the total effective sentence that would have been imposed is four years’ imprisonment with a minimum period of three years to be served before eligibility for parole. 

49Now, the sentence starts today and is to be served concurrently with the sentence that you are currently serving.  You may be seated, Mr Dart.  Is there anything else from either counsel?

50MS TULLOCH:  No.  Thank you, Your Honour.

51MR PARKER:  Nothing, Your Honour.

52HIS HONOUR:  Thank you.

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