Director of Public Prosecutions v David (a pseudonym)
[2019] VCC 1483
•17 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VASIL DAVID (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 September 2019 | |
DATE OF SENTENCE: | 17 September 2019 | |
CASE MAY BE CITED AS: | DPP v David (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1483 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – aggravated burglary, common assault (multiple charges), damage property and summary charge of contravene family violence intervention order – discount for plea of guilty – Community Correction Order imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Sprague (Plea) Mr D. Brown (Sentence) | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr J. Portelli | Furstenberg Lawyers |
HER HONOUR:
1 Vasil David,[1] you have pleaded guilty to four charges of common assault, one charge of destroy property and one charge of aggravated burglary.
[1] A pseudonym.
2 The charges are serious, and that is reflected in the maximum penalties that are prescribed by law, and they are as follows: 25 years’ imprisonment for aggravated burglary; 10 years’ imprisonment for destroying property; and five years’ imprisonment for common assault.
3 In addition, you have pleaded guilty to one charge of contravene family violence interim intervention order that was transferred pursuant to s145 of the Criminal Procedure Act 2009. The penalty for that offence is two years’ imprisonment and/or 240 penalty units.
4 The offending arose out of events that took place on Sunday, 25 November 2018.
5 The context to the offending is that you had recently returned to Melbourne from a fishing trip. You are a professional skipper. You have worked as a fisherman for more than a decade here in Australia. Your work means that you are at sea for many months of each year. You were living in Windsor in a share house with your then girlfriend, Kirsten Brita[2] and two housemates, one of whom was Paula Quinn.[3] You had been in a relationship with Ms Brita for approximately two years. Your relationship had been under some strain due to your absences at sea.
[2] A pseudonym.
[3] A pseudonym.
6 Ms Brita is the victim of the first common assault charge. Alistair Jameson,[4] a friend of Ms Quinn, is the second victim, and the third and fourth victims are Huey Osborne[5] and Bert Roderick,[6] both of whom lived next door to you.
[4] A pseudonym.
[5] A pseudonym.
[6] A pseudonym.
7
On the evening of Sunday, 25 November 2018 you, Ms Brita and
Ms Quinn decided to go out together for some drinks at the Neptune Bar in Windsor.
8 Whilst there you consumed approximately five bottles of Prosecco together and then you moved on to Queen Bee’s Restaurant at around 9.30 pm to get some food. However, the kitchen was closed.
9 You then left with Ms Brita to find some food. Ms Quinn remained with her friend, Alistair Jameson, who happened to be working at the restaurant.
10 You and Ms Brita ordered some hamburgers elsewhere. At this time you were very intoxicated. You had struck up a conversation with some people outside the hamburger restaurant and you wanted to stay there and get some more drinks.
11 After receiving your order, Ms Brita suggested that you both go home together. She left you and began walking towards your home in anticipation that you would follow. However, you did not do so. She continued home, leaving the front door open so that you could get into the house.
12 Sometime later, whilst she was sitting in the living room eating her hamburger, you came home and began calling her names, such as “slut” and “whore”. She started crying and asked you to stop.
13 You then grabbed hold of Ms Brita’s hamburger and pushed it into her mouth and tipped all of her fries on top of her. You pushed her face against the couch. You then walked down the hallway and began to smash items belonging to Ms Brita, including a mirror and a vase with a pot plant.
14 Ms Brita was scared and locked herself in the bathroom away from you. You went outside, and at that time she exited the bathroom and collected her mobile phone, and locked herself once again in the bathroom. She sent several messages to Ms Quinn, asking for help and requesting that she call the police.
15 Ms Brita then heard you re-enter the premises, at which time you smashed a window and a television.
16 After a couple of minutes, Ms Brita opened the bathroom door and you immediately grabbed her on the collar of her clothes and threw her physically out of the bathroom into the corner of the living room, where she fell. Those facts constitute Charge 1, common assault, and Charge 2, destroying property.
17 Whilst Ms Brita was in the corner of the living room, you picked up a wooden coffee table and threw it against the ground, breaking the glasses on the table. You threw a pot plant in the direction of Ms Brita. Fortunately, it did not injure her, but the soil scattered everywhere. You then left the living room area.
18
Ms Brita fled outside, where she came across Ms Quinn and
Mr Jameson, who were walking towards the address. They observed her to be crying. She was extremely distraught and fearful.
19 You then came out of the house and yelled at Mr Jameson. You walked up to him and punched him to the face on the left side, causing him to drop his bicycle. You then punched him again on the right side of his face and that is Charge 3, common assault.
20 Mr Jameson left and called police from a nearby apartment building.
21 Meanwhile, Huey Osborne, one of your next door neighbours, heard the commotion next door and went to his front door and looked out onto the street. As he opened the door, he saw you standing in the middle of the street and you yelled at him, “Where’s my bins? You fucking took it, you faggot”. You said that you lived next door and you said “it was right here”, before approaching Mr Osborne.
22 Mr Osborne quickly shut his front door to get away from you and to prevent you from entering the premises. You forced open the front door and entered the house, walking towards Mr Osborne and screaming as he retreated and that is Charge 4, aggravated burglary, person present intent to assault.
23 You then punched Mr Osborne, as he was backing away from you, with your fist to the left side of his face, the force of which caused him to fall to the floor. The punch caused swelling and a red mark, and he also rolled his left ankle as he fell. That is Charge 5, common assault.
24 Anislie Laurel[7] and Bert Roderick, Mr Osborne’s housemates, then came to his aid. Ms Laurel was able to distract you to enable Mr Osborne to get back onto his feet. You were asked repeatedly to leave. Mr Roderick asked you what you were doing. He heard you say, “I’m from next door. Somebody has stolen my bins”.
[7] A pseudonym.
25 You became more agitated. Mr Roderick did not know what you were talking about and he suggested that you should go outside so that you could show him what you meant.
26 While standing at the front next to the door, you punched Mr Roderick to the face, hitting him to his right cheek just below his ear. He pushed you away and ran inside, and that is Charge 6, common assault.
27 Police arrived shortly thereafter at which stage they found you sitting in the doorway of your home, shouting unintelligibly in the direction of your neighbour's place.
28 They placed you under arrest.
29 When asked what happened, you told police that your neighbours kept stealing your bins and so you went and got your bin.
30 You were taken to Prahran Police Station where you were given time to sober up from the effects of alcohol consumption before being interviewed.
31 A record of interview was conducted the following morning during which you predominantly declined to comment.
32 I have viewed the photographs that were taken that show the bruising to the victims and I note that none of them sought any medical treatment.
33 Ms Brita felt pain in her hips and elbow from being thrown against the wall. She sustained bruising to her legs, neck and forearms.
34 As a result of being punched, Mr Jameson felt as though his jaw locked and said he had difficulty opening his mouth for about two days. He did not have any bruising and did not receive any treatment.
35 Mr Osborne sustained minor bruising and swelling to the face from being punched and a twisted ankle causing pain, that made it difficult for him to walk for about a week. He also felt too nervous and stressed to attend his university exams that were about three weeks after the incident.
36 Mr Roderick sustained minor red marks to his face.
37 There are no victim impact statements. All four victims were requested to provide such, but they declined. However, given the circumstances of the offending, common sense dictates that each of the victims would have suffered as a consequence of experiencing your aggressive behaviour and the unprovoked physical assaults.
38 In sentencing you there is a need to denounce your behaviour and general deterrence and specific deterrence are important sentencing considerations.
39 As a result of the offending, police sought an intervention order under the Family Violence Protection Act 2008 against you with Ms Brita being the affected family member.
40
An interim order was made by the Magistrates’ Court in Melbourne on 26 November 2018, during which time you were present. You were provided with the details of the order, which included a prohibition on you contacting
Ms Brita.
41 You were released on bail on 7 January 2019.
42 On 9 January 2019 at 3.46 pm, you sent a text message via WhatsApp from your mobile phone to Ms Brita’s phone contrary to the interim family violence intervention order. Your message, addressed to your victim’s family, stated that you were sorry for your actions and you were asking forgiveness from them. The sending of the message constitutes a breach of the interim family violence intervention order. Police were notified.
43 Ms Brita stated that the message and its timing made her worried that things could escalate and that you may try to find her. She said the message made her think about you which she did not want. She just wanted to forget about it and move on with her life.
44 You were charged with the summary offence on 13 January 2019. At interview, you made admissions to sending the message to the victim.
45 You are a 36-year-old Samoan who is a citizen of New Zealand.
46 At the time of the offending you were residing in Australia on a Special Category Visa (SCV). On 4 March 2019, your SCV was cancelled due to being charged with these offences.
47 On 6 March 2019, you were taken into immigration detention at the Melbourne Immigration Transit Accommodation Centre, Broadmeadows.
48 On 14 March 2019, a bridging visa E Sub-Class 050 was granted and you were released from immigration detention.
49 I note that the matter settled at the earliest opportunity at committal mention on 26 March 2019. It then proceeded by way of straight hand-up brief and guilty pleas were entered in relation to the charges and the related summary offence was transferred.
50 There is one prior court appearance that is of some antiquity and of little relevance that you have admitted. On 4 July 2008, you were before the Magistrates’ Court in Brisbane on one charge of contravene a directional requirement of a police officer and assault a police officer. No conviction was recorded and you were fined $500.
51 Mr Portelli on your behalf put a number of matters in mitigation, which I accept.
52 The offending occurred in the context of you being heavily inebriated. I accept the submission that your conduct on this evening was out of character, and that you are entitled to rely on your previous good character.
53 You had just arrived home from a three-month fishing trip and there was no alcohol or drugs taken whilst at sea.
54 You had been experiencing relationship issues with Ms Brita attributable to your extended absences at sea because of your employment. Earlier, on the night of the incident, you had resolved to abandon your job as a fisherman, which had been your only career to date.
55 You have known no other life, so you went to drinks that night with a heightened sense of anxiety, not knowing what direction your life was then going to take. As a Samoan, you felt obliged to continue to assist your parents whom you regularly sent money to in Samoa and you have a daughter in New Zealand, whom you also send money to and you were trying to save for a house deposit. Your loss of employment meant that you were worried about your future.
56 Excessive consumption of alcohol is not an excuse for the offending, but nonetheless the reason why you became so inebriated has been adequately explained. I accept that you were very drunk and by reason of your intoxication acted out of character. You had not previously behaved in such a violent manner in the past after consuming alcohol.
57 The bundle of reference material provided to me supports this conclusion. You are considered to be a responsible person who does care genuinely about others. You are respected by everyone in your family and community. Your referees consider that these offences are out of character.
58 Donald Ryan,[8] Northern Fleet Manager for A Raptis and Sons Pty Ltd, Northern Fishing Fleet, confirms that you have been employed with that company for 10 years and that you are considered to be of good character. You are well-respected and admired in your field. You are extremely hardworking, honest and trustworthy. You are considered to be a valued member of the fishing community and a great asset to the fishing industry.
[8] A pseudonym.
59 I accept that you genuinely regret your actions. You have repeatedly stated that you are sorry for your bad behaviour and loss of self-control. You have appropriate insight. You accept that your actions would have scared the victims and that there was no excuse for your bad behaviour. You are a person who otherwise disavows the use of violence. It is at odds with your personal values.
60 Your matter resolved at the earliest opportunity, the committal mention. It is accepted that the plea has real utility. You have spared the state the unnecessary expense and inconvenience of a trial and, importantly, you have spared the victims from any further trauma from having to come to court to give evidence and be cross-examined. You have facilitated justice and your sentence will be significantly discounted accordingly.
61 I accept that the pleas are evidence of genuine remorse and that has been further demonstrated through your expression of remorse to others and total acceptance of responsibility.
62 You have been attending psychological counselling with Michael O’Neill, consultant psychologist. He saw you on a weekly basis and confirms that you have been an active and cooperative participant in counselling.
63 Mr O’Neill does not consider that there is any evidence of personality disorder. You expressed strong principles of family, morality, community and spirituality, and normal and reasonable ethical values.
64 Whilst alcohol was a factor on the night in question, he says the evidence indicates that you do not have ongoing problems with alcohol.
65 He considers it unlikely that you will re-offend given the level of your remorse and the impact that this offending has had on your life.
66 On your release on bail, you were put on the Court Integrated Services Program, known as CISP, which is a bail support program. You attended all scheduled appointments and took responsibility for your actions. There were four sessions with the Australian Community Support Organisation that you attended where you expressed deep shame and regret for your offending behaviour. You displayed motivation to remain abstinent from alcohol and you have insight into the negative impacts of excessive alcohol use.
67 Notwithstanding the high levels of stress that you have experienced due to your visa issues, you maintained all your commitments under the CISP Program obligations.
68 Dr Matthew Barth, psychologist, provided a report dated 26 August 2019, following his psychological assessment. The history he recorded is that you were born in Samoa, you are the second eldest of four children. Your childhood was relatively positive. Because of significant financial difficulties, your family determined that you would migrate to Australia to live with an aunt and uncle so that you could have better educational opportunities.
69 At age 12, you migrated to Brisbane. You had some difficulty adjusting to life in Australia given your social isolation and the absence of your parents. You then lived in New Zealand for a time with another aunt when you were about 16 for about a year. You then returned to Samoa where you worked with your father, a fisherman, for several years before you again returned to Brisbane. Since then you have predominantly lived in Australia and have had regular contact with your family in Brisbane and in Samoa.
70 You finished your schooling in New Zealand and completed one year of maritime study. You then worked your way up from deckhand to skipper of a boat. Your work as a fisherman is highly seasonal, requiring you to be at sea from March to June and July to November.
71 You have a five-year-old daughter who lives with her mother in New Zealand. Difficulties also arose in that relationship because of your lengthy absences due to your employment.
72 You are single and currently live with your brother.
73 Dr Barth noted that you have experienced a deep sense of shame for your behaviour and that you have had some treatment for depression.
74 He considered that your symptoms were sufficient to warrant a diagnosis of adjustment disorder with mixed disturbance of mood and conduct and he said that at a broad level you disavow the use of violence against others. You value respectful relationships with others, and the offending is at odds with your personal values.
75 He considered that you also warrant the diagnosis of alcohol use disorder, mild, in early remission, and that you would clearly benefit from alcohol-related education and counselling.
76 He noted that your symptoms have intensified as the plea date approached and that caused you noteworthy distress. He says you remain particularly distressed regarding your culpability for the offending behaviour due to your underlying sense of inadequacy. In the light of this, he expects that you would experience a lengthy period adjusting to the custodial environment, and in particular, you were at risk of experiencing further deterioration in mood in the event that you would be sentenced.
77 He is nonetheless optimistic in regard to your future prospects. He recommends that you have mental health treatment to address your current depressive symptoms and low self-esteem, anger management training, and alcohol-related education and counselling.
78 Mr David, based on your prior good behaviour, lack of relevant prior criminal history, expressions of genuine remorse, your genuine participation in counselling and the attitudes that you have demonstrated whilst on the CISP Program and during your treatment and assessments, I consider that your prospects for rehabilitation are excellent.
79 I further have regard to the fact that you have been punished to an extent already. You spent a total of 43 days in custody prior to your release on bail.
80 In addition you spent seven days in immigration detention where your movements were restricted. You were placed in lockdown between the hours of 12.00 am and 12.00 pm. You had no access to a computer and had a very small area in which to exercise and I have taken those seven days into account in the broad sense.
81 Following time spent in immigration detention, you were released on a Bridging Visa and your immigration status is now uncertain.
82 The decision to cancel your SCV and place you on a bridging visa is the subject of an appeal. The appeal is listed in the Federal Circuit Court on 8 December 2021. The bridging visa will continue to have force until then.
83 Your current status means that you are unable to seek employment and you are reliant on others to survive day to day. You have exhausted your life savings of $50,000 that you had amassed towards a deposit on a house.
84 The uncertainty concerning your future and the possibility of deportation has caused you further anxiety. The outcome of the appeal process is not known and cannot be speculated about.
85 Given that you have predominantly lived in Australia since you were aged about 12 and have expressed a desire to remain living in Australia such uncertainty and associated anxiety is a factor I have taken into account.
86 In the event that you were to be deported, this would result in significant hardship, given that you may lose your opportunity to reside in Australia where you have spent the majority of your adult years. You have already lost your employment of 10 years due to your migration status and there is a chance that you may lose connections with family and your wider friendship networks living in Australia.
87 I have taken into account that the uncertainty of your migration status has caused you significant anxiety and will remain the source of anxiety for some time into the indefinite future.
88 Mr Portelli, on your behalf, sought a combination sentence of imprisonment together with a community correction order based on the combination of mitigating factors.
89 Mr Sprague, on behalf of the prosecution, accepted that the aggravated burglary charge was at the lower end of the scale of seriousness for that type of offence but, nonetheless, stated it was a confrontational aggravated burglary and general deterrence and denunciation are important sentencing principles. He ultimately submitted a term of imprisonment was appropriate.
90 He emphasised that the offending occurred in the context of family violence involving a common assault against your former partner and others, and damage to your former partner’s property. You were very aggressive and abusive. Ms Brita was clearly tearful and upset. He accepted that your conduct on that night was one continuing episode culminating in the aggravated burglary and common assaults of your other friends and next door neighbours. He agreed the offending did not occur in the context of an ongoing history of violence and abuse. He emphasised the impact on the victims’ security and safety and the emotional impacts.
91 He conceded that the injuries were not of a nature that required medical treatment, nor could he state that there were any ongoing physical effects.
92 The prosecution did not submit that the level of your intoxication was an aggravating feature. Mr Sprague accepted there was no previous history of this type of behaviour and he had no issue with the submission that it was out of character offending and therefore he considered that the court could modestly moderate moral culpability.
93 In formulating a just sentence I must balance all the sentencing principles and only impose a term of imprisonment as a last resort.
94 I accept that the aggravated burglary charge represents the lowest level of offending for this type of charge. There was a proper explanation in respect to the reason for you being intoxicated that led to your behaviour on this occasion and the commission of the common assaults and damage property charge. The contravention of the interim family violence order is also at the lower end of offending. There is no suggestion that there had been a history of personal violence against Ms Brita in the context of your relationship.
95 I accept that this is one of those rare cases where intoxication is a mitigating factor and therefore I have reduced your moral culpability and I have also moderated the need to emphasise general and specific deterrence.
96 I have had regard to the guideline judgment of Boulton v The Queen[9], known as Boulton, and acknowledge that the availability of community correction orders have dramatically changed the sentencing landscape in this state.
[9][2014] VSCA 342 [186].
97 In this instance I consider that a community correction order is the most appropriate sentencing disposition. It will enable all the purposes of punishment to be served simultaneously in a coherent and balanced way in preference to the option of imprisonment, which is skewed towards retribution and deterrence.
98 I consider to imprison you further would be a retrograde step and would potentially undo all the steps that you have taken to date to address your underlying offending behaviour.
99 You are a person who is otherwise of good character who has made a significant contribution to the fishing industry in the past and who has the very real potential to continue to make a positive contribution to our community in the future.
100 I have had regard to what was said in the guideline judgment of Boulton, where they say:
"The sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned Community Correction Order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, whilst affording the best prospects of rehabilitation." [10]
[10] Ibid at [26].
101 I am satisfied that yours is a case where all the sentencing principles can be achieved through the imposition of the community correction order that I have formulated.
102 You have been assessed as being suitable for such an order and you have indicated your willingness to consent to such an order being made.
103 Through your compliance with the CISP bail program I am confident that you will comply with the terms of this order that has been formulated and the likelihood of reoffending is thereby minimised.
104 I have explained to you the nature of the order and the consequences of contravention, and this morning you have indicated your willingness to consent to such an order. You have responded that you fully understand all the terms of the order and consent to it being made.
105 You have had explained to you the mandatory terms of such order.
106 You fully understand that in the event that you were to breach the order, that constitutes a new offence and that is punishable by up to three months' imprisonment.
107 The sentence to be imposed in this case must reflect condemnation by the court of your poor behaviour on this night. The punishment aspect of your order is reflected in the community work component, in addition there are other programs that are in place in the order to address your offending behaviours.
108 Mr David, I will now impose the formal sentence. I do ask that you please stand.
109 On each of the charges on the indictment, Charges 1 to 6 inclusive and the summary charge, you will be convicted and sentenced to a two-year community correction order with the conditions of supervision, provision for treatment and rehabilitation programs for alcohol, as well as other offending behaviour, and 200 hours unpaid community work.
110 I make an order that all hours of treatment rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of that unpaid community work condition.
111 I make the following declaration, pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a term of imprisonment of 12 months to serve six months.
112 I make the compensation order, and finally make the order pursuant to s.464ZF(2) and (9) of the Crimes Act 1958 which is for the taking of a forensic sample. The order is made by consent and I consider the granting of the order as in the public interest.
113 So all I need to tell you about that last order, Mr David, is that you will be required to go to a police station and provide a forensic sample from the taking of a scraping from your mouth. What that involves is the police will give you a little cotton bud to put inside your mouth and you just rub it against your cheek and you give it back to them. If you do that you comply with the order, but I have to tell you that if you do not consent to the taking of a mouth scraping under supervision, then the sample can be taken by way of blood sample and police can use reasonable force for that procedure to be conducted, but hopefully that will not be necessary.
114 I have signed all those orders and you can sign them now and that completes the matter. That has been signed, my associate will make a copy for you,
Mr David, and then once you receive that you are free to go.
115 MR DEMPSEY: As Your Honour pleases.
116 HER HONOUR: And if you could just go through the requirements again and make sure he gets to the community corrections centre identified on the order within the next two working days so it can get underway, that would be good.
117 MR DEMPSEY: Yes, thank you, Your Honour.
118 HER HONOUR: Thank you, much appreciated.
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