Director of Public Prosecutions v Davis

[2018] VCC 1166

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01690

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL DAVIS

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	6, 7, 8, 12, and 13 June and 10 July 2018.
DATE OF SENTENCE:	31 July 2018
CASE MAY BE CITED AS:	DPP v Davis
MEDIUM NEUTRAL CITATION:	[2018] VCC 1166

REASONS FOR SENTENCE
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Subject:             CRIMINAL LAW
Catchwords:              Sentence – home invasion – common law assault
Legislation Cited:     Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Hi v R [2017] VSCA 315; Maslin v R [2018] VSCA 90; R v Wyllie [1989] VR 21; Verdins (2007) 16 VR 269.

Sentence:                  2 years and 9 months’ imprisonment. Non-parole period of 20 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	M. Sharpley (Trial and Plea) R. Casey (Sentence)	Solicitor for the Director of Public Prosecutions
For the Accused	J Westmore (Trial and Plea) M. Latham (Sentence)	Criminal Lawyers Geelong

HIS HONOUR:

1Mr Davis, you have pleaded guilty to:

· one count of home invasion contrary to s.77A of the Crimes Act 1958; and

·    one count of common assault contrary to common law.

2Your pleas of guilty to these offences were made prior to the trial at which you pleaded not guilty to other offences.  The jury acquitted you of those other offences.

3The circumstances of your offending were as follows.  On 18 December 2016 at approximately 2:00 am you, in the company of an unknown male, attended at the complainant's unit in Norlane, a suburb of Geelong.  That unit was occupied by the complainant.

4You and the complainant were known to each other.  You had had a falling out with her and her two adult sons sometime before.  You kicked in the front door of the unit.  At the time the complainant was sleeping on a couch in the living room.  This conduct constitutes the offence of home invasion.

5You and the unknown male entered the unit, waking the complainant.  You demanded to know, "Where are they?", an apparent reference to the complainant's sons.  You searched the unit and found that there were no other occupants present.

6Soon after you left through the front door of the unit.  As you did so, a neighbour who had heard the complainant's screams and had come to assist recognised you and told you to leave the premises.  You proceeded to throw her to the ground.  You recognised her and apologised to her.  This conduct constitutes common law assault upon the neighbour.

7Between the period commencing with the kicking in of the door to the complainant's unit by you and the departure from the unit by you and the unknown male the complainant suffered a number of significant injuries.

8She suffered a 3 centimetre laceration to her forehead which required sutures, an abrasion to the left side of her hip, fractures of the nasal bone and her maxillary sinus wall, and fractures to two ribs. You had been charged with intentionally causing injury to her but were acquitted of that offence by the jury.  You had also been charged with an alternative offence of common law assault upon her. The jury acquitted you of that charge also.  You were also charged and acquitted of an offence of damaging property, being the windows to the complainant's unit.

9It follows that the jury were not satisfied beyond reasonable doubt that you had intentionally caused injury to her or that you had assaulted her or damaged her unit. That she suffered the injuries to which I have referred was not in dispute at the trial.  What was in dispute was whether or not it was you that had caused those injuries.  The jury was not satisfied this was so.

10Accordingly, I sentence you on the basis that you did not commit the offences for which the jury found you not guilty. I shall assume that the injuries suffered by the complainant were caused by the unknown male accompanying you. 

11You admitted to police that it was your idea to invade the complainant's unit.  The evidence of the complainant was that she did not know or recognise the unknown male.  She did recognise you.

12You are aged 57.  You experienced a deprived childhood in which you were a victim of domestic violence at the hands of your father over a period of some years.  You were also a victim of sexual abuse at the hands of your mother, her brother and her brother's wife.

13Your parents separated when you were aged six.  You were brought up by your father until you left his home when aged 15.  You left school after Year 9 and worked as a painter and decorator from about 1976 to 1999.  You ceased that work when your son was born.  It appears that his mother had little to do with him and that he was raised by you.

14You are presently on a disability support pension.  I was told that that pension relates to mental health issues including depression and anxiety.  It is unlikely that such a pension would have been granted to you in the absence of supporting material from one or more medical practitioners.  No reports from any such practitioners were tendered at your plea hearing.

15In about 1977 your older sister died of a heroin overdose and shortly afterwards your paternal grandmother also died.  I was informed that you were very close to your sister and grandmother.  You were apparently devastated by those deaths and soon after turned to drugs and alcohol.

16You were addicted to heroin from the age of approximately 16 to 40 before giving up on that drug cold turkey following the birth of your son in about 1999.  You have also been a long term user of cannabis and have “dabbled”, to use your expression, with methylamphetamine, better known as ice.

17Further, you have a long history of alcohol abuse.  You told police that on the night of your offending you had consumed a large quantity of beer and bourbon. 

18In addition to your son, to whom I have previously referred, and who would now be aged about 19, you have got two other children who apparently do not reside or socialise with you.

19At the time of your offending and for some time before it appears that you had been subjected to violent harassment at the hands of two of the complainant's sons.  I have no information as to the history of that falling out but I was informed by your counsel that it had involved a number of incidents including being shot at by them, the firebombing of your home which you believe was their responsibility, and an incident just prior to the offending when your daughter had been threatened by them.

20I was informed by your counsel that following your offending conduct your son was stabbed by one or other of the complainant's sons.  In 2017 you and your son moved out of the Geelong area to live in Frankston so as to remove yourself geographically from them.

21Your past criminal record was tendered.  You have a number of prior convictions relating to dishonesty, including burglary and theft, and violence, including behaving in a riotous manner, unlawful assault, assault police, breach of domestic violence order and behaving in a disorderly manner.

22The most recent convictions for offences involving violence were behaving in a disorderly manner and using offensive and threatening language in a rail vehicle in May of 2011, behaving in a riotous manner in a public place in June 2008, common assault in August 1999 and breach of a domestic violence order in February of 1999.

23The only offence resembling home invasion was a conviction for burglary in 1979 for which you received a good behaviour bond.  You have a number of convictions for possessing and using illicit drugs of dependence, the most recent being in June 2008.

24The principal purposes for which a court may impose a sentence in respect of an offender such as yourself include the denunciation of your offending conduct, to deter you and others in the community from committing such offences in the future and the protection of the community from you.

25I am required to have regard to a number of matters, including:

·the seriousness of your offences;

·your culpability for them;

·your personal circumstances;

·whether or not you pleaded guilty to the offences;

·whether you have shown remorse for your offending;

·your prospects of rehabilitation; and

·whether or not you have relevant prior convictions.

26I consider that the offences for which you are to be sentenced are serious ones and your culpability for them is high.  I take into account that you have not served a term of imprisonment before.  I note that over the last seven years you have not been convicted of any offence.

27Further, it appears that you have not committed any offence relating to violence since 2008.  I take into account the maximum penalties imposed by Parliament for the offence of home invasion is 25 years' imprisonment.  The maximum penalty imposed by Parliament for common assault is five years' imprisonment.

28Your counsel submitted, and I accept, that there are a number of matters which go in mitigation of your sentence.  Firstly, you admitted to police within a matter of days after the offences that you had committed the conduct which constitutes these two offences. Further, I note that prior to your committal you pleaded guilty to these offences.  You had indicated a preparedness to plead to these charges well before your committal.

29It was submitted on your behalf, and I accept, that your deprived childhood involving the violence that I have previously referred to, go in mitigation of your sentence.

30A report from Carla Lechner, clinical psychologist, dated 2 July 2018, was tendered on your behalf.  She reported your dysfunctional early life, long-standing drug and alcohol addiction problems and ongoing mental health issues.

31She considered that you presented when she saw you in late June of this year with symptoms of major depressive disorder and features of post-traumatic stress disorder.  The latter disorder she believed related to the allegations of harassment of you by the complainant's sons.

32She considered your level of anxiety was severe, although you had reported to her that your anxiety had subsided since moving out of the Geelong area.  She reported that you had continued to harbour features of post-traumatic stress disorder, including hypervigilance, security consciousness and avoidant behaviours.  She noted that you had reported to her that you deeply regretted your actions in relation to this offending.

33She considered that you were likely to benefit from involvement with treatment services involving both anti-depressant medication and a mental health plan involving a psychologist for counselling support.  She considered that these were more likely to be accessed in the community rather than in gaol.

34You had advised Ms Lechner that you were concerned that you might be targeted physically by the complainant's sons either directly or indirectly if you were sentenced to gaol.  Your counsel informed me that it was your belief that one or both of her sons were in custody at the present time. The prosecutor confirmed that one of the sons was indeed in custody but was unable to advise the terms of imprisonment or the location of it. 

35Your counsel submitted and I accept that your mental health and in particular your anxiety and depression may well deteriorate in a prison setting. Further, I accept that because of those issues incarceration for you is likely to be more onerous than for a person without those mental health issues.  Accordingly I accept that limbs five and six of the matter of R v Verdins are engaged.

36Your counsel submitted that your prospects of rehabilitation were relatively good.  It was submitted that you had moderated your use of drugs and alcohol and that your criminal record in recent years had improved.  I consider that your prospects of rehabilitation are at best guarded.  However, I do note that you have removed yourself from the Geelong area and I consider that this was a wise move. It appears to reflect a belief by you that you are likely to continue to fall out with the legal system should you remain in or around the Geelong area. 

37I note that your conduct amounting to home invasion occurred in the very early hours of the morning when the complainant was sleeping on a couch in her living room close to the front door of the unit. Your conduct in kicking in that door would on any view had been a terrifying experience for her.  A victim impact statement tendered makes that clear.  She was physically a very small woman who had a long history of heroin addiction and alcoholism, matters of which you would have been well aware.

38You and your accomplice would have had an enormous advantage over her in terms of size and power.  She would not have been capable of defending herself against you.  You entered her home without any knowledge that either of her sons lived there or were present at that time. Even if you did believe that you had been targeted by her sons this did not provide you with any valid excuse for invading her home. 

39With regard to the charge of assault of a neighbour I take into account that the neighbour was a middle aged woman who would have been no match physically for you. She was flung by you to the ground in a manner that could easily have resulted in significant injury but fortunately did not. 

40Your counsel conceded that any sentence imposed by me upon you must involve you serving some period of actual imprisonment.  However, it was submitted that it would be appropriate for the court to impose a combination of a period of imprisonment not exceeding 12 months followed by an appropriately tailored community correction order upon your release from prison.

41The prosecutor submitted to me that a sentence of 12 months or less was not adequate in respect of your offences.  Counsel provided me with a document entitled "Sentencing Snapshot" in relation to the crime of aggravated burglary which, although it being a different offence, closely resembles or resembles the offence of home invasion.

42I note that the report from the Sentencing Advisory Council is that between 2013 and 2017 the vast majority of persons convicted of that offence were sentenced to a term of imprisonment.  A relatively small percentage were sentenced to less than one year in prison while the vast majority of persons convicted were sentenced to terms of between one and five years.

43As previously noted, it would not be appropriate to include in the relevant circumstances relating to your sentence the fact that the complainant was severely assaulted.  The jury found that it could not be satisfied that such assault had been performed by you.

44Although it might be tempting to conclude that the unknown male was unlikely to have assaulted the complainant or to have caused significant damage to her unit without your complicity, I consider that the jury specifically found that it was not satisfied beyond reasonable doubt that this was the case.  Accordingly my sentence of you must be on the basis that you had initiated the home invasion, kicked in the front door, searched the unit for the complainant's sons and soon afterwards left the unit.

45The prosecutor referred me to the Court of Appeal judgments in matters of
R v Hi and R v Maslan, which concerned, amongst other offences, the offence of aggravated burglary.  In each of those cases the offender was sentenced to prison for eight years and six years respectively.

46Having read those decisions I consider that the circumstances of offending in both of those matters were somewhat more serious and violent than in your matter. Nevertheless I have come to the conclusion that it would not be appropriate for a prison sentence as low as one year to be imposed. It follows that I am not permitted by the Sentencing Act to sentence you to a term of imprisonment followed by a community correction order.

47Mr Davis, on the charge of home invasion you are convicted and sentenced to a term of imprisonment of two years and six months.  This will be the base sentence.  In relation to the charge of common law assault upon Ms Tate you are convicted and sentenced to a term of three months' imprisonment and I direct that that term be served cumulatively upon the base sentence.

48It follows that the total effective sentence is one of two years and nine months' imprisonment.  I direct that you shall not be eligible for parole until you have served 20 months of that term.

49Pursuant to s.6AAA of the Sentencing Act I declare that had you not pleaded guilty to these offences I would have ordered that you serve a total effective sentence of four years' imprisonment and directed that you not be eligible for parole for two and a half years.

50I note that you have not served time by way of pre-sentence detention.  Is that correct, gentlemen?

51MR LATHAM:  Yes, Your Honour, that is correct.

52HIS HONOUR:  What, if any, ancillary orders are sought, Mr Casey?

53MR CASEY:  A forensic sample order is sought and I understand from my learned friend that it is not opposed.

54MR LATHAM:  Yes, it is not opposed.

55HIS HONOUR: Yes, I make that order pursuant to s.464ZF of the Crimes Act. Mr Davis, what that order amounts to is that a small scraping from your mouth - as I understand it it is really saliva rather than a physical scraping - is taken to obtain a record of your DNA for the database here in Victoria.

56I note that your counsel has indicated that the order is made by consent, but in the event if at the time that the mouth scraping is to have taken place you do not consent then police are entitled to use reasonable force to obtain that forensic procedure.  Is that clear?  Thank you.  Yes, thank you, Mr Davis can be taken downstairs.

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