Director of Public Prosecutions v Dawson
[2022] VCC 973
•27 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01130
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL DAWSON |
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JUDGE: | HIS HONOUR JUDGE LACAVA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 May 2022 |
DATE OF SENTENCE: | 27 June 2022 |
CASE MAY BE CITED AS: | DPP v Dawson |
MEDIUM NEUTRAL CITATION: | [2022] VCC 973 |
REASONS FOR SENTENCE
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Subject: home invasion
Sentence: 3 years and 3 months imprisonment NP 26 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Weigl with | Office of Public Prosecutions |
For the Accused | Mr C. Grant |
HIS HONOUR:
1Michael Dawson, you have pleaded guilty to one charge of home invasion, for which the maximum penalty is imprisonment for 25 years. This charge is what is known as a Category 2 offence pursuant to s.3(1) of the Sentencing Act 1991. That means that in sentencing you for this offence, I must impose a term of imprisonment, unless one of the criteria in s.5(2H)(a) to (e) has application. It is conceded that none of those provisions is enlivened here.
2In addition, you have pleaded guilty to one charge of recklessly causing injury, for which the maximum penalty is imprisonment for five years, and one charge of theft of a motor vehicle, for which the maximum penalty is imprisonment for 10 years. Also, in relation to the theft of a motor vehicle, I must cancel any licence you have to drive a motor vehicle and disqualify you from obtaining a licence for a period of time. These three charges were contained in indictment K13272058.1.
3In addition, you have pleaded guilty to two related summary offences, and you have agreed to have those related summary offences dealt with by me in this court. Charge 13 is a charge of committing an indictable offence (home invasion) whilst on bail. The maximum penalty for this offence is imprisonment for three months. Summary Charge 1, is a charge of resisting an emergency worker, a police officer on duty. The maximum penalty for this offence is imprisonment for 6 six months.
4All of this offending that you have pleaded guilty to occurred on 19 December 2019. You were remanded in custody on that day and have remained so.
5On 17 January 2022, you were sentenced to a total effective sentence of five months imprisonment, or 152 days, for earlier unrelated offending. As at today, you have served 766 days pre-sentence detention related to the charges for which I must now sentence you. I also have regard to the fact that you have been in custody since 19 December 2019, as a matter of totality. You have now been in continuous custody for 950 days. More than 30 months. All of that time has been served during the Covid-19 pandemic, during which prisons have been in lockdown resulting in restrictions in prisoner movements within the prisons and severe restrictions on prison visits and limitations being placed on prisoners undertaking courses within prisons. In short, your time served as pre-sentence detention has been more burdensome for you than it normally would have been and all of this must be taken fully into account in arriving at an appropriate sentence. You have had these charges hanging over your head for a long time.
6You were born on 28 January 1993. At the time of offending, you were 26 years of age. You are now aged 29 years. When you pleaded guilty, you also admitted prior convictions from eleven previous court appearances, one of which was in this court, and the other 10 appearances were in the Ballarat Magistrates’ Court. You have prior convictions for dishonesty offences, assault, damaging property, robbery and burglary amongst others. Clearly, specific deterrence is an important sentencing principle that has some role to play in the sentencing of you.
7The circumstances of your offending are contained in a summary of prosecution opening dated 30 November 2021. That document was read to the court by the learned prosecutor, and your counsel accepted that the prosecution opening is accurate and forms a proper factual basis upon which I can proceed to pass sentence. In those circumstances, it is not necessary that I here, again, set out in full, that which is contained in the prosecution summary, and I will do so only in an abbreviated way. These sentencing remarks should, however, be read in conjunction with what is set out in the amended prosecution summary, which was tendered in evidence and marked as Exhibit 'A'. I heard your plea in mitigation of sentence on 19 May of 2022.
8On 19 December 2019, you met with co-accused McLean, Ryan and Gow. Together, at about 11.00 pm, you went to a house in Mt Helen where the victim, Luke Gundy, resided. You, Mclean and Gow knocked on the front door whilst Ryan remained in a car. The victim Gundy opened the front door and you and McLean and Gow entered the house. When inside, you grabbed the keys to Gundy’s vehicle which was parked in the driveway. You went outside and Gundy and the others followed. Gundy grabbed the car keys back and ran back into his house locking the door and locking you and Gow and Mclean outside. You and your co-offenders then broke through the front door of the house and again, entered Gundy’s house with intent to steal. (Charge 1 - Home Invasion)
9You were armed with a glass beer bottle and with your co-offenders, you assaulted Gundy inside his home by punching and hitting him. It is acknowledged that Gow was the principal assailant, as he hit Gundy with a beer bottle. Your role was limited to hitting and punching. Gundy suffered head and facial injuries, including an un-displaced fracture of the left zygomatic arch and lacerations to the left eye and his nose. (Charge 2 - Recklessly Causing Injury)
10You and your co-offenders then decamped, taking with you Gundy’s Nissan Navara motor vehicle. (Charge 3 - Theft of a motor vehicle)
11A police pursuit of the Navara, you and your co-offenders were travelling in, followed soon after. When the vehicle was eventually stopped by police, you fled on foot. You were pursued by a police officer who tackled you to the ground and in so doing, he suffered a concussion and a large laceration to his forehead and an injury to his right shoulder. (Related summary charge – Resist Emergency Worker on Duty)
12At the time of all this offending, you were on bail for earlier alleged offending. (Related summary charge – Committing an indictable Offence (Home Invasion) whilst on bail)
13Your offending was clearly serious. You forced your way into a home in the middle of the night by breaking the front door. You were accompanied by others. It had some planning and was violent and you were armed with a beer bottle. The intent of the group was to steal and that is what you did. I accept that the victim was unknown to you and it seems you went along to make up the numbers, but that in my view, added to the seriousness of the crime. I accept the home invasion and what followed was not your idea and you were by no means the ring leader. But by making up the numbers, you created what must have been a frightening experience for the victim Gundy. Your offending was aggravated by the fact you offended whilst on bail. This offence of home invasion falls at about mid-range for this kind of offending. The offence of recklessly causing injury towards the lower end.
14In sentencing for crimes of this kind, the court must have full regard to deterrence (both general and specific), denunciation, protection of the public, just punishment and your prospects for rehabilitation. For reasons that I will shortly come to, I regard your prospects for rehabilitation as being at best guarded.
15Importantly, you have pleaded guilty to the charges. The charges resolved into a plea after a five day committal hearing, spread over five months. You were arraigned and pleaded guilty in this court on 28 October 2021. Although you did not plead guilty to the charges at the earliest opportunity, I nevertheless treat you for sentencing purposes as having done so at an early time. For that you are entitled to receive, and will receive a reduction in sentence, which I will refer to when I pass sentence shortly.
16By your pleas of guilty, you have saved the time and costs of a trial and importantly here, you have saved the victims from having to give evidence against you. By your pleas of guilty, you have taken responsibility for your crimes and you have advanced the administration of justice.
17Further, your pleas of guilty come at a time where the courts have a considerable backlog caused by the Covid-19 pandemic. The disposition of these charges has been somewhat fragmented because of this backlog and the consequences of the Covid-19 pandemic. By pleading guilty, you have not added to that backlog and you are entitled to receive a noticeable reduction in sentence for having pleaded guilty to the charges in the midst of the Covid-19 pandemic.
18I accept that you are remorseful for your conduct. All of these things go to mitigate the sentence you will receive and need to be taken into account, in arriving at an appropriate sentence.
19As to your co-offenders, Nicholas Ryan who remained in the vehicle and did not engage in the home invasion, pleaded guilty in the Magistrates’ Court to one charge of theft. He was convicted and discharged. He had no prior convictions.
20Gow pleaded guilty to charges in the Ballarat County Court, including home invasion, armed robbery, make threat to kill, assault with intent to resist lawful arrest. He was sentenced to a total effective sentence of 48 months imprisonment, with a non-parole period of two years and six months and 407 days was declared as pre-sentence detention. The sentence imposed on the charge of home invasion was three years imprisonment. In sentencing you, I am conscious of the need to have regard to the sentencing principle of parity, here some parity with Gow.
21Mathew McLean pleaded guilty in the Ballarat Magistrates’ Court to theft, dangerous driving and unlicenced driving. He was convicted and was sentenced to 331 days imprisonment, together with a community corrections order for eight months and his licence was cancelled for 12 months.
22I turn to some matters personal to you. Your counsel filed a very helpful written outline of his submissions, which I admitted as an exhibit on the plea and I draw on that document. He submitted that I should craft a sentence that fixes a non-parole period that allows for the possibility of your immediate release. That submission was not opposed by the prosecution and the sentence that I will pass, also allows for that possibility.
23Your counsel emphasised your mental health history. I was told and accept that your early childhood was characterised by a difficult home life, difficulties at school, several acute mental health events and multiple medical diagnoses that have impacted your daily life.
24Your father was an alcoholic who imparted family violence. In 2013, you told Dr Cunningham, a psychiatrist, that you were fearful in the family home. Your parents separated when you were aged seven years. Thereafter, you avoided having anything to do with your father. You and your mother are close.
25You reported having been bullied at school and experiencing social interaction issues. You exited secondary school during Year 12 and completed a TAFE course. You have worked in many occupations and immediately prior to being remanded, you were employed as an apprentice bricklayer.
26You were diagnosed ADHD and Tourette’s Syndrome as a child and as an adult, you have been diagnosed with Autism Spectrum Disorder. You have engaged in multiple suicidal attempts. From aged 17, you commenced abusing alcohol.
27Evidence shows that in July 2010, aged 17, you were admitted to the emergency department having been found unconscious on the side of the road, intoxicated and having been hit on the head with a bottle.
28In February 2012, you were admitted to Ballarat Hospital, having attempted suicide by hanging.
29In November 2019, you were again admitted to Hospital, following increased suicidal ideation. This followed a relationship break up. At this time, you were hospitalised for in-patient treatment. This was only a few weeks before this offending for which I must sentence you.
30At a home visit carried out on 1 December 2019, you reported having been drinking. Excessive alcohol use has impacted most of your life since aged 17. A report from forensic psychiatrist, Aaron Cunningham, of February 2021 opines you as suffering 'clinically significant symptoms of depression and anxiety' that involves escape into the abuse of alcohol.
31You are still relatively young. To your credit, you have completed a course whilst in custody related to alcohol abuse. I have concluded that for most of your life, you have struggled with mental illness of varying kinds, leading to your use alcohol to excess. It was not suggested that your mental state was causative of this offending, but it is a significant matter that needs to be taken into account, in tailoring a sentence that gives you the best possible chance at rehabilitation. You are clearly going to need counselling and assistance upon release, to ensure your mental health receives proper treatment and that you do not relapse into alcohol abuse. That is why I have concluded that your prospects for rehabilitation are guarded. I think your best prospects are for release soon and thereafter, with proper support from the Parole Board.
32As I said earlier, it is accepted in this case that I must impose a total effective term of imprisonment and fix a non-parole period.
33On Charge 1, home invasion, you are convicted and sentenced to a term of imprisonment of two and a half years.
34On Charge 2, recklessly causing injury, you are convicted and sentenced to a term of imprisonment of six months.
35On Charge 3, theft, you are convicted and sentenced to a term of imprisonment of 12 months.
36On Summary Charge 1, resist an emergency worker on duty, you are convicted and sentenced to a term of imprisonment of six months.
37On Summary Charge 13, commit an indictable offence whilst on bail, you are convicted and sentenced to a term of imprisonment of two months.
38I direct that three months of the sentences imposed on each of Charges 2 and 3, and three months of the sentence imposed on related Summary Charge 1, accumulate upon the sentence imposed on Charge 1, making a total effective sentence of three years and three months imprisonment.
39I direct that you serve a minimum term of twenty six months imprisonment before being eligible for release on parole.
40I declare there has been 769 days pre-sentence detention of the sentences passed this day and direct that 769 days be reckoned as having been already served and be entered into the records of the court and deducted administratively.
41For the purposes of s.6AAA of the Sentencing Act 1991, had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of six years imprisonment and I would have fixed a minimum term of four and a half years before you would have been eligible for parole.
Pursuant to s.89(4) of the Sentencing Act 1991, any drivers licence you held as at 19 December 2019, is cancelled and you are disqualified from
obtaining a licence for a period of 3 months from today’s date.
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