Director of Public Prosecutions v Day

[2019] VCC 2095

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

AT BAIRNSDALE
CRIMINAL JURISDICTION

CR 19-01558

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL DAY

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Bairnsdale
DATE OF HEARING:	06 December 2019
DATE OF SENTENCE:	12 December 2019
CASE MAY BE CITED AS:	DPP v Day
MEDIUM NEUTRAL CITATION:	[2019] VCC 2095

REASONS FOR SENTENCE
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Subject:
Catchwords: guilty plea – aggravated burglary – low to mid-range – admission of your offending of valuable assistance to authorities – justifiable sense of grievance other offenders not charged – limited criminal history – good prospects of rehabilitation
Legislation Cited:
Cases Cited: Hogarth v The Queen and DPP v Myers
Sentence: 2 years 6 months imprisonment – non-parole period of one year and 6 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty
For the Accused	Mr L. Dogger

HIS HONOUR:

1Michael Day, you have pleaded guilty to one charge of aggravated burglary and one charge of damaging property.

2On 20 April 2019, you were drinking with friends at your Cann River home where you lived with your mother.  Your mother and her boyfriend, Wayne Severs, were there too.

3Around 9.30 pm, you decided to leave on your pit bike.  Severs disabled the bike and you left pushing the bike with you.  On your way, you spoke to another friend, a Cann River resident, Debra Percival, who offered you help to fix the bike.  You pushed it to her home at Tyson Street.  Bert Beveridge lived next-door to her.  You got the bike going and when Severs arrived on another bike, the two of you were riding in the street.  Your bike's exhaust was loud.

4Beveridge opened his front door and yelled, 'Fuck off or I'm calling the police'.  You became aggressive at this point and yelled back. You ran to his front door and punched it.  Percival tried to stop you but you punched the door again.  Inside the house, Beveridge called 000.

5When Beveridge's son, Bertie, came outside and confronted you, you walked away.  When he asked you what you were doing, you said you were going to bash his father's head in.  Severs arrived and while Bertie and Severs argued, you went back to the front door and kicked the door open.  According to Bertie Beveridge, you had gotten inside a couple of steps when Severs grabbed you and got you outside; that is the charge of aggravated burglary which is put on the basis that when you forced your way into the house, you knew Beveridge was inside and you intended to assault him.

6Bertie Beveridge said that he would fight you.  You said you would not fight him and as you tried to push past him, he pushed you over.  The two of you scuffled briefly but were separated.

7Outside, you were still angry.  Your brother and mother had arrived and she was trying to get you to leave.  You said you wanted to get Beveridge and that you would be quick.  Severs was restraining you, you slipped out of his grip and found a pole.  You struck the driver's window with the pole and then smashed it with your fist; that is the charge of criminal damage.

8When Beveridge, armed with a knife and a spanner, burst out of the house with others, you ran off.  Beveridge and his son set upon Severs who tried to get into the house with you.  Beveridge hit Severs to the head with the spanner and stabbed him in the buttock.  His son punched Severs to the head.

9When Severs went to the ground, one of the number of bystanders told them to stop.  When they did, Severs got on his bike and rode to the police station where he was later taken by ambulance to Bairnsdale hospital.

10On the Monday following, police arrested you.  You were cooperative and, unlike others, admitted your wrongdoing.  At interview, you said you had not intended to go to Beveridge's house but, while you were at Ms Percival's house, Beveridge came out of his house holding a knife and threatened you.  You said you got angry because he had previously threatened you with a knife about eight months earlier when you had an argument with him over a generator.  You said you kicked open the front door intending to bash Beveridge for threatening you.  You said you also smashed a car window with your fist and that you ran off when three or four men with weapons came after you.

11You said, when you returned, you saw Severs had been stabbed and you went to the Cann River police station to call an ambulance.  You said you had earlier been at home with your mother and brother and Severs and a couple of friends; you were cooking and drinking.  You admitted you were pretty intoxicated.  At interview, you said there were some things you could not remember.

12Police charged you and you were remanded in custody.  You pleaded guilty at the earliest opportunity. 

13You have admitted a criminal record.  On 28 May 2015, you were sentenced to a community correction order for arson and, on 17 May 2018, you were convicted of recklessly and negligently causing serious injury and released on another community correction order for two years.  That order was current when you committed these crimes.

14You were born on 29 March 1993 and are aged now 26 years.  You have a younger sister and brother.  You grew up in Cann River. You had a happy childhood. Your father worked at a sawmill but injured his back a number of years ago.  Your parents separated when you were 22 or 23 years old.  Your mother works at a local café.  You were working there with her when you offended.

15You attended local schools and completed Year 11.  You were less interested in your study and more interested in motorbikes.  You have competed successfully in motocross racing for 10 years and won four Victorian titles.

16When you left school, you worked for a food service distributor at Bairnsdale for about a year but after being introduced to methamphetamine by friends, you developed an addiction.

17When you were 21, you returned home to Cann River to sober up.  You saw a counsellor six or seven times for problems with depression and anxiety and you voluntarily stopped using methamphetamine but increased your alcohol intake.  By the time of your offending, you were binge drinking on weekends.

18Daria Sizenko psychologically assessed you on 2 September 2019 at Ravenhall Correction Centre.  You told her you were sorry for what you had done; that the situation went too far.  You answered her questions appropriately.  You admitted to difficulties with problem-solving and anger control when you have been drinking.  In custody, you have attended a Men's Behaviour Program and completed a number of vocational courses and drug programs.

19Noting your demonstrated insight into your offending and the need to abstain from excessive alcohol consumption and that you previously voluntarily overcame a methamphetamine addiction, Ms Sizenko assessed your prospects for reform as positive.

20Mr Dogger, who appeared on your behalf, relied on the following factors in mitigation of penalty.

21He submitted this to your credit that you made admissions in circumstances where the prosecution may not have otherwise been able to prove beyond reasonable doubt.  He submitted that your admission to police was the only reliable evidence you got inside Beveridge's house.  He submitted you made your guilty plea at the earliest opportunity.

22You have a limited criminal history.  Mr Dogger told me that the May 2015 arson incident occurred when someone had damaged your car by fire and you retaliated and the May 2018 convictions, when you were convicted of recklessly cause serious injury, arose when you punched a man you believed had wronged your mother and, in relation to negligently cause serious injury, when you had a fight with your father after both of you had drunk too much alcohol.

23He relied on the fact you are a relatively young offender, then 25, now 26, and that this is your first time in custody where you have completed programs offered to you and, for the last 4 months, have worked in waste management and in the kitchen.

24He relied on your good prospects of rehabilitation demonstrated by your positive response to your time in custody, your determination to stop binge drinking, your earlier voluntary rehabilitation from ice addiction, your good employment history, but for the period of ice addiction, your talent for sports and your good relationship with both your parents and your brother and sister. Your mother and brother have supported you in court.

25He submitted your offending was a low-level example of aggravated burglary taking into account it was impulsive and not premeditated.  You were not armed, you did not harm any person, you got inside the house only a couple of steps and you retreated when Beveridge and others came out.

26Mr O'Doherty, who appeared on behalf of the prosecution, submitted any confrontational aggravated burglary is objectively serious so general deterrence must be an important sentencing consideration.  In relation to your offending, he submitted it was not high end but it was not at the bottom.  As best I can, I assess your offending as low to mid-range.

27Mr O'Doherty accepted the trigger to your aggression was Mr Beveridge's abuse and, while no justification for your excessive response, it showed your offending was spontaneous and would not have occurred had Ms Percival not stopped and spoken to you.

28He accepted you immediately made admissions of your wrongdoing to police and you are entitled to a sentencing discount for your cooperation with them and for your guilty plea.  He also accepted you would likely feel aggrieved that of all those involved in the fracas, you were the only one to be prosecuted.

29On the prosecution case, Severs participated with you in the aggravated burglary and Beveridge and his son, acting together, seriously assaulted Severs.  Severs, unlike you, denied any wrongdoing.  The investigating police officer prepared a brief of evidence against him but charges against him were not authorised.  Beveridge and his son both claimed they acted in self-defence.  On the material before me, neither of them was under threat of harm from Severs when they attacked him.

30Mr O'Doherty acknowledged your relative youth, your limited criminal history and that this is your first in custody are factors to be taken into account in your favour.  He submitted the appropriate sentence for you is a term of imprisonment with a non-parole period fixed.  Mr Dogger did not submit otherwise.

31As I am required to do, I have had regard to the matters set out in sub-s.5 of the Sentencing Act including current sentencing practices.  In addition to a consideration of a number of sentences of this court for aggravated burglary, I have had regard to the principles stated in Hogarth v The Queen and DPP v Myers, with appropriate adaptation, and to the guidance of the Court of Appeal in the recent decisions of Shane O'Brian and Craig Simmons with proper adjustment for the different circumstances of the offending and the offenders.

32The offence of aggravated burglary is inherently serious and in your case, I am satisfied I must impose a prison term.  However, I have moderated the sentence and the non-parole period to take into account your voluntary admissions which, to a very high degree, have facilitated the course of justice, your genuine remorse evidenced by those admissions and your guilty plea, your justifiable sense of grievance that you were the only offender prosecuted and your good prospects of rehabilitation.

33Please stand, Mr Day.

34By the sentence I impose, I must denounce your conduct, I must punish you and deter you and others form committing crimes of the same or a similar kind.  I must also look to your rehabilitation.

35Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedence and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of aggravated burglary, you are convicted and sentenced to two years and six months' imprisonment, on the charge of intentionally damage property, you are convicted and sentenced to two months' imprisonment which is to be served concurrently on the sentence I have imposed on Charge 1.

36Your total effective sentence is two years and six months.

37To mitigate your punishment and to give you the opportunity to advance your rehabilitation under supervision, I order you serve a period of one year and six months' imprisonment before being considered eligible for release on parole.

38I declare you have already served 235 days of your sentence by way of pre-sentence detention.

39I declare but for you plea of guilty, I would have sentenced you to three years and six months' imprisonment with a non-parole period of two years and four months.

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