Director of Public Prosecutions v Day

[2016] VCC 419

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-00882

DIRECTOR OF PUBLIC PROSECUTIONS

v

HENRY DAY

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 April 2016
CASE MAY BE CITED AS:	DPP v Day
MEDIUM NEUTRAL CITATION:	[2016] VCC 419

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Kapitaniak	Office of Public Prosecutions
For the Offender	Mr J. Lavery

Pages 1 - 11

 

 

HIS HONOUR:

1Henry Day, you are to be sentenced for one charge of intentionally causing injury, one charge of aggravated burglary and one charge of criminal damage.  The maximum sentences are 25 years' imprisonment for aggravated burglary and ten years' imprisonment for both intentionally causing injury and criminal damage. 

2When interviewed by police on 7 November 2014 you exercised your right to silence.  Ultimately you were presented for trial at the February 2016 sittings at the County Court at Mildura on an indictment alleging intentionally or recklessly causing injury, aggravated burglary, criminal damage and two charges of theft.  You entered pleas of guilty to recklessly causing injury and criminal damage and pleas of not guilty to the other four charges.  A jury was empanelled on 25 November.  It can be said that your defence at trial was conducted in a way to admit much of the conduct alleged against you.

3On 2 March the jury returned verdicts of guilty on intentionally causing injury and aggravated burglary.  You were acquitted on the two charges of theft.  On 3 March, given the jury verdict on Charge 1, intentionally causing injury, I gave leave to withdraw your plea on recklessly causing injury which had been charged as an alternative to Charge 1.  The plea hearing was adjourned.

4You receive the benefit of your plea of guilty to the charge of criminal damage.  Your plea to recklessly causing injury reflects an admission to important aspects of Charge 1. 

5At your plea hearing, which ran on 30 March, Mr Lavery for you, tendered medical notes of your GP over several years. 

6You will be sentenced on the basis of the following circumstances.  Perhaps I need to go back.  I wanted to confirm that there were no victim impact statements tendered. 

7MS KAPITANIAK:  That's correct.

8HIS HONOUR:  That is right, thank you. I will go back a sentence.  You will be sentenced on the basis of the following circumstances.  These are circumstances consistent with the jury verdict and,  where necessary, findings by me on the evidence led at trial.  My findings attempt to reflect the well-known principles stated in such cases as R v Storey.

9At about 5.00 pm on 3 November 2014 you went to the home of Steven McAlister at Gummow Street, Swan Hill.  You were with your partner, Thelma Beeton and a man named Ollie Wise.  They took no part in the offences for which you are to be sentenced.  You were angry, your grievance related to the presence at the house of a friend or associated named Nakeetah Salter.  Earlier telephone conversations between you, Wise and persons at the house meant that at least some of those there expected your arrival.  One Joel Carmichael was in the front yard awaiting you. 

10A CCTV security camera at the premises has provided footage of you arriving carrying a pinch bar.  You used that to break a chain or padlock on the front gate.  You went to Carmichael, who also approached you, and began to assault him with the bar.  You swung it a number of times,  striking  it seemed to me his upper body,  and grappled with Carmichael who, to my eyes, stayed in close and managed to avoid clean contact.  Wise and Beeton called you off.  Carmichael emerged with a  minor laceration to the left of his face.  This assault on Carmichael is Charge 1, intentionally causing injury.  I accept the proposition that his injury was not necessarily caused by the bar.

11Alerted to your arrival and that assault on Carmichael, McAlister left the house to a back shed.  Another man named Coburn fled the property.  Two women inside, Salter and Shannon Ellis, went to a bedroom.  You strode to the front door, smashed a glass panel, opened the door and entered.  You were shouting McAlister's name.  This entry is Charge 3, aggravated burglary.  I am satisfied beyond reasonable doubt that your intention was to assault by intimidation those inside and perhaps particularly McAlister.  It is what you did.

12Inside you went to the bedroom.  Ellis was seated on a bed and Salter inside a wardrobe.  You broke a chain to the door and entered.  Soon after Beeton joined you and,  soon after that,  Salter was discovered in the wardrobe.  No doubt Ellis and very probably Salter, were badly frightened by what you did.  In the close proximity of that room you shouted for McAlister and at them.  You wielded the bar to smash CCTV monitors, the television set and other items.  The room was ransacked.  You left.

13Several items were later found to be missing.  You were acquitted of the theft charges.  At trial your counsel raised the possibility that Beeton, independent of you, stole from the house.

14No victim impact statements have been tendered.  I am compellingly satisfied, by the evidence of Shannon Ellis at trial, that she was very frightened of what you did and what she feared you would do to her and others.  It is evident that McAlister was also very fearful of you.

15You are a 42 year old aboriginal man presently placed in remand custody awaiting this sentence.  You were raised in the Swan Hill area.  Your father died when you were very young.  Your mother is in her 60's and lives in Swan Hill.  You have an older sister and younger brother.  You were brought up in a caring family.  You left school in or after Year 10 and since have worked for many years as a transport driver.  There has also been labouring work for the Swan Hill Council.  Injuries received in a serious motor vehicle accident in 2011 have meant that you have not worked since then.  You hope to work as a courier driver after release from prison. 

16Mr Lavery described what he termed a limited criminal history.  Between October 1993,  when you were aged 20,  and August 2013 there are effectively five court appearances.  Between 1993 and 1998, almost 20 years ago, there are offences of causing injury and serious injury.  There are no violent offences after that.  In December 2007 you were fined for criminal damage. 

17There are significant gaps in your history from 1998 to 2009 and 2009 to 2013.  You seem to have served a sentence of imprisonment of three months for firearm offences in August 2013. 

18Upon arrest for this matter on 7 November 2014 you were remanded for seven days,  receiving bail on 11 November.  You were arrested and remanded for subsequent offences including trespass, criminal damage and assault in March 2015.  On 26 August you were sentenced on these to 176 days being that pre-sentence detention already served.  You remained in remand for these matters but on 15 September were sentenced for threatening a serious injury and offences of using a Commonwealth carrier service to menace.  You served four months.  Accordingly you have been in custody for over 12 months since March of last year.  However only 109 days of pre-sentence detention apply to this matter.

19I shall apply the principle of totality to this sentence.  My sentence should be moderated to attempt to reflect a just total punishment for all three pieces of offending.     As Mr Lavery pointed out, you have otherwise lost the benefit of some concurrency likely directed had all matters being heard together. 

20Mr Lavery also pointed to particular difficulties you have confronted in custody.  As a result of riots at the Melbourne Remand Centre in late 2015 you were placed in full, that is 24 hour, lockdown.  I was told that there was no food for several days and thereafter a proper diet was only gradually introduced.  This had particular significance for you in that you suffer Type 2 diabetes,  treatment of which requires careful diet and regime of exercise.  This situation persisted for you until mid-September when you were transferred to Loddon Prison.  You were moved to Port Phillip Prison after verdict in this case.

21Your health problems include diabetes but also the effects of the 2011 motor vehicle accident.  You suffered a fractured hip, arm and ruptured aorta.  You have since undergone two hip replacements and have plates fixed in your arm.  Symptoms such as pain and lack of mobility continue.  These have been adversely affected by prison conditions in that treatment has been disjointed.  There has been little or no supportive treatment such as exercise and physiotherapy.  You take painkilling medication.  A further health problem is chronic kidney disease presently monitored and controlled by medication.

22This was serious offending.  Aggravated burglary attracts a maximum sentence of 25 years' imprisonment.  In this case that offence has a number of features which have caused recent Court of Appeal authority to state the need for substantial punishment.  In saying this I recognise the lesser  intention of assault  I have found upon your entry.  However that still remains as a not uncommon feature in aggravated burglaries of this kind.  Your assault upon Carmichael had vicious intent.  It did not ultimately cause significant injury.  The criminal damage you caused as perhaps not great in financial value.  However it carried the adverse feature of its frightening circumstances.  You have a relevant, although old, criminal history.

23Such cases make relevant sentencing considerations of deterrence, your moral culpability, that I sentence in a way to condemn the offending and the need for proportionate punishment. 

24In your case I have decided that there must be a sentence of imprisonment with a minimum term.   In my view the combination of a Community Corrections Order and sentence of up to two years, as argued on your behalf, does not meet the seriousness of your offending. 

25However there are moderating factors that should reduce the length of that sentence.  This can be reflected in both head and minimum terms.  Such factors include the following:

1)Your plea of guilty to the criminal damage charge.  As earlier suggested I also take into account your admission of causing injury to Joel Carmichael.

2)Your personal circumstances.  These include particularly your health problems and the added burden of imprisonment I have earlier described.

3)The principle of totality as also earlier explained.

4)Mr Lavery argued that you have good prospects for rehabilitation.  You have some stability in your life and an expectation of employment.  You have responded well to a suspended sentence and community order in the past.  Despite the relevance of your subsequent offending to this I accept that your rehabilitation prospects are genuine.

26Having considered and weighed what I see to be the relevant matters, I sentence you as follows.  If you would stand up please, Mr Day.

27On Charge 1, intentionally causing injury, you are sentenced to six months' imprisonment.

28On Charge 3, aggravated burglary you are sentenced to three years and four months' imprisonment.

29On Charge 4, criminal damage you are sentenced to six months' imprisonment. 

30I direct that two months of the sentence for Charge 1 and two months of the sentence for Charge 4 be served cumulatively on the sentence for Charge 3 and upon each other.  That is a total effective sentence of three years and eight months, 44 months.  I set a minimum term of 22 months before eligibility for parole.

31Under s.18 I declare pre-sentence detention already served of 109 days. 

32Just take a seat for the moment.  Are there other matters that I need to ‑ ‑ ‑ 

33MS KAPITANIAK:  Yes.  Just a forensic order, Your Honour.

34HIS HONOUR:  Do I need to, under s.6AAA, indicate what I would have imposed ‑ ‑ ‑ \

35MS KAPITANIAK:  Yes.

36HIS HONOUR:  ‑ ‑ ‑ for the criminal damage?

37MS KAPITANIAK:  That was the other - yes, Your Honour.

38HIS HONOUR:  Yes.  In circumstances like this it's neither easy to do nor to understand the whole range of a total sentence but I would have imposed a sentence of eight months.  I still would have cumulated modestly.

39MS KAPITANIAK:  That's Charge 4, Your Honour, is it?  Yes.

40HIS HONOUR:  For Charge 4, yes.  I mean - yes.  Now what did you say?  There was ‑ ‑ ‑ 

41MS KAPITANIAK:  Sorry, the 464 forensic procedure, Your Honour.

42HIS HONOUR:  Has there not - he hasn't had to give a 464?

43MS KAPITANIAK:  I understand no, that's right Your Honour.

44HIS HONOUR:  All right. 

45MS KAPITANIAK:  I've got ‑ ‑ ‑ 

46HIS HONOUR:  Consistently you get told as to  people with criminal records that suggest that samples would have been taken, that they  haven't given them or it's not recorded.  I fear that it's not researched very thoroughly.  I do not see why people should have to give a sample time and time again but in any event they are your instructions.

47MS KAPITANIAK:  That's correct, Your Honour.

48HIS HONOUR:  Do you want to say anything?  I mean subject to that I could not but make the order.

49MR LAVERY:  Yes, I understand that, Your Honour.  My understanding is the same as Your Honour's and that is once you've undergone a sentence of imprisonment, which this man has ‑ ‑ ‑ 

50HIS HONOUR:  It's pretty surprising.  It would be surprising - your client's record, as you put or perhaps I'm not in complete agreement with you, is not a major one but he's committed offences that tell me a sample order has been ordered and taken.

51MR LAVERY:  Yes.

52HIS HONOUR:  But ‑ ‑ ‑ 

53MR LAVERY:  I haven't taken specific instructions as to whether a sample's been taken.  If I can have a moment, Your Honour.

54HIS HONOUR:  Yes all right. 

55MR LAVERY:  Thank you.

56HIS HONOUR:  But that doesn't answer the whole problem of course.

57MR LAVERY:  No.

58HIS HONOUR:  It mightn't have been recorded.

59MR LAVERY:  I understand that.

60HIS HONOUR:  Yes.  When was it taken?

61MR LAVERY:  When he was interviewed, Your Honour.

62HIS HONOUR:  I don't know whether it's been recorded.

63MR LAVERY:  No, well ‑ ‑ ‑ 

64HIS HONOUR:  I can delay upon this until ‑ ‑ ‑ 

65MR LAVERY:  Well there's probably not much point in the sense that it just means he'd be brought back.

66HIS HONOUR:  That's right.  It would be more inconvenient than him having to give the saliva sample.

67MR LAVERY:  Yes.

68HIS HONOUR:  I just make the point.  I don't think they should be asked time and time again without ‑ ‑ ‑ 

69MR LAVERY:  Yes.  But from Mr Day's ‑ ‑ ‑ 

70HIS HONOUR:  ‑ ‑ ‑ the basis.

71MR LAVERY:  Yes.

72HIS HONOUR:  That's not a criticism of you, Ms Kapitaniak, but it's just a common - it's a common ‑ ‑ ‑ 

73MS KAPITANIAK:  Yes often ‑ ‑ ‑ 

74HIS HONOUR:  It's a common situation. 

75MS KAPITANIAK:  Often I've had matters where it's simply just to retain the order.  So there is usually a differentiation but on my instructions, I've just reviewed them, it says to seek it.  So ‑ ‑ ‑ 

76HIS HONOUR:  Well I'm not - I'm quite often told that it's been taken, yes, but it hasn't been ‑ ‑ ‑ 

77MS KAPITANIAK:  Recorded.

78HIS HONOUR:  ‑ ‑ ‑ recorded.

79MS KAPITANIAK:  Yes.

80HIS HONOUR:  Well I don't see why they get taken if they don't get recorded.  That's - well it's all very curious.

81MS KAPITANIAK:  Yes.

82HIS HONOUR:  But I'll make the order.

83MS KAPITANIAK:  As the court pleases.

84HIS HONOUR:  Because it seemed - and the reason why I'm making the order, in part is because it poses less inconvenience to the prisoner than it would otherwise.

85MS KAPITANIAK:  Yes.

86HIS HONOUR:  Leaving the question of whether or not there is an available sample to be recorded, the seriousness of the circumstances of this offence and the fact that such forensic evidence can be relevant to investigation to this type of offence and bearing in mind, to some extent, his prior history, I make the order. 

87So you have done it, so you understand it.  You provide a saliva sample with a cotton bud.  If that is done cooperatively, that is the end of it.  If you do not do it cooperatively a blood sample can be taken by injection and reasonable force used. 

88You have heard what I said about the matter so just take a seat and I am going to sign the order.  I mean the order was not opposed except to the extent of wanting to know whether it had been recorded.  That is all I need to do?

89MS KAPITANIAK:  If the court pleases, yes Your Honour.

90HIS HONOUR:  All right thank you.  Thank you for your assistance today and the other days.  Mr Day can be taken into custody.

91MR LAVERY:  Thank you, Your Honour.

92HIS HONOUR:  All right you're both excused.  I've got another matter.  They'll be coming to court shortly.

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