Director of Public Prosecutions v Dean

[2016] VCC 1736

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00190

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRETT DEAN

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	7 November 2016 15 November 2016
DATE OF SENTENCE:	18 November 2016
CASE MAY BE CITED AS:	DPP v Dean
MEDIUM NEUTRAL CITATION:	[2016] VCC 1736

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 C. Foot	OPP
For the Accused	Mr Kenny	Camerons Lawyers Pty Ltd

Pages 1 - 10

 

 

HIS HONOUR:

1Brett Thomas Dean, you are to be sentenced in respect of charges on two separate indictments. 

2The first indictment is No.13021106.2. On 7 November 2016, you pleaded guilty to one charge of making a threat to kill.  This charge has a maximum penalty of ten years imprisonment.  

3On Indictment No.13021106.3, after a trial, a jury found you guilty of two charges on 15 November 2016.  Charge 3 is common law assault of Mark Mulvany and Charge 4 was common law assault of Demi Hall‑Poulios. Each of these charges has a maximum penalty of five years' imprisonment.  The same jury acquitted you of Charges 1 and 2, which were alleged assaults on your brother, Michael Dean. 

THE BACKGROUND OF OFFENDING

4The background to both of those indictments relate to events which occurred on 25 August 2015.  You and Michael Dean had been drinking alcohol in the course of the day and well into the evening of
25 August 2015.  Later in the evening, an argument had started between yourself and Michael Dean in the kitchen of the Pinniger Street address which was your home. 

5The argument got heated, and then became physical.  You and your brother Michael were injured during the course of the initial fight in the kitchen.  Both of you had then gone to the lounge room after the fight in the kitchen.  Due to the injuries to Michael Dean, the emergency services were called.  After the call to the emergency services, you and
Michael Dean started arguing again and you both moved into the hallway.

6Again, the argument became physical and at some point, Michael Dean was seriously injured to his right arm.  After, Michael Dean, had received that serious injury, he opened the front door and ran out of the house.  He ran towards his friends place in Snodgrass Street, which is approximately 200 m from your place. 

CIRCUMSTANCES OF OFFENDING – INDICTMENT NO. F13021106.2

7The police then attended at your address at Pinniger Street, when they arrived you were on the phone to your mother and located on the nature strip.  Senior Constable Mulvany and Constable Hall‑Poulios were first on the scene.  They heard you say on the phone, "I've stabbed him and he's dead." 

8Senior Constable Mulvany instructed you to get on the ground and put your hands behind your back; you complied and you were handcuffed.

9Senior Constable Mulvany then asked you what had happened and you gave them the story about two black people breaking into your house and stabbing you and your brother.  When you were asked if you were injured, you told the police that you had a cut to your leg and that you had been stabbed in the stomach.    

10Senior Constable Mulvany then made observations of two deep lacerations to your lower right leg.  However, there were no wounds to your stomach.  There was a further conversation between your step-father,
Craig Waters, and yourself and then the police placed under arrest.

11Senior Constable Mulvany attempted to caution you however, you kept interrupting and talking over the top of him.  You then refused to acknowledge your caution and rights.  You were then verbally abusive toward the police officers, Mulvany and Hall‑Poulios. 

12You then, in reference to Michael Dean, said, "Yeah, tell him if he fuckin’ says a word, I will fuckin’ murder him to death."  The threat was recorded on the phone Constable Hall‑Poulios had in her possession at that time.  The threat was made in the presence of both Senior Constable Mulvany and your step-father, Craig Waters.  Michael Dean, who was not present, obviously did not hear that threat.  That is the factual basis for the charge on Indictment No.F13021106.2.

CIRCUMSTANCES OF OFFENDING – INDICTMENT NO. F13021106.3

13On 15 November 2016, a jury found you guilty of two charges of common law assault.  The same jury acquitted you of Charges 1 and 2 on the same indictment.  The evidence in relation to Charges 3 and 4 came from Mr Mulvany, Ms Hall-Poulios, Ms Graham and you during the course of the trial. 

14Consistent with the jury's verdict of guilty in respect of Charges 3 and 4, I make the following findings of fact beyond reasonable doubt:

(1) the police, Mulvany and Hall-Poulios had arrested you and handcuffed you on the nature strip outside your home;

(2) the ambulance officers had arrived at the scene and were attempting to treat the wound to your right leg;

(3) you were agitated and not complying with police instructions after the ambulance officers had arrived;

(4) on your approach to the ambulance where you were to be treated, you became further agitated and initially refused to get into the ambulance;

(5) you were spitting at the ambulance officers and they eventually placed a mask on your face;

(6) the ambulance officers administered three intramuscular injections of Midazolam in an attempt to sedate you;

(7) Mr Mulvany was at the head of the gurney which was within the ambulance;

(8) you attempted to bite Mr Mulvany but were unsuccessful in doing so;

(9) Ms Hall-Poulios was lying and/or sitting across your legs whilst you were on the gurney, trying to hold your legs down so that the ambulance officers could put the restraints on your legs in order to treat the wound to your right leg;

(10) in this process, you were kicking at Ms Hall-Poulios;

(11) both Mulvany and Hall-Poulios were in fear of being assaulted by you; and

(12) were you very cross and agitated and despite the administered sedatives, you intended to at least make the police officer fear you were going to bite and/or kick them, respectively.

15Your behaviour to the police and in the presence of the ambulance officers, who were trying to attend to the serious wound to your right leg, is inexcusable and inexplicable.  It was an expression of unbridled anger and aggression directed at the police for no reason.

16This type of criminal behaviour enlivens the principles of general deterrence and specific deterrence.  Specific deterrence is enlivened because you have prior convictions for hindering a person engaged in emergency activity, in particular, in 2011.  You also have prior convictions for assault. 

17You clearly have an antagonism toward people in authority.  General deterrence is applicable because the community will not tolerate any attack on those entrusted with the responsibility of law enforcement.  A message must be sent to like-minded offenders such as yourself. 

PERSONAL CIRCUMSTANCES

18You are now 35 years old. You were raised in Broadford by your mother, Jennifer Waters and your step-father, Craig Waters.  Mr and Mrs Waters were witnesses in your trial.  You father lives in Queensland. You have maintained contact with your father during your lifetime.  As I understood the sequence of events, you were approximately seven when your father left home.  You are the second oldest of five brothers in the family; two of your brothers have died, one of them is in gaol, the other is Michael Dean. 

19Until recent times, you had a good relationship, generally, within your family.  You had a long-term relationship which ended in 2011.  I note that you were sentenced to a substantial term of imprisonment in May 2012 but had been in custody since the latter part of 2011 for that charge.  You are a single man and have no children. 

20You were educated to Year 10 at Seymour.  You then completed an apprenticeship as a boilermaker.  You studied maths and English to Year 12 level at the NMIT.  You have also attained further qualifications in the manufacture of pressure vessels, structural and general drafting at TAFE in Shepparton and later at Mittagong in New South Wales.  You are well qualified in trade work and obviously have the ability to be gainfully employed.  You worked consistently as boilermaker up until 2011.  Since that time, you have predominantly been in custody. 

21You started your drug and alcohol abuse after, a motorcycle accident and ongoing football injuries where you suffered an injury to your shoulder.  When the prescriptions to the pain relief ran out, you commenced using heroin.  You have also abused alcohol during your life and that was a feature in the events which occurred on 25 August 2015.  You are currently on a methadone program whilst in custody.

22I have also been told that you were diagnosed with ADHD when you were a teenager.  You have been treated by a general practitioner and a psychologist since that time.  In the past, you have been prescribed Ritalin.  At the present time, you are not taking any psychiatric or psychotropic medication.  You have an extensive criminal history, which I will refer to in detail in the sentencing considerations of this sentence. 

SENTENCING CONSIDERATIONS

23The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, rehabilitation, denunciation of your actions and the protection of the community.  In sentencing you, I must have regard to a range of factors, such as the seriousness of your offences, your culpability for them and your personal circumstances.  I am required to balance the interest of the community in denouncing you criminal conduct and secondly, to ensure that as far as possible, an offender such as yourself is rehabilitated and reintegrated into society. 

24I am mindful of the provisions of the Sentencing Act, and in particular, s.5(4)(c), which directs, essentially, the court to consider whether a community corrections order can achieve the purpose for which this sentence is imposed.  I have reviewed the case of Boulton in considering if a community corrections order would be appropriate in your case.  The prosecutor has made a submission that it may be appropriate in combination with gaol.  Your counsel did not submit a community corrections order was appropriate in this case.  

25I have formed the view that a CCO is not an appropriate sentencing disposition in this case.  The objective seriousness of this offending in the context of your prior criminal history dictates that imprisonment is the only appropriate penalty.

26I also have regard to current sentencing practices in respect of common law assault charges and making threats to kill charge.  Each case is different from any other case as indeed your case is from other cases.  Nevertheless, current sentencing practices gives some guidance as to the appropriate sentence in your case. 

27In respect of Charge 1 on the indictment, No.F13021106.2, which is making a threat to kill, you have pleaded guilty.  I take into account that you have pleaded guilty to that charge on the indictment.  The plea of guilty was made after some negotiations with the prosecution and before the trial.  Your plea of guilty has utilitarian value of allowing orderly and administration of justice. 

28It gives certainty to that charge and case and a resolution of the substantive issues raised by your offending.  You plea also vindicates the public confidence in the legal process set up to protect the community.  A plea to that charge indicates and demonstrates some remorse on your behalf for that offence.  Your plea is clear acknowledgement that you accept some responsibility for your criminal behaviour in that charge.  You plea also recognises you are willing to facilitate the course of justice in the community.

29The circumstances of the threat to kill offence, are such that it is in the lower category for that offence, the threat is expressed to police officers in circumstances where you brother Michael, the subject of the threat, was not present.

30In respect of Charges 3 and 4 on Indictment No.F13021106.3, you were found guilty by a jury.  The same jury, as I have said before, acquitted you of
Charges 1 and 2 on that same indictment. The circumstances of the two charges in respect of assault are the police were assisting ambulance officers to treat your wounded leg are also in the lower range of offending.  In both charges, you have not made contact with your victims, and no physical injury has resulted to them. 

31A degree of concurrency in relation to these two charges is appropriate because they occur in the same basic timeframe and place, that is, in the ambulance over a period of time when, the ambulance officers are trying to treat you for your injury. 

32The offending occurs in circumstances where you are disinhibited by alcohol and, on your evidence, Valium and Ritalin after you had been in a physical altercation with your brother Michael.  The two police officers and the ambulance officers were just trying to help you and you have reacted by trying to attack the two police officers. 

33I also take into account your criminal record.  You have an extensive and relevant criminal history.  Your violent offending dates back to
10 November 2010, where you were convicted and fined for assault at the Seymour Magistrates' Court.  On 19 July 2001, you were placed on a community corrections order for 12 months for recklessly cause injury at the Seymour court.

34On 23 July 2003 at Shepparton County Court, you were sentenced to
22 months imprisonment with a non-parole period of ten months imprisonment for armed robbery and common law assault.  At Seymour Magistrates' Court on 17 March 2011, you were convicted of hinder an emergency worker and unlawful assault and sentenced to four months' imprisonment, which was wholly suspended. On 23 June 2011, you breached that suspended sentence and the four months was restored. On the same day, you were also sentenced to 12 months imprisonment for resist police, burglary, criminal damage and theft. 

35On 23 May 2012 at the Melbourne County Court, you were convicted of recklessly cause serious injury and sentenced to 33 months with a minimum non-parole period of 18 months.  I was told that you had served the totality of that sentence.  You were released from prison in February 2015 after serving that sentence and other parole time owed. 

36There are a number of other court appearances, both in Victoria and in
New South Wales for dishonesty matters which are not specifically relevant to your violent offending in this case.  Those court appearances are indicators, however, of a general criminal disposition on your behalf.  It is clear from the escalating nature of your violent offending resulting in your longest term of imprisonment that your propensity for violence is intensifying. 

37I regard your prospects of rehabilitation as guarded.  You have abused alcohol and heroin.  You are currently prescribed methadone.  In your past, you have been diagnosed with ADHD.  You have been treated by a psychologist and prescribed Ritalin.  You are not taking any psychiatric medication at this time. 

38Whilst you a fully qualified boilermaker, you have not worked in that capacity since 2011.  Your rehabilitation will, in part, depend on your ability and desire to return to you trade work and live a normal life; that is a matter for you.

39You have been in custody for some 210 days on remand at the MRC for these matters.  Your counsel submitted that a term of imprisonment no exceeding your time on remand is the appropriate sentence in this case.  The prosecutor has submitted that a term of imprisonment longer than the term you have already served is appropriate. 

40Based on the previous matters in relation to your violent offending and emergency worker involvement in your offending and on the principles of general deterrence and specific deterrence in relation to you, the prosecutor urged a CCO on the basis that you need some assistance with rehabilitation.  I have formed the view that your rehabilitation is up to you.  You are 35; it is up to you.

41The principles of general and specific deterrence require that a sentence of imprisonment is appropriate in this case.  Denunciation of your behaviour and just punishment also require a term of imprisonment.

SENTENCE

42On Indictment No.F13021106.2, Charge 1, threat to kill, you are convicted and sentenced to three months' imprisonment. 

43On Indictment No.F13021106.3, Charge 3, you are convicted and sentenced to four months' imprisonment.  On Charge 4, you are convicted and sentenced to four months' imprisonment.

44I order the following cumulation. In respect of Indictment No.F13021106.2, threat to kill, the whole of that sentence, that is three months, be served cumulatively upon the sentences on Indictment number F13021106.3, two charges of common law assault.

45In respect of Indictment number F13021106.3, I am ordering that in respect of Charge 4, two months of that sentence be served cumulatively upon the four month sentence in Charge 3. 

46That is a total effective sentence of nine months' imprisonment over the two indictments. 

47I declare that you have served 210 days in respect of those two sentences.

48In respect of Indictment No. F13021106.2, pursuant to Section 6AAA of the Sentencing Act, but for your plea of guilty for that indictment is six months imprisonment.

49COUNSEL:  As Your Honour pleases.

50HIS HONOUR:  You have got a total sentence of nine months and you have served 210 days, do you understand that, Mr Dean.

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