Director of Public Prosecutions v Delaney
[2022] VCC 494
•6 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02582
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANNON JOHN DELANEY |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 6 April 2022 |
CASE MAY BE CITED AS: | DPP v Delaney |
MEDIUM NEUTRAL CITATION: | [2022] VCC 494 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
For the DPP | Mr N Hutton | Office of Public Prosecution |
For the Accused | Ms E Byrt | Stephen Peterson Lawyers |
HIS HONOUR:
1 All right, Shannon John Delaney Gossen, you have pleaded guilty to one charge of aggravated burglary and one rolled up charge of common assault. Those crimes carry maximum penalties of 25 years and five years respectively. You are now 24 years of age and you were 22 years of age at the time of the offending. I accept that the plea of guilty is accompanied by appropriate remorse. You obviously must get the utilitarian benefit of that plea of guilty. That plea is made in timing of the decision of Worboyes in the Court of Appeal. And I take that very much into account.
2 You do have a significant prior history but effectively relating back to the Children's Court. Everything since then seems to have been of a driving nature. On having read your criminal history and read the material provided on your behalf. It is extraordinary that you have got to your age with such a background with so few prior convictions. It is a situation which I will explain in a moment with the summary. How this set of offending came about I think, is perfectly explained by your experiences as a child and highly understandable.
3 It is an unlawful and a criminal offence and aggravated burglary is always a serious offence though it can range in level. As I will be describing in a moment, I think this is at the lower end. It does call for the application of general and perhaps specific deterrence denunciation and appropriate punishment. You have now spent 116 days in custody. Your counsel's argument is that is sufficient, together with a Community Corrections Order and I agree.
4 Firstly, in so far as the offending is concerned this is a brief summary of it. In December of 2019 you were at the Sale greyhounds with a couple of other people, one of whom was Sharron Baldwin. She had shown you and told you that she had been abused by a man called Stevens during the course of her relationship with him. You yourself from your childhood were no stranger to domestic violence and domestic abuse. Her laptop was missing and she thought that Stevens may have had it out of spite. Stevens was the home of Patrick and Kirsty Miller.
5 You went around to that address and Mr Miller heard a thud at the door and went to look out. He saw you and you demanded to see Stevens. You opened the unlocked flywire door and came into the house. You tried to grab him and whilst in the hallway you punched him three times on the left side of his face. As a result of that he saw flashes and was dazed. That gives rise to the aggravated burglary of entering with the intention of assault. And is also part of Charge 2. That is the rolled up common assault.
6 It is clear that Stevens was in house I would accept that when you initially went round as the material seems to indicate, it was simply to get the laptop back. But I think once you got there you have effectively in colloquial terms, done your block. In any event it is an aggravated burglary where there is no forceful entry it is through an unlocked door. You certainly were not carrying a weapon. Matters which do not go in mitigation but certainly take it out of the range of what are so common for these types of aggravated burglaries.
7 In any event Kirsty Miller was in bed in the front bedroom, she got up and saw you hitting her partner. She went into the hallway she was able to push you out of the house with both hands. She stood outside the house and you were attempting to get in again and she was able to keep you out. She told you to leave and you said you wanted Greg otherwise you were going to go in and get him. And said that, 'He (Stevens) was a woman abusing piece of shit.'
8 In that situation as far as an aggravated burglary is concerned, the lady of the house was able to evict you and keep you out. So, I accept that it was not the normal sort of activity that accompanies matters such as this. Mr Miller went to the bathroom and checked his mouth. In the end he suffered no injuries as such and that is why it is a common assault. However, after that you went into the backyard looking for Stevens. You came back and you gratuitously punched Miller again. Which is also part of the rolled up charge. And makes it a more serious example of assault than it might otherwise have been. Later that night you told Baldwin that you hit Miller and that you tried to get Stevens, as he was trying to climb out the laundry window.
9 So that is the scenario in which all this occurred. And during your record of interview, you basically said that you had been shown messages and a photograph and that Steven was a wife basher and that is why you had gone around there. You were arrested and remanded for a period of 116 days as I have already indicated.
10 I have already indicated that your prior history commences in Children's Court and there are matters of criminal damage and they were without conviction. And one unlawful assault but nothing else of a violent nature. And you seem to have matters from driving and they appear to all come from an alcohol based conviction earlier on. You have had a Community Corrections Order before which you obviously have completed. As I understand it, you are currently on a Community Corrections Order for again, driving offences as I understand it. And you appear to be complying with that. That order itself has treatment provisions within it. And I think that is sufficient.
11 What I will do in these circumstances is simply go through in very brief terms your prior history. There is material contained that I have been given which I do not propose to make public. The Crown is fully aware of what I am talking about as is your counsel.
12 In any event there are a number of documents, I might go through a couple of those in a moment. But you were intoxicated on this night. I accept that
Ms Baldwin had told you that she had been a victim of domestic violence. And it was in those circumstances that, as I said, you did your block and hit him. I agree with your counsel, there was no sophistication to it. There was no attempt to disguise yourself or otherwise avoid identification. And it was all over in a relatively short period of time. You were only 22 at the time of the offending.
13 Your background is, that you were raised by your mother and father in Darwin along with your younger brother and sister. Your father was an alcoholic and he would be away for long stretches of time. When he would return, you and your family were subjected to significant verbal and sometimes physical abuse at his hands. Your mother fled and took you and your siblings. You were abused by your mother in a disturbing fashion when you were very young. And your mother began drinking heavily and that abuse continued over an externed period of time.
14 You were encouraged, it would appear to drink by your mother from a very, very early age and you did. At times your mother would disappear for days at a time and you would be forced to steal food in order for the family to eat. You and your siblings were taken into foster care at the age of 10. And you remained in foster care for three years. During your time in foster care, you would often ran away and you would be found sleeping rough by the police. For example, in an underground carpark.
15 Finally, you and your siblings were placed with a family and I have reports from them which I will go to in a moment. That was the first time in your life that you ever felt safe. And the first time in your life that you ever had connection to a parent figure. You effectively called that home and I understand still have frequent contact with the foster mother you would describe her as.
16 And unfortunately, at 13 you and your siblings returned to your mother's care. She had not changed or improved and there were occasions when she just dumped you, basically. At one stage you and your younger brother went and found shelter in a homeless hotel. Made your way via public transport to Maffra to reside with your grandmother. You were able to attend Sale College for a period of time. And again, went back to your mother.
17 You moved away from your mother you found your own Housing Commission accommodation. You have had various relationships since then. During the next few years you had one child who is three years old. You began drinking heavily and associating with, what counsel describes as poor peer associates. You gained a certificate in warehouse operations and a certificate in civil construction and you began working in the labour industry and then you went into - and work.
18 Shortly after this offending you stopped the relationship that you were in and began a new relationship with your present partner. And her two children call you dad. You were arrested and remanded in 2020 and whilst you were in custody your partner found out that she was pregnant. And you were bailed on 7 September 2020. I am told and accepted, there has been no further offending since your release. And you seem to be doing very well for yourself.
19 You returned to care for her during a difficult pregnancy and I am told it is still a high risk pregnancy and she is to be assessed again tomorrow, you help raise the children. You have been employed at Style Family Farms since July 2021 and work as a farm hand and doing the milking since then. As indicated in November 2021 you were put on a CCO for driving matters as I understand. You and Sharie are expecting your second child together in July 2022.
20 And again, as I have already indicated it seems pretty clear that drinking has always been involved in your offending. You were drinking from the age of 10 and by 14 were clearly alcoholic. I am told and accept, that you ceased drinking prior to Christmas 2020 and you have maintained your abstinence from alcohol abuse since that time.
21 After you were first released from custody you did begin drinking again but to your credit you have been able to get it under control. It is clear, that in a situation where you are working on an average of around six days a week. Where you are in relationship where you are looking after children, where you have one of your own now with your partner and one on the way. That you have rehabilitated yourself to a very great degree.
22 Insofar as your childhood trauma is concerned and the principles of Bugmy are very, very relevant here. Essentially this is a matter where that background contributed directly to the nature of the offending. That is, that your abuse as a child has caused you to explode in a situation where you believed you were dealing with a wife basher.
23 I think the risk of you reoffending if you continue on the path you are on is going to be low. And I think your rehabilitation is well under way, to put you back into gaol in a situation such as this would jeopardise that rehabilitation. And the Crown do not suggest I should do so and I have no intention to do so. Had you not the time on remand this may have been a different and a much more difficult sentencing proposition.
24 I then go to the letters and the references which have been tendered on your behalf. There is a letter from a counsellor, Mr Little who goes through the matters that he has dealt with you for, over a period of time. And have found that your attitude towards that counselling has been 'Outstanding.' He speaks highly of you and you apparently get a lot of assistance from him. I have read the mental health management plan from Dr Chaudhry at Foster Medical Clinic. And I understand that will remain in place no matter what disposition I put in.
25 I have read the letter that you have written and sent to me and I take that into account. I have also, as your counsellor has pointed out, taken very much into account, the references from Jason Pratt who was your foster father. And as a military policeman, his report is very concise.
26 I have also read the report of his partner who does go into a little bit more detail. She said and she is very experienced in the area, that you are not known to be violent unless you are cornered or triggered. She then said, 'I've worked with hundreds of children in care and Shannon remains one of the most complex and extraordinary stories of children overcoming and surviving trauma.' And I have no difficulty accepting that. And I am certainly not going to do anything to jeopardise what has been and I have been in the situation for a long time. And have done a lot of Children's Court work years ago. A very dramatic effort from you to get to your age with so few prior convictions.
27 I have read the letter from Ms Roberts, your partner. And I have also read the letter from her father. And he again, speaks highly of you. And in one sense I suppose you cannot do much better than that. In a country town to get the support of your partner's father.
28 When I take all those matters into account, I do have to regard an aggravated burglary as serious. So, on the charge of aggravated burglary, you are sentenced to be imprisoned for 116 days.
And I direct that, 116 days be reckoned as been served under this sentence. On both charges of the assault and also on the aggravated burglary. If you agree you will then be placed on a Community Corrections Order. It will be with conviction obviously.
It will be for a period of three years. There will be a work component which has to be a significant work component of 250 hours.
I make it clear to you, that I made it a three year CCO. If you can get the work done before the end of that, the CCO will be completed. If you do have problems with the CCO, with work hours or the like. It is important that you do not put your head in the sand. Get in touch with Corrections and then the matter can be brought back before me. So, we can look at it again if there are difficulties.
29 All right that will be the only condition, will be the work hours. I am not going to be supervision or the like on it. I am assuming the nearest one is going to be Korumburra or Wonthaggi and we will go through that.
30 So if we have got that I will get you to sign it.
31 Yes, get him to sign it. If you wouldn't mind going down Ms Byrt and getting him to sign it.
32 Thanks for that. All right, you understand, if you breach anything like this you get brought back and I have to re-sentence you. All right. And it is serious offending so you just have to stay out of strife. So anyway, good luck with it. You've done really well. And good luck to both of you with your future. All right.
33 MR HUTTON: 6AAA?
34 HIS HONOUR: 6AAA yes that's a good question in the situation, 6 months
with a CCO.
35 MR HUTTON: As Your Honour pleases.
36 MS BYRT: As Your Honour pleases.
37 HIS HONOUR: All right.
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