Director of Public Prosecutions v Denman

[2018] VCC 693

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02389

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA PATRICK DENMAN

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2018, 9 May 2018
DATE OF SENTENCE:	16 May 2018
CASE MAY BE CITED AS:	DPP v Denman
MEDIUM NEUTRAL CITATION:	[2018] VCC 693

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Barrett	Office of Public Prosecutions
For the Accused	Ms D. Condon	Stary Norton Halphen Lawyers

HIS HONOUR: 

1Joshua Patrick Denman, could you stand up please?  You have pleaded guilty to one charge of aggravated burglary and one charge of theft and a summary charge of committing an indictable offence whilst on bail.  These offences carry the following maximum penalties.  Aggravated burglary 25 years' imprisonment.  Theft ten years' imprisonment.  Committing an indictable offence whilst on bail, three months' imprisonment, or 30 penalty units.

2It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, summary of prosecution opening on plea.  That opening was accepted by you through your counsel.  I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now summarise.

3On 4 April 2017 the victims Daniel Milne, his partner Emily Morton, his brothers Simon Sharp and Ben Milne and their mother Susan Sharp were at home at 112 Excelsior Drive, Frankston North.  At approximately 3.45 am Daniel and Emily were in their bedroom.  Daniel heard their dog barking so he went to the back of the house to investigate.  He saw you standing outside the laundry door holding a hammer which you were using to try to break open the wire laundry door.  You were also holding a hunting knife.

4You went to the rear of the house and smashed the bedroom window while Emily was still inside.  Daniel assisted Emily and she ran into Susan's room at the front of the house and both women locked themselves in the bedroom.  You climbed through the window into the bedroom (Charge 1: aggravated burglary) and the summary offence: committing an indictable offence whilst on bail.  You had been in custody from 8 September 2016 but were released on bail on 21 October 2016.  This offending was on 4 April 2017 when you were on bail.)

5You locked yourself in the bedroom.  When you left the house via the bedroom window there was a fight as you tried to run away.  You eventually did run away.  You had stolen a backpack and a pair of runners.  You were arrested when you attended at a hospital for your injuries sustained in the fight as you were leaving the victim's home.  You made a no comment record of interview.

6I state to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  The community has, by your plea, been spared the time and cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon your trial.  You pleaded guilty at an early stage.  I accept that you are genuinely remorseful.

7I have been told something of your personal circumstances and these matters are set out fully in the outline of plea submissions and numerous reports tendered on your behalf.  You are 37 years of age, having been born on 24 September 1980.  You have a de facto partner.  That relationship has existed for about 12 years.  You are the father of your partner's two youngest children aged 11 and 10 years.  She has two older children aged 16 and 13 years and you are a father figure to them.

8You partner's mother Susan Phillips, gave evidence and provided a reference (Exhibit 12) on your behalf.  She has known you for about 12 years.  She said you have been a good father to all four children.  She said you had always had mental health issues but you had been in denial and in circumstances in which you often either felt bad or felt like a failure you had turned to alcohol and drugs.  You had been a chaotic person and you had great difficulty dealing with what she described as a chaotic health system over the years.

9She said and I accept that you have good family support.  You are visited in gaol regularly and you ring your children every day.  Many members of your family attended court to demonstrate their support for you.  There were also references and testimonials tendered describing your past difficulties and positive behaviour in recent times (Exhibits 14 and 15.)

10You were educated to Year 10 level.  You have had employment as a bricklayer, scaffolder and fencer.  You have been a long-term user of alcohol and illicit drugs and you have a complex history of mental health issues.  A detailed neuropsychological report was tendered on your behalf from Martin Jackson dated 3 October 2017.  Martin Jackson gave evidence at the plea hearing.  Your counsel also tendered reports from Dr Julie Wehbe psychiatrist, dated 28 February 2017.  Dr Peter Heffernan, psychiatrist 5 December 2016 and Justine Stephens-Reicher, psychologist.

11Your long history of substance abuse includes use of alcohol, marijuana, amphetamines, methamphetamines and benzodiazepines.  You have an untreated aracnoid cyst on the right frontal lobe of your brain.  You have been diagnosed as suffering from numerous conditions.  Dr Wehbe stated and I quote:

12"Mr Denman has been undergoing psychiatric treatment for the last few years.  He's been suffering psychosis, depression, impulse control disorder and attention and concentration issues.  In due course, he has attracted diagnoses of schizophrenia, bipolar affective disorder, attention deficit hyperactive disorder and impulse control disorder.  It appears that his impulse control disorder and ADHD have been a lifelong problem which grossly compromised his safety and wellbeing.  Mr Denman also has a large sub-arachnoid cyst in his frontal part of the brain, which may be well responsible for some of his long-term and current presentation.

13Mr Denman recently underwent his first inpatient psychiatric admission to the Melbourne clinic, where he was closely observed.  His medications were revised and his neuropsychological and psychological assessments and interventions have been planned.  He has shown some improvement.  However, his complex condition remains treatment resistant and disabling.  Mr Denman is distracted by his psychotic symptoms (voices and intrusive about other people reading his mind, or causing troubles to him), his depressive symptoms (lack of energy and motivation), his impaired impulse control (urges to jump off the cliff, or punch walls, or other violent or impulsive behaviours) and his affected cognition (poor attention and concentration) are still preventing Mr Denman from organising employment or studying, despite his genuine wish to return to work forces."

14Dr Heffernan described your case as complex.  He noted an eight year history of serious mood swings, with manic states lasting several weeks at a time and serious depressive states also lasting several weeks at a time.  He was of the opinion you had a bipolar affective disorder.  Diagnostically he was of the opinion that you were suffering from schizophrenia requiring treatment with an antipsychotic bipolar affective disorder, which required a mood stabiliser medication.  Lifelong attention deficit hyperactive disorder.

15Mr Jackson has provided detailed neuropsychological findings at pp.11 and 12 of his report.  I accept his findings.  He has expressed the following opinions, p.12:

16"The cause of Mr Denman's cognitive impairments is difficult to identify, as there are many possible causes.  He has been diagnosed with ADHD, which will often cause attention difficulties and difficulties with impulse control.  He has an arachnoid cyst that has been there a long time and is the size of a squash ball and is impacting on his frontal lobes, which could be associated with cognitive and behavioural impairments.  He has a long history of substance abuse, since the age of 12, which undoubtedly would have caused a degree of cognitive impairment in terms of his attention, memory and executive skills.  Furthermore, he also has a long history of poorly controlled mental health and has been diagnosed with schizophrenia, bipolar affective disorder, depression and impulse control disorder, which can all affect cognition."

17Mr Jackson felt it was impossible to say precisely what the current causes of your cognitive impairments were.  He was of the opinion that you had severe impairment of executive functions, new learning and working memory and attention skills.  You have a clear significant disorder of impulse control and monitoring.  At p.13, he expressed the following opinion.

18"It is very difficult to give an opinion as to what Mr Denman's cognitive functioning would have been at the time of the alleged offending, other than to say it is very unlikely that it would have been any better than it is now, even taking into account that he has been taken off most of his mental health medication.  He clearly would have had the severe impairment of cognition at the time of the alleged offending, although it is likely to be worse under the effects of substances."

19At p.4 of his report, he obtained a history from you of your circumstances at the time of the offending:

20"In terms of the current charges, he stated that he was 'not with it.'  At the time of the offences and due to his mental health and substance use, he did not even know what day it was."

21In evidence Martin Jackson explained that the main cause of your current cognitive impairment was your long-term alcohol and drug use, which commenced when you were about 12 years of age.  Whilst there was an acceptance by the prosecution that Limbs 1, 3 and 4 of the principles enunciated in Verdins case applied it was submitted by the prosecution that these had to be considered in the context of your very long and serious criminal history and the need for community protection.  As Martin Jackson explained, there has been a strong relationship between your impulse control disorder, aggravated or exacerbated by alcohol and drug use, and offending over the years.  Any continued use of alcohol and drugs will, in combination with your severe mental health conditions, particularly the impulse control disorder, increase the likelihood of you reoffending.

22I have taken all of these matters into account.  I accept the need for some reduction in moral culpability as a result of your impaired mental function and I have appropriately moderated the weight to be attached to general and specific deterrence.  I also accept, pursuant to Verdins, limb 5, that a sentence of imprisonment will weigh more heavily on you than on a person in normal health.

23I do not, however, accept that there is a serious risk of impairment having a significant adverse effect on your mental health (Verdins, limb 6).  There is a detailed affidavit from J.A. Hosking, Acting Assistant Commissioner, sentence management division of Corrections Victoria, dated 8 May 2018.  In that affidavit, Ms Hosking describes the various medical and mental health assessments you have undertaken whilst in custody.  You have access to medical and nursing staff since your reception into the MAP on 12 April 2017.  You have attended 25 psychiatric appointments and 111 general medical appointments.  I accept the evidence of Ms Hosking set out in her affidavit.  I found the very detailed information contained in her affidavit to have been of great assistance.

24I assess your prospects of rehabilitation as being cloudy or guarded.  I accept you have been using your time in custody in a constructive manner (see Exhibit A, letter from Prison Fellowship Australia and Exhibit 9, negative urine sample results.)

25I do not accept that the injuries you sustained in a fight when you were trying to run away from the victims' home is a factor in mitigation.  There is a brief hospital record detailing these injuries (Exhibit 10).  You were diagnosed as suffering three lacerations on the head.  You also complained of back pain.  You had been assaulted with a metal pole.  A chest X-ray and CT scan of the head and neck did not reveal evidence of recent injury.  There is no further medical evidence in respect of those injuries.  Having regard to all the circumstances of this matter, including the manner in which the injuries were sustained, I am not satisfied this is a factor in mitigation.

26Against these matters in mitigation, however, your actions were very serious indeed.  Each party addressed me on the objective gravity of this offence.  In my opinion, the objective gravity of this offence of aggravated burglary, involving entry as a trespasser with intent to steal and at the time you had an offensive weapon, namely a knife, was quite high.  I have arrived at this conclusion for these reasons.

27You attended at the property at 3.45 am.  You had a hammer and a knife.  You used the hammer to smash a window to gain entry to the property after attempting to break open the wire laundry door.  Whilst the offending may have been disorganised, this remains a serious example of this type of aggravated burglary.  The offending occurred whilst you were on bail.  This is an aggravating factor.  There were also a couple of items stolen and although their value was modest, you did steal personal items from this home.

28There is a victim impact statement from Emily Morton (Exhibit 2).  She describes anxiety, fearfulness, worry and concerns for her daughter's safety.  She has trouble sleeping, particularly in the early hours of the morning.  When she hears the dog bark, she is afraid of an intruder entering her home.  She was eight months pregnant at the time of this offence.  She was worried the stress could have adversely affect her pregnancy.

29You have admitted before me numerous prior convictions.  There are approximately 17 court appearances between 29 February 2016 and 19 November 1988, involving convictions for aggravated burglary, burglary, attempted burglary, theft, drug offences, motor vehicle offences, damage to property and offences of violence.  The nature of some of these prior convictions, particularly the two prior convictions for aggravated burglary and also the prior convictions for burglary and theft is highly relevant to my task of sentencing you today.  The days in custody, pre-sentence detention, is agreed at 407 days.

30As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence, although, as stated, I have sensibly moderated the weight to be attached to each of these considerations in accordance with Verdins' case.  Specific deterrence remains relevant.  You have been sentenced to imprisonment in the past, in particular for aggravated burglary.  You have had a range of dispositions yet you have continued to offend.  You have a long and extensive criminal record.

31General deterrence is also of some importance in a case such as this.  This type of offending must be discouraged.  I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.  I am satisfied that I have no alternative but to impose a sentence of imprisonment with a non-parole period.  There ought be some cumulation in respect of the theft charge.

32Whilst I have taken into account the principles enunciated in Verdins' case as directed it is also necessary, in all the circumstances given your impulse control disorder, history of substance abuse and other mental health issues, to take into account the need for community protection, although I have taken care not to place too much weight upon this factor.  Your overall prognosis and prospects of rehabilitation are, in my opinion, guarded or cloudy, but these prospects are greatly reduced if you continue to use drugs and alcohol.

33Having regard to all relevant facts and appropriate sentencing principles, I sentence you as follows.

34Charge 1 is aggravated burglary.  Convicted and sentenced to five years' imprisonment.

35Charge 2, theft.  Convicted and sentenced to six months' imprisonment.  The summary offence, committing an indictable offence whist on bail, convicted and sentenced to one month's imprisonment.

36I direct that three months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1.  Otherwise the sentences be served concurrently.  The total effective sentence is five years and three months imprisonment.  The non-parole period is the minimum term that justice requires you to serve, having regard to all the relevant circumstances that exist.  For that reason it cannot be fixed automatically.  All relevant factors and sentencing principles are to be taken into account.  I have to consider when you should be eligible for mitigation of confinement and in turn, rehabilitation under conditional supervision.

37In all the circumstances, I direct you serve a minimum term of three years' imprisonment before becoming eligible for parole. As prescribed by s.18(4) of the Sentencing Act I declare that the period of time you've spent in custody is 407 days, which is to be reckoned as time already served under the sentence.  I direct that such be noted in the records of the court.

38I have made the disposal orders sought by the prosecution. Pursuant to s.6AAA of the Sentencing Act, I state that the sentence of a non-parole period I would have imposed, but for the plea of guilty, is a sentence of seven years' imprisonment, with a non-parole period of five years' imprisonment.  Does that cover everything?

39MS CONDON:  Yes Your Honour.

40HIS HONOUR:  Thanks.  I'll just stand down temporarily and the prisoner can be removed.  Thank you.  Thanks.

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