Director of Public Prosecutions v Deveraux

[2015] VCC 1489

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-00345

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES DEVERAUX

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 October 2015
CASE MAY BE CITED AS:	DPP v Deveraux
MEDIUM NEUTRAL CITATION:	[2015] VCC 1489

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	Mr H. Tighe	Office of Public Prosecutions
For the Offender	Mr M. Woods	Tyler Tipping & Woods

HIS HONOUR: 

1James Deveraux, you have pleaded guilty to three sets of offending behaviour. 

2On 1 April 2014, you and, I think your cousin, were talking, in friendly terms, with another man on the street.  Then things got heated and you punched the victim, causing bruising and swelling to his face and arm. 

3Then, in the early hours of 2 April 2014, the next day, you and another man pounded on the door of an acquaintance.  Once that man had opened the door, you made sure he could not close it and you and the other male went in uninvited.  You were armed with a tent pole.  The other man had a more dangerous and frightening weapon, being a meat cleaver.  Worst still, he was swinging it about, making threats.  The both of you demanded the victim's medication.  Ultimately the victim handed over a box of diazepam.  You men then left. 

4This was plainly the most serious offending in the group of offending that I have to deal with.  I will return to discuss the gravity of this offending shortly. 

5About a month later, on 7 May, you and one, Daniel Abberton, went to the victim's home, another victim, went to that person's house.  The victim came to the door and was punched by Abberton.  You then punched the victim.  A female came to help the victim.  You kept punching at the victim, even when he went to the ground.  You broke the man's nose and caused other cuts and bruises. 

6Your violent behaviour, always in the company of a co-offender, is very troubling.  The victims were entitled to feel safe in their own home or on nearby streets. 

7The invasion of the victim's house, while armed, that is the aggravated burglary and the armed robbery, is especially grave offending.  It calls for punishment that deters and denounces.  While the other offending of the kind, the violent kind, is usually dealt with in the Magistrates' Court, it was dealt with by me here.  It is, although it can be dealt with in the Magistrates' Court, nonetheless revealing of a troubling patter in your behaviour at times. 

8I have not received a victim impact statement, but I have got no doubt, these were frightening circumstances. 

9There are, however, important aspects of your personal circumstances and recent steps towards reform that allow for significant mitigation. 

10I was given sufficient information to give you a sentence indication that if you plead guilty to offences, I would not require you to do further time in gaol.  You have already done a significant amount of time in gaol, being 190 days in excess of six months.

11At 35 years of age now, you have accumulated a long list of prior convictions.  You have been placed on community orders in the past.  The most important aspect of your personal circumstances is your intellectual disability.  You have been a client of Disability Services for a number of years. 

12As the High Court of Australia said, in the case of Muldrock,

"Intellectual disability is always a relevant sentencing consideration               and by and large it operates to mitigate penalty.  It does so   because there is warrant for less weight to be given to deterrence   and to moral culpability or denunciation." 

13I consider in this case, the circumstances do permit a moderation of the weight to be accorded to denunciation.  You are not a man able to easily think through situations and make considered decisions.  You are limited and more impulsive and your conduct on the three occasions shows that.  You are not the proper vehicle, in my view, to send a message of deterrence to others.  Though that said, the sentencing purpose of general deterrence is not eliminated, rather I have suitably moderates its impact by reason of your intellectual disability. 

14I am of the view that gaol would be harder for you because of your intellectual disability and I was persuaded to consider other penalties because of the heavy burden that prison would be upon you and no doubt was. 

15Most importantly of late is your engagement with a disability worker and your adherence to a rigorous bail program.  A report from the bail supervisors, as well as the psychological report from Dr Cunningham, who saw you while you were on remand. 

16It seems in your past you confronted difficulties growing up, with significant alcohol problems in the family home.  You had very limited stable accommodation from your mid-teens onwards.  A long-term relationship which bore four children, also was marked by significant problems with alcohol, both your problems and your partner's.  Once this relationship ended, you were again without a stable place to live, until meeting your current partner. 

17You have had problems with heavy cannabis use from early teenage years.  You also took up methylamphetamine and unsurprisingly, deteriorated further once that drug became something that you were using. 

18As mentioned, you have an intellectual disability with a full-scale IQ of 62.  You cannot read or write.  You also suffered a significant head injury as a child. 

19Presently you are looking after a large array of animals in your backyard and this occupies you for most of your time.  You also have a good relationship with your partner and your partner's children. 

20I had you assessed for a community corrections order with a justice plan.  The justice plan report was particularly helpful.  What is clear is that you are currently well engaged with your disability case manager.  You have attended all appointments with your case manager.  Importantly, you are participated in drug counselling and your drug use has reduced to almost nil.  You have also attended alcohol counselling and have remained abstinent since your release on bail 11 months ago.  This is very much to your credit.  You have not been in any further trouble since your release.  It seems now things are as optimistic for you as they have been for a while. 

21You were assessed as suitable for a community corrections order which incorporated a justice plan.  There was no argument put against a penalty involving a community corrections order with a justice plan. 

22It should not be taken that you offending was anything other than serious, but you have been punished by 190 days in gaol.  I intend to add to this by a lengthy community corrections order, but not require any more gaol.  Should you falter and breach the community corrections order, I will in all likelihood have little other option but to send you back to prison.  It is entirely up to you, Mr Deveraux.  If you stay out of trouble, then you will be assisted by the community corrections order programs and likely continue to enjoy the time that you have at the moment with your family, doing the simple things that you are doing. 

23

I intend there to be a single community corrections order, but to achieve this,

I will announce three community corrections orders for the three separate sets of offending, on three different indictments, but I will order concurrency between them. 

24

In all the circumstances, I do not consider there is a need for unpaid work. 

I would be worried that there would be contact with old or even new drug associates within that Community Corrections work regime that may well unravel some of the good work of rehabilitation that has been achieved thus far. 

25Mr Deveraux, you can remain seated.  What I intend to do for the offending of aggravated burglary, armed robbery and theft - just bear with me for a moment so I make sure I get every single thing right, because there has been adjustments.  So for the aggravated burglary, the possession of a weapon and the theft, that is the Indictment E11590061, I sentence you to a term of imprisonment of 190 days, and in addition, place you on an 18 month community corrections order, with certain conditions that will be outlined shortly. 

26I note and declare, it has been reckoned and I declare that you have done the complete 190 days of the sentence that I have just imposed.  You have done that as detention prior to being granted bail.  I will ensure that this declaration that you have done the full sentence of imprisonment of 190 days is entered into the records of this court, so there can be no doubt that you have done the full amount of the term of imprisonment that I imposed. 

27In respect of the offence of recklessly causing injury on E11590061.1, I order that you be placed on a three month community corrections order that will have some program conditions which I will outline.  It is to run concurrent with the 18 month community corrections order that I have just imposed. 

28In respect of Indictment E11590061.2, intentionally cause injury, I impose an eight month community corrections order with some programs conditions that will be outlined.  That will run concurrent. 

29

Had you pleaded not guilty to these offences and been found guilty of them,

I would have imposed an overall term of two years, with a minimum

non-parole period of 15 months.

30There is no further order sought, as I understand it, and I need to just get the conditions for the community corrections order outlined.  Just bear with me for a moment.  I am sorry, there might be just a short - a slight confusion.    

31I am sorry, I said "recklessly causing injury in respect of Indictment E1159006.1", it was intentionally cause injury.  The penalty remains the same. 

32MR TIGHE:  As Your Honour pleases.

33HIS HONOUR:  Mr Deveraux, the document will be produced shortly.  It will have to be sent by some means or other to Latrobe Valley.  You will have to sign it and send it back by the same means, I presume.  But what you have to do over the 18 months, is engage in treatment and rehabilitation for drug misuse, treatment and rehabilitation for alcohol abuse, treatment and rehabilitation for your mental health problems, and treatment and rehabilitation involving programs to reduce your re-offending. 

34You are to be under supervision of the Office of Corrections and you are the subject of the justice plan that I have been provided which indicates on its recommendations that you engage with a disability case manager for the duration of the order and participate in positive lifestyle programs that will assist you in respect of personal issues. 

35Is there anything further?  We will get documents produced.  Is there anything further required? 

36MR TIGHE:  No, thank you, Your Honour.

37HIS HONOUR:  Mr Woods?

38MR WOODS:  No, thank you, Your Honour. 

39HIS HONOUR:  Thank you. 

40Mr Woods, there was - one of the matters was listed today, not all three, but we think we have got all three listed.  The orders that will be imposed will be seen by me and then scanned and delivered by that method to Latrobe Valley.  It will be printed down there and he signs it and then if they could indicate that he has signed it.  I do not have to have it back at that point, but as long as - no, I do, because he has to sign it - I have to sign it, so it has to be sent back.  It will take a little time.  

41I am going to stand down while my staff go through all that.  We will keep the link up, unless someone takes it off us, and we will return back to this, I would think, in about ten or so minutes. 

42MR WOODS:  Thank you, Your Honour. 

43HIS HONOUR:  They have got to stand down. 

(Short adjournment.)

44

Mr Deveraux, I have got the - Mr Woods, I have got those documents signed.  So you will see there that the community corrections order lasts for

18 months.  You have got to go to Morwell Community Corrections Service there in Anne Street, Morwell, within two clear working days.  The mandatory terms, I have got to explain them to you. 

·You must not commit another offence for which you could be imprisoned during the time this order is in force.  Now almost everything you can think of would be an offence punishable by imprisonment, taking a - shoplifting or taking a can of drink at the service station and not paying for it, so just stay out of trouble. 

·You must comply with any obligation and requirement under the Sentencing Regulations.  That will be, they will take a photograph of you and you have just got to consent to all that so they know who you are when you report. 

·You must report to and receive visits from the Office of Corrections.

·You must let the Community Corrections officer know within two clear working days if you change your address or your job. 

·You must not leave Victoria without getting permission to do so.

·You must obey all lawful instructions and directions from the Office of Corrections. 

45

Now, they apply to everyone and for you, the particular conditions for you are, you must be under supervision of the Community Corrections officer for the

18 months.  So you might have to meet up with them and things like that.  

·You must undergo assessment and treatment for drug abuse, for alcohol abuse and you must undergo any mental health assessments and treatments that the Regional Manager directs you to.  That will be your mental health plan which your GP's got. 

·You must participate in programs and courses that address factors relating to your offending.

·You must participate in the justice plan. 

46So that is for the aggravated burglary.  That goes for the full 18 months.  The others are in identical terms and they go for three months and eight months. 

47So I am just going to sign those.  You have signed them.  They will be scanned up to you and you will get a copy and you can then head away and it brings the matter to an end. 

48Is there anything further? 

49MR TIGHE:  No, Your Honour. 

50MR WOODS:  Nothing for me, Your Honour. 

51HIS HONOUR:  Thank you very much.  Sorry the technology took a while, but it is better than a trip to Melbourne.

52Thank you very much.  We will stand down. 

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