Director of Public Prosecutions v Diamond, Jordan Lindsay
[2013] VCC 576
•2 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00773
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JORDAN LINDSAY DIAMOND |
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JUDGE: | HIS HONOUR JUDGE LECKIE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 2 May 2013 | |
CASE MAY BE CITED AS: | DPP v Diamond, Jordan Lindsay | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 576 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Sharp | |
| For the Accused | Mr F. Cameron |
HIS HONOUR:
1 Jordan Lindsay Diamond, you have been found guilty after trial of one charge of aggravated burglary and one charge of intentionally cause injury on Presentment B13013944.1 and you have pleaded guilty to one charge of theft on Presentment B13013944.3.
2 The maximum penalty for aggravated burglary is 25 years imprisonment whilst the maximum penalty for intentionally cause injury is 10 years imprisonment and the maximum penalty for theft is 10 years imprisonment.
3 The circumstances of your offending relating to the aggravated burglary and the intentionally cause injury are as follows: In the early hours of Saturday 22 October 2011 you together with a friend Andrew Barry travelled to an address at 115 Schotters Road Mernda. This home was owned by Antonio Villella and living there at the time was his son Anthony and the victim in this case, Braedan Bant.
4 At the time you arrived at the address Anthony Villella and the victim were socialising in Anthony's bedroom. Also present were Rochelle Rodder, Dylan Cleary and Ashley Rudd. Antonio Villella was asleep in another bedroom. Upon arriving at the address you took a wrench from the car and then entered the house with Andrew Barry. At this moment in time you believed that the victim, Bant, had stolen a TV from you. You entered the bedroom where the victim and others were socialising. Upon seeing Mr Bant in the corner of the room you accused him of stealing your TV and immediately moved towards him and started striking him with the wrench.
5 The victim was on a couch and as you attacked he drew up his legs and raised his arms to protect himself. You then struck him a number of times hitting him on the right leg, the left arm and the right arm. The victim got up and felt a blow to the back of his head and you then forced him on to his back on a bed that was situated in the room.
6 You pinned him with one hand and held a wrench in your other hand in a threatening manner. Ashley Rudd then intervened and took the wrench from you. You then put both your hands around the victim's throat and applied pressure. The victim fought back and hit you a couple of times to the face drawing some blood. The attack then ceased. Your companion, Barry, came into the room and Mr Rudd told him to leave and he then left with you.
7 As a result of this attack the victim was taken to hospital and the injuries were documented and treated as set out in Exhibit D which was an admission of fact. In brief the victim had two lacerations to his right leg, one 2.1 centimetres and one 1 by .05 centimetres. The larger one required stiches. There were two wounds to his left arm, one was closed with steri-strips. His left wrist was tender, bruised and swollen and his right hand was bruised and tender. These injuries, I am informed, have been resolved and no victim impact statements were sought to be tendered.
8 On 24 October 2011 you again attended this address where the victim lived and stole the victim's Holden car. The details of this are set out in the agreed prosecution opening which is Exhibit A on the plea. I accept that you were led on this occasion by a friend, Quilligan who suggested the escapade. You were reluctant but motivated by your anger about the TV you went along and acted in concert with Quilligan. Quilligan had grabbed the keys from the victim's house and had gone outside and taken the car. You had conveyed him to the house in your car and then followed him when he took the car from outside the premises.
9 The car was dumped at a KFC at Greensborough and you picked up Mr Quilligan after he had dumped the car and drove off. The car was quickly recovered and returned to the victim. They are the facts which relate to the other charge which was numbered 1 but on the other presentment which was filed.
10 When interviewed by the police on 27 October 2011 about these matters you exercised your right to silence. These are serious offences particularly the aggravated burglary as is reflected by the maximum term of imprisonment being 25 years. You entered the premises armed with a weapon intending to assault. You were aware that there were people present in the house. The assault was carried out with a weapon being the metal wrench.
11 Although I accept that you believed that the victim was responsible for the theft of your TV this may explain your behaviour but it no way can it excuse it. The theft offence is less serious in my view in the sense that you were a reluctant participant and the car was quickly recovered and returned to the victim.
12 I have been informed that your co-accused Quilligan was 19 years old at the time and had one prior conviction in the Children's Court. He received an adjourned undertaking for 12 months upon pleading guilty in the Magistrates' Court. I have taken this into account when considering parity but I accept the prosecution's submission that your case was distinguished in some features. You also have a prior conviction or a court appearance for dishonesty although no conviction was recorded and you committed this offence whilst on a suspended sentence which I will give more details about later in the judgment.
13 In mitigation I take into account that you have pleaded guilty to the theft and I take that into account in your favour. However although I accept that you may have some remorse for this matter I am unable to find on the material that has been placed before me relating to the other charges of aggravated burglary and intentionally cause injury that you have any remorse.
14 Your personal history and circumstances are set out in the report of Patrick Newton, psychologist dated 14 March 2011 which is Exhibit 2. I have taken the contents of that into account.
15 You are now 22 years of age being 20 at the time of committing these offences. You are the eldest of two children in your family and your upbringing was beset with some difficulties as your mother suffered depression and your parents had a turbulent relationship which ended in a separation when you were about 12 years old. As a result of your parents troubled relations you lived with your grandparents for two years when you were about five or six years old. Following your parents separation you spent most of your time with your father.
16 You completed your VCE at Eltham College and would like to undertake some tertiary studies in business however since leaving school you have worked sporadically as a labourer for your father and others. You do not abuse alcohol or drugs. You do not suffer from any psychiatric or psychological disorder. You were diagnosed as suffering from Attention Deficit Disorder in late childhood and were prescribed Ritalin but this was discontinued after a couple of years.
17 In the report of Mr Newton dated March 2011 he found you were suffering from anxiety as a result of a pending court case and I would accept that it is highly likely that that is the situation currently.
18 You have admitted before me to prior convictions and court appearances. On 21 June 2011 you were found guilty in the Magistrates' Court of handling stolen property and fined $200 without conviction. This involved I was told a theft of some road signs by your friends which were later found in your car. On 29 March 2011 you were convicted in the County Court of four charges of sexual penetration of a child under 16 and one charge of recklessly cause injury and sentenced to a total effective sentence of 12 months imprisonment which was wholly suspended for 12 months. You were also placed on a Community Corrections Order for 12 months. The details of this offending are set out in His Honour Judge Gamble's sentence which was exhibited on the plea as Exhibit 1.
19 This is a significant matter as you were serving a suspended sentence when you committed these offences. This fact makes the issue of your rehabilitation problematic but a number of other factors are also relevant to this sentencing consideration. You are still a young man. At the time of the offender you came within the definition of a young offender under the Sentencing Act however you are now 22 years of age and no longer come within that definition.
20 Mr Newton, in his psychological report at paragraph 33, sub-paragraph 3 stated: "Mr Diamond remains an immature man. His identity is still in the process of forming and he is yet to navigate the tasks necessary to establish himself as a mature adult. He has had difficulty establishing a sense of direction in life and finds it hard to express his feelings and remain relatively unsophisticated in inter-personal matters. His relationships remain at an adolescent stage of attachment."
21 Your counsel submitted that in the circumstances of this case the principles of R v. Mills [2002] 4 VR 235 should be applied. The prosecution agreed with this submission. Although those principles usually apply to youthful first offenders there is still room in this case for those principles to be taken into account in my view.
22 Under the order made by His Honour Judge Gamble some anger management was contemplated but I was informed that you completed the work component of that order but unfortunately the anger management program had not commenced and consequently you did not get the benefit of such counselling.
23 Despite the fact that you offended whilst on a suspended sentence and supervision order, under a Community Corrections Order I am of the view that you still have reasonable chances of rehabilitation. In his report Mr Newton also expressed the following opinion in paragraph 37: "In a custodial context his youth and immaturity are such that I would anticipate that he would experience significant difficulties adjusting to the prison environment. He would be a vulnerable prisoner on account of his age. This vulnerability would be intensified by his immaturity."
24 Taking into account all these matters I propose to impose a shorter period of imprisonment than what may otherwise be called for. Your counsel also submitted that I should consider a longer than normal period of parole and the prosecution did not oppose this submission. Taking into account the matters I have just enumerated I propose to follow that course. However as well as these matters personal to you which I have taken into account I must also take into account such matters as deterrence especially general deterrence which is of considerable importance in cases such as this.
25 Specific deterrence is also relevant in your case especially in light of your offending whilst on a suspended sentence. I must consider the protection of the member of the community from you and bear in mind the likelihood of you re-offending. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally impose a just punishment.
26 The seriousness of your offending in all the circumstances leaves no alternative but to an immediate term of imprisonment. Your counsel sensibly, in my view, did not submit otherwise. However he did submit that there should be some concurrency between charges 2 and 1 and that total concurrency should be considered for the theft charge. The prosecution agreed with these submissions. The prosecution submitted that a range of three and a half to four and a half years for a head sentence with a minimum term of between two and three and a half years was appropriate and relied upon the recent decision of R v Hogarth [2012] VSCA 302. Your counsel submitted that this range was too high in the all the circumstances put forward a range of two to two and a half years as a head sentence with a minimum of 12 to 18 months.
27 Considering your youth , immaturity, your vulnerability in the custodial context and it being your first time in custody I am of the view that a period of imprisonment being a little less than what the Crown submitted is justified in your case. Would you stand up please.
28 The sentence of the court is that you are convicted of all the charges.
29 Charge 1, the aggravated burglary, you are sentenced to two and a half years imprisonment.
30 Charge 2, intentionally cause injury, you are sentenced to 12 months imprisonment.
31 On Count 1 on the other presentment, theft, you are sentenced to one month's imprisonment.
32 I direct that six months of the sentence on Count 2 be served cumulatively with the sentence on Count 1. The sentence on the theft charge is to be served concurrently with the sentences on Count 1 and 2. The total effectively sentence is three years imprisonment. I order that you serve a minimum term of 18 months before being eligible for parole. I declare that the period of eight days not including today that you have undergone be reckoned as having been served under the sentence hereby imposed and it is directed that this declaration and its details be entered into the records of the court. Pursuant to s.6AAA of the Sentencing Act I state that but for your plea of guilty on the theft charge I would have imposed a sentence of six weeks imprisonment. You may be seated.
33 Are there any perceived errors or omissions in my sentence?
34 MS SHARP: I may have misheard Your Honour at the very outset when you were describing the circumstances of the offending. The first offence was on 22 October from this position in the court it - - -
35 HIS HONOUR: Just wait for a moment. In the early hours of Saturday 27 October.
36 MS SHARP: 22nd I understand is that date.
37 HIS HONOUR: 22nd?
38 MS SHARP: Twenty-two rather than 27.
39 MR CAMERON: That's correct, Your Honour.
40 HIS HONOUR: Have I said 27, did I?
41 MR CAMERON: Yes.
42 MS SHARP: That's what I heard, I'm not sure whether that's what you said.
43 HIS HONOUR: I can't even read my own writing. I have written 22 October 2011 as the date of that offending. Insofar as I have said otherwise I correct the error and that should be reflected in the transcript.
44 MS SHARP: Thank you, Your Honour. In relation to the date of the theft the discussion that happened before the theft was on 23 October however it is alleged that the theft took place in the early hours of 24 October.
45 HIS HONOUR: I had written the 23rd, you agree that the date should be the 24th.
46 MR CAMERON: I wouldn't cavil with that, Your Honour, I think it is the case.
47 HIS HONOUR: The clock has turned over.
48 MR CAMERON: I think - I've got in the statement of the victim it was approximately 1.05 in the morning on the 24th so that would appear correct.
49 HIS HONOUR: Thank you for that assistance and I would amend the record to show the 24th. Was that what was - what was the date on the filed - - -
50 MS SHARP: The presentment states the 24th, Your Honour.
51 HIS HONOUR: It does indeed, thank you.
52 MS SHARP: The first date in the opening is the 23rd but then further on it says during the early hours of 24 October and one final matter, the non-parole period range as I submitted on that plea was between two and three and half years. I'm not sure whether Your Honour said between two and a half and three years.
53 HIS HONOUR: Just wait for a moment. What I noted and what I believe I said in my sentence was a range of three and a half to four and a half as a head sentence with a minimum of two and a half to three and half.
54 MS SHARP: My instructions were the non-parole period was to be between two and three and a half, the range. I apologise if I misstated that on the - -
55 HIS HONOUR: Sorry, what was the range of the - - -
56 MS SHARP: The range that we were given was between three and a half to four and a half years for a total effective sentence - - -
57 HIS HONOUR: Yes, that part is correct.
58 MS SHARP: That's correct. A non-parole period of between two and three and a half years.
59 HIS HONOUR: Two and three and a half?
60 MS SHARP: That's correct, Your Honour.
61 HIS HONOUR: Thank you for that. Yes, my note was two and a half to three and a half but I must have misheard it.,
62 MS SHARP: I apologise.
63 HIS HONOUR: It's quite possible. Thank you for correcting the record. Any other matters?
64 COUNSEL: No, Your Honour.
65 HIS HONOUR: Counsel don't want to raise anything further?
66 MS SHARP: No, Your Honour.
67 HIS HONOUR: Would you remove the prisoner please.
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