Director of Public Prosecutions v Donahue

[2016] VCC 363

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00140

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM DONAHUE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	31 March 2016
CASE MAY BE CITED AS:	DPP v Donahue
MEDIUM NEUTRAL CITATION:	[2016] VCC 363

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 C. Liasko	Office of Public Prosecutions
For the Offender	Mr P.J. Smallwood	Luke Slater Lawyers

Pages 1 - 6

 

 

HIS HONOUR:

1William Donahue, in around July of 2015 you left your family home in the Newport/Williamstown area and went to live with your half brother in Shepparton.  You come from a stable family environment.  That said, the family had to contend or deal with some difficult mental health problems.  At the time you were not getting on with your father as you had in the past.  Things had gone a little off the rails.

2You drank too much in your teenage years.  The tragic death by suicide of a close friend in early 2015 saw you escalate your drinking.  Although you had trained as a butcher with a good work history, you were not working when you went to Shepparton in mid 2015.  Rather you and your half brother were daily drinking in destructive volumes.

3On 20 August 2015, you and your half brother drank a frightening amount of wine, beer and spirits, all by seven o'clock in the evening or thereabouts.  Around that time, you and your half brother were walking along various streets in Mooroopna.  You inexplicably were carrying a kitchen knife. 

4Two young victims, a couple, were innocently walking along the street heading for a meal.  You confronted them brandishing the knife and demanded money. The male victim told the young female victim to run and she did.  He, the male victim, also ran but of concern was that you chased him.  Of further concern is that you said, "Stop, or I'll cut your head off".  These were chilling words.

5Then you gave up and returned back to where your half brother was.  The police called and you were arrested shortly after.  You had thrown the knife away but it was recovered and I have seen photographs of it and it is truly frightening.

6You were remanded and remained in the police cells at Shepparton for 12 days.  As it turned out, you had a warrant out for failing to answer bail.  This was for a shop theft and for drunkenness offences.  You were brought before a magistrate and were fined.

7Your only other court appearances was when you were about 15 and the Children's Court magistrate discharged you, noting that you had done a program.  The offences there were for assault and criminal damage or damage to property.  I was told that you were on each occasion intoxicated.

8You are now 23.  Accordingly, you are still a young man and, in your case, one with limited criminal history.  You have a good work history and good prospects to get work as a butcher once these matters are finalised.  You have a supportive family and I read the letter from your brother, Mr Welsh.  You now live in Melbourne with another brother.  These are all important factors in me being confident that you can and will permanently rehabilitate.  But Mr Donahue, in the end it is up to you.

9Most importantly is your efforts since this offending and since your release to curb your problem with alcohol.  To my eyes you were heading towards alcoholism, a dreadful affliction and one to be avoided.  You have gained insight, sought help and I read the letter from the counsellor that had provided you with assistance, and you are now abstaining from drinking.  It has not been easy but you have to your significant credit persevered.  Your prospects are so much better without alcohol in your life.

10I have taken into account, your plea of guilty ultimately and your remorse.  The victim impact statement made it clear how frightened the male victim was and I infer that the female victim as well, and how he, the male victim, has become more recluse and moved away.  You are ashamed at the effect of your crimes upon the victim.

11The wielding of a knife in a public street and demanding money is serious criminality.  As your counsel conceded, just punishment must express denunciation of this criminality and must endeavour to deter others who might be minded to wield knives and demand money from people just going about their ordinary lives.

12Those two matters of denunciation and deterrence to others can be achieved by a sentence other than further incarceration.  You were in prison for 12 days and learned a hard lesson.  You are in my eyes unlikely to falter again.

13I indicated to you that, given all the circumstances of these crimes, and your subjective circumstances, they were such that I was not likely to impose more time if you pleaded guilty and with that indication you then pleaded guilty.  I had you assessed and unsurprisingly, you are suitable for a community corrections order.

14The new sentencing landscape in this State authorises a sentence such as a community corrections order for crimes that may in the past have seen gaol terms.  You are the very sort of young man who should remain out of gaol and continue your rehabilitation.  That can be achieved while simultaneously punishing you for your criminal conduct.  I have taken into account all the matters set out by your counsel in his comprehensive written and oral plea and taken into account the matters brought to my attention by the prosecution and his fair analysis of these matters.

15Doing the best I can, I impose the following penalty.  Will you please stand, Mr Donahue.  I intend to impose an aggregate sentence being a single community corrections order for the crime of attempted armed robbery and for the summary offence of what is described as an aggravated assault on the female victim.  So the aggregate term for those two offences is with conviction you are placed on a community corrections order for 18 months.

16You must do a number of things within that community corrections order to punish and to assist in rehabilitation.  You have to do unpaid community work and I set the figure of hours you must do, 180 hours.  You must engage in treatment and rehabilitation for problems that you have with drugs, mainly cannabis.  Importantly you must have treatment and rehabilitation for problems with alcohol.

17You must do what programs the Office of Corrections consider appropriate to reduce your risk of re-offending and you must be under the supervision of a Community Corrections Officer.  There is a number of other conditions that apply to every community corrections order.  Once the order is itself printed, I will go through each of those conditions and repeat the other conditions that apply just to you. That will happen in a moment.

18I have not imposed a gaol term, notwithstanding that you have done 12 days but the record, at least in my sentence, will note that you have done 12 days in prison but I do not declare that as pre-sentence detention because I have not imposed a sentence of imprisonment in all the circumstances.  It would be token to impose a sentence of 12 days and then declare it already served.

19The provisions of the law in this State to my eyes seem incomplete in the sense that I am not required by the provisions of s.6AAA to tell you what I would have done had you pleaded not guilty to the crime, given that I have only imposed a community corrections order but I intend to tell you nonetheless.  Had you pleaded not guilty to these offences and been found guilty of them, which I think was inevitable, then you would have received a term of imprisonment of 15 months, together with an 18 month community corrections order.

20As I have tried to make clear, gaol is a place that you should avoid at all costs.  You will never be the same.  So with those words I emphasise, and I will do that again, that the order that I have imposed upon you of a community corrections order is an order that you must comply with.  Should you not comply with each and every condition, then you will return back to me and I will look back to see the sorts of things that I have said to you about imprisonment.  In all likelihood that is where you will go.  Do you follow?

21OFFENDER:  Yes.

22HIS HONOUR:  This is your once chance.  There is an application made by the prosecution for an order forfeiting or disposing of the knife that you had and I will make that order.  All right, so the community corrections order that has been imposed is to last for 18 months from today until 29 September 2017.

23These are the conditions that apply to all community corrections orders.  They are you must not commit another offence for which you could be imprisoned during the time the orders are in force.  I hope I have not rushed that one.  You must not commit any further offence for which you could be imprisoned, even if the magistrate did not do that.  But if you committed an offence that is punishable by imprisonment, and almost every offence you can think of is, say for a parking fine or something, then you will come back before me and the chance that I have given you, the mercy that I have shown you will not be repeated.

24You must also comply with any obligations and requirements under the sentencing regulations.  They will need to know who you are.  They will take a photograph I think, that is what it is all about, so you have got to just cooperate with that process.  Do you follow that?

25OFFENDER:  Yes.

26HIS HONOUR:   You must report to and receive visits from the Office of Corrections.  You must report to the Community Corrections Centre.  It is near you, that is in Heidelberg.  Heidelberg Community Corrections Service is there on Burgundy Street in Heidelberg.  You have got to go there within two clear working days, do you follow?  Tomorrow might be a good day or at least on Monday.

27You must let a Community Corrections Officer know within two clear working days if you change your address or your job so if you get a job, tell them.  You must not leave Victoria without first getting permission to do so.  That is just anywhere across the border.  You must obey all lawful instructions of the Office Corrections.

28That applies to everyone, all those conditions.  What applies to you are these.  You must perform 180 hours of unpaid community work over the 18 months as directed by the Office of Corrections.  I just pause there, turn up when they tell you to, work through until it is time to go and head off and be back the next time.  Do not be like some of the people that just turn up when they think they have got some time up  their sleeve or turn up, they have got a headache or something they pretend they have got and they are slack about it.  Do not be one of them because I think you are someone who can do work, get it over and done with in addition to whatever paid employment you get and put it behind you.

29There may be people that you come across.  During the time of your unpaid community work, who might not be as committed to putting the breaking law or putting the criminal justice system out of their life.  They might not be as committed as I think you probably are.  Do not be taken in by them.  Do not run with them.

30You must be under the supervision of a Community Corrections Officer for 18 months.  That will require you attending and making sure you are doing what you are required.  You must undergo assessment and treatment for drug abuse.  You must undergo assessment including testing for alcohol abuse, that is important, and you must participate in any programs they think will help you reduce your risk of offending.  If you sign that order, that will bring the matter to an end.  You will get a copy of that, Mr Donahue, and once you have got that, you are free to go.  Is there anything else required in this matter?  No.  Thank you very much.

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