Director of Public Prosecutions v Donnell

[2017] VCC 954

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00096

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAIMON DONNELL

---

JUDGE:	HIS HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 July 2017
CASE MAY BE CITED AS:	DPP v Donnell
MEDIUM NEUTRAL CITATION:	[2017] VCC 954

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Nicholson
For the Accused	Mr A. Rooney

Pages 1 - 9

 

 

HIS HONOUR: 

1Daimon Donnell, you are to be sentenced for one charge of aggravated burglary, two charges of assault and one charge of theft.  Maximum sentences are 25 years' imprisonment for aggravated burglary, five years' imprisonment for assault and ten years' imprisonment for theft. 

2You pleaded guilty before me on 8 March 2017.  When interviewed by police on 4, 5 and 6 September 2016, you made admissions of a peripheral kind, but essentially you denied the offending.  The committal went by hand-up brief on 24 January 2017, after which you entered a plea of guilty.  The matter was then listed for plea in this court. 

3You receive the benefit of your plea of guilty, which was early,  and the level of cooperation  that short history of the proceeding shows.  Your plea has facillitated the interests of justice.  I accept that you are genuinely remorseful.

4At your plea hearing, which ran on 8 March and 6 July, Mr O'Doherty for the Crown tendered a written Crown opening.  Ms Piggott for you tendered the psychological report of David Ball,  dated 10 February 2017, the report dated 18 November 2016 of Stephanie Barnfield of the Magistrates' Court Integrated Services Bail Program, the letter of Samantha Dutton, mother of your partner Chantelle Walters, a certificate related to the Aboriginal language course you have completed in remand custody and Ms Piggott's summary of defence plea submissions.

5On 8 March I requested reports under s.80 of the Sentencing Act.  I have received a client overview report and justice plan by Kerryn Cua of Disability Client Services in the Department of Health and Human Services and the pre-sentence assessment report by Gabrielle McLeod of Mildura Correctional Services.

6The circumstances of your offending are set out in the tendered Crown opening, which is tendered as Exhibit A.  My own summary may therefore be shorter. 

7In September 2016, you were 19 and had recently moved to live with the family of your partner: Chantelle Walters.  You have suffered a particularly deprived and damaging early life.  Although supported by Chantelle Walters and her family, you were still using Ice amphetamine.  You had known David Eastwell since your childhood in the general Mildura area.  You had been friends, but there had been a falling out.

8On 4 September 2016, you went to his home in Mildura a number of times during that day.  Your grievance is not made clear and it would seem to me not important.  Two visits did not lead to offending.  However, at about 8.30 pm, you went back with two still unidentified males.  You were or had become drug affected.  Two of you group forced entry.  The three of you went inside.  You began to hit Eastwell in the legs with a baseball bat.  Your face was masked.  However, perhaps unsurprisingly, given the background to this, Eastwell recognised your voice.  One of the others demanded money of Eastwell's father Graeme.  A person named Dianne Bush was struck to the arm by another male with the handle of a knife and pushed back into her bedroom.

9Further demands were made.  Graeme Eastwell produced and was robbed of $3,500 in cash.  It was taken by one of the other men.  Upon final arrest of you on 6 September, police found $680.  You had told police when interviewed on 4 September that you knew that Graeme Eastwell would have a large amount of money on him. 

10No victim impact statements have been tendered.  However, there can be little doubt that your victims were very frightened.  David Eastwell suffered pain to his left foot and ankle.

11You are now aged 20 and await this sentence in remand custody.  That has been in the adult prison system for about ten months.  You were 19 at the time of offending.

12As I have said, your early life has been particularly deprived and damaging to you, as outlined in the tendered summary of submissions by Ms Piggott and the psychological report of David Ball.  You do not know your father.  Your mother suffered ill health and drug and alcohol addiction.  You have three older siblings.

13Your situation and early life led to child protection involvement at ten years.  Your family home had burned down.  You had suffered burns.  In that system, you were moved from place and "family to family."  There was physical and sexual abuse.  There were group homes.  There was foster care and so-called residential care.  Schooling was inconsistent and markedly unsuccessful.  You are illiterate in terms of writing and numeracy.  You are assessed as intellectually disabled with a measured intelligence quotient of 63 and have now, notably since the adjournment in March, become a client of Disability Client Services.  In 2011, you were diagnosed with epilepsy.  That has not been reviewed in some years.

14You were before the courts when hardly 11.  You began using drugs at 15, Ice amphetamine at 17.  In my view, your criminal record reflects your personal history.  It is extensive.  Offences of dishonesty are predominant, rather than violence.  By 2014, there was Youth Justice detention.  As stated, you have been in adult remand custody since this offending.

15You have known Chantelle Walters since 2013.  You began a relation in June 2016.  I was told that she and her family are law abiding and socially functional people.  They remain, despite this offending, supportive of you.  You can again live with them upon parole release.  You had begun to do so a very short time before this offending.  It was their attempt to assist you to stop using drugs.  I found Ms Dutton's tendered letter helpful, generous and insightful.

16This was serious, violent, markedly antisocial and, without doubt, frightening offending.  The offence of aggravated burglary carries a maximum sentence of 25 years.  As stated, you have an extensive prior criminal history.  Such circumstances make relevant the sentencing purposes and considerations of both general and specific deterrence, moral culpability, condemnation of the offending and the need for proportionate punishment.  Community protection is relevant.

17The offence of aggravated burglary in circumstances such as this usually attracts prison sentences of considerable length.  However, in your case, I see a number of factors which moderate adverse sentencing considerations and should go to reduce your sentence.  They also impact upon how and where it should be served.  These include the following matters.

18Your plea of guilty and cooperation.  The tendered reports and other materials persuade me that you are genuinely remorseful.

19You are young and rehabilitation remains an important purpose.

20Your personal circumstances and history are also important.  The particularly harsh deprivation of your early life, as I see it, the principles stated in such cases as the High Court judgment of Bugmy relevant.  Thus far, you have been given little chance in life.  That you became socially isolated and began using drugs as a teenager was, in my view, very much a result of that.

21I also take into account, as a part of this, your intellectual disability.  It does not remove, but should, to some extent, moderate the importance of such sentencing considerations as deterrence.  I see your disability not in isolation.  It is a part of the great disadvantage of your general situation.

22The question of your prospects for rehabilitation is difficult.  There are reasons to be pessimistic.  However, you have support.  The tendered reports and other materials persuade me that you truly wish to do so and to have a better life.  You should be given the opportunity of that,  other than in the atmosphere of an adult prison.

23As raised with counsel on 6 July, I see the appropriate sentence to be Youth Justice detention.  My expectation is that the services and assistance proposed in the Disability Client Services and community correctional services reports I have received will be a part of your youth parole.  Those materials will be forwarded to custodial services and youth justice.  I would hope, for example, that Disability Client Services will maintain and enhance a relationship with you whilst in custody.

24I have received the report of Steven Riordon, senior Youth Justice court advisor. You are found suitable for Youth Justice detention under s.32 of the Sentencing Act.  You presented to Mr Reardon with strong motivation to engage in the programs and services available.  Stand up please?

25I sentence you as follows.  On Charge 1, aggravated burglary, you are sentenced to two years' Youth Justice detention.  On Charges 2 and 3, assault, you are sentenced to six months' Youth Justice detention on each.  On Charge 4, theft, you are sentenced to six months' Youth Justice detention.

26I direct that two months of each of the sentences for Charges 2, 3 and 4 be served cumulatively upon the sentence for Charge 1 and each other.  That is a total effective sentence of two and a half years of youth justice detention.  I declare under s.35 of the Sentencing Act 313 days of pre-sentence detention already served.  Had you not pleaded guilty I would have imposed a sentence of three years, with a minimum term of two years, but in adult prison and you may reflect on this,  it does not necessarily follow that you would have got parole in the adult system.

27Now, you will very likely get parole in the youth system and when you are released on parole will depend on how well you prepare for that.  What you need to do is think hard about what you are going to do when you are released into the community and you need to be willing to do the things arranged to help you.

28Now, members of your family have travelled a long distance to be here today.  They, Chantelle Walters and her family must think that you are basically a decent fellow.  What you must do now is show people that you are a decent fellow.  Good luck with that.  What else do I need to do?  Take a seat now.  What else do I need to do?

29MR ROONEY:  Your Honour, there was a disposal order application.

30HIS HONOUR:  Have you got that?  I'll sign it.

31MR ROONEY:  Look, Your Honour, I do.

32HIS HONOUR:  If you haven't, you can send it on Mr ‑ ‑ ‑

33MR ROONEY:  I do have it.  I'll just have to ‑ ‑ ‑

34HIS HONOUR:  All right.

35MR ROONEY:  I thought it was filed and there was also a compensation order application that was made.

36HIS HONOUR:  All right.  Well, is the compensation order a document that I have to serve, or ‑ ‑ ‑

37MR ROONEY:  It's just a document that Your Honour needs to sign, if Your Honour's ‑ ‑ ‑

38HIS HONOUR:  Sign, I'm sorry, yes.

39MR ROONEY:  Yes.

40HIS HONOUR:  It would have been more convenient for you to send them on.  I'll make the orders.

41MR ROONEY:  Yes, I've got them.

42HIS HONOUR:  Oh, you've got them here?  We can hand - one's a compensation order.  What's that for?  Damage to the ‑ ‑ ‑

43MR ROONEY:  It's the three and a half thousand ‑ ‑ ‑

44HIS HONOUR:  I see, yes.  I'll sign those orders now and that's a forfeiture or disposal order in respect of the knife and I'll sign the compensation order - and I'll sign that now and that's the compensation in respect of the $3,500 that was stolen.

45Now Ms Nicholson, I was told the other day, I think, that his present custodial situation is going to be raised at the Magistrates' Court, because there's a - are there pending matters?  Have I got that right?

46MS NICHOLSON:  Your Honour, unfortunately I don't have instructions about that.  My brief is to attend the sentence only ‑ ‑ ‑

47HIS HONOUR:  Yes.

48MS NICHOLSON:  ‑ ‑ ‑ but I will follow that up and ‑ ‑ ‑

49HIS HONOUR:  Yes.  I think I've got it right.  Do you have some matters in the Magistrates' Court soon?

50PRISONER:  No, I've already had them dealt with.

51HIS HONOUR:  All right.  No, I'm confusing you with somebody else, I am sorry.  So, you've got a clear road ahead, have you?

52PRISONER:  Yes.

53HIS HONOUR:  Do you think you can do it?

54PRISONER:  Yes.

55HIS HONOUR:  Well, you've got some help now.  You know what I think the trick to parole is?  I sit on the Youth Parole Board.  The trick to it is to make sure you let people know what's going on, particularly if you think you're slipping.  Particularly if something bad happens.  That's the time you've got to let the people that are helping you know.  Guys who do that get through their parole.  The people who just stick their head in the sand and don't tell people when it's going badly, they don't get through.  So, if you can do that you've got a chance.

56All right, well, I think a lot of people hope you do get through and think you can.  All right, well, good luck.  He can be taken into custody.

57MR ROONEY:  Your Honour, could I just raise one minor - sorry?

58HIS HONOUR:  Sorry, just wait for a moment there?

59MR ROONEY:  Look, it just might be prudent that Your Honour simply explains that the compensation order has been made, because it wasn't ‑ ‑ ‑

60HIS HONOUR:  Yes.

61MR ROONEY:  It's to pay Graeme Eastwell.

62HIS HONOUR:  Yes.  A compensation order has been made for the money that has been stolen from Mr Eastwell, all right?

63PRISONER:  Yes.

64HIS HONOUR:  You understand that?  Now, your solicitor will talk to you about that.  Oh, do you want to speak to him briefly?  You've come a long way?  Do you want to speak to him?

65MS NICHOLSON:  If His Honour ‑ ‑ ‑

66HIS HONOUR:  Oh, wait, it can only be very short.  Are you his sisters, are you?

67VOICE (from body of the court):  Sister.

68HIS HONOUR:  Sister.

69VOICE (from body of the court): I'm his brother's partner.

70HIS HONOUR:  All right.  Do you want to briefly speak to him?  You can.  You don't have to.

71MS NICHOLSON:  I'm going to go see him now once we're done and then I'll come and have a chat to you.  Let you know what's happening with him.

72HIS HONOUR:  All right, there we go.  Good, thank you.

- - -