Director of Public Prosecutions v Drinan

[2019] VCC 469

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

AT GEELONG
CRIMINAL JURISDICTION

CR 19-00202

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW DRINAN

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Geelong
DATE OF HEARING:	4 April 2019
DATE OF SENTENCE:	4 April 2019
CASE MAY BE CITED AS:	DPP v Drinan
MEDIUM NEUTRAL CITATION:	[2019] VCC 469

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 D.  HANNAN
For the Accused	MR M. BRENNAN

1HIS HONOUR:  I am going to impose a sentence of eight months, but declare 161 days - I see that as a little over two months to go - but also impose a community corrections order on you.  I have told you that now so you do not have to wait.  I ask you to listen courteously to my reasons for that, and then I will formally sentence you.

2It is eight months with 161 days declared and then a two-year community corrections order.  

3Matthew Thomas Drinan, you are to be sentenced for one charge of armed robbery.  The maximum sentence is 25 years' imprisonment.  You pleaded guilty before me on 28 March.  When interviewed by police on 26 October 2018, you exercised your right to silence.  Committal went by hand-up brief on 1 February 2019, after which you entered a plea of guilty.  The matter was then listed for plea hearing in this court.

4You receive the benefit of your plea of guilty and that level of cooperation.  Your plea was early. You have facilitated the interests of justice.  The plea hearing and now my sentence of you is little over six months after your offending, arrest and interview.  I find that you are remorseful. 

5At that plea hearing, which also ran on 28 March, Ms Coombs for the Crown tendered a written summary of prosecution opening; CCTV footage of your offence, a prosecution summary of offending by you in Orange, New South Wales, in 2006, arising out of which you were sentenced to imprisonment for three years and ten months;  and the prosecution summary dated 20 July 2018 for proceedings in which you were the alleged victim.  You suffered serious injuries.  This happened in October 2017.  I was told that the accused in that matter raised self-defence and was acquitted.

6Mr Brennan, for you, tendered a large number of letters of work and character reference; certificates related to rehabilitation programs you have undertaken in remand custody; and the letter of Corallane,  Pohlman,  Aboriginal post-release and transition post worker at Ravenhall Corrections Centre.  Mr Brennan called your wife, Louise Gersbach, to give evidence on your behalf.  I spelt Gersbach, Mr Brennan, G-e-r-s-b-a-c-h, but it seems to be spelt otherwise in other various documents.  Is that the correct spelling?

7MR BRENNAN:  My understanding is the one that Your Honour just set out.

8HIS HONOUR:  G-e-r-s-b-a-c-h?

9MR BRENNAN:  Yes.

10HIS HONOUR:  Mr Brennan called your wife, Louise Gersbach, to give evidence on your behalf.  He provided a written outline of plea submissions. 

11I have also been provided with cases of comparative sentencing and the relevant Sentencing Advisory Council snapshot document for 2012 to 2017. 

12The circumstances of your offending are set out in a tendered Crown opening, which is Exhibit A.  My own summary may therefore be short.  It is also informed by matters put on your behalf, not challenged by the Crown.

13In October 2018, you were working in the Apollo Bay area in traffic management.  This was away from your family home in Koroit.  You have been a problematic drinker over many years.  This has, to quote Mr Brennan, "ebbed and flowed."  You drinking was, at best put, increased at this time.

14You had gone to the Apollo Bay Hotel with workmates.  Your victim, Scott Jenkins, came to the hotel at about 9.30 with a friend.  You and another joined him for a time in the beer garden.  You were drunk.  This is even apparent in the tendered CCTV footage.  Others seemed to have moved away, including Scott Jenkins' companion.  I put this down to your intoxication.  Scott Jenkins went to leave.  There seems to have been nothing confrontational to this point; however you grabbed at and took hold of his beanie, which he held in his hand.

15He refused to let you have it.  You continued to demand he give it up.  After a time, relatively short, you threatened to glass him.  You smashed a beer glass or mug on the nearby table.  On my interpretation of the CCTV footage, you held it out at arm's length but not proffered forward and,  in that way, directly toward him; rather your arm was extended almost laterally to him.  However, the broken edges faced him at a distance of about 1 metre.  I find that he would have felt that a quick movement by you and the glass toward him was very possible and very dangerous.  Perhaps I will put that better.  I find that he would have felt that a quick movement by you and the glass toward him was very possible and very harmful.

16Scott Jenkins' police statement is consistent with this.  He felt, he says, scared and threatened.  He released his hold on the beanie and left the beer garden.  He remained for a time in the hotel, during which he spoke to the management.

17Scott Jenkins declined to make a victim impact statement.  His police statement evidences some concern about the consequence of complaint to the police.  You did not know each other.

18As I remarked at the plea hearing, the CCTV footage presents Scott Jenkins as apparently calm and resilient throughout all of this.  This can be explained by the shortcomings of such film.  As I also stated, facing the broken edges of a beer glass in such circumstances must be a very frightening experience.  Your intoxication explains the blunt stupidity of what you did;  however, this is also a case in which that intoxication would almost certainly have increased Scott Jenkins' apprehensions.

19You are a 31-year-old man,  presently awaiting this sentence in remand custody.  You and your family moved from Queensland to the Warrnambool area in 2017.  Your wife and children live in Koroit.  Your family is very supportive of you.  Members, including your mother and wife, attended court.  You will return to live with your wife and four young children upon release from prison.  The children are aged 16 months to 11 years. 

20You are an Aboriginal man on your mother's side and have strong connection to that.  Your grandfather was a Wiradjuri elder in the Orange area. 

21You left school after Year 9.  Despite poor literacy and numeracy, you have worked, it seems consistently, employed in such jobs as fruit picking, landscaping, for a mechanical workshop, painting.  You have a number of trade tickets, including for industrial and construction machinery. 

22You met your wife in 2005 at age 17.  The family moved to Queensland in about 2011 and then relocated to Victoria in 2017.

23Your mother raised you alone from the age of six.  As a child you had limited contact with your father, but there has been renewed contact since you were a teenager.  I was told that he is a heavy drinker.

24Your criminal record states a number of court appearances between March 2006, when 17, and August 2016.  Some are for driving and so called "street offences".  Most relevant is that on 14 June 2017, at 18, you were sentenced for malicious wounding to imprisonment for three years and ten months with a non-parole period of 22 months.  As earlier stated, there is tendered the police summary of that offending.  You stabbed an associate with a hunting knife, seriously injuring him.  You were drinking.  This is clearly a relevant conviction albeit the offending happened now about 13 years ago when you were young.  It was after serving this sentence that your family moved to Queensland.  You worked there as a tree lopper.  Mr Brennan made the point that your offending has lessened in frequency and violence since 2007.

25The problem with alcohol has remained.  You and your wife state periods of abstinence.  In my view, cross-examination of your wife showed, rather, times of reduction and control.  You have also abused drugs such as cannabis and methylamphetamine; however, your main and damaging dependence is alcohol.

26In October 2017, you were the victim of a stabbing at your home.  You suffered serious injuries, including to your groin and liver.  As I earlier stated, the perpetrator was acquitted after raising self-defence.  I have read the relevant prosecution summary.  It reflects the serious nature of your injuries and that you were drinking.  Your wife stated that this occurred in the context of a visit from interstate by your father.  That the accused was acquitted should not be seen as a matter adverse to you on this sentence.

27I accept that there was a psychological reaction to these injuries.  You began to drink more heavily.  It seems that you were doing so, working away from home when you committed this offence.  You take medication for depression in custody.

28You have been in that custody for over five months, placed at Ravenhall Correction Centre.  You have undertaken rehabilitation programs and work as a laundry billet.  You have also connected with Aboriginal programs in prison, as evidenced by Corallane Pohlman's tendered letter.  Arising out of this, there is available post-release support of you for 12 months after you leave prison.  You will have a support worker.

29I accept that you are close to your children and that, as your wife stated in evidence, you are a good father.  Separation from your family has made imprisonment harder; for example, your youngest is now only 16 months old.  Your wife and children can be seen as a motivation to rehabilitate.  You present to me as a man who can function well if you do not drink.

30As my earlier description seeks to show, this was serious offending.  Armed robbery attracts a high maximum sentence.  I accept, however, that serious factors, often present in this crime are not,  here.  I do not seek to minimise the impact upon your victim.   That you were intoxicated does not mitigate your offence.  You have prior convictions, one,  albeit of some age,  is particularly relevant.  .

31Such circumstances make relevant sentencing considerations of deterrence - that is, both general and specific deterrence - your moral culpability despite intoxication, the need to condemn what you did and proportionally punish it.  A sentence at least entailing a component of imprisonment is necessary.

32However, there are also moderating factors which should go  to reduce the length of sentence and to affect the way it is served.  They include the following matters. 

33(1)    Your plea of guilty and cooperation.   

34(2)   To some extent, the circumstances of offending.

35(3)  Your personal history and circumstances.

36(4)   I see you as capable of rehabilitation.   You have family support and good capacity to work.  The character reference evidence speaks well of qualities you have.  In my view, the success at the rest of your life and the welfare of your family will depend on your ability to manage your alcohol problem.  Your life has reached the question of whether you should drink at all. 

37I have considered the comparative cases provided and the sentencing snapshot document. .  I also bear in mind the need to sentence individually to the case.  I see that as having particular relevance here.

38Mr Brennan submitted that I should impose a sentence combining a period of imprisonment and a community corrections order.  You have been found suitable for a community corrections order.  I have decided that this is the appropriate sentence.  The community corrections order will contain both punitive and rehabilitative conditions.  Accordingly, the element of punishment will continue beyond your release from prison. 

39Having considered and weighed what I see to be development matters, I sentence you as follows.  Stand up, please.

40On one charge of armed robbery, you are sentenced to eight months' imprisonment.  I declare as pre-sentence detention already served 161 days of that.  I also convict you and impose a community corrections order.  It will be of two years' duration, beginning after you leave prison.  The usual terms apply.  The additional conditions are that you perform in that time 300 hours of unpaid community work,  that you be assessed and treated for alcohol abuse, that you be assessed and treated for drug abuse, that there be supervision and that you undertake, if required, specific programs to reduce reoffending of this kind.

41Now, what else do I need in there?  I need to state a s.6AAA.

42MR BRENNAN:  Section 6AAA.

43HIS HONOUR:  Yes.  Take a seat for the moment.

44MR BRENNAN:  Your Honour, can I also inquire in relation to the community correction order, there was a suggestion by corrections that some or all of the hours of treatment can be credited towards work hours?  Is that Your Honour's intention?

45HIS HONOUR:  Was that suggested?  I didn't pick that up.

46MR BRENNAN:  It is.  I think right at the end.  It'll be on the second page, I think.  

47HIS HONOUR:  Yes.  I would provide that 50 hours of program work can be set off against the 300 hours' community.

48MR BRENNAN:  As Your Honour pleases.

49HIS HONOUR:  Had you not pleaded guilty, I would have imposed a sentence of three and a half years with a minimum of two years.  Parole wouldn't have been guaranteed.  So, you can do the arithmetic.  All right.  What else do I need to do, Mr Hannan?

50MR HANNAN:  Disposal order?

51HIS HONOUR:  Yes.

52MR HANNAN:  That's sought.

53HIS HONOUR:  Have you got that there?

54MR HANNAN:  Yes.  We do.  It's for a shirt.

55HIS HONOUR:  It's for the - what?  It's going to take a little time to print out the order because the electronic system has broken down in Melbourne.  That sometimes happens.  All right.  We'll just have to wait for that to be fixed up.  You've got to enter the paper work.  I'm signing the disposal order.  Is that - what's that?  A shirt he was wearing, was it?

56MR HANNAN:  Yes.

57HIS HONOUR:  Yes.

58MR HANNAN:  It was seized.

59HIS HONOUR:  (Indistinct words.)  Nothing else?

60MR HANNAN:  No.

61HIS HONOUR:  All right.  I'll hand that down.  We'll just see how that - have they given you any idea, Ms Merrington, of how long it's going to take to fix it up?

62MS MERRINGTON:  No, it was not working yesterday.  And I thought it was fixed, but it's ‑ ‑ ‑ 

63HIS HONOUR:  Ms Cummins, is it?  Is your name Cummins?  You're his mother?

64MS CUMMINS:  Yes.

65HIS HONOUR:  Yes.

66MS CUMMINS:  I'm Mathew's mother and that's his brother.

67HIS HONOUR:  Yes, you've travelled some distance, I suppose.

68MS CUMMINS:  From Orange.

69HIS HONOUR:  Yes, so you want to get going.  All right.  Well, I was going to - you could stand it down until later in the day, but I think I'll wait.  No sign of (indistinct)?

70MS MERRINGTON:  No, I'll have to ‑ ‑ ‑ 

71HIS HONOUR:  I'm sorry about this.  Sometimes the electronic systems provided to our system don't work very well.  You want to get going as soon as possible, I take it?

72MS CUMMINS:  Can I just go and see him?

73HIS HONOUR:  You can, yes.  And what I'll - I'll return him to custody and then bring him back to do the paperwork, but I'll allow you to briefly speak to him - if you could, Mr Brennan, and his brother.  I'll remain here whilst I have - it must be short, though.

74MS CUMMINS:  I see.  Thank you very much.

75HIS HONOUR:  Well, we'll move on with the other stuff.  I mean, that's as annoying as it breaking down.  So, we'll ‑ ‑ ‑

76MS MERRINGTON:  Yes, I know.  (Indistinct) you don't want me to ‑ ‑ ‑

77HIS HONOUR:  Yes, well, we'll fix that up later.  All right.  Now, he'll need to be brought back to enter those documents later today when the system is fixed up.  All right.  But he'll be taken to custody now, but we'll send you notice.

78MR BRENNAN:  As Your Honour pleases.

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