Director of Public Prosecutions v du Bont

[2017] VCC 1973

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00801

DIRECTOR OF PUBLIC PROSECUTIONS

v

LIAM DU BONT

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2017
DATE OF SENTENCE:	19 December 2017
CASE MAY BE CITED AS:	DPP v du Bont
MEDIUM NEUTRAL CITATION:	[2017] VCC 1973

REASONS FOR SENTENCE
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Subject:
Catchwords:              Aggravated burglary, criminal damage
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Lenthall	OPP
For the Accused	Ms H. Cooper	Leanne Warren & Associates

Pages 1 - 9

 

 

HER HONOUR: 

1Liam Hayden du Bont, you have pleaded guilty to one charge of aggravated burglary and criminal damage and one relevant summary charge.  The maximum penalties for these offences are 25 years, 10 years and two years or 240 penalty units respectively. 

2These offences were committed at your mother's house in Wheelers Hill in the early hours of 26 December 2016 when everyone was asleep in the house.  At the time of your offending, your mother, her boyfriend Eric Lecis and your 11-year-old sister, Alysia, were home. 

3You had not lived in this house since you were a teenager and were at the time living with your maternal grandparents.  You sporadically visited your mother's house, though your relationship with her was strained. 

4On 26 December 2016 at approximately 1.30 am, you went to your mother's house in your grandmother's car.  At the time, you were disqualified from driving.  Mr Lecis and your mother woke up to a loud crashing sound and could hear you threatening and swearing at Mr Lecis.  You went to the rear of the property and used a broom to break a large window, which you then crawled through and gained access to the property.  That is the conduct constituting Charges 1 and 2.  You injured yourself with the broken glass, resulting in a large laceration to your leg.  Your mother and sister ran out to their neighbour's house to seek refuge.  Meanwhile, Mr Lecis hid in the wardrobe and called the police.  You were yelling out when in the house that you were going to "get" Mr Lecis.  You dragged him out of the wardrobe and were extremely aggressive, threatening to knock him out while screaming in his face.  Your mother came back to the house and tried to push you away but you pushed her and she fled down the stairs.  You then headbutted Mr Lecis and you screamed to him you wanted the truth and threatened if he lied, there would be consequences.  Mr Lecis tried to calm you down, however you continued to abuse and assault him.  Police arrived at the house at 1.40 am and you were observed as being bare-chested and acting in an aggressive manner.  Police required OC spray to subdue you.  You were arrested and made a no comment interview.

5Since this incident, family violence orders have been taken out by Mr Lecis, your mother and your sister.  I was informed that you have not had contact with them for almost 12 months. 

6A victim impact statement was filed by the prosecution on behalf of Mr Lecis.  He described your offending as having a profound effect on his life and the relationship that he has with your mother.  He does not feel safe.  Your offending has clearly had an impact on him, your mother and your younger sister.

7You are currently aged 23.  You have an older brother.  Your parents separated when you were a baby and you had little contact with your father.  Your mother remarried when you were six and you had a very troubled relationship with your stepfather.  Your younger half-sister Alysha is currently aged 12 years.  Your stepfather brought three other children into the family unit.  Growing up in this environment you felt neglected and replaced by this other family.

8You and your brother moved in with your maternal grandparents when you were aged about 14 and 16 years.  Your relationship with your older brother is not good.  He has an intervention order against you and I understand he does not currently live with you and your grandparents.  Your mother and stepfather separated in the past year and it is noted your mother was in a different relationship at the time of this offending.

9I was informed that this offending was motivated by concerns of yours regarding Alysha and the existence of a relationship between your mother and Mr Lecis, which you had believed was not happening or that they were not together.  Although this does not excuse your offending, it does provide some explanation for it.  You were under the influence of alcohol and distressed at seeing Mr Lecis' car at your mother's home on Christmas night.

10Your counsel highlighted the context of this offending, that it was not planned and that you did not attend the house for the purpose of breaking in.  Rather, you reacted to seeing Mr Lecis' car outside the house in the early hours of the morning, in circumstances where your mother had told you she was not in a relationship with him.  Consideration of your history with your mother and inconsistent messages that you were getting, combined with your own alcohol consumption, place this offending in its proper context.

11You have a number of prior convictions.  These relate mainly to driving, dishonesty or are drug-related.  The most significant matter is your appearance at Moorabbin Magistrates' Court on 3 June 2014 for various offences including trafficking methylamphetamine, where the court placed you on a community correction order for 12 months, with conditions including assessment and treatment for drugs.  You successfully completed that community correction order.  Additionally, this was your third driving whilst disqualified offence in a very short period of time.  You were remanded in custody in respect of these matters on 26 December last year and granted bail on 13 January 2017.  That time in custody was no doubt a salutary experience for you.  When you were released on bail, you were part of the CISP remand outreach program, or CROP. 

12In a report dated 12 January 2017, you were to reside with your maternal grandparents but also to engage with your GP regarding mental health issues and you had a referral to Turning Point Alcohol and Drug Consortium.  I was informed that you had tried treatment or counselling since with two psychologists but that you felt that you were unable to engage with either of them or benefit from continuing with them.  You attended for assessment as required with Turning Point but when not required for further treatment.  You have been on bail for almost 12 months and have complied with all bail conditions including a curfew and reporting three times a week.  You have not committed any offences whilst on bail.

13I have some concerns relating to your mental health and as a consequence sought a psychological report from Forensicare with Dr Lauren Ducat, senior clinical and forensic psychologist, who prepared a report dated 12 December 2017.  She was of the view that you had experienced childhood rejection and abandonment by your mother.  She notes your upbringing appears to have been dysfunctional to an extent that you have never had appropriate modelling of communication skills, emotion regulation, social problem solving or security within relationships.  Further, that your emotional immaturity, impulsivity, poor ability to process through issues and problem solve in a more constructive way and a sense of powerlessness in your relationship with your mother, combined with the disinhibiting effects of alcohol, all are likely to have contributed to this offending.

14I take into account your plea of guilty; it was at the earliest opportunity.  There is a significant utilitarian benefit in the plea, saving the community the cost and inconvenience of a trial.  None of your family or Mr Lecis were required to give evidence and relive the terrifying events of that night.  Your plea is also indicative of your acceptance of responsibility for your actions and shows a willingness to facilitate the course of justice.  I accept that you are remorseful for your actions.  This is consistent with your plea of guilty and the evidence given by your grandmother, who continues to support you.

15Dr Ducat is also of the view that you have some insight into your offending and that you recognise the impact and consequences of your offending on family members.  This insight is also consistent with remorse.  You have no outstanding matters and have complied with your bail conditions for an extended period.  Dr Ducat assesses your risk of committing other violent offences as low, with a risk of other general offending as moderate.

16Given your history, I regard your rehabilitation prospects as fair, although it is important that services attempt to assist you to become more engaged in the community and to successfully engage in individual therapy in relation to a number of your issues.  It will be necessary to persevere, to find appropriate professionals who can assist you to deal with his significant personal issues.

17You do continue to have the support of your grandparents.  Cases such as yours reveal the tension between the significant sentencing principles of general deterrence, given the objective seriousness of your offending, and your young age.  However, as noted in Ghazi at paragraph 42,

"Whether a sentencing judge is called upon to temper the more punitive aspects of sentencing policy with leniency in the case of a very youthful offender, the discretion which is committed to the sentencing judge assumes a particular significance.  The sentencing judge must be afforded latitude as the permissible range of sentences must be sufficiently brought to accommodate that leniency." 

18I accept that your age, level of maturity and rehabilitation prospects are all important sentencing considerations.  There were some aggravating features of your offending.  That it occurred in the early hours of the morning when the occupants in the house where asleep.  It was in the context of an ongoing dispute with your mother and a volatile relationship with her.  You exposed your younger sister to his violence.

19General deterrence, just punishment and denunciation are all relevant sentencing considerations.  Specific deterrence has more limited application as, although you do have a criminal history, you have had a successful extended period on bail and your risk assessment for similar violent offending is low.  I note that you spent almost three weeks in custody on remand which undoubtedly had a deterring effect on you.  The prosecution referred to sentences for aggravated burglary, with particular reliance on Hogarth and related authorities regarding sentencing for home invasion type of offending with similar characteristics to your offending.  I take those authorities into account, though they are of limited assistance, given the different circumstances of each case and matters personal to an offender.

20As to disposition, your counsel argued that a community correction order could meet all sentencing considerations.  This was particularly so, given your progress when on bail, the time that you did spend in custody, that you are relatively young and all other matters in mitigation.

21The prosecution submitted that given the objective seriousness of this offending and the maximum penalty for aggravated burglary, you should be required to serve a further term of imprisonment.  It was submitted that a combined sentence and community correction order was outside the range of sentencing options.

22This was serious offending.  It would have been frightening for your family to hear you in the middle of the night breaking in and abusing, then assaulting
Mr Lecis in what appeared to be an alcohol-fuelled rage.  However, the objective seriousness of this offence must be balanced with your youth, plea, remorse and steps taken towards rehabilitation over the last 12 months or so.

23Taking all relevant sentencing considerations into account, I am of the view that all sentencing purposes can be met by the imposition of the community correction order.  Having received a favourable report from the Office of Corrections, I am minded to make such an order.  I understand that the conditions and requirements of the order have been explained to you and that you understand those obligations.

24Further, you understand the consequences of you failing to meet those obligations, have been explained to you, and you understand what will happen if you do not do what is required under the order.  To be clear, you will come back before me for resentencing for these offendings and my options will be much more limited in what I can do.

25In respect of the community correction order, what I propose to do is make a community correction order for a period of three years and impose the conditions as indicated in the report that was provided to me, that is; community work, you will be required to do 100 hours community work; there will be treatment and rehabilitation in relation to mental health; there will be a condition regarding treatment and rehabilitation in relation to programs to reduce the chance of you reoffending; there will be a supervision condition; there will also be a judicial monitoring condition.

26I will have you come back before me in about six months' time.  So, I will have you come back before me on Monday 25 June at 9.30.  That really is to ensure, for my purposes, that things are proceeding reasonably well,
Mr du Bont. Application has been made for a forensic sample order; pursuant to s.464ZF(2) of the Crimes Act I order that you undergo a forensic procedure for the taking of a scraping from the mouth until the sample of sufficient standard is obtained for the placement on a database.

27I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of a police officer, then the sample will be a blood sample and police can use reasonable force to enable that forensic procedure to be conducted.

28Pursuant s.28(1)(b) of the Road Safety Act, the court may further cancel and disqualify you from holding your driver's licence for a period it thinks fit.  Now, I understand that you already were disqualified and that disqualification period finished on 15 October 2017, is that correct?  So are you currently disqualified?

29MS COOPER:  Your Honour, if I can assist.

30HER HONOUR:  Yes. 

31MS COOPER:  He is not currently disqualified but there was a condition of bail imposed on 13 January not to drive.

32HER HONOUR:  All right.

33MS COOPER:  But disqualification did end in October so he is entitled to apply for his licence again, as I understand it.

34HER HONOUR:  Yes. 

35MS COOPER:  But he has not been able to drive because of his bail conditions.

36HER HONOUR:  Conditions, but if I disqualify him for another period of six months, he will not be able to apply for another six months, will he?

37MS COOPER:  I think that is correct, yes.

38HER HONOUR:  Yes.  That is what I am proposing to do, is disqualify you from obtaining any further licences for another six months.  Now, Mr du Bont, this was very serious offending and it is unusual to receive a community correction order in these circumstances.

39One of the things that influenced me was the fact that you did have a period of three weeks in custody and I will make sure that that is noted on the court records.  It is not formally PSD but I am hoping that that experience was such to deter you from engaging in such conduct anymore and also that you can get some assistance from the people at corrections in relation to dealing with some of your issues.

40I remember that your grandmother was saying that you do not do much at home.  You need to start doing things.  You need to start rebuilding your life.  Hopefully, this will give you the opportunity to do so.  Is there anything else I need to do?

41COUNSEL:  No, Your Honour.

42HER HONOUR:  I will just sign this order.  Could you explain the order please, to Mr du Bont?  I am sure you have already explained in theory about it but he will need to sign that now.

43MS COOPER:  Yes, Your Honour. 

44HER HONOUR:  If you can assist, thank you.

45MS COOPER:  Is this your signature?

46OFFENDER:  Yeah.

47MS COOPER:  Thank you.

48HER HONOUR:  Thank you.  Just adjourn until tomorrow, please.

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