Director of Public Prosecutions v Dumesny

[2021] VCC 2079

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-01956

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEIGH DUMESNY

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2021
DATE OF SENTENCE:	16 December 2021
CASE MAY BE CITED AS:	DPP v Dumesny
MEDIUM NEUTRAL CITATION:	[2021] VCC 2079

REASONS FOR SENTENCE

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Subject:                 Criminal Law – Sentence upon plea of guilty

Catchwords:          Intentionally damaging property – Aggravated burglary – Make threats

to kill – Covid-19 Delay – early plea of guilty – extensive criminal history

- mid to lower level of seriousness – complex post-traumatic stress

disorder and a borderline personality disorder -

Legislation Cited:

Cases Cited:        Bugmy v The Queen (2013) 87 ALJR 1022.

Sentence:            Community Corrections Order for 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A.J. Moore	Mr J. Mighell
For the Accused	Ms H. Lyons	Mr A. Paull

HIS HONOUR: 

1Leigh Dumesny, you have pleaded guilty to one charge of intentionally damaging property, a rolled-up charge, aggravated burglary and make threats to kill.  The circumstances of your offending are outlined in the prosecution summary upon the plea and was exhibited. The offending occurred in the afternoon and evening of 19 February 2020.  It is agreed that on that occasion you went into a house in Horsham which was the home of one James Ellis.  You were looking for him but at the time another person, Kayla Winters, was there.

2While there you damaged property belonging to Ellis and left.  You had gone to collect the CCTV system you had purchased from Winters about a year before.  You walked through the house to the backyard.  You used a road street sign which was hanging from a wall at the property and used it to smash an antique radio belonging to Ellis.  Back inside the house you used a hockey stick you found there to smash a CCTV camera located over the front door.  You returned that evening and spoke to Winters in which you discussed when Ellis would return home and at about 9.30 pm you messaged Winters to say you were again on your way to collect four cigarettes she owed you.

3Ellis believed this to be a ruse to come around and assault him and Winters and they barricaded the front door which they locked and placed the tennis table in front of it.  All the lights were turned off.  They observed you approach the house and you then began stomping on the balcony and yelled, 'Wake up you dog, you're dead'.  You kicked the door 8 to 10 times and eventually kicked it in.  You entered the property and as you did so Ellis went out via the back door and he jumped over the fence. Police arrested you in the backyard of the property.  You were placed into the police van in handcuffs. 

4When Ellis returned to the property with his mother, you yelled out from the divisional van, 'Write his fucking eulogy, hope you fucking enjoy it'.  Police interviewed you on 20 February.  You told police that Ellis had spread the rumour that you were drugging Winters' ex-partner in order to sleep with Winters.  You wanted to speak to Ellis out of concern for Winters and that Ellis had been tampering with Winters' car.

5You told police that prior to returning to the house in the evening you had had three or four cans of Jack Daniel's.  You said Ellis threatened you with a home-made gun and that you could not recall the incident though you went out of concern for Winters and to make Ellis run.  You were remanded on that day and you were bailed on 16 July 2021.  There are 147 pre-sentence detention days to be reckoned as having been served, about five months.

6Mr Ellis' mother made a victim impact statement which was tendered to the court.  She wrote that her son has become anxious and withdraw and lives with her because he feels too vulnerable to live on his own and he is in constant fear.  She herself is not hypervigilant and paranoid, especially at night and her health has deteriorated.  She has felt the consequences of your behaviour and feels that the damage to her son's wellbeing are ongoing and irrevocable.

7You pleaded guilty in September 2021 before evidence was called at the committal.  There had been delay from the first committal in November 2020 when it was adjourned probably because of the pandemic situation prevailing at the time.  Ms Winters had been examined in October 2020.  I take your plea into account.  Given the circumstances of this period of time, I am prepared to say that it was made at the earliest opportunity. 

8Plea has the utilitarian value of having avoided a criminal trial which is important.  It must be given significant weight in this time of pandemic when the justice system is burdened with significant delays and its ability to deliver its outcomes.  The early plea and the utilitarian value are important.  The fact that the plea is made in a time of pandemic restrictions with prospects of imprisonment is also to be accorded appropriate weight.  I take these matters into account in determining if the sentence will be reduced because of your plea of guilty in a palpable way.

9The time which you have already served in my view also are part of the considerations which I should give some weight to beyond the period of reclusion given that the five months were in large part served at a time when the prisons would have been impacted by restrictions, quarantine periods and lockdowns, restricted visits and programs, restrictions on movements and vocational rehabilitative work at the prison.

10The property damage which you brought about concerned a radio, a closed-circuit television camera and the front door.  This damage caused on a person's property is an unacceptable and deplorable show of violence which is totally unacceptable.  The entry in the knowledge of a person present with an intent to assault is a serious offence and carries the maximum penalty of 25 years for aggravated burglary.  And 10 years for the make threat to kill.  These maximums reflect the seriousness with which the legislators have viewed this kind of offending and an important aspect which must be taken into account in the instinctive synthesis.

11Such offending must of necessity invoke general deterrence as a primary principle of sentencing together with just punishment to denounce such behaviour.  Aggravated burglary is a particular insidious crime breaching as it does the integrity of a person's house where they are entitled to feel secure and protected.  These offences cause consternation and concern for the community and their prevalence is to be addressed by appropriate sentences.  It was noted during the plea that there were certain aspects of aggravation which were not present in this offence in that there were no weapons involved and fortunately no physical injuries to anyone.

12Nevertheless, the victim impact statement of Ms Ellis reflects the fear engendered by the threat made and the fear generated by the entry into the home.  The damage was not great but no doubt had a cost inconvenience and would also have been accompanied by fear.  The prosecution for its part agreed fairly that this offending - excuse me.  That this offending was not at the time end of the scale but rather, 'In the mid to lower level of that scale'.

13It was also fairly conceded by the learned prosecutor that the documents presented at the plea on your behalf gave a different complexion to the plea with a number of considerations which not only brought into operation some of the Verdins' limbs in this case but which probably reduced, to an extent, your moral culpability in view of the opinions received which I shall refer to in a moment.  Although the offending is troubling, the prosecution agreed that it was appropriate to have a detailed assessment made by Corrections as to the suitability for a community order and I will return to that in a moment. 

14I take your personal circumstances into account.  You are 43 years of age and raised in Horsham.  Your childhood was a difficult period marked by your father's violence to you and your mother.  Your elderly mother has recently been diagnosed with cancer.  Your father died in 2007.  You have four brothers and a sister with whom you have some occasional contact.  Between 1999 and 2011 you had two sons and a daughter with whom you have had no contact for over four years due to an intervention order which expires next year.

15The considerations of disadvantage which is outlined in Bugmy v The Queen is to be given weight in this sentence as being a consideration which is long lasting, and which impacts later life.  You received at the hands of your father what is described as 'Hidings' and being flogged when aged 15.  These are behaviours that have impact into adulthood.  You are currently living in public housing in Horsham, and you have some ongoing health issues which I have taken into account.

16You have cardiac obstructive pulmonary disease since 2014 attributed largely to your previous employment of cabinet maker, a condition which has limited your work activities thereafter.  Further in 2014 you had an acute tear of the medial cruciate ligament and anterior cruciate ligament after a fall leading to mobility and some chronic pain.  Your poor physical and mental health was at a low point at the time of the offending.  Both have improved since.  Your treatment for physical and mental health conditions are outlined in letters and reports from a number of health practitioners and discharge summaries.

17A letter from Dr Kotamunna dated 7 May 2018 was exhibited. The doctor, a consultant psychiatrist with the Wimmera & South Mallee Mental Health Service writes that you had presented with self-harm, ingestion of lithium batteries which under the influence of alcohol and alprazolam. He diagnosed a borderline personality disorder with an alcohol abuse disorder as a frequent presenter following self-harm with recent escalation of lethality.

18In April you had been discharged from a laparotomy and ICU care.  He noted:

'Very poor coping repertoire with chronic high risk of self-harm or suicide compounded by alcohol and benzodiazepine abuse'.

19A discharge summary from June 2018 following an assessment order at Ballarat when the order was removed was received by the court and a letter dated April 2019 from Dr Vecchio, a psychiatrist, to Dr Igros, 'Referring doctor states that the review was for depression and anxiety'.  She recited your history and background.  You described long-standing anger issues and becoming aggressive, particularly about the lost access to your children.  You reported self-harm and heavy alcohol abuse.

20It was said you had at the time stopped drinking and abstained from drugs for a while.  Alprazolam had been prescribed long term and it appeared to calm you down.  Your systems were impulsivity, anger, self-harm, alcohol abuse.  Together these difficulties in relationships and work are indicative, said
Ms Vecchio, of a personality disorder with traits of emotional dysregulation.

21Ian MacKinnon, a consultant psychologist wrote a report dated 9 October 2021.  He described your psychosocial background and you appeared mentally disordered, unwell, rambling, struggling to focus.  He wrote of your family background and relationships.  You described to Mr MacKinnon that you were bashed by four men in a home invasion in 2010 and that in 2019 you had been sexually assaulted by a couple over three days, a matter that you had reported to police at Horsham.

22A letter from Detective Senior Constable Box was tendered in confirmation of a statement given by you in the matter.  And after the plea I received that statement, it is a long statement in relation to these matters which are of significant concern.  You also reported run-ins with a local drug dealer. 
Mr MacKinnon noted your schooling to Year 11 and your struggle with employment after significant health issues.  He confirmed a history of anxiety, depression and suicidal attempts. You told him that years ago you had completed a men's behaviour change program.

23Currently you are not on medication and you have a history of polysubstance abuse including heroin and amphetamine and that at the time of the offences you were using Xanax, alprazolam, alcohol, cannabis and ice.  Mr MacKinnon diagnosed a complex post-traumatic stress disorder and a borderline personality disorder.  Functional intelligence fell at the lower end of normal range.  In his opinion you are a chronically distressed individual who suffers particularly elevated fears, chronic interpersonal difficulties, poor emotional intelligence, destructive and self-destructive episodes.

24You admitted to Mr MacKinnon you still struggle with cannabis and ice use although you have not accrued new charges since being on bail.  He says that at the time of the offences you were experiencing extreme personal distress with elevated symptoms of both your disorders and substance abuse.  He writes that whether or not your recollection of the alleged assault are accurate, you appear adamant as to their truth and are adversely affected by these matters.

25The statement that I referred to above was made in August 2021.  He adds that you appear to want to make some positive changes in your life and avoid further offending.  The disorders would have made major contributions to the offending by degrading your ability to reason and make sound judgment, eroding your sense of personal responsibility, making you more impulsive, prone to reckless behaviour, ignoring the rights of others.  He writes that the risk of Mr Ellis does not appear high given that you have been on bail for 15 months.

26In his opinion imprisonment is likely to cause you to suffer worsening in your conditions of complex PTSD and borderline personality disorder and I have taken the contents of his report and recommendations at the end of the report into account.  You have a number of prior convictions beginning in 2000, with violence offences and drug offences in 2002 and then 2008 and 12, 17 and 18 which include damaging property, contravention of family violence orders and violence offending.

27Many of these offences have been dealt with by way of community corrections orders some of which you have breached, some of which you have completed.  In my view your prospects of rehabilitation are guarded but the matters raised in the material proffered to the court, in my view, enlivens the Verdins considerations limbs 1 to 6 which go to a reduction of moral culpability, moderation of specific deterrence and that imprisonment may weigh more heavily on you and have a significant adverse effect on your mental health.

28In my view specific deterrence is relevant because of your prior history and the nature of the offending.  However, it also ought to be moderated.  I sought an extended assessment and received one from Corrections which the court received dated 18 November 2021.  The report summarised your history with Corrections, the risk of reoffending which is classified as high.  The report summarised education, employment and family interest.  Your drug and mental health history.

29You have listed your mother's support as a protective factor and the antisocial and pro-criminal attitudes which are of some concern.  The report finds you suitable to undertake a community corrections order with a number of conditions.  I intend to place you on a community corrections order which I must order with your consent.  I take it Mr Dumesny that you consent to a community corrections order.  The alternative at this time is imprisonment. 

30A community corrections order in my view can fulfil all the needs of sentencing principles which I need to apply in this case.  It will include unpaid community work but given that Mr MacKinnon has expressed concerns as to your ability to complete community work hours or group programs, I will reduce to a reasonable amount of work requirement and also allow you to credit any participation in programs either related to mental health or other programs if initiated or requested by you or organised by Corrections in relation to offending behaviour programs.

31You are to be under the supervision of Community Corrections and undergo treatment and rehabilitation for drugs and alcohol.  The order will be in place for 18 months.  You must not commit an offence punishable by imprisonment during the period of the order.  You must comply with any directions given by the Secretary or by the Corrections officer.  Any requirement or obligation prescribed by the regulations you must report to and receive visits by Corrections during this period.

32You must report to the Horsham correctional services within two days after today.  You must notify any change in your address or employment.  You cannot leave Victoria without the permission of Corrections.  If you change your place of residence, the Secretary may direct that you report to another place, another person which is more convenient.  Mr Dumesny, if you breach this order or break any of the conditions that I have imposed, that is likely to be an offence which can be punished by the court.

33And it may attract not only a penalty but it may cause this court to re-sentence you for these offences, do you understand?  I order that you perform 60 hours of community work.  That 30 of those hours be credit, as I have explained, for participation in programs as directed.  The sentence of the court is that this be a combination sentence of 147 days' imprisonment to be followed by the community corrections order as I have outlined it.  I declare that you have served 147 days by way of pre-sentence detention and I will have that noted for the records of the court.

34Mr Moore, are there any other ancillary orders?  You are on mute.  Sorry, you were on mute, Mr Moore.  Yes.

35MR MOORE:  Yes, I do not - sorry, just a minute, Your Honour.

36HIS HONOUR:  Yes, I can hear you.

37MR MOORE:  I do not think there are, I was just checking to see whether my instructor had sent me an email but perhaps he can indicate if there are any matters but there are no ancillary orders required but I ‑ ‑ ‑

38HIS HONOUR:  I did not get a draft order in relation to anything, sometimes ‑ ‑ ‑

39MR MOORE:  No, Your Honour.

40HIS HONOUR:  All right, Mr Dumesny, do you understand the effect of the order?  You have got to report to Horsham's Corrections within two days and they will sort you out from then on.  The important thing is that you keep in contact with them one way or the other.  Have you got a phone?  Well, they need your number, they need to know where you live and you need to keep in contact with them on a regular basis.  If they lose sight of you or they do not know where you are or you are disengaged from this, they will breach you and they will breach you pretty promptly.

41MR MOORE:  Your Honour, could I just mention one matter, it was remiss of me and I was helpfully reminded of this by my instructor just then in an email - Your Honour needs to make a 6AAA declaration.

42HIS HONOUR:  I am actually not sure about that, when someone makes a CCO order, I am not sure that it is incumbent according to the legislation to make a 6AAA legislation when one imposes a community corrections order.

43MR MOORE:  I think the requirement probably stems from the fact that it is a combination sentence.

44HIS HONOUR:  Yes, I think that is probably right.  Yes, well but for your plea, Mr Dumesny, I would have sentenced you to nine months' imprisonment. 

45MR MOORE:  That is the matter, Your Honour.

46HIS HONOUR:  Thank you.  Well, I understand that you might be prosecuting the Ballart circuit next - at the beginning of the year, Mr Moore.

47MR MOORE:  Yes, February, I am definitely there for four weeks, Your Honour, somewhere ‑ ‑ ‑

48HIS HONOUR:  I have got the mid-February circuit in Ballarat so I will probably see you there.

49MR MOORE:  That’s me and Ms Eckersley instructing me.

50HIS HONOUR:  That is right.

51MR MOORE:  ‑ ‑ ‑ and I look forward to it, Your Honour.

52HIS HONOUR:  Thank you.  Thank you Ms Lyons for making yourself available this morning.

53MS LYONS:  Thank you, Your Honour.

54HIS HONOUR:  There will be some paperwork for Mr Dumesny to sign no doubt.  Perhaps if you stay on the line and my associate will just discuss that matter with you, thank you.

55MS LYONS:  Certainly, thank you.

56HIS HONOUR:  Thank you, Mr Schornikow, sine die.

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