Director of Public Prosecutions v Dunbar
[2023] VCC 864
•23 May 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT Shepparton
CRIMINAL DIVISION
CR-21-02100
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AARON DUNBAR |
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JUDGE: | HIS HONOUR JUDGE CHETTLE | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 23 May 2023 | |
DATE OF SENTENCE: | 23 May 2023 | |
CASE MAY BE CITED AS: | DPP v Dunbar | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 864 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW SENTENCE
Catchwords: Sentencing – aggravated burglary, recklessly cause injury, common law assault, unlawful assault, assault with weapon.
Legislation Cited: 6AAA Sentencing Act 1991
Cases Cited: R v Renzella [1999] VSCA 85
Sentence Imprisonment – Total Effective Sentence 2 years and 10 months.
Non-parole period 17 months. Disposal order.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C. Pezzimenti | Mr. A. Lew, Office of Public Prosecutions. |
| For the Accused | Mr T. Tulloch | Mr. M. Bowler, Bowler & Co. |
HIS HONOUR:
1 Aaron Dunbar, you have pleaded guilty to one charge of aggravated burglary (person present); one charge of causing injury recklessly and one charge of common assault. The facts of your offending are set out in Exhibit A, the prosecution opening for plea, which was read this afternoon by the prosecutor.
2 I was informed by counsel that I could treat that document as an agreed statement of fact and I incorporate it into these reasons for sentence, and sentence you on the basis of the facts set out therein.
3 It is important that you realise that, that I am sentencing you on the basis of the facts set out in the prosecution opening in your case, and not on the facts as they were alleged in the case of your co-accused before Judge Todd.
4 I am working on the agreed basis, not on the basis that Judge Todd dealt with the matter.
5 Very briefly stated, on 24 November 2020 you and your co-accused went to a door of a property in Cobram. You tried to get in and called to be let in, and your co-accused went in through the window and opened the door, taking with him a tyre lever.
6 When you got inside, you confronted the occupants and you took part in an assault by pushing the father in the premises and by hitting the other, the son, with a cricket bat; plastic.
7 You then left the premises. Police ultimately arrested you and when you were interviewed, you although admitted presence, told a number of lies to the police about what had occurred.
8 You had a history of getting this matter to where you are today, as set out in the chronology.
9 This is clearly a negotiated and settled matter, a settled plea.
10 Originally you were charged with much more serious offences and the prosecution have accepted pleas to what you have no pleaded guilty to and dropped the other matters.
11 Nonetheless, the offences are serious, particularly the aggravated burglary. It has a maximum penalty that Parliament lays down of 25 years.
12 It is, in my view, for the reasons discussed with your counsel, a mid-level example of the offence of aggravated burglary.
13 Although it was not late at night, it was late in the evening; it was 6-7 pm apparently and there were two of you who went to a home where a number of people resided, including young people. You went there with the intention of inflicting violence and did so.
14 The law says that I must regard general deterrence, denunciation and just punishment as the principal sentencing principles for offences of this kind.
15 Having said that, the infliction of injury and assault charge represent lower-level examples of offending.
16
Your personal history is set out in Exhibit 3, the psychological report of
Mr Matthew Staios.
17 You are now 28 years of age and born and raised in the Cobram area. You had an unhappy childhood, not enjoying a good relationship with your father who you claim was abusive regularly to you; that is, verbally abusive. You lost your self-esteem. You became depressed. You were thrown out of your home at the age of 15 and for a number of years, committed minor criminal offences, couch surfed and began to abuse alcohol, and your prior criminal history reflects that background.
18 You have admitted a prior criminal history. You have a number of prior appearances. You have one in New South Wales in 2014 for attempting to possess a drug; I assume it was cannabis. You have prior convictions in Victoria in 2015 for theft and making threat to kill.
19 In 2018 you were fined for lighting fires in the open and damaging property and traffic offences, unlicensed driving included. In 2019, similar offences; driving while disqualified, theft from a shop, cultivate narcotic plant, and most recently in March 2020, theft of a bicycle where you were given an adjourned bond.
20 You breached that bond, as I understand it, in any event.
21 You appear to have limited education. The psychological report outlines that, if I can find it.
22
You have had two prior relationships that have seen you have two children. Most recently, you have an eight-month-old son you have no contact with.
DFFH have intervened. You have no relationship with your ex-partner.
23
Your education is set out in paragraphs 3.6 and 3.7 of the report of
Mr Staios. You had learning difficulties at school. You claim to have spent a couple of years at a special school for challenged children and that since that time you have limited employment.
24 You have worked as a concreter but had been unemployed for about a year at the time of this offending.
25 Your problem has been alcohol. You started drinking as a child and you have increased your consumption until you were drinking large amounts of alcohol on a daily basis.
26 Mr Staios is of the opinion that you suffer from an alcohol and cannabis use disorder and that you would require a moderate level of support if you are released to deal with the issues you have.
27 Overall, that report makes bleak reading.
28
There is a reference tendered on your behalf from your employer. He, in
Exhibit 4, says that he's known you for roughly six years and describes you in these terms, 'Deep down, we all know he's a good kid, just needs a little guidance through life and in general is a hard worker'.
29 Hopefully if you deal with your alcohol issues, your prospects of rehabilitation are reasonable. It is a big if. You are going to have to work out how to control your drinking.
30 I take into account in sentencing you a number of matters. Firstly, your pleas of guilty. By pleading guilty, you have spared the community the time and expense of a criminal trial. You are entitled to a reduction in the sentence I would otherwise impose to reflect that plea of guilty and I will return to the effect of that reduction subsequently.
31
The value of your plea of guilty is increased because of the time that COVID has had on our criminal justice system. Although your plea is not an early plea, it still has a utilitarian benefit. You have spared us the time and expense of a criminal trial and the value of your plea is increased, as I say, in
COVID-19 times.
32 I take into account the fact that you will be doing your time in custody, because I am going to impose a custodial sentence, that will be affected by COVID-19 unfortunately; lockdowns, loss of courses, quarantines, things of this nature all arise because of COVID and that will make your time in custody more onerous than it would otherwise be.
33 You did 18 days on remand before being granted bail and that time does not count as pre-sentence detention, but I do take it into account in a general way in accordance with the principles in Renzella’ s[1] case in arriving at a sentence that is appropriate for you.
[1] R v Renzella [1999] VSCA 85
34 You were 25 when you offended. You cannot be described as a young man. Your co-accused was.
35 However, you were released on bail or continued on bail by Judge Bayles on the condition that you obtain the support of the CISP program.
36 Exhibit 2 is the CISP report which in general sets out that you did well with CISP. The reporter is saying that you engaged in an open and positive manner and recommended you be taken off CISP and your bail was continued.
37 So, there is hope for you. That said, you know what you cannot do what you did in this. Going around to somebody's house, forcing your way in and assaulting them, the law regards as extremely serious.
38 I have no choice in my view but imposing a custodial sentence, but I have reduced both the sentence and the non-parole period to reflect the matters urged on your behalf by your counsel.
39
Counsel submitted that I could impose a combination sentence in this case.
For the reasons I have outlined, I do not believe that such a sentence is open.
40 General principles of parity apply and, in that regard, the decision of Judge Todd with your co-offender Kernaghan demonstrates the sentences he received.
41 I have had regard to that in arriving at appropriate sentences for you.
42 Could you stand up, please.
43 On the charge of aggravated burglary, you are sentenced to be imprisoned for two years and six months.
44 On the charge of causing injury recklessly, you are sentenced to be imprisoned for six months.
45
On the charge of common assault, you are sentenced to be imprisoned for
three months.
46 I order that three months of the sentence on Charge 2 and one month on the sentence on Charge 3 be served cumulatively upon the sentence imposed on Charge 1, which I declare to be the base sentence.
47
That is an effective term of imprisonment of two years and 10 months, and
I order that you serve 17 months of that sentence before being eligible for parole.
48 Pursuant to s6AAA, I indicate that but for your pleas of guilty, I would have imposed a total effective sentence of five years with a non-parole period of three and a half years.
49 I make the disposal orders sought by the prosecution. Are there any other orders required?
50 COUNSEL: No, Your Honour.
51 HIS HONOUR: All right. Thank you, could you take Mr Dunbar into custody please. That's it for the day?
52 MS PEZZIMENTI: It is.
53 HIS HONOUR: I've got a mention at 9.30 but I don't think it involves you.
54 MS PEZZIMENTI: No, it doesn't.
55 HIS HONOUR: 9.30 for this court, 10 o'clock for the next matter.
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