Director of Public Prosecutions v Dunstan

[2019] VCC 572

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 18-01701

DIRECTOR OF PUBLIC PROSECUTIONS

V

MICHAEL DUNSTAN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2019
DATE OF SENTENCE:	29 April 2019
CASE MAY BE CITED AS:	DPP v Dunstan
MEDIUM NEUTRAL CITATION:	[2019] VCC 572

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Lew	Office of Public Prosecutions
For the Accused	Mr B. Newton	Stephen Peterson Lawyers

HIS HONOUR: 

1Michael Dunstan, you have pleaded guilty to one charge of damaging property, one charge of aggravated burglary, two charges of recklessly causing injury, one charge of prohibited person in possession of a firearm and one charge of possession of a drug of dependence.  The drug of dependence was a small amount of cannabis and accordingly on that charge in this situation, where you are undergoing a sentence or will be, I simply convict and discharge.  Those crimes, other than the drugs, carry maximum penalties of 10 years, 25 years, five years and 10 years respectively.

2The circumstances of the offending are that you come from what can only be described as an extremely dysfunctional family.  You have been described by Dr Aaron Cunningham as having been placed in the role of protecting your younger sisters.  One of those sisters had been using drugs and it was your belief, and I will take that no further, that one of the victims at least in this matter had been providing drugs to her whilst your mother was incarcerated.  It is in that situation that the subsequent events unfolded, and I accept for these sentencing purposes that the belief in your mind was that you were protecting your younger sisters.

3The Crown did not prevail upon me with arguments about vigilantism, but it is a situation where I accept that you simply cannot do this and you must accept that as well.  In terms of moral culpability, so far as that is concerned, it is clearly in my view at the lower end, but what unfolded was a very frightening experience in circumstances where you knew you had no right to do it.

4In any event, in all that situation, on 25 February at about 11.30 at night you went to the address of a Mr Mark Glede in Morwell.  As I said, you believed he was a drug dealer and had sold ice to your sister or sisters.  You demanded to be let in, you were refused, and then smashed external windows to the bedroom and lounge room and you left the property.  That gives rise to the charge of criminal damage.  Mr Glede then called his son, who was at the home of a
Mr Parsons, and they apparently both came around. 

5At around about 12.30 am on the 26th a vehicle pulled up outside the address.  You and a Dean Mack, who is your stepfather and who is quite well known to me, left the vehicle and walked towards No.23.  You were holding a metal pole and walked up the front steps, shouting out, 'Round 2, motherfuckers'.  You entered the unlocked doors and began swinging the metal pole around. 
Mr Glede and Parsons were in the lounge room sitting on the couch. 

6A fight basically then took place where Parsons had picked up an empty metal CD rack, was swinging it at you, and he missed.  That caused it to buckle, he dropped it in the hallway, and you backed out of the house.  At that point your stepfather, Mr Mack, entered the house, on the Crown opening, taking two steps inside.  Apparently Mr Parsons lunged forward and punched him to the head.  Mack took a swing back with his fist and Parsons ducked it.  Mack was again punched and stumbled backwards.

7At that point in time the occupants were able to force the two of you outside and used the opportunity to close the door.  You two were leaning against the door trying to stop it being closed.  You struck Mr Parsons on the head with the metal pole, causing a laceration which immediately began bleeding, which is common to virtually all head wounds, but in any event Parsons was stunned briefly.  You then pushed back towards the door.  Mr Glede then used a pair of scissors to stab at your stepfather's leg and hand, apparently causing damage to him, and as has just been indicated by counsel, giving rise to a DNA identification.  You then struck Mr Glede to his left shoulder blade, causing a bruise. The two of you were forced out and drove away.

8When you were spoken to by police you made full admissions and left out the involvement of your father-in-law.  It is an unfortunate set of circumstances for one so young, that is 21 years of age, to be involved in all of this.  You pleaded guilty at the earliest reasonable opportunity and made appropriate admissions when speaking to police both in your record of interview and before.  You have displayed now in all the circumstances appropriate remorse and there must also, of course, be the utilitarian benefit of that plea of guilty.

9You do have prior convictions, including convictions for violence, though I note that they were of a relatively minor nature and are now of some age, some being in the Children's Court.  It does remain, however, a prior history of significance because it does show a tendency to act out violently when angry.  Your overall circumstances are such that the principles outlined in Bugmy and other decisions come very much into play in this sentencing exercise.

10You were born of an Aboriginal father who was from Swan Hill and who separated from your mother when you were about 18 months old.  Your mother has had on my account three, I think it is, children to other men over the years and you had various stepfathers who were violent towards you.  You spent virtually all your formative years in the care of the Department.  You were put in foster homes and I daresay spent time in institutions and you are a very good example of what that sort of upbringing creates in our community.  In any event, you were on your own from round about the age of 15 or 16 it would appear and you have tried to survive since then. Mr Cunningham points out in his report, which I take into account, that those are circumstances which would have been very traumatic for you.

11In one sense your criminal history, for one who had such problems as a child, is relatively incident free.  The offending has to be regarded as serious and calls for the application of general and to some degree specific deterrence.  I think denunciation is ameliorated by the circumstances of the offending and obviously there must be a just punishment bearing in mind all the circumstances.

12Prior to going into gaol you had formed a relationship with a young lady and you have a son with her who is now as I understand it three years of age.  You on leaving school were able to complete a year's welding and at the time that this offending occurred you had been working for some six years as a concreter.  At the time of this offending you had worked for some six months doing welding.  You had a stable place to live and things were not going too badly for you.  It is simply a pity that misunderstanding in somehow getting back with your stepfather and mother gave rise to this incident occurring.

13Your stepfather was convicted after ultimately pleading guilty, but having denied it for a long time, of aggravated burglary.  He did not have the charges relating to the damage or the injury or the firearm, but he is much older than you and was in a position of responsibility towards you, and has a very lengthy criminal history with many periods of incarceration. 

14As indeed I pointed out during the course of the plea hearing, I have sentenced him to imprisonment myself and I am aware of other matters where he has been very, very lucky to have escaped very significant sentences of gaol because he could not be actually effectively prosecuted.  That does not mean I am sentencing him in absentia, it simply means that I have a very deep understanding of the extraordinary difficulty that you must have faced as an adolescent and then as a young adult in dealing with a parent and a stepparent with such criminal tendencies.  I see no point in taking that much further at this particular period of time.

15We then go to what has occurred since you have been in gaol.  You have done a number of courses, which is very much to your credit.  You participated in Koori Court and showed a degree of candour and engagement with the Elders and I thought acquitted yourself well.  You are clearly an intelligent young man and are quite articulate.  There was concern initially during the course of that conversation it was a bit of a "parole chatter", but having heard you discuss all sorts of matters with the Elders over a period of some half an hour or so I am satisfied that you are genuine in your desire to rehabilitate yourself and to look after your partner and your young child.

16You are, as I have said, of Aboriginal descent.  You have been isolated from your Aboriginality to a large extent because of your biological father having been gaoled for serious offending on a number of occasions and you have been basically brought up to have nothing to do with him and to have a thorough dislike of the police.  As I think I have already indicated, it is surprising that your criminal history is as short as it is.

17You have now whilst in gaol done a very significant number of hours, in excess of 500, in regard to an engineering certificate.  You wish to go further with that but have been unable to do so because you remain, up until today at least, an unsentenced prisoner.  I am prepared to totally accept in your situation that your conduct in goal is designed towards improving your life once you are released; it is not simply being done to endeavour to achieve that release.

18I have taken into account the report from Dr Cunningham, the psychologist, and I also take into account a reference that was tendered on your behalf by your partner, who sat with you during the sentencing conversation and I thought showed a lot of common sense and maturity in terms of how she dealt with you.  Koori Court does not get you a lesser sentence but what it does quite often, as it has in this case, is it reassures a judge that the remorse is genuine and that the endeavours to rehabilitate are genuine as well. 

19The prospects of your rehabilitation are pretty good if you can keep up the way you are going.  If you do not use and you can control your anger the risk of your reoffending should be low.  In other words, you have definite plans in life, you have a relationship, you have a child, you have all things considered a relatively good work ethic with prospects of work, and upon your ultimate release have a plan in place which includes, potentially at least, various forms of accommodation.

20Insofar as parity is concerned, you have more charges and were more deeply involved but you are much younger.  He was in a position of responsibility and has a very significant criminal history.  Indeed, I also notice your counsel quite vociferously pointed out that he denied all involvement in this until he was ultimately apprehended by DNA as I am now informed.  It is the first time you have ever been in custody.  You were never locked up in Youth Justice, and it seems to have had a salutary effect upon you.

21For all those reasons I have determined that an opportunity for parole should be given at an earlier date than might otherwise be the case.  I do not think this is a situation where the imposition of a community corrections order would be an appropriate disposition.  I am concerned, as is always the case, that someone in your circumstances may have difficulty in terms of getting parole.  Can I simply say this in my sentencing remarks.  That having sat with you during Koori Court, heard you speak to your Elders and the respect and dignity that you displayed during that, having taken into account from my point of view the good work that you have done since being in custody and the prospects that you have, it would be my strong desire that you be paroled at the very first opportunity.

22I understand that is not my decision to make.  I understand that there may well be various programs that have to be gone through before that can occur, but I do urge upon those responsible for parole that your matter be given very serious consideration in terms of allowing you to endeavour at least to get on with your still young life at the earliest opportunity.

23Taking all those matters into account, applying the sentencing principles as best I can, on Charge 1 of criminal damage, two months concurrent; on Charges 2, 3 and 4, an aggregate sentence of two and a half years, 30 months; on Charge 5 of the firearm, two months.  I should interpolate here I know it is a single-shot .22.  I am told from the Bar table it is for shooting rabbits for dog food and I accept that.  As I have said already, that will be concurrent, but on the drugs I have already indicated I think convicted and discharged.  So a total effective sentence of 30 months, minimum term of 14, bearing in mind your age.

24Section 6AAA, which will be a very significant one in this case because of the nature of it all, just so you understand fully what your pleading guilty has benefited you by, but for your plea of guilty I would have sentenced you to be imprisoned for a period of three years and nine months with a minimum term of two years and six months.

25I direct that 426 days be reckoned as having been served under this sentence and all other relevant orders have been made.  Anything else I need to say, gentlemen?

26MR LEW:  No, Your Honour.

27MR NEWTON:  You have made the orders in relation to forfeiture.

28HIS HONOUR:  I did all that before, yes. 

29MR NEWTON:  Yes.

30HIS HONOUR:  6AAA is three nine with a two six.  Nothing else we need to do?

31MR LEW:  No, Your Honour.

32HIS HONOUR:  All right, thank you, gentlemen.  You can take him now, thanks.

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