Director of Public Prosecutions v Egan

[2021] VCC 309

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00896

DIRECTOR OF PUBLIC PROSECUTIONS

v

RUSSELL EGAN

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	12 March 2021
DATE OF SENTENCE:	18 March 2021
CASE MAY BE CITED AS:	DPP v Egan
MEDIUM NEUTRAL CITATION:	[2021] VCC 309

REASONS FOR SENTENCE

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Catchwords:  Criminal law – sentencing – Aboriginal offender – participation in sentencing conversation - aggravated burglary, threat to inflict serious injury, criminal damage together with a related summary charges of unlawful assault and possess controlled weapon without excuse.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Abbey Hogan, Solicitor for Public Prosecutions
For the Accused	Ms M. Greener	Martin Middleton Oates Lawyers

HER HONOUR: 

1Russell Egan, you pleaded guilty before me in respect to one charge of aggravated burglary and one charge one charge of threat to inflict serious injury, one charge of criminal damage together with a related summary charge of unlawful assault with a weapon and possess controlled weapon without excuse.

2The offending is serious and that is reflected in the maximum penalties prescribed by Parliament and they are as follows:  aggravated burglary, 25 years' imprisonment' threat to inflict serious injury, five years' imprisonment; criminal damage, 10 years' imprisonment; the related summary charge, unlawful assault with a weapon, two years' imprisonment; and, possess controlled weapon without excuse, 120 penalty units or one year imprisonment.

3In addition, you admitted your prior criminal history and there are a number of relevant prior criminal convictions or findings of guilt for assault and recklessly cause injury, criminal damage and wilful damage.

4You are Aboriginal of Wiradjuri and Wamba-Wamba descent. 

5All charges relate to events that occurred on 18 April 2020 when you were aged 50. 
You spent three days in custody before being released on bail and you have remained on bail since that time.

6There is no further offending or any matters pending.

7The offending concerns your niece, Sarah Pyatt, who is aged 31, and her partner Scott Walker, who is aged 32. 

8I will proceed to sentence you on the basis of the Prosecution written opening dated 17 February 2021. 

9Essentially, you attended on the occasion of your 50th birthday, the property where your niece and her partner were living and at that time, you were heavily intoxicated. At about 10 pm, Pyatt and Walker were in bed and they heard yelling and sounds of glass smashing coming from outside their home.  Ms Pyatt thought that she heard somebody yell out 'Help' and believed that somebody may have been damaging her vehicle, so she went outside to investigate.  As she opened the front door, you pushed the unlocked door open and entered the home.  You were not given any permission to enter, nor had you been invited over, and that is, Charge 1, aggravated burglary.

10At the time, you had a baseball bat and you had, prior to entering, damaged and exterior wall with the bat, causing three holes in the plaster and that is, Charge 3, criminal damage.

11You then followed Pyatt into her lounge room and you said words to her,
'I'll cave you, I'll cave you,' and she took this to mean that you would strike her head.  So she ran out to the rear of the house and that is part of the threat to inflict injury charge.  Her partner, Walker, came out of the bedroom and stood nearby to see what all the commotion was about.  You swung the bat and hit him on the shoulder, and that is Summary Charge 8, assault with a weapon.

12You yelled out to Pyatt to get back into the bedroom with Walker otherwise you would cave his head in and that is part of Charge 2, threat to inflict serious injury.

13You also struck the wooden coffee table with the baseball bat in the lounge room causing some damage that is part of Charge 3, criminal damage. 
You also smashed a bedroom window, which is part of Charge 3, criminal damage.

14You were asked to stop. Both Pyatt and Walker pleaded with you and attempted to calm you down but you did not do so and you kept shouting at your niece that she had betrayed you and stated, 'Give me one good reason why I shouldn't cave you both,' and that again is part of Charge 2, threat to inflict serious injury.

15Eventually, you calmed down to the extent where you handed the baseball bat to your niece and sat on the edge of the bed and began to consume some alcohol that you had on your person.  The police arrived at the address.  Initially, they attended your address but found no one home.  But after some time, they entered your niece's property.

16Prior to them entering, Pyatt heard a knock on the door, she hoped it was the police and went to get out of the bedroom, however you attempted to block her from leaving and said 'If that's the police, I'll cave Scott,' that is, her partner's head in and that is part of Charge 2, threat to inflict serious injury.  She did not know what to do so she pushed passed you and ran to the front door, opening it and on the way out, she took possession of the baseball bat.  Once outside, she was able to attract the police attention and they attended and you were arrested.

17At the time of your arrest, you were heavily intoxicated and slurring your words.  You were placed on the ground due to your aggressive behaviour.  When searched, a pocket knife was seized and that is summary Charge 9, possess controlled weapon.

18You were taken to Swan Hill police station and on 19 April 2020, you were interviewed but made no comment as is your right.

19The impact of your offending has been great and that is set out in your niece's Victim Impact Statement declared on 16 February 2021.  The effects of that night have lived on and she now feels very insecure in her own home and is too scared to go anywhere on her own and she always needs to have somebody with her for emotional support.  She also refers to the damage done to her property.  She is very hypervigilant and is very anxious whenever she hears noises outside during the night. 

20Your offending has had very real consequences and there is a need for the court to denounce your behaviour and impose just punishment.

21Both general and specific deterrence are important features of the sentencing exercise.

22An important aspect of your case was that you consented to the matter being dealt with in the Koori Court Division.  That is a voluntary action and you participated in the hearing with two Elders and Respected Persons, namely Uncle Peter Peterson and Uncle Mark Bland. 

23This was your first appearance in the County Koori Court.  You participated in the process and you responded appropriately when you were challenged quite vigorously by Uncle Mark Bland and Uncle Peter Peterson. 

24Both of them asked you to focus on what it was that you were doing at that time and to address your drinking behaviour and make sure that you address that by following through with your commitment to alcohol and drug counselling and also they recommended abstinence so that you would be a person who could conduct themselves more appropriately within community. 

25They emphasised the importance of family and the need for you to act in a manner that would provide for the safety of your family. They recommended to you to think about the future, to make sure that you undertake your role as grandfather to look after your family, and to reflect on your behaviour and to do whatever steps need to be done in order to address your alcoholism that lies at the heart of many of your previous attendances at court.

26When speaking to the Elders in the sentencing conversation, you apologised in relation to your behaviour towards both your niece and her partner and you recognised the need to say sorry. You also recognised that it is important for you to remain sober in the future because otherwise these regrettable incidents occur and that have bad consequences for everyone.

27Both Uncle Mark and Uncle Peter recommended that you maintain your strong connections with culture and they emphasised that you need to help yourself and it is only you that can address your underlying offending behaviours so that you are a better role model and elder for your younger family members. They recommended that you continue to reflect on your behaviour, think about culture and in the future, take more responsibility for your actions.

28I have taken into account your participation in the Koori Court process and I consider that that was genuine.  I consider that your participation was of itself rehabilitative.  You showed appropriate remorse for the offending and expressed your real concern for the harm that you had inflicted upon your niece.  You demonstrated that you understood why it was that you offended and the need to address that for the future.  You demonstrated that you understood the consequences of your actions and the need to avoid repeating that sort of behaviour in the future.

29Overall, I consider that your participation is genuine and is indicative of your capacity to change and reform and be a better member of our community. I have taken that into consideration in mitigation of your penalty.[1]

[1]See The Queen v Steelie Morgan [2010] VSCA 14 at [11], confirmed in Honeysett v The Queen (2018) 56 VR 375 and DPP v Heyfron [2019] VSCA 130.

30I have had regard to your personal history and circumstances.  I note that you are now aged 50 and you have Aboriginal heritage on both sides of your family.  You said during the course of the sentencing conversation that you began drinking alcohol in your earlier teens and that there was a lot of alcohol and violence in the environment in which you grew up.  Your father left your family home when you were very young and you never had an appropriate adult role model in your life.

31You were born in Shepparton and grew up in Robinvale and also the Moulamein area of Southwest New South Wales.  You completed Year 11 and you started a carpentry apprenticeship working for 18 months before transferring to a glaziers apprenticeship. 

32Over the years, you have demonstrated that you have been able to hold responsible roles working as a farm hand for seven years on a sheep station in New South Wales, forklift operator at a carrot farm in Nylah West and you are now currently seeking employment.

33I have had regard to your past history and background, I note that in the past, you did make some attempt to address your drug addiction back in 2006. 
You had three months at Odyssey House.  During the time that you have been on the conditional bail, you initiated some treatment and I have a letter from the counsellor who has provided support and treatment to you.  That letter does confirm that you have been genuine in attending upon her and in addressing your underlying alcohol addiction.

34I consider that you are on the path towards rehabilitation but it is still early days and that you need a lot of support and assistance for that to continue.

35In sentencing you, I have taken into account the matters put in mitigation on your behalf.  I accept that you entered a plea of guilty at the earliest opportunity.  There is real utility in your plea.  This is especially so in pandemic times.  You saved the State the inconvenience of conducting trials and have spared the victims, particularly your niece and her partner from having to give evidence.  You have facilitated the course of justice and your sentence will be discounted accordingly.

36Through your pleas, I accept that you have expressed genuine remorse and that is also reflected in the conversation that you had with the Elders in the plea hearing.  I accept that you now appreciate your wrongdoing and that you are making every effort to address your underlying offending behaviours. 
I consider your prospects for rehabilitation are reasonable.

37You have indicated that you understand that you need to take a different path for the future and that you have made very positive progress in that regard. 

38I accept that the circumstances of your childhood and your background involved some deprivation and social disadvantage and your early exposure to violence and alcohol has had an impact upon you in your formative years.  That impact has not diminished over the passage of time and with repeated offending, and I have taken that into account in accordance with the principles of Bugmy.[2]

[2]Bugmy v The Queen [2013] HCA 37,[40],[43] –[44]

39I have moderated to a modest extent the need to emphasise general and specific deterrence and reduced your moral culpability. 

40I have been particularly impressed by the comments made by Tiani Baskin, the social worker at the Mallee and District Aboriginal Services, where she notes that you self-referred to the service on 27 April 2020 and that you have undertaken appointments with her in relation to alcohol and drug counselling. 

41Importantly, you identified for her your goals, being gaining a referral to alcohol and other drugs counselling, which has now been completed, having a GP prepare a mental health plan, which has also been completed to enable counselling, gaining a psychiatric referral from the GP, which is in process and considering alcohol and drug detox and rehabilitation, which is ongoing,  counselling to support anger management, conflict resolution skills and emotional regulation, which is in progress, and also a desire to link back to your community through culture, friends and drag racing which is ongoing.

42You attended six appointments with the counsellor and engaged well with her. You were open to being challenged on your past and current unhelpful behaviours and thinking styles.

43She noted her professional opinion is that you would benefit from attending a detox facility and immediately followed up by an admission to an Aboriginal rehabilitation centre in order to manager your methamphetamine substance misuse.  She said that you would also greatly benefit from attending a rehabilitation centre that deals with managing mental health, communication skills and management strategies and I recommend that Community Correctional Services take up those recommendations so as to optimise your rehabilitation prospects for the future.

44In sentencing you, I must impose just punishment and I have had regard to the principles of totality.  I have been guided by the guideline judgment of Boulton[3] where the Court of Appeal stated that in an appropriate case, a Community Corrections Order can provide a flexible sentencing option, enabling both punishment and rehabilitation purposes to be served together.

[3]Boulton v The Queen (2014) 46 VR 308

45Having regard to the significant achievements that you have made to date in addressing your underlying offending behaviours, I consider that a Community Corrections Order, fashioned to address your particular circumstances, the causes of this offending, will minimise the risk of reoffending in the future by promoting your rehabilitation.

46The Court of Appeal noted in that case that such an order may remain open even in the cases of very serious offending.[4]

[4]Ibid, 338 [131]

47In relation to the charges on the indictment, Charges 1, 2 and 3, and the related summary offences, you will be convicted and placed on a two year Community Corrections Order, commencing from today's date with the conditions that I have already outlined, that is supervision, unpaid community work of 150 hours, treatment and rehabilitation including testing for drug abuse, alcohol abuse and mental health assessment as well as any other programs or courses that address factors relating to your offending as directed by the Community Corrections Services.

48In addition, in order to monitor your progress, an arrangement will be made for you to attend for judicial monitoring on 1 July 2021 at 10 am and that will be via video link to the Melbourne County Court. 

49I have explained to you the effect and conditions of the Community Corrections Order and you have formally consented to the order being made by giving a verbal undertaking to the court and that verbal undertaking will be noted on the court records.

50I make the following declaration, pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a term of imprisonment of three years, to serve two years. I make the disposal order sought.

51Are there any other ancillary orders that are being sought, Mr Roper, was there a disposal order?

52MR ROPER:  No, Your Honour.  It was just the disposal.

53HER HONOUR:  Yes.  The only reason why I ask is because in your written opening, you have got compensation to be advised.

54MR ROPER:  Advised, yes.

55HER HONOUR:  But you've had no ‑ ‑ ‑

56MR ROPER:  Yes, I think that it communicated to Your Honour's associate that no compensation order has been sought.

57HER HONOUR:  All right. I make the Disposal Order sought. Well that concludes the matter.  I would like Ms Greener, if you could at some stage today, to just touch base with your client to reiterate the orders.

58MS GREENER:  Yes, Your Honour.

59HER HONOUR:  Yes.  And to also underscore the importance of him going to the Swan Hill Community Corrections Office in order to comply.  I am not sure whether they have asked for him to attend in person or on telephone but you need to make sure that he makes that contact, all right?

60MS GREENER:  Yes, Your Honour.

61HER HONOUR:  Thank you.  Thank you, we will discontinue now.

62MS GREENER:  As Your Honour pleases.

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