Director of Public Prosecutions v Epworth

[2017] VCC 346

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00827

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAYDEN DANIEL EPWORTH

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	31 March 2017
CASE MAY BE CITED AS:	DPP v Epworth
MEDIUM NEUTRAL CITATION:	[2017] VCC 346

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Hassan
For the Accused	Mr D. Sala

HIS HONOUR: 

1Jayden Daniel Epworth, you were convicted by a jury in May of last year in Bendigo of one charge of burglary, one charge of theft and one charge of arson.  You have admitted your prior criminal history which is an appearance in the Bendigo Children's Court on 28 February 2011 for intentionally destroy property for which you were without conviction, placed on probation.  There was also an unlawful assault charge.

2It is agreed that the summary of the prosecution opening presented to the jury provides the factual basis upon which you were convicted by the jury.  Briefly stated, the victim Jessica Grundy was living at 129 Hume Street in Echuca.  On 10 July 2012, you sent her a text message saying "You are fucked" - that is a few days before 10 July.

3On 10 July, you went round to her house to take some property.  You entered as a trespasser with intent to steal and or damage property which is the burglary charge.  You took property, including a TV and DVDs and whilst there started a fire.  As to how all that occurred and your motivation for it, seems you had some sort of grudge against someone else somehow linked with Ms Grundy.

4Like yourself, the witnesses and Ms Grundy have mental health issues.  She has filed a victim impact statement which I read and taken its contents into account.  Before you go and embark on this behaviour and the lifestyle you seem to want to lead, why do you not for once put aside yourself and think about the effect your behaviour has other people like Ms Grundy.  She did not deserve this.

5In mitigation, your counsel relied on the delay in the matter which is approximately a four year delay, some of which was occasioned by you not appearing at the original plea hearing in July of last year.  You were subsequently arrested in December of last year and remanded on this matter and other offences; for this offending you have served 33 days and all up, in culmination with the other offending, you have served 130 days.  You are currently on remand for this offending.

6You are now 23 years of age;  you were 19 at the time of the offending and I take into account that at the time of the offending, a youth justice order would have been available to you as a sentencing disposition.

7A lengthy neuropsychological report was tendered by Susan Carey.  It sets out your background:  You were expelled from school halfway through year 10, you have had very little work experience.  You have been on a disability support pension since were 18.  You have indulged in substance abuse of alcohol and drugs from age 13; that abuse includes methamphetamine and I have been told by your counsel that since the trial you have become with involved a drug called buprenorphine, and whilst in custody have somehow obtained alcohol.

8Ms Carey sets out in some detail your substance abuse history. In relation to this offending, you actually said to her that it occurred, this at p.3 of the report, in the context of ice and alcohol use.  You said in response to a question about why you committed the offence, "Bloke owed me money, kicked me out without any of my stuff so I took my stuff".

9You ran a trial, which means you do not get the benefit of any discount for a plea of guilty and I am unable to conclude that you have any remorse about your involvement in this offending.

10She sets out the results of a neuropsychological examination in some detail and concluded that you have a pre-morbid intelligence that falls within the extremely low to borderline range at around 68.  She sets out the assessments in relation to verbal intelligence, academic skills, language skills, et cetera. 

11She said that your substance abuse is likely to have an effect on your cognition; that means that for someone who has some of the intellectual difficulties you have, the very last thing you should be doing is using the sort of drugs that you use and the amount of alcohol that you use.  It is of no help to you and is indeed very bad for you; I am sure you do not need me to tell you that but that is what it is.  "Has the potential to limit your brain development", that is that it affects your brain. 

12She said "a lengthy term of imprisonment may weigh mildly more heavily on Mr Epworth than a person of normal intellectual functioning" although she does comment that individuals of executive dysfunction like you often respond well to the inherent structure within the prison environment once the routine has been learnt but she said you may experience difficulty managing some aspects of the prison environment.

13So in sentencing you, I take into account a number of things and the basic purposes for which a court may impose a sentence of punishment.  General deterrence, now general deterrence is I have to impose a sentence that tells other people not to do this.  Specific deterrence means I have to give you a sentence that tells you not to do it again and consider rehabilitation and denunciation and the protection of the community.  Your actions on this occasion were just so totally unwarranted and dangerous, even though you thought there was no one in the house, setting a fire to a house in the suburbs could easily spread to other houses and people could have easily been killed.  Fortunately, they were not.

14As to your prospects of rehabilitation, I am just unable to conclude that they are positive.  Really, it is down to you.  You can come after gaol and resume your lifestyle which means one of a number of things; you will be soon dead or you will soon be back in gaol for a longer period of time.  It also the effect that whatever further criminal offending you may commit affects other people, not just yourself.  So, really, when you get out you want to do something about your substance abuse problems and rehabilitation.

15I express my denunciation of your behaviour.  I am required to balance the interest of the community in denouncing criminal conduct, the interest of the community in seeking to ensure, as far as possible, offenders are rehabilitated into society.

16The delay in the matter is certainly a big factor and but for that delay, you would have received a much larger sentence that I am about to impose.  I have taken into account your background, particularly your mental health issues along the lines that your counsel has submitted to me orally and also in his written outline.  Taking into account the sentencing snapshot and what that reveals, particularly for arson which a 15 year maximum.  Lots of people gets lots of gaol for arson.  Here it is not for any profit, it seems to be done out of spite or whatever; spontaneous and you did not think too much about it before you went in, if at all, it just happened as something you did.

17I take into account the principle of totality, that is you have already spent 130 days in gaol for a combination of matters including this.  You have a prior conviction for a matter akin to these, similar to these, although it was in the Children's Court in 2011.

18The delay means it has been hanging over your head for four years.  You do not seem to, on the material before me, have used that time to rehabilitate yourself but it is still a matter that I take into account.

19You are a young person, you are 23 so there is plenty of time for you to try and rescue your life if you want to.

20Consider that pursuant to s.9, sub-s.1 of the Sentencing Act, I can impose an aggregate sentence; that is the offences form a part of a series of offences of the same or similar character, or founded on the same facts.  You entered the house as a burglary, you stole things and then you decided to burn the house.

21Taking all those matters into account, and doing the best I can without a lot of positivity about it, I sentence you to a term of imprisonment of two years, with a non-parole period of one year including the 33 days you have already served reckoned to be part of the sentence I have just imposed.

22Are there any other matters I need to look at?

23MS HASSAN:  No, Your Honour.

24MR SALA:  No - can I assist Your Honour just briefly with a matter?

25HIS HONOUR:  You can sit down, thanks, Mr Epworth.

26MR SALA:  It's - and I'll spell for Your Honour's assistance, it's buprenorphine, B-U-P-R-E-N-O-R-P-H-I-N-E.

27HIS HONOUR:  All right, thank you.

28MR SALA:  It's a minor matter, Your Honour.

29HIS HONOUR:  All right, any other order I need to make?

30MR SALA:  No, nothing.

31MS HASSAN:  No, Your Honour.

32HIS HONOUR:  All right, well, I sincerely hope we don't see you again Mr Epworth but that's entirely a matter for you.  Thank you, you may take him out.

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