Director of Public Prosecutions v Gavin
[2023] VCC 438
•21 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00115
CR 22-00462
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL GAVIN |
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JUDGE: | HIS HONOUR JUDGE MOGLIA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 November 2022, 23 February 2023 |
DATE OF SENTENCE: | 21 March 2023 |
CASE MAY BE CITED AS: | DPP v Gavin |
MEDIUM NEUTRAL CITATION: | [2023] VCC 438 |
REASONS FOR SENTENCE
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Subject:Criminal law – sentence – guilty plea
Catchwords: Sentencing – aggravated burglary – damaging property – persistent contravention of a family violence intervention order – recklessly causing injury – threat to kill – attempted aggravated burglary – common law assault – possessing a controlled weapon – 33 year old male offender – relevant criminal history – history of breaching court orders – lengthy history of cannabis and alcohol use – high need of support upon release – some degree of remorse – moderately severe major depressive disorder – antisocial personality disorder – history of anxiety and panic attacks – mild intellectual disability – reduced moral culpability – would find custody harder to cope with due to diagnoses – removal from parents – incarceration of a parent – early exposure to alcohol abuse – custody made harder due to COVID – reduction of delays in this court
Legislation Cited: Crimes Act 1958 (Vic) – Sentencing Act 1991 (Vic)
Cases Cited:Boulton v The Queen (2014) 46 VR 308 – Bugmy v The Queen (2013) 249 CLR 571 – Muldrock v The Queen (2011) 244 CLR 120 – Verdins v The Queen (2007) VSCA 160 – Brown (aka Davis) v The Queen [2020] VSCA 60 – Worboyes v The Queen [2021] VSCA 169 – R v Foster [2007] VSCA 85 – Suckling (Shortis) v R [2013] VSCA 278 – DPP v Wilson [2017] VCC 1237 – Johnson vR [2013] VSCA 277
Sentence:Total effective sentence: 19 months imprisonment plus a 15 months’ community correction order with Justice Plan attached – declared pre-sentence detention: 513 days – s6AAA declaration: 3 years 9 months with a non-parole period of 2 years 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | J. Karitzis | OPP |
For the Accused | H. Lewis | Docherty |
HIS HONOUR:
1Daniel Gavin, you have pleaded guilty to charges on two indictments.
2The first indictment, M11806833 (CR-22-00115), charges that you broke into and damaged a house at California Gully and breaching an intervention order on 7 August 2021 and during the previous weeks.
3The second indictment, M11806979.1 (CR-22-00462), charges that you attempted to break into an acquaintance's home in Elmore and assaulted him on 25 August 2021 and that you did break into a friend's home in Long Gully and assaulted people there on 26 August 2021.
Summary of offending
4The agreed basis for your guilty pleas is set out in the prosecution summaries dated 7 July 2022 and 30 November 2022 respectively.
5In relation to the first indictment, the Bendigo Magistrates' Court made an intervention order against you on 17 September 2020, which was served on you on 8 October 2020. It prohibited you from having any contact with your
ex-partner of 14 years, Hayley Coventry, with whom you had two children.6About a year later, between 27 July and 9 August 2021, you breached that order by sending 214 messages to her generally concerning the children and your relationship with her (Charge 4, persistent breach of intervention order).
7More seriously, on 7 August 2021, you went looking for her, telling her mother that you were going to smash up the friend's house where you thought she was staying.
8You went to a house where you thought she was staying. In fact, you got it wrong and went to the house next door. You used a metal bar to break in, damaging the front door and the windows near it (Charge 1, aggravated burglary).
9Inside, you shouted Hayley's name while you used the bar to damage walls in various rooms (Charge 2, criminal damage). In the kitchen, you smashed the microwave oven and tipped the fridge over, causing it to stop working and the food inside it to spoil (Charge 3, damage) before leaving.
10You then left messages on Ms Coventry's phone about damaging the house and that you did not care. You said you would go to do the same at her mother's house. It seems she was responding to your messages during this time.
11The unintended victim of this offending was Ms Doris Ryan,[1] whose home you trashed. She provided a victim impact statement dated 23 May 2022 (Exhibit C). She stated that she thought it was a safe neighbourhood and was building a small flat in the backyard for her mother, assuring her it would be a safe place. For weeks and weeks, she lived with the fear that someone would break into her home again. She could not bring her kids home because there was no fridge or microwave for preparing food. In the meantime, she lived there alone and kept her food in an esky during a hot summer. She could not settle after this incident because you had no reason to go to her house – you did not even know her – it was a random attack as far as she was concerned. That fear continues.
[1] A pseudonym.
12About two to three weeks after this first incident, on 25 and 26 August 2021, you committed similar offences contained in the second indictment against people you know at their homes.
13In the early hours of 25 August 2021, you went to the caravan where an acquaintance of yours, John Gammon, lived. He woke to the noise of you trying to open his screen door. As he approached the door, he saw you had a knife (Summary Charge 12, possess controlled weapon). You stabbed the knife through the fly wire, attempting to get in (Charge 5, attempted aggravated burglary).
14Mr Gammon tried to close the main door while you thrust your knife towards him through the closing gap (Charge 6, common law assault). He grabbed a machete and pushed it through the gap towards you, attempting to defend himself. He asked what you wanted, and you said you wanted his gun – an antique firearm you knew he owned.
15Your counsel submitted that you were suicidal at that time and were intending to do yourself harm. The prosecution very fairly conceded it could not disprove this motivation beyond reasonable doubt. I find that you were in a distressed state at the time and were intent on harming yourself.
16After Mr Gammon closed his front door, you went to a side window and attempted to gain entry there (included in Charge 5, attempted aggravated burglary). Frustrated, you slashed his external blinds and ran away towards the centre of Elmore.
17At around midnight the next day, on 26 August 2021, you went to the home of your friend Raelene Chalker, where her friend, Anthony Cooper, was also staying.
18Ms Chalker was watching TV when she heard you knock on her front door. She greeted you and spoke with you at the door. You made angry accusations against Mr Cooper to her, which she denied, and then told you to leave, closing the door. In fact, you intended to confront and assault him.
19Soon afterwards, however, she heard you inside the house and alleged that you must have entered through an unlocked lounge room window. You disputed this, saying Ms Chalker had let you in the front door while you spoke, and that physical evidence was at odds with you using the window. By your plea, however, you have accepted her version of events (Charge 1, aggravated burglary).
20She confronted you as you approached Mr Cooper's bedroom and blocked you from entering. You had a knife in your hand (Summary Charge 4, possessing a controlled weapon).
21Mr Cooper, seeing the knife, closed his door, leaving Ms Chalker outside with you in the hallway. You pushed her against the door, she fell and rolled her ankle in the process. She pulled your pants down in an attempt to stop you going further. You yelled a threat to Mr Cooper that you were going to kill him (Charge 4, threat to kill).
22Ms Chalker got up, only to find you pointing the knife at her. She covered her face with her hands to protect herself, and in doing so received cuts to her hands and face (Charge 2, recklessly causing injury).
23She grabbed a nearby chair and hit you in the back and then she ran out of the back door as police arrived, Mr Cooper having called them. You moved to the kitchen where you picked up knives and Ms Chalker's mobile phone.
24Police confronted you, but you did not comply. They subdued you with a taser, arrested you and put you in the police van where you broke the mobile phone that you still had with you (Charge 3, criminal damage).
25Both Ms Chalker and Mr Cooper have provided victim impact statements (Exhibits A and B respectively). They were very understandably shaken by your behaviour. They are still scared of you attacking them again. They are seeing counsellors to help them deal with their fear of being out in the community. The impact of this kind of offending on those whose homes are entered is
long-term. You should remember that when you are out. You will be making a fresh start, which is important, but you must be aware of the impact you have had on others, and it may take a long time before that becomes comfortable for them.
Procedural history
26Following your arrest, police interviewed you about all these offences.
27You admitted going to Doris Ryan's home on 7 August and causing damage there. You said that Ms Coventry had set you up to do it because she was fighting with the friend whose house you thought it was.
28You contested the allegations on the second indictment, particularly on the issue of whether you broke into Ms Chalker's home or was let in by her.
29You have remained in custody since your arrest.
30By application dated 19 September 2022, you sought a sentence indication on the second indictment, and having received it, you pleaded guilty to the charges set out above. In total, they are less serious than the allegations you originally faced.
31Your guilty plea is valuable. They have avoided the need for victims to give evidence at trial, which is very important in cases of violence like this. It represents your acceptance of responsibility and a willingness by you to help the course of justice to proceed more quickly and smoothly for all concerned. It avoids the cost and further delay involved in conducting a trial.
32Your plea is of somewhat greater significance in relation to the aggravated burglary of Ms Chalker's home because you gave up the chance of conducting a trial based on the physical evidence that suggested you did not get into the house through the window.
33It is also important to acknowledge your plea by an appreciable reduction in your sentence because it comes at a time when the delays in this court due to COVID are long, and your plea helps reduce the backlog of trials.
34Your 18 months in custody on remand has largely been served during
COVID-related restrictions. You have been in lockdown, had restricted programs and work opportunities, no personal visits and subject to quarantine for reasons beyond your control. It has been harder than it should have been.35I accept that your plea indicates some remorse.
36Since your arrest, you were sentenced in a driving case, receiving a two-month sentence on 24 August 2022, which you have now served.
37Your plea hearing proceeded on 30 November 2022 and was adjourned for an assessment by Disability Services of your suitability for a Justice Plan and by Corrections of your suitability for a community correction order.
38Today I heard submissions about these. The prosecutor takes no issue with the content of the reports provided. Your counsel submitted that I should impose a combination sentence, as I indicated, despite the opinion of Corrections that you are unsuitable for such an order. I am not bound by that opinion, but I am conscious of the risks it raises. I am also comforted to some extent by the apparent optimism in the assessment about your recent success on parole. I find that I will be able to manage your conditions over time with judicial monitoring to make that risk acceptable.
Personal circumstances
39You are now 33 years old. You were born in New South Wales and were fostered by your auntie on your mum's side in Bendigo and Wodonga areas. You do not have contact with your biological mum, and while your dad was a heavy drinker and served time in custody, he died in 2017.
40Your schooling was difficult for you because of your learning disability, and you left during Year 8. You still find reading and writing difficult.
41You began smoking cannabis at about 15 and in your early 20s started what became a long-term drinking problem.
42In spite of these problems that you face, you have tried to make things work and have over the years been employed as a concreter at times. This shows me that, against the odds, you have times when things go well. You should be proud of that.
43You have a reasonably lengthy criminal history. Your record goes back to 2008 when you were 18 and convicted of driving dangerously and damaging property. Over the years, you have also been convicted of assaults, causing injury and breaching court orders, including intervention orders. About a year before this offending, you were imprisoned for two months for breaching an intervention order and bail conditions. Only a few months before this offending, you were fined for similar conduct.
44You have had one serious long-term relationship, with Ms Coventry, over about 14 years and you have two sons with her. They now live with her sister after things broke down between you in 2021. Clearly, that was a very difficult time for you and that was when this offending occurred.
45Psychologist Jeffrey Cummins assessed you, and his report dated 26 August 2022 (Exhibit 1) states that you have lived with a moderately severe major depressive disorder for five or so years now. He recorded your history of diagnoses, including for an antisocial personality disorder and multiple admissions to hospital when things have been very difficult, including when you have made attempts to end your own life.
46I am pleased to hear that you are now on antidepressant and mood stabilising medication that help you and that they can be taken for the long-term.
47Mr Cummins confirmed your mild intellectual disability, consistent with you having received a disability support pension for many years. In an addendum report dated 29 September 2022 (Exhibit 2), he stated that your combined diagnoses are likely to impair your perception and judgment, which would be made worse by drinking. I accept that this is relevant to weighing up your moral culpability or how much you are to blame for your actions.
48Mr Cummins recommended that, to avoid further offending, you should engage in some counselling with someone you trust, you should continue with your medication, you should not drink at all, and you should be supported to further develop skills to think ahead when you are tempted to do things.
49He also stated that longer time in custody is likely to make things worse for your mental health and that you will have found custody harder to cope with than for a person without your diagnoses. I accept those opinions.
50You usually go to the Bendigo Community Health Service when you need to see a GP. Dr Singh of that service provided a report dated 17 October 2022 (Exhibit 3). It confirmed that you have seen Dr Tenni since 2014 for things like depression, anxiety, panic attacks and other conditions. It confirms your medication over time and that in May 2021 you overdosed and were admitted to hospital, consistent with the difficulties I have just described.
51You confirmed through your counsel that you are able to return to live with your auntie, who you call Mum, in Maryborough. It is not in dispute that she and her partner can have you home to live there and support you when you are released. You used to live with them until you were about 16 years old. Their knowledge of you and experience in supporting you is very significant. Things have not always been easy for you or those around you, and so her willingness to do this is important and they are both to be commended.
52During the progress of this matter, you have also agreed to reach out to the Prison Disability Support Initiative and to commence an application for support through the NDIS, the National Disability Insurance Scheme. Your willingness to do these things in important. It is not easy for some blokes to ask for help, but you are doing so, which suggests to me that you have a future in which you have more control and hopefully more enjoyment and less trouble.
Sentencing issues
53On Indictment M11806833, the first indictment (CR-22-00115), you pleaded guilty to one charge of aggravated burglary (maximum penalty 25 years), two charges of criminal damage (maximum penalty 10 years) and one charge of persistently contravening a family violence intervention order (maximum penalty five years).
54On the second indictment, M11806979.1 (CR-22-00462), you pleaded guilty to one charge of aggravated burglary (maximum penalty 25 years), one charge of causing injury recklessly (maximum penalty five years), one charge of criminal damage (maximum penalty 10 years), one charge of making a threat to kill (maximum penalty 10 years), one charge of attempted aggravated burglary (maximum penalty 20 years), one charge of common law assault (maximum penalty five years) and two summary charges of possessing a controlled weapon without lawful excuse (maximum penalty is one year).
55Aggravated burglary, where you have entered someone's home against their wishes to commit an assault, is obviously a serious offence. You have yourself experienced violence in the home when you were growing up. It is not only a horrible experience, but it goes against one of our most basic values – that people should feel safe in their own homes. That goes for you as well as the victims in this case.
56While I accept that your guilty plea to going into Ms Chalker's house is significant, however you got in there, you then turned to violence against her and threats against Mr Cooper. There is a time for criticising people if you think they have done wrong, but that is not late at night at their home; rather, it is for police to investigate. There is a time for punishing people who do wrong, but that is not for you to do; rather, it is for the courts to sentence.
57In order to make sentencing orders that balance the need to punish you with the desire to promote your safe return to the community, I have had regard to the reports I requested.
58I received a Client Overview Report (Exhibit 4) and Justice Plan (Exhibit 5) from Michelle Smith of the Forensic Disability Program of the Department for Families, Fairness and Housing dated 16 February 2023 confirming your eligibility for a Justice Plan, noting your eligibility for disability services was declared on 12 August 2005 (Exhibit 6).
59I also received a report from MHARS, the Mental Health Advice and Response Service, dated 23 February 2023 (Exhibit 7), confirming your previous diagnoses, that you are vulnerable, that you had mild to moderate mental health problems or difficulties, and that in custody you were anxious and stressed. It suggested, like Mr Cummins, that you be supported by a counsellor whom you trust to develop skills to manage day-to-day problems, including in your relationships with others. It recommended that you not be put in a situation where you feel overwhelmed by appointments and programs, which I find to be insightful.
60Finally, I received an Assessment Outcome Report from Corrections Victoria about your suitability for a CCO (Exhibit 8). It assessed you as being unsuitable for a CCO but conceded that you had succeeded in recent orders, including your 2019 parole order.
61Your history before the courts for relevant prior offending is, of course, relevant, and you are far from a first-time offender. However, as has been recognised, repeat offending can be understood when an offender's circumstances mean that progress towards an offence-free life is neither simple nor easy.[2] Your history does not stand in the way of getting a CCO.
[2] Boulton v The Queen (2014) 46 VR 308, [171]-[172]
62I find that the principles set out in Bugmy's case[3] apply to your case. You grew up in very challenging circumstances, were removed from your parents, witnessed you father's alcohol-fuelled offending from an early age and faced significant challenges to your own capacity to find an alternative path.
[3] Bugmy v The Queen (2013) 249 CLR 571, [42]-[44]
63Further, your intellectual disability, for which you are not to blame, is an
ever-present challenge for you.[4] It means your moral culpability is lessened as compared to a person who does not face that extra challenge[5] – a challenge that, with the right supports, you have been able, at times, to manage and to thrive. This is to your credit.[4] Muldrock v The Queen (2011) 244 CLR 120, [53]-[55]
[5] Verdins v The Queen (2007) VSCA 160, [32]
64Accordingly, it is appropriate to moderate to a significant degree the need to deter both others and you from further like offending in imposing this sentence.
65By imposing a term of imprisonment on you, however, I am making it clear that this kind of conduct is absolutely unjustified and must be punished.
66Your time in custody during COVID means that I must and will moderate your sentence accordingly.[6] Similarly, the effect of your guilty plea on reducing the delays in this court will be apparent in your sentence.[7]
[6] Brown (aka Davis) v The Queen [2020] VSCA 60, [48].
[7] Worboyes v The Queen [2021] VSCA 169
67You have been described as being in a high need of support upon release, and I acknowledge the attendant level of risk associated with that. I do not regard, however, prolonged imprisonment as the best answer to your need for
long-term rehabilitation or to achieving better protection for the community. The better path is to help you get on top of your challenges and stay that way.68Your counsel referred me to a number of cases that demonstrate the kind of sentences imposed in similar cases.[8] While no two cases are the same, I have had regard to them when weighing up the facts here.
[8] R v Foster [2007] VSCA 85; Suckling (Shortis) v R [2013] VSCA 278; DPP v Wilson [2017] VCC 1237; Johnson vR [2013] VSCA 277
69As to your suitability for a CCO with a Justice Plan, while I appreciate the candour of the assessor about inadvertently setting you up to fail, I find that releasing you on such an order meets the sentencing principles while avoiding the pitfalls of further imprisonment.
70I have had regard to the fact that you have served two months' imprisonment for summary offending since your arrest in this matter. I have taken that into account when applying the totality principle.
71On the first indictment, M11806833 (CR-22-00115), I sentence you as follows:
·Charge 1, aggravated burglary – 13 months;
·Charge 2, damaging property – three months;
·Charge 3, damaging property – three months;
·Charge 4, persistent contravention of a family violence intervention order – one month.
These sentences are all to be served concurrently, resulting in a total sentence on this indictment of 13 months.
72On the second indictment, M11806979.1 (CR-22-00462), I sentence you as follows:
·On Charge 1, aggravated burglary – 12 months;
·On Charge 2, recklessly causing injury – three months;
·On Charge 3, damaging property – one month;
·On Charge 4, threat to kill – one month;
·On Charge 5, attempted aggravated burglary – 14 months;
·On Charge 6, common law assault – one month;
·On the related Summary Charges 4 and 12, possessing a controlled weapon, you are convicted and discharged.
Two months of the sentence on Charge 1 is to be served cumulatively upon the sentence imposed on Charge 5 making a total sentence on this indictment of 16 months.
73Six months of the total sentence imposed on the second indictment (CR-22-00462) are to be served cumulatively upon the total sentence imposed on the first indictment (CR-22-00115), making a total effective sentence of 19 months.
74Under s11(2) of the Sentencing Act, I have a discretion to fix a non-parole period in relation to this sentence. However, due to the combination of sentences I am imposing and your pre-sentence detention, I will not do so.
75I declare that you have served 513 days of pre-sentence detention and direct that this be reckoned as a period already served under this total sentence.
76On the aggravated burglary charges (Charge 1 in the first indictment and Charge 1 in the second indictment) and the attempted aggravated burglary (Charge 5 in the second indictment), I also impose a single community correction order, with conviction, for 15 months, including the following conditions. The first and second are the conditions recommended in the Justice Plan, namely:
(a)You must engage with a Disability Justice Coordinator from the Department of Families, Fairness and Housing for the duration of the order, participating in any recommended programs or services as directed by the Disability Justice Coordinator;
(b)You must participate in a referral to the Forensic Disability Clinical Services team and participate in assessment processes and any offending behaviour programs as recommended;
(c)You must attend your GP and engage in ongoing review of your medication as well as your physical and mental health needs;
(d)You must engage in supervision by a Community Correction officer; and
(e)You must appear in court for judicial monitoring as required.
77Your first judicial monitoring hearing will be at 4.15 pm on Wednesday 24 May 2023. If all is going well, it can be by video link. However, if there are further incidents or you are not turning up for appointments, I may require you to come here and explain why.
78In accordance with s6AAA of the Sentencing Act 1991, but for your guilty plea, I would have imposed three years, nine months and fixed a non-parole period of two years, six months.
79So, Mr Gavin, what that means is that after you have served 19 months, you will be released. That 19 months will be calculated by sentencing authorities in Corrections, and it might be that you will be released in the coming weeks because of emergency management days. When you are released, the first thing you have got to do apart from go home to your auntie, your mum, is to call Corrections and go and visit them in Bendigo, and you have got to do that within the first two days that you are out. You will also have contact with your disability worker, and they will be your key person to organise your appointments and other supports. Do you agree to having a CCO with the Justice Plan in the way that I just set out?
80OFFENDER: Yeah, yep.
81HIS HONOUR: It will be sent out to you at the prison, and you will be asked to sign it at the bottom of the page. I will check that the conditions are all correct before it is sent. If you like, that is the agreement between you and me. And the next time I see you will be on 24 May.
82OFFENDER: Yep.
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