Director of Public Prosecutions v Goldson

[2023] VCC 496

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-01119

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT GOLDSON

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	24 March 2023
DATE OF SENTENCE:	24 March 2023
CASE MAY BE CITED AS:	DPP v Goldson
MEDIUM NEUTRAL CITATION:	[2023] VCC 496

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Paganis	Office of Public Prosecutions
For the Accused	Mr S. Ranjit	Papa Hughes Lawyers

HIS HONOUR:

1Robert Goldson, you have pleaded guilty to two indictable charges of intentionally damaging property and common law assault and three summary charges of committing an indictable offence on bail, contravening a condition of bail and entering a private place without permission, trespass.  The maximum penalties are set out in the prosecution opening, which I incorporate by reference.

2I am able to deal with this matter in a summary manner due to the comprehensive written submissions by both prosecution and defence, which are on file.  The circumstances of the offending were set out in the
Prosecution Opening, which was read in open court earlier this morning.  All offences occurred on the one day, 10 January 2022. The day before you had been placed on an intervention order. You were living with your mother and stepfather at an address in Brookfield, a western suburb of Melbourne.  There was an incident on the 9^th of January when you were drug affected, and a condition on which your mother had allowed you to return home was that you were not to use drugs.  You breached that condition so she sought an intervention order to have you removed from the house.

3So the following day, the 10th, you returned to the house in breach of the order and demanded some property of yours, your clothes, and when you were told to leave the house you then proceeded to break a window into the house.  You got into the house and then proceeded to assault your stepfather, and that is the count of common assault, the second charge. The breaking of a window is Charge 1, and being on the property without permission constitutes the summary charge of trespass, and also breaching the conduct condition of bail and committing an indictable offence on bail. All offences arise out of a single course of conduct that occurred on 10 January but related back to the day before when you were effectively banned from the house and placed on an intervention order. You were on bail for the breach of the intervention order and yet, contrary to the conditions of bail, you immediately breached them.  One condition was you were not to go within 200 metres of that property address in Brookfield.

4You cut your hand when you broke the glass window.  An ambulance was called and you were assessed and provided minor first aid and then you were arrested. You have been in custody ever since that time.

5As a result of you being in the house, refusing to leave, your mother was observed to have to run away from the property, and it caused grave distress to her, plus to your sister, who happened to be at the property that day.  There is no victim impact statement from your stepfather, but he got two punches to the face and no doubt that caused him some pain.

6The whole circumstances of the offence, as your counsel properly conceded, were absolutely unacceptable conduct by you, drug affected offending, invasion of your parents' home, where you had been proscribed from going to it; it all adds up to a spate of offending that is in the mid-range of seriousness.

7Your stepfather, as I said, has not filed a victim impact statement but there is a victim impact statement from your mother, and she indicates that this offending, perhaps unsurprisingly, has caused major trauma to her.  She has put up with you in your life (you are now 39 years old) but she really only feels safe while you are incarcerated.  She says when she sees someone who looks like you her heart starts palpitating and she feels as though she is going to vomit.  She feels safe in her home now while you are incarcerated and she is worried that when you are released you will come back.  The impact of the offending on her was such as she had to take six weeks off work and she suffers from anxiety and she is mentally tired, and she indicates at the end of her victim impact statement that she has tried to look after you many times.  She says:

'There have been many times that I have witnessed him being in a psychotic state due to substance abuse and every time it has scared and traumatised me to the point that I am non-function for days and weeks on end'.

8She is on medication for anxiety to help her sleep.  She has an AVO on you and that she will not allow you back in her house and she will not allow any contact with you.

9Your sister put in a similar victim impact statement.  She happened to be there at the time.  She has vivid flashbacks about the offending.  It caused her to be in an emotional state, anxiety, stress, as a result of your conduct that day, forcing your mother to flee the house, fighting with your stepfather.  She feels anxious and stressed and worried about her own children.  She says:

'The trauma and stress affected my work life as I couldn't attend work for four weeks.  I needed time to calm down my nerves and be able to concentrate'.

10I must take into account the victim impact statements in dealing with you for this offending, and they go to the seriousness of the offending.  Your moral culpability for the offending is relatively high.  You were drug affected, you have been drug affected in the past so you cannot say that you would not have been aware that being drug affected causes you to lose impulse control and get into this sort of conduct.  The explanation given for the offending by your counsel was that you were trying to return after you were told you were not to return to the home.  You went back to the home to get your work boots and clothes and when this was refused, and that is when you broke in.  There was no excuse for what you were doing.  It does provide some explanation for it but it does not justify it.  Particularly given that you were drug affected does not justify you breaking the window and assaulting your stepfather.

11Your conduct that day must be considered in the light of your criminal record, which is extensive.  It goes back approximately 20 years and includes two significant sentences of imprisonment.  One in the Supreme Court for the offence of recklessly causing serious injury back in December 2009 in company, where you got a three and a half year sentence with a minimum of two and a half years, and then in this court on 1 May 2014 where on a charge of recklessly causing injury you received a community corrections order for
two years, That was an assault on your then partner, who is the mother of your two children, your two daughters, and you were placed on judicial monitoring for a couple of years by Judge Montgomery. Indeed, for those two years after that it does not appear that you reoffended.  That particular section had an impact on you for the duration of the community corrections order, but then in 2017 you come before the Magistrates' Court on offences of recklessly causing injury again, and effectively three counts of contravening a family violence intervention order, and then as recently as May 2021 you were in the Magistrates' Court for shop theft, using threatening words and failing to answer bail.

12So you have an extensive criminal record, which your counsel pointed out, does not go to the seriousness of the offending but it does go to your moral culpability, it does go to the issues of general deterrence and specific deterrence and protection of the community.

13

I turn now to matters in mitigation, which are set out in a comprehensive submission from your counsel, which I incorporate by reference.  Your personal circumstances are set out in that submission, and also in the report from

Ms Mynard, a clinical psychologist. As I indicated you are now 39.  You come from a difficult upbringing.  It is clear that you had early childhood trauma, including sexual abuse, and this has had a longstanding impact on you.  You did not complete your secondary education, your parents separated very early in the piece and then your mother re-partnered and there was domestic abuse in that relationship to her. She has now re-partnered and of course you have abused your mother’s partner in the count of assault.

14You have been in and out of prison over the years.  You have also had a number of trips to various rehabilitation facilities.  You have seen a psychiatrist some years back.

15It is clear from the report of the decision of Justice King in a Supreme Court case and, indeed, from the decision of Judge Montgomery in this court, notwithstanding that you dropped out of school or left school at year 9 you were able to work, get an apprenticeship, successfully get an apprenticeship as a boilermaker, and then you have also obtained other trade qualifications, including a forklift licence, and you worked in manual labouring for most of your life, and as your counsel put, in a period for about three or four years up until this offending you were working in a civil construction firm on the Westgate tunnel, and as I indicated to your counsel, you would have been making very good money in that job.

16

Notwithstanding that, of course, you were using the money to use your drugs and gambling, and that led to further issues.  It led to the offending that took place when you were most recently charged in using threatening words and failing to answer bail, shop stealing on 21 May 2021, and then ultimately using drugs again possibly during the period of holidays when the work was closed down.  You had time on your hands over the Christmas/New Year period

of 2022, and that is when you then went back to using ice with some criminal acquaintance, and this led to this offending.

17What your employment background indicates and, indeed, as your counsel put, you did have a period where you were relatively stable, you were making good money, you had your own rental property, you were engaged with your children, although you had separated from their mother, so you were a productive member of society but it all came crashing down in late December 2021 when you got back into the drugs and now you have been in custody since that time, 10 January 2022.

18Your counsel relied on a reference from a company that does not appear to be operating but it is an Aboriginal controlled company and you were obviously in some form of a labour hire arrangement with that company and you were seen to be a very good worker when you had that engagement as a result of that A2B Personnel.  Although there is no current position available with that company because it is not trading, it does indicate that you do have the ability to be a productive member of this society.  On the plea your counsel tendered a number of certificates that you have undertaken while you have been in prison, and I give you credit for that.

19You get credit for a relatively early plea.  The Court of Appeal has said that offenders who plead guilty during the COVID environment are entitled to perceptible amelioration of sentence and you do get a perceptible amelioration of sentence by pleading guilty.  It was not at the earliest possible opportunity but there were a number of other charges and the matter was finally resolved following a case conference in this court.  So it was a relatively early plea.  You have facilitated the course of justice, you have taken responsibility for your conduct and saved the need for a number of witnesses to come to trial, although you had contested a committal in the Magistrates' Court.

20There is little evidence of remorse in this matter but I accept that there is some evidence of insight into your offending.  There is obviously a lot of self-pity in the particular circumstances you have got yourself in now, where you have effectively lost the ability to contact your mother and your sister, and then even as recently as today apparently one of your brothers was going to give you accommodation and he is refusing to do that.  So the period since the offending is obviously going to take a continuing toll on you due to this loss of contact with your family.

21

On the plea a central issue was whether or not the period that you have been in custody since your arrestof really 14 and a half months is a sufficient sentence of imprisonment for the offending. There were at least two unsuccessful bail applications. The learned prosecutor in a helpful submission conceded that a term of imprisonment was required, which she did not make a submission one way or the other as to whether a further term of imprisonment was required to meet all these sentencing requirements under the

Sentencing Act 1991 (Vic)

.  The prosecutor made a very important point.  This was an unprovoked attack on your stepfather and you had broken into the family home and it had major victim impacts, which must be taken into account.

22Your counsel in his submission made the point, and I accept it, that the period of custody that you have been in has been during the COVID period, and that means that there was a higher burden of imprisonment over that period.  You get locked down for a couple of weeks when you first go into custody, there is less movement within the prison system, programs are constrained, until relatively recently they have not been in person.  In addition to that there has been more limited family visits.  You have been up in Hopkins Correctional Centre, which is a long way from Melbourne to have your children visit you and although they have been available to do that, able to see you on Zoom calls, that makes your term of imprisonment more onerous than pre-COVID, shall we say.

23In addition to that, in the 14 and a half months you have had the uncertainty of being on remand, which I regard as quite significant, while your lawyers are seeking to resolve the matter and you really need to be in a position where you know what you face and then you can focus your mind on the future. 

24The psychological report from Ms Mynard indicates that you have longstanding complex PTSD that has not been treated.  She submitted, and your counsel submitted, that there is a reduction in moral culpability for the offending on the basis of having the complex PSTD.  I do not accept that.  This was drug affected behaviour by you.  It does not reduce your moral culpability.

25I do take into account, however, this deprived upbringing you have had, which from Bugmy v R [2013] HCA 37 case, is a factor to take into account. I do not see your psychological condition as requiring any reduction in a higher burden of imprisonment. Most people in prison are depressed and so you are not alone in that. You obviously need in the community either a job or you need continuing psychological therapy. You are now 39. You must be getting close to the period when a lot of offenders burn out and decide, look, it is not worth it. You have got a life expectancy of probably about another 40 years. You might as well make it productive. If you read the newspapers, which you probably do not, they indicate that the community is desperate for people who have got skills who can get in and work, and our former prime minister used to say the best form of welfare is a job. You have proved in the past that you are able to engage in that form of welfare because you obviously had a high paid job, you were engaging with your children, had your own rental property, and then it all came crashing down on you.

26The period of 14 and a half months has obviously given you enough time to dry out as far as your drug offending or your drug use is concerned.  Perhaps reflect on a life that has been unsatisfactory, in and out of gaol, and then to reflect that when you are released you can move forward, re-engage with your children, get back into the construction workforce, which is where there is good money to be made, particularly given that you had a qualification in the past, and you can go back and get your forklift driver's and riggers tickets or whatever, and as I said to you, people are screaming out for that.  You may be able to engage with some Aboriginal organisation, because there is a lot of requirements that people of Aboriginal background are to be given preference or contractors are required to have a certain percentage of Aboriginal workers on their books, particularly for public works.  So you should be able to get back in the workforce, and when you do that will give you a raison d'etre in life and might get you where you do not go back to using drugs.

27Turning to sentencing purposes, obviously general deterrence is an important consideration.  The sentence of the court has got to send a signal that people are not entitled to break into family houses that they have been banned from, particularly when they have just had an intervention order put on them, and break a window and then proceed to punch their stepfather.  So there has got to be a message sent that drug affected people or any people are just not to do that, and that is part of the sentencing synthesis.

28Your conduct in doing what I have just discussed is absolutely to be condemned.  People are entitled to live in their own home, to kick out people that they do not want, even their own family, and expect them to abide by the law and not try and break in again and assault the people involved.

29Specific deterrence is a factor because, as I have indicated, you have a number of significant prior convictions for assault type offending, although you do not seem to have any prior convictions for property offending but you have got at least one prior conviction for a breach of bail and breach of intervention orders.  You have no doubt had lectures from numerous judges and magistrates that each time you come before a court you are going to get longer and longer sentences to teach you a lesson and try and convince you that it is time not to come back.

30In sentencing you for these five offences they do arise out of a course of conduct, particularly the breach for damaging the property and the assault on Mr Smith.  The other offences are consequential on your status as being on bail and being prohibited from going into that property.  So in sentencing you they are to be treated as essentially a single event.

31Weighing all the respective submissions from your counsel and also from the learned prosecutor, the sentence of the court on the charge of intentionally damaging property and common law assault is an aggregate sentence of 438 days' imprisonment.  The sentence of the court on the three summary charges is an aggregate sentence of three months' imprisonment, and that is to be concurrent.

32I declare you have served 438 days' imprisonment.

33I declare that had you not pleaded guilty I would have imposed a sentence of 18 months' imprisonment with a non-parole period of 12 months.

34But just remember with a record like yours, you have got an intervention order against you from your mother and Mr Smith and probably your sister.  If you breach that order because you have got a number of priors for that, plus this particular offending, and I know you have got other matters outstanding, I cannot deal with that, but you go forward and you breach intervention orders or commit any other form of criminal offence, you will be getting longer and longer terms of imprisonment, but the important thing to remember is in the current state of the economy with literally a job vacancy for everyone who is looking for a job, you should be able to get into the workforce, make a few bob, and lead a productive life.

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