Director of Public Prosecutions v Gordon
[2013] VCC 1622
•30 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00920
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN HOWARD GORDON |
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JUDGE: | HIS HONOUR JUDGE MONTGOMERY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 30 July 2013 | |
CASE MAY BE CITED AS: | DPP v Gordon | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1622 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Ayres | |
| For the Accused | Mr A. Paull |
HIS HONOUR:
1 John Howard Gordon, you have pleaded guilty to one charge of aggravated burglary, one charge of common law assault, one summary offence of contravention of a personal safety intervention order and one charge of harass a witness in a criminal proceeding. You have admitted a long list of prior convictions, beginning in 1981, continuing until 20/12. There was a gap, as your counsel has pointed out, between 2005 and 2012. Your convictions in relation to violence go back to 1986, 1990 and 1992. So they are quite some time ago. However, you have, in that record, have repeat offending for driving offences and offences of dishonesty and it would seem that you have breached a lot of the orders the courts have given you in respect or rehabilitation. Intensive correction orders, community based orders, suspended sentences and, indeed, at the time of this offending you were on a suspended sentence and, as the prosecutor has just pointed out, in relation to the summary offences, you were on bail for the major offences that you have pleaded guilty to today.
2 The prosecutor has submitted to me that the appropriate sentencing range I should look at is a head sentence of four to three years with a non-parole period of 24 months to 18 months. It is agreed that you have spent 213 days in pre-sentence detention. The prosecutor points to the frail condition of the victim, she was a vulnerable person, you had been her carer, at the time you were on a suspended sentence and on bail for the summary offences, and asked me to take those matters into account.
3
On your behalf, your counsel, Mr Paull, has handed up written submissions and a report from Carla Lechner, a clinical and forensic psychologist, dated
17 July 2013. Both the outline and that report set out your personal history. In relation to how you have grown up I will not go through it in any detail. It is there in the documents, suffice to say you are now age 14, you live with your parents. Your work record has been intermittent, you had a car accident that resulted in acquired brain injury in 1992. You have had a long addiction to heroin. Ms Lechner describes you as cognitively and emotionally immature with a limited ability to reflect on the impact your behaviour has on yourself and others.
4 You told her and your counsel, who relies on his instructions from you, that you believe that the three Xanax tablets you took prior to the major offending had an effect on how you approached it. Your overall intelligence, Ms Lechner says, is likely to be in the mildly intellectual disabled borderline range that approximately 98 per cent of the adult population performing better. She says you possess the symptoms of major depression, cannabis and heroin dependency. Your cognitive decline since testing in 1999 she attributes to ongoing substance abuse and dependency. She believes that you need a lot of treatment to make sure that your rehabilitation works out.
5 Your counsel, Mr Paull, detailed for me the circumstances of the offending. He submitted that it was at the lower end of this type of offending. He points to your plea of guilty, which was made at the first reasonable opportunity. I accept that. He points to your age, the effect that a gaol sentence will have on a person of your age, your long history of drug use, the fact that you have few convictions for violence and your lengthy criminal history and the gap in it that I have already referred to. He asked me to look at the aggravated burglary and assault as part of a single incident, and in respect of the summary offences, he submitted that I could look at not imposing a conviction on one of them. He made submissions about specific deterrence and general deterrence.
Sentence Considerations
6 I have taken into account all of the submissions made and documents tendered by both parties, including any not specifically mentioned in these reasons. I have taken into account s.5(1) and (2) of the Sentencing Act. The facts of the matter are set out in the outline of prosecution case, which is Exhibit 1. I will not now go through the facts in any detail. Exhibit 1 will be attached to the file and any reader of these reasons can refer to that exhibit to place the sentence in its factual context.
7 Mr Gordon, the highest court in this State, called the Court of Appeal, has said that offences of aggravated burglary are serious matters and the courts do not give enough gaol time for them. It said that late last year.
8 Your offending here was particularly bad. It involved someone that you had actually been a carer for, someone you knew was in ill health. It would seem, when you were dismissed from her care in November 2012 by her you did not accept that, and on 21 December you went around to her house. She asked you in and you became abusive towards her. She told you not to return and it was on the next day that you came around with a knife, behaving in the way that you did.
9 So one of the court's functions is to give a sentence to stop people doing this sort of thing. So that is one thing I have to look at. That is called general deterrence.
10 The second thing is called specific deterrence. That is I have got to try and get it into your mind you have got to stop offending. True it is, you do not have a lot of convictions for violence, and they go back 20 years, but you have a lot of convictions for all sorts of other things, even though there was that gap I have referred to, and at this time you were on a suspended sentence and in the last, the summary offences, you were on bail. So I have got to impose a sentence that gets it into your mind you just cannot keep on doing this, cannot keep on offending. It just cannot happen. If it does, the gaol sentences just get longer, as you will find out shortly.
11 I have to consider what is called rehabilitation. Are you going to get out of this and get better? Your counsel says you have reasonable prospects of rehabilitation. I find myself left in a position where there is not a lot of material upon which I could come to that conclusion. I have looked at Ms Lechner's report, and whilst you are on parole you hopefully will be offered a lot of support and I can only urge you to take advantage of it.
12 I also have to look at what is called the court's denunciation of this conduct. That is what the court thinks of it all. As you have probably gathered, I do not think much of it. To attack someone who you have known for about ten years and in the position of a carer is really very bad conduct, particularly when you have a knife and broke into her home. Luckily, it did not go any further.
13 Weighing up all those matters as best I can, I have come to this conclusion. In relation to Charge 1 and 2, the aggravated burglary and the common law assault, I impose, under s.9(1) of the Sentencing Act, an aggregate sentence of three years. In relation to the summary offences, I do not accept that I should not impose a conviction for both of them, because, as the prosecutor points out and I accept, the breach is made by the phone call and the harassment is made by the content of the phone call. In any event, I impose an aggregate sentence in relation to the summary matters of three months and I direct that one and a half months of that three months be served cumulatively with the three years imposed on charges 1 and 2. So that should make 37 and a half months as a head sentence. I direct that you serve, in relation to that total sentence, a non-parole period of 18 months. You have got 11 months to go approximately.
14 I declare, under s.18 of the Sentencing Act that the 213 days you have already served be reckoned as part of the term of imprisonment I have just imposed.
15 Under s.6AAA of Sentencing Act I declare that but for your pleas of guilty I would have sentenced you to a term of imprisonment of five years with a non-parole period of three years.
16 I have signed a disposal order and a retention order for DNA.
17 Thanks, Mr Gordon, you can sit down for the moment. Are there any other matters I need to look at or say?
18 MR AYRES: No, Your Honour.
19 HIS HONOUR: No. You can remove Mr Gordon, thank you.
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