Director of Public Prosecutions v Gould

[2015] VCC 87

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

AT BENDIGO
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MURRAY GOULD

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Bendigo
DATE OF HEARING:	30 January 2015
DATE OF SENTENCE:	6 February 2015
CASE MAY BE CITED AS:	DPP v Gould
MEDIUM NEUTRAL CITATION:	[2015] VCC 87

REASONS FOR SENTENCE
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Subject:  Plea
Catchwords: Aggravated burglary
Legislation Cited:
Cases Cited:
Sentence: 3 year CCO

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. A. Moran
For the Accused	Mr. J. Lowy

HIS HONOUR:

1Murray Gould, you have pleaded guilty to two charges contained in Indictment E12200775.  Charge 1 is a charge of aggravated burglary, the offence having occurred on 3 July, 2014 when you entered premises at 13 Redhill Court, Eaglehawk, with intent to commit an offence involving an assault to a person in the building at the time, and you had with you an offensive weapon, namely a hammer and a tyre lever.  The maximum penalty for this offence is 25 years imprisonment, and as you can see from the maximum penalty, the law regards this as a very serious offence. 

2Charge 2 is a charge of intentionally, without lawful excuse, damaging a property at 13 Redhill Court, Eaglehawk.  The maximum penalty for that offence is 10 years imprisonment. 

3When you pleaded guilty, you also pleaded guilty to three summary offences, namely two charges of assault, one when you were armed with a weapon and also of failing to answer bail when you were meant to appear at the Bendigo Magistrates' Court on 15 October, 2014, and you failed to do so. 

4The circumstances of your offending are set out in a written prosecution opening which was read to the court by the learned prosecutor, Mr O'Doherty.  Mr Lowy, of counsel, who appeared on your behalf advised me that the opening was accurate and formed a proper basis upon which I can proceed to sentence you.  It is not necessary that I set out in full here, what is set out in the opening, except in summary form, although these sentencing remarks need to be read in the light of what is therein contained.

5At about 11.30 pm on 3 July, 2014, you attended at the address that I earlier referred to, with some family and friends, and at that address, you had a confrontation with, in particular, one of the persons within the premises, one Steven Cattanach.  You had previously been in a relationship with a Ms Ring, with whom you have had two children.  Ring and Cattanach were residing together at the address.  You confronted Cattanach and an altercation occurred which accounts for the summary charges of assault, and it was in the process you damaged the premises and also a vehicle at the premises, and I received into evidence, a number of photographs relating to that damage.  I have been asked to sign a Disposal Order relating to the hammer and compensation orders relating to the damage to the premises, and those orders are unopposed and I will sign them.

6It is not necessary, I think, that I further describe what you did, but although not at the highest level for these kind of offences, your offending was, nonetheless, very serious.  When you pleaded guilty, you also acknowledged a number of prior convictions from a number of court appearances dating back to 2006. 

7Your counsel submitted that your prior history was really marked by driving offences, and to some extent that is true.  However, the feature of them is also drinking to excess and you also have a prior conviction for intentionally damaging property which is the second offence on the indictment.  It is clear that you have problems with anger management in my view, but you have not previously been sentenced to a term of imprisonment. 

8Mr Lowy relied upon a psychological report from one Warren Simmons, dated 23 December, 2014, and I have had full regard to the content of that report in arriving at a sentence.  It is clear to me that you have had a difficult upbringing and life, and you have a number of health issues.  Mr Simmons concluded his report with the following: 

9With regard to the matters currently before the court, these appear to have occurred in the context of Mr Gould coming to assist his partner at her request.  Unfortunately, she changed her mind and Mr Gould's frustration led to him acting as he did.  There is certainly evidence that Mr Gould is suffering from a depressive disorder, but also suffers from some cognitive compromise as a result of his poorly controlled Epilepsy.  Seizures disrupt brain function and the brain needs some time to re-establish prior levels of competency.  In this regard, Mr Gould's seizures are occurring at a rate that is impairing his memory and concentration.  This may have then led to an impact on his decision-making in the context of his depressive symptoms.  While disposition is a matter for the court, it is respectfully suggested that Mr Gould would benefit from a referral for Drug and Alcohol counselling to assist him addressing his cannabis use, especially as he is motivated to decrease this and cease at the present time.  More importantly, Mr Gould appears to be in need of a referral to a Neurologist to assess his condition and determine the most appropriate treatment regime.  It is clear that his Epilepsy is poorly controlled and an expert assessment of his condition would be the best way to improve the management of his illness."

10I do not rely on anything that a psychologist has said about your problems with Epilepsy, and to that matter I suggested to Mr Lowy that appropriate medical evidence be put before the court.  At the moment I cannot understand why such evidence is not available at the time of the plea.  Nevertheless, it now seems to be forthcoming.  Better late than never.  I have received into evidence today, appropriate medical evidence that indicates that you are suffering from a form of Epilepsy that requires ongoing treatment and monitoring.  A report from Dr Grant Rogers, undated, provides as follows: 

11“ Murray Gould was diagnosed with epilepsy in 2009.  I have included Murray's full clinical history to provide a timeline of presentations over the years and indication of the type of seizures experienced.  I am not the doctor usually treating him.  I cannot provide a professional opinion on the severity of his Epilepsy.  From his ex-partner's perception, his seizures have been frequent, at least one per week and severe, ranging from absence through to violent.  Due to the multiple relapses in presentations at Casualty, he was reviewed at the Royal Melbourne Hospital for the above issues.  He has had an EEG and is awaiting Specialist review there.  He remains on Tegretol 200 mg twice daily.  He appears to be suffering frequent seizures and further treatment options will need to be explored to stabilise this illness from the account's given by his ex-partner and the person concerned."

12It is clear to me that you have ongoing health problems and any term of imprisonment, were I to impose one, would be more burdensome on you than for others.  You have also, today, provided what is described as a letter of acceptance to the Baxter Institute for a course in training as a Level IV Engineer.  I congratulate you on that and wish you well.  It seems to me that you are taking some steps to put your life back in order.  You have pleaded guilty to the charges.  For that you are entitled to a reduced sentence in my view.  You have pleaded guilty at the earliest opportunity.  I take your pleas of guilty as a sign of genuine remorse, and I have taken it all into account in arriving at penalty. 

13I indicated on the last occasion that I thought that it would be appropriate to have you assessed for a Community Corrections Order.  I have now received a pre-sentence report relating to that referral which indicates that you are suitable to be accepted for a Community Corrections Order.  In respect of all the offences I make a Community Corrections Order.  It will be for a period of three years.  There will be a period of 200 hours unpaid community work over the three year period.  There are treatment and rehabilitation conditions, an alcohol exclusion, and supervision conditions.  Any time that you spend in relation to treatment and rehabilitation is taken into account, and reduced from the time that you would otherwise spend on unpaid Community work.  It has been indicated to me, Mr Gould, that you are prepared to enter into the terms of such a Community Corrections Order.  Is that so? 

14OFFENDER:  Yes, Your Honour. 

15HIS HONOUR: Very well. Could you have Mr Gould sign that order please. As I indicated earlier, I have also been asked to make, and it was unopposed, a compensation order in favour of the Department of Human Services in the sum of $789.85 and I have signed that order, together with a Disposal Order in relation to the hammer. I have also been asked to make an order under s.464ZF sub-s.2(A) of the Crimes Act for the taking of a forensic sample. That was also not opposed and I have signed that order and the reasons for my signing the order are indicated in the order itself. Mr Gould, you have now entered into the terms of the Community Corrections Order. If you breach that order, you will come back before me. Do you understand, and I will deal with you for the breach and I may, I am permitted to re-sentence you at that time, so that is a very long-handed way of saying I do not want to see you back in my court again. All right.

16OFFENDER:  I fully understand Your Honour.

17HIS HONOUR:  Very well, and there is a transcript kept, so if you do come back before me, your words will used against you.  Do you understand?

18OFFENDER:  Certainly do.  You won't see me again. 

19HIS HONOUR:  Very well.  I think it's appropriate that these medical matters be returned to you, rather than be on the court file and I will hand them back to Mr Lowy, thank you. 

20MR LOWY:  If I photocopy that one, Your Honour.

21HIS HONOUR:  No, I don't think it matters.  Thank you.  I'll hand these back too, relating to the (indistinct).  All right, any questions arising out of that. 

22COUNSEL:  No, Your Honour.

23HIS HONOUR:  Very well.  Thank you Mr Gould, you may go. 

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