Director of Public Prosecutions v Irving
[2023] VCC 1204
•12 July 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01329
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA IRVING |
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JUDGE: | HIS HONOUR JUDGE CHETTLE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 March 2023 and 17 March 2023 |
DATE OF SENTENCE: | 12 July 2023 |
CASE MAY BE CITED AS: | DPP v Irving |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1204 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW SENTENCE
Catchwords: Sentencing; burglary, theft, aggravated burglary, intentionally cause serious injury, driving in a manner dangerous
Legislation Cited: s5(2H) Sentencing Act 1991, s6AAA Sentencing Act 1991
Cases Cited:
Sentence:Total effective sentence; 4 years and 6 months, non-parole period 2 years and 6 months. Licence cancellation and disqualification.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Hogan | Office of Public Prosecutions Mr. M. Nguyen. |
For the Accused | Mr B. Penno | BSA Legal Mr. M. Laughton |
HIS HONOUR:
1Joshua Irving, you have pleaded guilty to two charges of burglary, two charges of theft, one charge of aggravated burglary and one charge of intentionally causing serious injury.
2In addition, you have pleaded guilty to a related summary offence of driving in a manner dangerous.
3The facts of your offending are set out in the Exhibit A, the prosecution plea opening. I was informed by your counsel that that document represented an agreed statement of fact and I incorporate it into these reasons for sentence and sentence you on the basis of the facts set out therein.
4Very briefly stated up until late 2021 you were employed by Brad Cattlin & Sons in Smith Road, Springvale. You were let go by the company and posted negative Facebook material about the company.
5On Sunday 10 April 2022 you broke into the Smith Road premises, stole a set of keys, and then stole an Isuzu D-Max vehicle. You filmed yourself driving the stolen vehicle at speeds in excess of 150 Ks per hour. That conduct constitutes the burglary, the theft of the keys, burglary with intent to steal and the theft of the Isuzu motor vehicle and the related summary offence of speed dangerous.
6On Monday 11 April you and an associate drove the vehicle to the Melbourne Water premises at Melba Highway, Yea.
7At about 2 am you forced entry through the gates and rammed the door to the treatment plant. When you entered the premises looking for items to steal, an audible alarm sounded. You discarded the stolen Isuzu in Glenburn subsequently.
8On 13 April 2020 at about 3 am you took a metal bar to the Smith Road premises and used it to force open a door. You were wearing a balaclava.
9An employee, Raymond Madrono, was asleep in the premises and was awoken by a loud noise. He went to investigate, carrying a cricket bat. You got into a scuffle with him and produced a knife.
10You sustained a blunt force injury to your head in the scuffle. You picked up the cricket bat and struck Mr Madrono three times to the face, knocking him to the ground and leaving him with significant pain.
11While he was lying there you stole his mobile phone and removed the CCTV hard drive and left the building.
12Mr Madrono managed to contact his brother and police arrived at the premises.
13Paramedics took Mr Madrono to the Alfred Hospital. He was found to have suffered severe multiple skull fractures, two fractured eye sockets, a fractured nose, a gash to his forehead and brain swelling.
14He underwent complex surgery inserting metal plates and screws to his head and was in hospital for seven days. He was assessed by an occupational therapist as suffering from deficits in language and verbal recall.
15Police seized the wooden bat and metal bar at Smith Road. Your gloves and balaclava were located at a nearby service station and the CCTV hard drive you had stolen was located in the nearby bush. CCTV footage from the service station depicted you at the scene.
16On 15 April 2020 you were arrested at home and when interviewed you claimed Brad Cattlin & Sons owed you money. You admitted committing the burglary on 10 April and stealing the Isuzu. You admitted the 13 April burglary. You claimed to have been confronted by Mr Madrono and hit by him to the head. You admitted getting the cricket bat and hitting Madrono three times.
17You admitted the thefts and disposing of the items subsequently. You also admitted your attendance at Melbourne Water and driving the Ute at 158 Ks per hour.
18Examination of your phone disclosed some very disturbing messaging between you and an associate. You made racist, homophobic comments about Mr Madrono and displayed a complete lack of remorse for your conduct.
19Your conduct in this regard was disgusting and the prosecution summary provides graphic evidence of your bravado and boasting.
20Your offending is serious criminal conduct. The maximum penalty prescribed by Parliament and set out in the prosecution opening demonstrate how seriously offences such as yours are viewed.
21In addition, the offence of intentionally causing serious injury is a category 2 offence, as defined in the Sentencing Act 1991.
22A term of imprisonment not involving a community corrections order must be imposed unless the s5(2H) Sentencing Act exceptions are established.
23The Court of Appeal has determined that those exceptions are extremely difficult to establish, particularly the need for substantial and compelling circumstances that are exceptional and rare. None of these exceptions in the Act are established in your case.
24Mr Madrono completed a victim impact statement (Exhibit C). It is a lengthy and insightful victim impact statement. Among other things he says that he is filled with fear, fear that you or someone like you will come to his place and hurt him again. He suffers from flashbacks which make him feel unsafe.
25He is anxious about his future, and he does not know the long-term effects of the injuries. He suffers from constant headaches, which he finds disruptive at his work. He is anxious for his daughter. He says:
Josh left me to die that day and the constant reminder that my daughter could have lost her father gives me grief. I am not certain as to when I will be able to move on with my life after the assault. My right eye continues to have uncontrollable discharges; it has already been more than six months and I am hoping it will heal, otherwise I will require eye surgery. I completed a three-month rehabilitative program with my occupational therapist. I am experiencing recurring headaches and fatigue, sometimes the headaches linger for hours.
26He lost his job because the company underwent receivership, and he says:
I was unable to claim Workcover as I was told that it did not occur between the work hours when the assault occurred. This situation has caused me much grief and anxiety. I was unable to determine where I will get the money to pay my bills. With all these health constraints and uncertainties, I am unable to figure out a financial plan of how to move forward.
27He says:
I came to realise that a criminal act on one's life affects not only the victim, but his entire family as well. The hassle, stress, and anxiety each one of my family members has to undergo is frustrating. It also affects my relationship with family and friends. The assault almost jeopardised by shared custody with my daughter. I have become self-conscious, and it has affected my confidence when I am with people. I have a long scar on my forehead which makes me self-conscious.
28Mr Madrono has clearly been substantially and permanently damaged by your crime. I take the victim impact statement into account in sentencing you.
Personal Circumstances
29You are now 21 years of age, being born on 8 March 2002. You grew up in Mulgrave and then Kinglake, in a caring family with two siblings.
30You were diagnosed with ADHD as a child and medicated. Unfortunately, you ceased taking that medication when you were 18 years of age.
31You attended various schools including two years in a school specialising in neurodivergent boys. You were briefly home schooled but returned to secondary college until part way through Year 11.
32You were employed as a machine operator in the civil construction area, and you remained at home living with your parents at the time of your offending.
33You smoked cannabis at about 16 years of age, then used MDMA.
34At age 19 you claim to have commenced using methylamphetamine. You told psychologist Patrick Newton that you developed a significant ice habit and you fell in with like-minded individuals. You claim to have used 3 grams or more a week on methylamphetamine.
35You also claim that you withdrew while you were in custody for five days before being bailed and that you have ceased using methamphetamine.
36Your mother gave evidence upon your plea and said that she had no knowledge of your ice use. After your arrest some drug-related items were located in your room, but she had seen no evidence of your claimed extensive habit[1]
[1] Plea transcript p41
37Your mother is a senior staff member at Northern Hospital and a registered nurse. I was impressed with her evidence and her obvious care for you. I suspect you may have exaggerated your drug habit to Mr Newton, because your mother would undoubtedly have noticed if you had as severe addiction you claimed to have had.
38However, I do accept that your use of ice does much to explain why a young man with no criminal history and a caring, loving family suddenly embarks on a course of serious criminal activity.
39I accept that you express remorse for your conduct to Mr Newton, in particular what you did to Mr Madrono.
40I also accept Mr Newton's assessment that you are an immature man for your age, have mannerisms and demeanour more in keeping with those of a teenager than a young adult.
41Your emotional understanding is superficial and limited. Your views of life are uninformed and naïve. You are prone to make decisions which are self-defeating, risky and poorly conceived. You are impulsive and easily influenced by others.
42Those traits have been compounded by both your ADHD and your illicit drug use. Mr Newton is of the view that fortunately those personality traits are not embedded and that they can be remedied through appropriate intervention.
43It is unfortunate that your plea was not heard before you turned 21. Any prospect of Youth Justice Detention has now been removed. That concerns me as you are still immature, impressionable, and naïve.
44Your counsel filed written submissions (Exhibit 1) and supplementary submissions (Exhibit 4). Apart from dealing what was then a factual dispute, your counsel relied heavily upon your ADHD condition and submitted that the principles in Verdins were enlivened.
45Your counsel also relied upon that psychological report from Mr Newton that (indistinct) a submission that you suffered from impaired mental functioning at the time of your offending that was causally linked to that offending, and that the exception created to mandatory sentencing provisions in s5(2GA)(b)(i) applied to you.
46The Court of Appeal has provided guidance to this Court as to the application of that provision in the case of Brown[2]. I discussed this case with your counsel upon your plea. To establish relevant impairment, I require a properly scrutinised report that shows an impairment relevantly linked to your offending. I do not have such a report. Indeed, neither the principles set out in Verdins limbs 1 to 4 and 6, nor s5(2GA)(b)(i) exception are established.
[2]Daylia Brown v The Queen [2020] VSCA 212
47Section 5(2GC) makes it clear that the exception does not apply if your impaired mental functioning was caused substantially by self-induced intoxication.
48Mr Newton makes it clear that your methylamphetamine consumption was a substantial factor in your offending. He opined that you suffered from a methamphetamine use disorder at the time of your offending 'of moderate to severe intensity'.
49I do accept that your ADHD will make your time in custody in more onerous for you than it would for someone without that condition. However, you are now properly medicated, and it seems unlikely that that condition will deteriorate further in custody.
50I accept that you are a young man with no prior criminal record. As such your rehabilitation becomes a more significant sentencing factor. Your strong family support, your dealing with your drug use, and your lack of prior criminal history lead me to conclude that your prospects of rehabilitation must be assessed as good.
51Nonetheless the mandatory provisions associated with schedule 2 offences dictate that I am required to imprison you, even if it represents an injustice to you or a disservice to the community.
52Prison will be a risk for you. You are easily led and manipulated, and you need ongoing therapy to address your personality traits, but I have no choice in this matter.
53I take into account your pleas of guilty. You have saved the community the time and expense of a criminal trial and your victim the need to give evidence at that trial. Your relatively early pleas of guilty entitle you to a substantial reduction to the sentence I would otherwise impose for your offending. The value of those pleas of guilty is increased because of the effect COVID‑19 has had upon our justice system. You have facilitated the course of justice and are entitled to a greater reduction in sentence as a result.
54I also take into account the fact that your time in custody is likely to be made more onerous because of the ongoing effect of COVID-19 on custody issues, quarantines, lock downs and loss of visits and loss of courses and programs are likely to continue to occur in the future.
55Because of my concerns as to your immaturity I adjourned the plea and sentence in your case for four months so that you could undergo a residential drug treatment at Arrow House in Woodend, and I varied your bail conditions so that could occur. Your counsel tendered a report from Arrow Health that now is Exhibit 7 that stated:
During Mr Irving's stay in the residential program, he was an engaged willing member of the community and participated fully in the Arrow Health program. Mr Irving demonstrated recovery focused intervention in workshops and was involved in Narcotics Anonymous meeting; shared his experience with others and monitored those who were new to the program. Mr Irving was a positive self-motivated man who was easily directed, engaged in the program in its entirety. Mr Irving did not complete the program as he was exited from the program on Day 79 due to the rules, by having a relationship with another female resident.
56Your involvement with Arrow Health and your subsequent attendance at Narcotics Anonymous meetings have promoted your rehabilitative prospects. I am going to give you credit for the entire 79 days at that institutional facility by reducing the sentence I would otherwise impose for your offending.
57I am hopeful that you will be able to enter the Port Philip Prison Youth Unit, Penrhyn. That will be a matter for the prison authorities. It seems to me that you would qualify for that unit. You will have to meet their requirements for entering into that unit. I do however formally request that the authorities assess you for that unit, as I am concerned about your immaturity and vulnerability in adult prison.
58The steps you have taken with Arrow Health and the report I have just read; I think will be relevant to assessing your involvement with the Penrhyn Unit.
59Parliament unfortunately has mandated imprisonment for your offending, and I am bound by that mandate.
60Your offending was, however, serious criminal conduct. In particular your infliction of serious injury represents a serious example of that crime. Your aggravated burglary however is at a lower-level example of that offence.
61Your burglary offences and your theft offence are all lower, mid-level examples of those crimes. However, you viciously beat your victim with a cricket bat leaving him severely injured and long-term damaged.
62Your vulgar comments to your friends about your offending demonstrate your lack of remorse. You behaved in a totally reprehensible manner.
63General deterrence, just punishment and denunciation of your conduct are the principle sentencing factors in your case. But for Charge 5, to which you have pleaded guilty, I would have imposed a combination custodial and community corrections sentence for your offending. That option is not available to me however in this case.
64But for the matters in mitigation then you would have been looking at a substantially higher sentence for Charge 5 than the one I am about to impose. Would you stand up please.
65On all charges you are convicted.
66On Charge 1, the charge of burglary you are sentenced to be imprisoned for nine months.
67On Charge 2, theft, you are sentenced to be imprisoned for six months.
68On Charge 3, burglary, you are sentenced to be imprisoned for six months.
69On Charge 4, aggravated burglary, you are sentenced to be imprisoned for 12 months.
70On Charge 5, intentionally causing serious injury, you are sentenced to be imprisoned for three years and six months.
71On the summary offence of driving in a manner dangerous you are sentenced to seven days' imprisonment.
72Having regard to principles of cumulation and totality I order that six months of each of the sentences imposed on Charges 1 and 4 be served cumulatively on the sentence imposed on Charge 5, which I declare to be the base sentence.
73All other sentences are to be served concurrently.
74That is an effective sentence, a total term of imprisonment of four years six months, but I order that you serve two years six months before being eligible for parole.
75I indicate that but for your pleas of guilty I would have imposed an effective sentence of seven years with a non-parole period of five.
76I declare that five days of the sentence I have just imposed has already been served by way of pre‑sentence detention.
77On Charge 2, I am required to cancel any driver's licence you hold, and I disqualify you from obtaining such a licence for three years from today.
78On the summary offence of driving in a manner dangerous, any licence you hold is cancelled and you are disqualified from obtaining another licence for 3 years.
79Any further orders required, Ms Hogan?
80MS HOGAN: Yes. I am standing up, Your Honour, because I did not hear Your Honour pass sentence on Charge 6 of theft on the indictment and also the summary charge ‑ ‑ ‑
81HIS HONOUR: Sorry ‑ ‑ ‑
82MS HOGAN: ‑ ‑ ‑ and the summary charge of drive whilst disqualified.
83HIS HONOUR: Well, I gave him seven days on the drive - that was not proceeded with. You proceeded with the charge of only one summary charge, as I understood it, of driving in a manner dangerous. That was all that was ‑ ‑ ‑
84MS HOGAN: Did I withdraw it at the plea?
85HIS HONOUR: You did.
86MS HOGAN: Yes, yes. And sorry, I did not hear a sentence on Charge 6 on the indictment.
87HIS HONOUR: Well, I didn't even know that - excuse me.
88MS HOGAN: That's a charge of theft.
89HIS HONOUR: What is it he stole?
90MS HOGAN: That's the iPhone theft and the CCTV drive.
91HIS HONOUR: My indictment - yes I apologise. Charge 6 I have completely omitted. I sentence him to seven days in relation to Charge 6, which will be concurrent with the other sentences.
92MS HOGAN: As the Court pleases.
93HIS HONOUR: Anything else?
94MS HOGAN: No, Your Honour.
95HIS HONOUR: All right. Mr Penno, thank you.
96MR PENNO: Thank you, Your Honour.
97HIS HONOUR: I will terminate the links.
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