Director of Public Prosecutions v James
[2012] VCC 1302
•5 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00924
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DENNIS MICHAEL JAMES |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 September | |
DATE OF SENTENCE: | 5 September 2012 | |
CASE MAY BE CITED AS: | DPP v James | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1302 | |
REASONS FOR SENTENCE
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Catchwords: Aggravated burglary, recklessly causing injury and criminal damage; broke door and entered house of 34 year old neighbour who was conducting sexual relationship with accused’s 17 year old daughter; assaulted victim; accused under influence of alcohol and cannabis, and was extremely upset at victim’s behaviour after daughter refused to return to family home; mitigating factors include borderline intelligence and lack of capacity to form sound judgment; strong family support, no risk to community, need for counselling and other rehabilitative measures; CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Clancy | |
| For the Accused | Mr S. Norton |
HER HONOUR:
1 Dennis Michael James, you have pleaded guilty to one charge of aggravated burglary, one charge of causing injury recklessly and one charge of criminal damage. The maximum penalties reflect the seriousness of these charges; 25 years' imprisonment for aggravated burglary and five and ten years respectively for the other charges.
2 The facts of the incident are not complex, but the background places it in a certain context and requires explanation.
3 You and your partner, Ms Townsend, are the parents of four children, the eldest of whom is a 17 year old girl. The victim was your near neighbour, Geoffrey Harvey, a 34 year old man who had been a long-time close friend of your family and had seen your daughter growing up.
4
On 1 December 2011 she went missing, and her whereabouts were not known until 23 December when it emerged that she was staying with
Mr Harvey in a sexual relationship. You and her mother were extremely worried throughout the period of her absence, and Mr Harvey had visited your home and told you that he believed she was with some men in Narre Warren. All along, she was at his house. You and Ms Townsend tried to persuade her to return home but she would not.
5 On 22 February 2012 you and your family, including your daughter, went on an outing, and after returning home that evening, you were drinking alcohol in large amounts and allowed her to drink as well. This was part of an attempt to persuade her to come home by allowing her some adult freedom, which was what she had become accustomed to living with Mr Harvey.
6 Whilst at your house, she received telephone calls from Mr Harvey asking her to come back, and eventually she decided not to stay with you but to return to him. This caused you to feel very angry and frustrated, and you decided to go to his house intending to bash him. You ignored attempts to persuade you against this, and your daughter rang Mr Harvey to warn him and told him not to answer the door.
7 On arrival at the house, you bashed on the front door and yelled obscenities at Mr Harvey for some 15 minutes. Ms Townsend arrived and tried to stop you, but you pushed her away and smashed the glass panel next to the front door. You opened the door and entered the house with the intention of assaulting Harvey, and when you met him in the hall, you punched him. Seeing others enter the house, he grabbed a cricket bat and hit you on the shoulder with it. Ms Townsend took the bat from Harvey and you continued to punch him. He then rammed your head into a fish tank and threw you towards Ms Townsend. It seems that you lost consciousness, allowing time for Mr Harvey to take his eight year old daughter and run from the house. He found your daughter in the street, and the three of them hid in a nearby garden. Harvey suffered cuts and pain to his body. Whilst still in the house, you took the cricket bat and smashed the screens of four plasma television sets and damaged plaster walls and a stereo. You then returned home and were treated by a friend for bruising and a cut to your forehead.
8 The next morning you were arrested and made full admissions to the police.
9 You are a forty-three year old man with no history of violent offending, and your criminal history is extensive but includes driving offences for the most part, with some dishonesty offences and street offences of a relatively minor type.
10 You come from a very deprived family background, your parents having separated when you were an infant, and your care divided between your parents on a year-to-year basis. At about the age of four your father placed you in a boys' home for a time in order to prevent your return to your mother's care. He was a violent alcoholic and you had virtually no contact with him after the early years. Your mother re-partnered in a lesbian relationship, and she and her partner operated brothels. Whilst growing up, you saw little of your mother, as she was rarely home and so you had little parental care.
11 At 17 you were employed by her in the security side of the brothel business. You remained there for two years until your mother died when she was aged 39. Her business had been successful, but the accumulated wealth was absorbed into the business by her partner, who subsequently was imprisoned for frauds committed overseas. Consequently, you received none of your mother's assets.
12 You attended school until Year 8, but you never learnt to read or write, and you are innumerate as well. You were bullied at school because of your mother's lesbian relationship, but also because you were a bed wetter and you were deaf in one ear. Despite your poor education, you have been able to find employment in various unskilled jobs over the years, and for five years you were employed as a forklift driver at the one firm, but were unfortunately retrenched a few years ago.
13 You and Ms Townsend have been partners for 23 years and she remains very supportive of you. In 2009 you borrowed money from her parents and bought a house which, soon afterwards, was burnt to the ground. Not being insured, you have struggled to rebuild a house which is now only barely habitable and your financial circumstances do not allow you to complete it nor to sell and establish yourselves elsewhere away from Mr Harvey, with whom your daughter is still living.
14 That matter continues to prey on your mind and you have pieced together the belief that the relationship between them had subsisted since about 12 months before the incident in February. You feel extremely betrayed by him, a man you previously trusted and had intended to have as your best man if you and Ms Townsend had married.
15
A close friend, Ms Russell, gave evidence as to how upset you and
Ms Townsend were by Mr Harvey's actions and the loss of your daughter to him. She spoke of your good qualities, as did others who wrote references in your support. Ms Townsend described you as having always provided well for the family and as a man who usually avoids fights and trouble.
16 You were seen recently by the psychologist, Mr David Ball, who found no mental disorder apart from cannabis dependence, but formed the view that your judgment at the time of the offences was affected by alcohol and cannabis and that your general ability to form judgments is adversely affected by a lack of capacity for clear and consequential thinking. He thinks you have trouble learning from previous mistakes and that you may benefit from counselling to help you deal with the ongoing problem concerning your daughter.
17
The circumstances surrounding these offences are unusual and they clearly created a situation causing your anger and determination to deal with
Mr Harvey by assaulting him. You went to his house on the spur of the moment, with no weapon, and influenced by alcohol and cannabis, which
Mr Ball notes is a long-term habit. You reacted inappropriately to the stress caused by Harvey's actions and your disappointment that your daughter was not going to stay at home that night. Your family is a close and loving one and this reality has been extremely hard for all of you.
18 I should note that it is not submitted that overuse of alcohol is of itself a mitigating factor, but it was put in terms of the lack of any history of previous violence in the context of intoxication. It, therefore, contributed by affecting your judgment in the absence of your awareness of this.
19 All those circumstances allow for some leniency in sentencing you. In addition, I must take into account your early plea and your frank admissions to the police. The plea has avoided the need for a trial, and so your daughter has not had to face the prospect of giving evidence against you.
20 There is limited remorse and insight into your offending, and understandably you still harbour much animosity towards Mr Harvey.
21 I have already referred to Mr Ball's opinion as to your reduced capacity for sound judgment, and I also take into account his opinion as to your borderline intelligence which adds to that incapacity and goes some way to reducing your moral culpability.
22 Mr Norton submitted that these matters, as well as your deafness, would make a prison sentence more onerous for you than those who do not suffer such deficits. My view is that this may be true as to your deafness in some small measure, but I could not form the same conclusion as to those other matters.
23 Mr Goodfellow, for the prosecution, agreed with most of the factors raised by Mr Norton as mitigating the need for a severe sentence.
24 I consider that the need for general deterrence, that is, the need to deter others from offending this way by taking matters into their own hands, as you did, is satisfied by a non-custodial disposition. The community is not at risk from you, and hopefully the order I am going to place you on will assist in your rehabilitation. I am confident that it will.
25
I have a report which states that you are suitable for a Community Corrections Order, and I will make that order. So, I will ask you to stand now, please,
Mr James, and I will explain it to you.
26 It will commence today and will last for two years. You will be under supervision and you must perform 100 hours of unpaid community work within six months. You must be assessed and treated for drug and alcohol use and for any other treatment and rehabilitation considered necessary. You must attend the Frankston Community Correctional Services office at 431 Nepean Highway, Frankston by four o'clock on Friday.
27 The prosecution seeks an order for the retention of the forensic sample that has already been obtained and, through your counsel, you consent to that.
28 Had you pleaded not guilty to these charges, I would have sentenced you to three months' imprisonment followed by a Community Corrections Order for 18 months.
29 The Community Corrections Order is ready for signature. Perhaps you would like to see that first, Mr Norton.
30 MR NORTON: Thank you, Your Honour.
31
HER HONOUR: While that is being done, have I omitted anything - sorry,
Ms Clancy, is it?
32 MS CLANCY: Yes, thank you, Your Honour. Just the order for the forensic sample retention.
33 HER HONOUR: Yes, I make that order.
34 MS CLANCY: Nothing else, Your Honour.
35 HER HONOUR: I'm not sure that I have that. Do I have that?
36 MR NORTON: Your Honour, the order includes a condition which reads: "You must undergo assessment and treatment (including testing) at a residential facility for withdrawal from or rehabilitation for."
37 HER HONOUR: Let me just see if that's - I don't think it's actually necessary, is it?
38 MR NORTON: In my submission, Your Honour, the deletion of the reference to the residential facility is appropriate and would still mean that there's an effective condition in place to deal with the addiction issues.
39 HER HONOUR: Yes, I think that's right. Excuse me a moment. On the form that is being presented for signature, I can just strike that out and initial it and then on the computer it will be rectified.
40 MR NORTON: As Your Honour pleases.
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