Director of Public Prosecutions v Keating
[2014] VCC 170
•29 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-01558
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL MICHAEL KEATING |
---
JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 February 2014 | |
DATE OF SENTENCE: | 29 April 2014 | |
CASE MAY BE CITED AS: | DPP v Keating | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 170 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – aggravated burglary – causing injury intentionally – making a threat to kill
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Verdins & Ors (2007) 16 VR 269; Latif & Ors v R [2013] VSCA 51; Johnston v R [2013] VSCA 362; R v Sa [2004] VSCA 182; Hogarth v R [2012] VSCA 302; R v Tsiaris [1996] 1 VR 398
Sentence: 4 years’ imprisonment with a non-parole period of 2 years 6 months.
Section 6AAA declaration: 6 years’ imprisonment with a non-parole period of 4 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr D Plummer | Office of Public Prosecution |
| For the Accused | Mr T Marsh | Victoria Legal Aid |
HER HONOUR:
1 Paul Keating, you have pleaded guilty to one charge of aggravated burglary, one charge of causing injury intentionally and one charge of making a threat to kill. The maximum penalty applicable to those offences are, in the case of aggravated burglary, 25 years’ imprisonment, causing injury intentionally, 10 years’ imprisonment, and making a threat to kill, 10 years’ imprisonment.
2 The victim in relation to your offending is Daniel Bajada.
3 These crimes arise out of events which occurred on 24 February 2013. It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor (Exhibit A). I proceed to sentence you on the basis of the facts, as summarised by the prosecution and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing. I turn to a brief summary of your offending.
4 Both you and the complainant, Daniel Bajada, lived at a rooming house at 57 Brunswick Street, Fitzroy. Mr Bajada lived in Room 9 and you in Room 1.
5 On Sunday, 24 February 2013 at about 12.15am, Mr Bajada returned to his room. He locked the door to his room and, a few minutes later, you yelled out “I’m going to slit your throat. I’m going to cut off your dick. You’re a filthy, dirty dog, I’m going to cut you up into pieces”. Mr Bajada leant up against the door to stop you entering his room and also tried to move his bed up against the door for the same reason.
6 You grabbed a fire extinguisher and used it repeatedly to strike the door. You opened the door and, as you entered the room, Mr Bajada said “What have I done to you? Please leave me alone. I don’t fight. Please don’t touch me”. Mr Bajada thought he was going to be killed by you. After breaking the door, you repeatedly punched Mr Bajada to the head. He fell to the floor and tried to protect his head. You continued to punch him a further 15 to 20 times. Mr Bajada was in a lot of pain.
7 At about 12.30am, a resident from Room 11 heard a very loud noise coming from the corridor. He went to his door to see what was happening and saw you smash the door of Mr Bajada’s room with a fire extinguisher. You were heard screaming something like “I’ll kill you”. The resident from Room 11 called an after hours contact. He was very scared. After about five minutes, he described hearing two voices screaming and yelling from inside Mr Bajada’s room. He also heard a lot of fighting. The occupant of Room 11 thought you must have been alcohol or drug affected, from what he could hear.
8 Another resident of the premises, James Phillips, heard banging and yelling. He opened his door and saw you waving a fire extinguisher around and banging the door with it. Mr Phillips went back to his room and described hearing banging and yelling for about five minutes.
9 Police arrived a short time later. One of the officers heard a commotion coming from Mr Bajada’s room. You were seen to walk from the room and Police Officer Oakley told you to get to the ground, which you did. You were then handcuffed.
10 Constable Oakley then entered Mr Bajada’s room and saw an injury to his right forehead and blood on his upper body. Mr Bajada was in an aggressive and agitated state. As he approached Constable Oakley, blood was being flicked from his head and body. Constable Oakley struck Mr Bajada to the stomach with his foot to stop him from approaching, at which time Mr Bajada calmed down. Constable Oakley saw smears of blood on some of the walls and on the mattress. The room appeared trashed.
11 At approximately 1.35am, police transported Mr Bajada to St Vincent’s Hospital Emergency Department, where he was examined by Dr Amanda Appleton. He was found to have a head injury and concussion. There was a large haematoma over the right eyebrow and an open wound 3 centimetres through muscle and deeper facia. There was soft-tissue injury to his right ear and also to his neck, involving a muscle strain/whiplash. Soft-tissue injury was observed to his right anterior chest wall. His management consisted of forehead repair, involving four deep sutures and six skin sutures, observation and oral painkillers. The findings of the doctor were consistent with blunt force injuries to Mr Bajada’s head, neck and torso. He was discharged from hospital at 8.42am that same day.
12 You were questioned by police on 24 February 2013 in a record of interview. At that time, you answered “No comment” to the questions asked of you and of course to answer that way was your right.
13 You have pleaded guilty to these charges and are entitled to have that fact taken into account in your favour, and I do so. The community has, by your plea, been spared the time and cost of a trial and the victim of your offending has been spared the ordeal of having to give evidence upon your trial. Further, I accept that you entered your plea of guilty to these charges at an early stage. There was some delay between the record of interview and this matter being finalised on 27 September 2013 at a further directions hearing, but that was, as I understood from the court file, the result of those representing you exploring issues such as your fitness to plead. On 25 October 2013 the plea indictment was filed, you were arraigned and pleaded guilty. I accept, therefore, you have pleaded guilty at the earliest opportunity available to you and such is indicative of remorse.
14 You have admitted a number of prior court appearances which include, I note, no offending of the same type as that currently before me. Your first court appearance was on 21 June 1994 at Heidelberg Magistrates’ Court and involved cultivating a narcotic plant. Thereafter, you appeared at court on six further occasions for offences involving cannabis use, being drunk in a public place, insulting words, assault police and resist arrest. Your sentences have involved convictions and fines, although for offending dealt with on 20 August 1997, you were placed on a Community-Based Order, as it was called then, for twelve months. This was subsequently breached and you were convicted and fined. You have not been before the court between 1998 and the commission of the offences before me in February 2013, which is a significant period of time. I also note you have not previously served a sentence in custody.
15 At the time of the commission of these offences, it is apparent that you were affected to a degree by substances, specifically alcohol, consistent with the observations and impression of other witnesses.
16 Your counsel, Mr Marsh, provided a very helpful written outline of submissions (Exhibit 1) and addressed them in the course of the plea.
17 Regarding your offending, he conceded these were not trivial offences, and that the aggravated burglary involved an actual assault upon entry by you into the room. He conceded your offending would have been frightening for the victim. I accept his submission your behaviour was ill-conceived and you did not make any effort to disguise yourself.
18 Regarding Mr Marsh’s submission your offending was spontaneous, the lead-up to it would suggest a history (albeit relatively brief) to your attendance at the victim’s room. I was told that the incident before me occurred following an altercation earlier that evening between you, the victim and a friend of the victim and I discussed this with counsel again today. All parties were intoxicated. This dispute it seems, over a very minor issue, escalated. Your instructions were that you had earlier been assaulted by the victim’s friend, including being kicked in the head. Your assault upon your victim soon after the assault upon you, was in the context of you remonstrating with him. No charges arose from the initial incident, and there was nothing in the material before me to support your claim of how this incident started. I accept, however, there must have been some reason for your attendance at the victim’s room. Mr Marsh was correctly, in my opinion, not relying upon the earlier incident as justification for your offending.
19 You had been living at the boarding house for about ten days. I was also told by Mr Marsh that you had seen photographs of the injuries you had caused to the victim and you had said you were ashamed by your behaviour.
20 I was told something of your personal history and circumstances. You are 41 at time of sentence.
21 You are one of three children raised in an unstable home environment in that your parents separated when you were 12. Your father abused alcohol to a significant level, however you described a supportive and ongoing relationship with your mother. You continued to have a good relationship with your brother, who was present with his partner in Court to support you during the plea hearing. The recent report before me from Dr Calvin further addresses your background and history. I will return to his report later.
22 You were educated to Year 11 at Montmorency Secondary College and then completed a carpentry apprenticeship, obtaining your qualification in the early 1990s, starting your own business in your early 20s
23 You were involved in a serious motor vehicle collision in 1996 when a passenger, and received multiple fractures to the thoracic spine, head injury, and memory loss. As a result of that collision you were off work for five years, and never really re‑engaged in the workforce to the same extent. You continued to have ongoing back issues as a result of the collision which meant any work you did undertake meant you could not keep that employment for very long.
24 As a result of your disability and unemployment, your mental health declined and your alcohol use escalated. Your partner with whom you were then living could not cope with the situation. That relationship ended a number of years ago, after having been together for approximately ten years.
25 I was told that for the eighteen months to two years prior to this offending you were effectively homeless, and had been at this boarding house for only ten days. You are currently, prior to being remanded, living in a hotel in Bell Street, and instructed your counsel you have cut down on your alcohol use to twice a week, and that the Bell Street environment is more stable than the previous boarding/rooming house.
26 You currently receive a Newstart allowance, or you were at the time of the initial plea.
27 Mr Marsh referred to your criminal history. As I have already noted, there is no offending similar to that before me, and I am also aware you have not been to Court since 1998 until now, a period of approximately sixteen to seventeen years.
28 There was a report before me at your initial plea hearing from Dr Adrian Donoghue, Psychologist, dated 25 September 2013.
29 On 10 September 2013 you were referred by Dr Wong to treat your symptoms of depressed mood, low self-esteem and chronic alcohol abuse. As at the date of his report, Dr Donoghue had seen you twice. I was told by Mr Marsh you had seen him six times as at the date of your plea hearing.
30 At presentation with him you described your major life stressors as including the current charges, being unemployed and having abused alcohol over many years. You said in your late 20s you had been placed on anti-depressant medication as a result of relationship problems.
31 You reported long-term difficulties with symptoms of depression and alcohol abuse. In his opinion your current symptoms were most likely exacerbated by the matters before the Court. He, however, observed a number of your life stressors preceded that.
32 Dr Donoghue was not able to conclude any potential link between your head injury and current emotional difficulties, or whether you had any ongoing brain-function problems.
33 He considered there were a number of predisposing risk factors that would have contributed to your recent behaviour, including your ongoing alcohol abuse, underlying personality problems, and almost certainly components of chronic anger. He was unable to conclude whether or not you had an acquired brain injury and whether that was relevant.
34 On the material available to me at your initial plea hearing, there was insufficient evidence, in my opinion, to enliven the principles in R v Verdins & Ors[1]. See also Latif & Ors v R[2] and Johnston v R[3] relevant to ‘link’ and ‘connection’.
[1](2007) 16 VR 269
[2][2013] VSCA 51
[3][2013] VSCA 362
35 With some reluctance, as I discussed with counsel at length during the course of the plea hearing (as your mental health had been considered over a significant period of time by those representing you with no further reports forthcoming), I ordered a pre-sentence report. Although, as I discussed with counsel, if you did have mental health issues prior to this offending, and you were also consuming alcohol to excess and not offending, then there must have been something different that occurred on this occasion, the most likely cause simply the result of you having been previously assaulted that evening. As such, I questioned the value of such a report, however, ordered same and that report was received by me a few days ago and copies provided to both counsel.
36 Your brother’s partner, Ms Lappin, gave evidence before the Court. She has known you for approximately sixteen years, and has provided a character reference for you, dated 18 February 2014.
37 She gave evidence that, in your discussions with her regarding your offending, you had not sought to excuse it, and said you were shocked you caused the injury and damage to the victim, an example of your remorse and I agree.
38 She confirmed that in the past few years you had been homeless, which was very different from when she first met you, when she described you as being proud, enthusiastic and in full-time employment.
39 She gave evidence that following the collision, there were changes in your behaviour - that is the motor vehicle collision - ultimately leading to you becoming homeless. That you were unable to obtain ongoing employment, your self-confidence decreased, and in that context, you were drinking excessive quantities of alcohol.
40 Of some concern to me regarding your rehabilitation were the short-lived attempts you had made to obtain assistance for your alcohol consumption. As I understood her evidence, in the last two to three years, you physically attended residential facilities in the hope of addressing your alcohol consumption, however, upon entering the premises, decided they were not for you and immediately left.
41 Ms Lappin said that in the last twelve months, from her observations you had been drinking less, and that she would see you once or twice a week.
42 She confirmed your family was supportive of you.
43 As I have stated, when assessing your rehabilitation prospects, you have not sought or obtained treatment for your alcohol use. The reports of your decreasing alcohol consumption appear to be self-reports, with some observations by Ms Lappin. I note Dr Donoghue, in his report, referred to your difficulties with alcohol and anger, requiring therapy, in other words, your need for formal counselling to assist you in these matters and some of the observations made in the recent report by Dr Calvin, which I will come to in a moment, also cause me some concern regarding your rehabilitation prospects.
44 It would appear from the material that further alcohol counselling and support would be of assistance to you for the future, and I urge you to take on board any courses you may be offered, as recommended by Dr Calvin, to whom I shall refer shortly.
45 Ms Lappin confirmed she had spoken to you regarding your offending, and you had shown remorse.
46 She confirmed your father was a Vietnam veteran who was an alcoholic and physically and emotionally abusive towards the family. You completed your carpentry apprenticeship and had a history of employment until the car collision.
47 She referred to your previous alcohol abuse and that she had not known you to be violent, although was aware of your earlier prior Court matters. She confirmed your attendance with Dr Donoghue.
48 Returning to the submissions by Mr Marsh regarding matters relevant to disposition and also contained within his written outline at pages 4 and 5, he relied upon your early plea of guilty, and that this matter proceeded by way of straight hand‑up brief. That ultimately an offer was made in relation to the charges to which you have pleaded guilty, and such was accepted by the prosecution.
49 I agree with his submission that your prior offending was not for anything similar, and you last offended many years ago.
50 Turning to the sentence, Mr Marsh conceded the seriousness of your offending, in particular aggravated burglary. He conceded that there should be some cumulation between charges 1 and 2, citing R v Sa[4].
[4][2004] VSCA 182
51 Mr Marsh urged there be consideration to charge 3 being wholly concurrent with the sentences imposed on charges 1 and 2.
52 Ultimately he submitted you could be dealt with by a community-based disposition, together with a term of imprisonment, the latter being for no more than three months, consistent with s44 Sentencing Act 1991. I have carefully considered that submission but do not consider it to adequately reflect all the relevant sentencing considerations.
53 Mr Plummer, on behalf of the prosecution, submitted regarding your offending, that you had the opportunity to desist from your behaviour prior to assaulting the victim during the time that you repeatedly bashed at the door with the fire extinguisher. Whilst there was not a great deal of planning, there was some time where you could have desisted but did not.
54 He submitted this was a sustained attack on the victim, and that he was terrified. He was repeatedly punched to the head and body.
55 Regarding the threats to kill relevant to charge 3, these were serious threats made whilst you were repeatedly bashing on the victim’s door. The victim stated he was in fear for his life, and Mr Plummer submitted there should be some moderate cumulation in that regard.
56 He referred to this as a confrontational aggravated burglary where you entered the premises intending to use violence upon the occupant.
57 There was, he submitted, a need for general deterrence, denunciation and just punishment when sentencing you, also specific deterrence.
58 Turning to specific deterrence, he submitted that was relevant, however, he acknowledged the need to effect this would be reduced given the extensive period of time between this and your previous offending and further, your previous offending did not involve offending of this type. He further addressed me regarding specific deterrence today, I consider the lack of your prior criminal history to be the main reason for specific deterrence, again however noting the time period between the last offending and this and that there is no offending of this type in your history.
59 Regarding your rehabilitation prospects, Mr Plummer submitted you required extensive therapy for you to be rehabilitated, given your long history of alcohol abuse.
60 I was referred to and have read Hogarth v R[5] in which the Court referred to current sentencing practices in relation to confrontational aggravated burglaries [see paragraphs 58 to 62, particular].
[5][2012] VSCA 302
61 The prosecution submission was that your offending warranted an immediate term of imprisonment and that a combination of a community correction order with three months’ imprisonment would be outside the range of appropriate dispositions.
62 I adjourned the further hearing of the plea to enable a pre-sentence report to be prepared, despite my concerns this should have been attended to much earlier by those representing you. The further plea of this matter was adjourned to 29 April 2014 at 9.30am, i.e. today.
63 Subsequent to your initial plea hearing, I received a report from Dr Sam Calvin, Senior Psychiatric Registrar at Victorian Institute of Forensic Mental Health, dated 17 April 2014. In his report, Dr Calvin provided further details of your background and history. Your father passed away when you were 18, your mother currently lives in Frankston, and you described having a good relationship with your siblings. You had previously been in a relationship, which lasted about ten years, about seven years ago. Since then, you had not had any significant relationships. You were a carpenter by profession.
64 You denied any specific psychiatric complaints, although said you had visited a psychologist to get a report for these legal matters, I am assuming a reference to the report of Dr Donoghue before me during your plea. You denied having any such difficulties at the time of interview with Dr Calvin.
65 Whilst you claimed the few sessions you had with Dr Donoghue had not helped you in any way, you acknowledged you had a problem with alcohol use.
66 You reported a past history of depression about ten years ago that had been treated with medication. At that time you had financial and relationship issues. You denied any current symptoms of depression, anxiety, psychosis or suicidal ideation.
67 You described being involved in a car collision in 1990s and the resultant fracture of your spine, which continued to cause you pain. You were not currently receiving medication for that.
68 You reported you had been using alcohol since your early teens, particularly when under stress. Prior to your offending before me, you said you would drink almost every day although were vague regarding quantity and duration.
69 You had also, in the past, occasionally used speed and ecstasy, and had been a heavy user of cannabis, ceasing that two years ago.
70 You advised Dr Calvin of your previous Court convictions and that there were charges pending in Perth, although I have disregarded the matter.
71 Turning to your offending, you said you had been involved in a scuffle with the victim who also lived in the shared boarding house. You said you were hit on the head and in a fit of rage, your offending before me had occurred. You said you had also consumed alcohol. In the opinion of Dr Calvin, you had a tendency to minimise your offending, often reiterating that your role was minimal.
72 Turning to your mental state, Dr Calvin concluded there was no thought disorder or any evidence of delusions, hallucinations, nor any obvious cognitive impairment.
73 Referring to the report of Dr Donoghue which Dr Calvin had at the time of preparing his report, reference was made to that report of you having long-term difficulties with symptoms of depression and alcohol abuse. You, however, denied depressive symptoms to Dr Calvin and said that if you were depressed “it was a loose use of the term”.
74 In the opinion of Dr Calvin, you did not meet the criteria for any psychological disorder. You did, however, have significant alcohol use disorder and possible personality vulnerability as suggested by Dr Donoghue. Dr Calvin was unable to ascertain any personality disorder during his interview with you. Rather, he concluded your difficulties appeared to stem from an itinerant lifestyle, alcohol abuse and poor coping in stressful situations.
75 This report, as I understood, was prepared specifically to permit further consideration of whether or not any of the principles in Verdins applied when sentencing you, either at the time of the commission of these offences or at the time of sentence. In my opinion, this report does not enliven any of the Tsiaris[6] principles as restated in Verdins and Mr Marsh, who appeared on your behalf, conceded as much, as did Mr Plummer.
[6][1996] 1 VR 398
76 Regarding your rehabilitation prospects, I have guarded optimism. The likelihood of your rehabilitation will however be greatly improved if you do undertake counselling when you have the opportunity to do so, to address your excessive alcohol consumption and avoid a similar situation occurring again. I am sure you are well aware of it.
77 When fixing an appropriate sentence, I must seek to maximise your chances of rehabilitation as they may be.
78 There was no victim impact statement before me, although it is clear from the depositions that the victim of your offending was frightened by your offending and sustained injuries as outlined and described within the depositions.
79 As well as matters personal to you, to which I have referred, including your prospect of rehabilitation I must also take into account matters such as general deterrence, which is of considerable importance in a case such as this.
80 There is an element of specific deterrence in that you do have a prior criminal history, although again saying that I note the differences between your prior criminal history. Also I notice a gap of approximately 16 to 17 years between your most recent prior court appearance and the offending before me.
81 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. This still concerns me given how this offending escalated over what would seem to have been a "minor issue", in part associated with your excessive consumption of alcohol. Obviously, if you address your alcohol consumption and hopefully address anger as well, there will be less likelihood of re-offending.
82 I have carefully considered as I said the submissions regarding disposition urged by Mr Marsh, however in my opinion a combination of the three months imprisonment and a community corrections order would be manifestly inadequate taking into account all sentencing considerations.
83 In my opinion the only appropriate disposition involved is a term of imprisonment with a non-parole period, being mindful as I am that this is your first time in custody.
84 I am called upon by the Sentencing Act (1991) to manifest the community's denunciation of your conduct and generally to impose a just punishment, and when sentencing I apply principles of totality and proportionality.
85 On Charge 1, convicted and sentenced to 3 years and 6 months imprisonment.
86 Charge 2 convicted and sentenced to 14 months imprisonment.
87 Charge 3 convicted and sentenced to 8 months imprisonment.
88 Charge 1 is the base sentence, and I direct that 6 months of Charge 2 be served cumulatively upon Charge 1. Charge 3 is to be served concurrently with Charge 1.
89 That results in a total effective sentence of 4 years imprisonment, and I direct you serve a period of 2 years and 6 months imprisonment before you are eligible for parole.
90 Pursuant to s.6(AAA) Sentencing Act (1991) had you been found guilty of these charges following jury verdict, I would have imposed a sentence of 6 years' imprisonment and declared a non-parole period of 4 years.
91 Pursuant to s.18(4) Sentencing Act (1991) I declare you have spent 67 days in custody by way of pre-sentence detention and I direct that this be entered into the records of the court, that is from 21 February 2014 up to and including 28 April 2014, which was yesterday.
92 The prosecution made application for retention of a forensic sample, and this was not opposed by you and I make the order, and I do so on the basis of the seriousness of your offending and your prior criminal history.
93 Are there any other orders sought. I do not think there were but I am just checking.
94 MR PLUMMER: No, Your Honour, no other orders.
95 HER HONOUR: There was no other, as far as I know. That order has been signed, and any other matters? No..
96 Remove Mr Keating. Thank you very much. Thank you both for your assistance.
- - -
0
5
0