Director of Public Prosecutions v King
[2018] VCC 397
•15 March 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01837
| DIRECTOR OF PUBLICATIONS |
| v |
| LIAM KING |
---
JUDGE: | HER HONOUR JUDGE CONDON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 28 February 2018 | |
DATE OF SENTENCE: | 15 March 2018 | |
CASE MAY BE CITED AS: | DPP v King | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 397 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms C. Foot | Office of Public Prosecutions |
| For the Accused | Mr G. Hughan | Victoria Legal Aid |
HER HONOUR:
1 Liam Billy King, you have pleaded guilty before me to one charge of make/possess explosive substance and one charge of criminal damage. The maximum penalty for criminal damage is ten years’ imprisonment, and the maximum penalty for make/possess explosive substance is five years’ imprisonment. The exact circumstances of your offending were contained in Exhibit A, a summary of the prosecution opening tendered on the plea. However, I will briefly summarise your offending.
2 The victim in this matter is Troy Bartling, who has a sister called Rhiannon. At the time of these offences, you believed that Rhiannon owed you $1,700. Between 1 and 11 August 2016, you communicated with her via text message about the debt and told her that “things were going to get worse” if she did not repay you the $1,700. On 11 August 2016, at about 7 pm, Troy Bartling went to visit his ex-partner at a house in Dorothy Crescent, Mornington. He parked his car, a white 2013 Nissan Navara ute, in the driveway of the address.
3 At approximately 7.40 that evening, a loud bang was heard from inside the house by Mr Bartling and his ex-partner. Previously, you had attended the address and placed an improvised explosive device, otherwise known as an IED, under the rear of Mr Bartling’s car. The IED had partially exploded, and you left the area. The explosion caused light to negligible damage to the vehicle. The blast effect was primarily apparent to the underside of the offside rear corner, with damage observed on the metal tail pile, the chassis and the spare tyre rubber and other fittings in the vicinity of the rear corner of the vehicle. There was no ensuing fire or heat effects apparent to the car or driveway.
4 CFA and police were called to the scene. It was established that the IED was constructed from a piece of metal pipe containing smokeless powder. This was attached to a 5-litre fuel can with duct tape. The entire device was concealed in a black duffel bag. Expert analysis concluded that the various components recovered comprised an improvised explosive device, or more commonly known as a pipe bomb. A device of this nature is capable of causing severe damage to property and/or death or serious injury to persons. Investigators established that on 2 August 2016, you went to Kmart in Cranbourne Park Shopping Centre. There you purchased a 20-litre fuel can, a Kmart-brand black duffel bag and a Kmart-brand waterproof cloth tape. The bag and tape matched items used to make the IED.
5 On 8 September 2016, police executed a search warrant at your address in Koo Wee Rup. You were arrested and taken to the Pakenham police station for interview. In the course of that interview, whilst you admitted purchasing the items at Kmart on 2 August, you denied any knowledge of the explosion on the 11th. You were not charged at that point. However, you were remanded in custody on unrelated matters. On 16 February 2017, you were again interviewed in relation to this allegation. At that time, you again made no comment.
6 On 8 September 2016, you were remanded on the charge of trafficking amphetamine and various other offences. On 13 January 2017, at the Frankston Magistrates’ Court, you pleaded guilty to a consolidation of a number of charges. You were sentenced to 12 months’ imprisonment, and the court ordered your release from 8 September 2017 on a community correction order for 12 months.
7 I received a progress report in relation to that community correction order. The report was dated 16 February 2018 and makes clear that the focus of your supervision pursuant to that order has been around your mental health. The report indicated that your attitude to the corrections order has thus far been satisfactory and that you have been appropriately engaging in the supervision sessions.
8 As part of the order, you were referred to Monash Health Alcohol and Drug Services in Dandenong, with counsellor Dr Roger Volk, to address drug and alcohol counselling. While you attended your initial drug and alcohol counselling on 1 November last year, the report I received indicates that your attendance has since been inconsistent.
9 As part of the plea in mitigation, I received a letter dated 26 February 2018 from Dr Volk. This was part of Exhibit 6. The letter indicated that you did, indeed, attend for drug and alcohol counselling on 1 November 2017 and stated you engaged well in treatment and that you had drastically reduced your drug use. This letter indicates that as well as discussing strategies for addressing your drug use, you have followed directions to have your medication reviewed.
10 Unfortunately, however, according to the corrections progress report, you have failed to attend for urine testing on more recent occasions. You also told your corrections worker that around January of this year, you lapsed back into drug use, and you had been smoking ice and taking gamma hydroxybutyrate, GHB, twice to three times per week.
11 The matters to which you pleaded guilty before me resolved on 8 September 2017, not long after the first committal mention. On 11 September 2017, you entered pleas of guilty to the two charges contained on indictment. I accept that your plea of guilty has facilitated the administration of justice and is consistent with remorse.
12 As to the motive of your offending, it was submitted that you committed the offences due to animosity arising from a disagreement as to whether Ms Bartling owed you money. There had been threatening words exchanged between you and her brother prior to you resorting to the placement of the pipe bomb under her brother’s car. It was your aim to send a message to Rhiannon Bartling about the debt via her brother. I was told that around the time of the offending, you were using substantial amounts of methamphetamine, GHB and Xanax.
13 This was serious offending. It was a calculated act with an intended target. It involved planning and forethought in the purchase of the items used by you to construct the improvised explosive device. Given the placement of the pipe bomb under a car parked in a suburban street, it is fortunate that there was no injury to any persons in the immediate vicinity. It was a device that had the potential to cause serious harm.
14 There was some delay in the police charging you with these offences. It was not until a DNA sample was obtained that the police were in a position to charge you. In the intervening period, you have engaged with Corrections. While the report dated 16 February of this year indicates there are some issues with your engagement, particularly with your drug use, overall, your attitude augurs reasonably well for your prospects of rehabilitation. Indeed, I accept that you are genuinely committed to your rehabilitation. This is evidenced by the fact that you have recently successful completed an anger management course and that you have sought treatment from Gary Fewkes. However, as long as you remain in the grip of your drug addiction, your efforts will be hampered.
15 Tendered on the report was Exhibit 3, a psychological report from Gary Fewkes dated January of this year. According to Mr Fewkes, you have had treatment with him on six occasions between 9 January and 22 January of this year. He has assessed you as having an acute stress disorder. You have expressed to Mr Fewkes a desire to change your behaviour, and, in his view, you have significant insight into your offending behaviour. In his assessment, you are unlikely to be able to address this offending behaviour in the prison system given the prison culture. He notes that you have completed a violence intervention program in the community designed for violent offenders.
16 In Mr Fewkes’ view, he believes you genuinely want to change your behaviour. As I said, in my view, it is very much to your credit that you have voluntarily sought out the services of Gary Fewkes as your attendances upon him were outside the requirements pursuant to the September 2017 corrections order.
17 You are currently taking the antipsychotic medication Zyprexa/Olanzapine, and the antidepressant medication Pristiq. Tendered on the plea as part of Exhibit 6 was a letter from Dr Shui Khoo dated 21 February 2018 from Peninsula Primary Mental Health. That letter indicates the diagnosis of a bipolar disorder as at February of this year and the prescription of olanzapine and advises an increase of the dosage of olanzapine from 10 milligrams per day to 15 milligrams per day.
18 You admitted your prior criminal history before me. I have already referred to the matters dealt with at the Frankston Magistrates’ Court on 13 January 2017. On 8 August 2013, you were sentenced in this court for charges of aggravated burglary and recklessly cause serious injury. On that occasion, you received a total effective sentence of two years and a non-parole period of eight months. Tendered on the plea and marked as Exhibit 2 were Her Honour Judge Gaynor’s reasons for sentence in respect of that matter. Similarly to this offending, that offending involved you seeking retribution against an individual with resort to violence.
19 I turn now to your personal circumstances. You are now aged 28 years of age. You were 27 at the time of this offending. You grew up in the Frankston/Somerville area. Your parents separated when you were very young: four years of age. You have a sister, Taya, a primary school teacher, who is 27 years of age. Your parents were present in court on the first plea date; your mother and sister were present on the second. You lived with your mother until age 14 and then spent two years moving back and forth between your parents. In 1999, your mother remarried. This had a devastating impact on your family as your stepfather was extremely violent towards your mother, yourself and stepchildren.
20 You are currently single and do not have any children. Prior to being imprisoned in 2013, you were in a relationship with Chantelle Abella, the mother of two young children. However, shortly after going to prison, the relationship ended. You have, as was illustrated by their presence in court, the enduring support of your parents and your sister.
21 You have a long history of using illicit drugs, in particular methamphetamine. I am told that this ceased while you were in custody in 2013/2014 but relapsed after your release, and you became a regular user once your parole ended. It is clear from your disclosure to Corrections that as of January this year, you had lapsed back into drug use. You have previously been diagnosed with attention deficit hyperactivity disorder, ADHD, and a severe learning disorder as a child, and, as I have already noted, you have been diagnosed with a bipolar affective disorder.
22 Tendered on the plea was Exhibit 4, a letter from your mother, Amanda King, dated 5 February 2018. In the course of that letter, she laments your decline into drug use after your first experience of gaol. It is clear from the tenor of that letter that your mother believes that you have shown some improvement whilst undergoing the corrections order since your release in September of last year.
23 Last year, in March 2017, whilst in prison, you were assaulted. You were struck to the head by a rock or some similar instrument. You were taken to hospital, where you stayed overnight, requiring ten stitches to the head. On your return to prison, you were initially in the mainstream section but then moved to protection soon after.
24 As noted above, you had learning difficulties as a child and attended Mornington Secondary College to the end of Year 9 or early in Year 10. You left school to do a carpentry apprenticeship, but this ended after six months because your employer’s business failed. You then proceeded to work in demolition labouring with your father for two or three years. At around 18, you commenced a roof plumber’s apprenticeship, which you completed, working for about five years in this field. In December 2011, you broke your hand and ceased working. I was told that from about mid-2015, once you became an entrenched user of methamphetamine, you ceased working.
25 Your counsel submitted that I should take into account the following matters in mitigation on sentence: your early plea of guilty; the utilitarian benefit in the plea of guilty and the fact that it demonstrated an acceptance of responsibility and willingness to facilitate the course of justice. Given that you have previously been assaulted in prison, it was submitted that a return to prison would mean that you would be placed in protective custody, an experience which you found onerous in 2017. The delay in police charging you with these matters insofar as it triggered the operation of the principle of totality as it was put that had these matters been dealt with in January 2017 and a period of imprisonment imposed, some measure of concurrency would have applied between the two sentences. The fact that in the intervening period, you have embraced opportunities for rehabilitation presented to you pursuant to the corrections order; and, further, that it would be counterproductive to your progress towards rehabilitation to impose a term of imprisonment in relation to these matters.
26 Mr King, I have given careful consideration to the able submission made by your counsel that the imposition of a gaol term would be counterproductive to your further rehabilitation. However, I am of the view that this offending is too grave to warrant an entirely non-custodial disposition. On balance, I am of the view that the sentencing principles of general deterrence, specific deterrence, protection of the community and rehabilitation are best served in your case by the imposition of a period of imprisonment and a community corrections order.
27 Please stand, Mr King. In relation to Charges 1 and 2 on the indictment, being charges of making explosive substance and criminal damage, I propose to impose an aggregate term of imprisonment. In the circumstances, I am of the view that an aggregate term of imprisonment is appropriate given that each of the offences form part of a continuing episode of offending in a short time frame. Therefore, I impose an aggregate term of imprisonment of eight months.
28 I also order that you undergo a community corrections order for a period of 12 months. I impose the following conditions on the community corrections order. I order that you be subject to supervision. I order that you undergo assessment and treatment, including testing, for drug abuse or dependency as directed. I order that you participate in programs and/or courses that address factors relating to the offending as directed.
29 Mr King, I have also deemed it appropriate for this to be a case where the order is subject to judicial monitoring by me. What that means is that one you have completed six months of the 12-month order, you will be brought back before me, and I will be given a report as to how you are faring on the order that I have imposed.
30 Now, as I understand it, you consent to the order being made. I am also obliged to indicate to you the consequences of a breach of the order. Should you breach the order in the course of that 12 months, you will be brought back before me and liable to be resentenced for those offences that I am sentencing for you today. Do you understand that?
31 ACCUSED: Yep.
32 HER HONOUR: All right. Now, I order that pursuant to s.18(4) of the Sentencing Act, I declare a period of 15 days as pre-sentence detention, not including today. Pursuant to s.6AAA of the Sentencing Act, if not for your plea of guilty, I would have imposed a sentence of three years and a non-parole period of 18 months. I make the disposal and forfeiture orders in the terms sought by the prosecution.
33 You may be seated now, Mr King. Now, would you like an opportunity to explain the order to Mr King and for him to sign it, Mr Hughan?
34 MR HUGHAN: Yes. I would be grateful for that opportunity. Thanks, your Honour. It wouldn’t take too long.
35 HER HONOUR: Yes.
36 MR HUGHAN: Might I just, though, raise one issue that ‑ ‑ ‑
37 HER HONOUR: Yes.
38 MR HUGHAN: ‑ ‑ ‑ that did occur to me in conjunction with the client this morning. Your Honour, you’ve imposed the recommended treatment conditions as per those that you were considering at the time of the assessment request, but it did occur to me that one of the issues that Mr King had encountered was difficulties in accessing mental health treatment privately, and you noted ‑ ‑ ‑
39 HER HONOUR: Mr Fewkes.
40 MR HUGHAN: ‑ ‑ ‑ that he had gone to see Mr Fewkes and so forth.
41 HER HONOUR: Yes.
42 MR HUGHAN: I wondered if your Honour would consider – and, in my submission, it would not be an inappropriate consideration to impose a condition under – I think it’s 48D(3)(e).
43 HER HONOUR: Of the Sentencing Act?
44 MR HUGHAN: Of the Sentencing Act, yes, your Honour, of assessment and treatment for mental health matters. I’m summarising there, your Honour. I had the Act here a moment ago, and I’m sure I can get it back.
45 HER HONOUR: Yes. I thought that that was part of what we asked – because that’s the focus of the current order ‑ ‑ ‑
46 MR HUGHAN: Yes.
47 HER HONOUR: ‑ ‑ ‑ well, that’s going to be, obviously, in abeyance because of he’s serving a gaol term. But, yes, we will impose that condition as well.
48 MR HUGHAN: Yes. If your Honour pleases. And this is really just by the by. In terms of his current situation, having been remanded two weeks ago, the gaol authorities have moved the olanzapine back to 10 milligrams ‑ ‑ ‑
49 HER HONOUR: Milligrams.
50 MR HUGHAN: ‑ ‑ ‑ at this stage.
51 HER HONOUR: All right.
52 MR HUGHAN: And they’ve substituted another medication for the Pristiq.
53 HER HONOUR: All right. Well ‑ ‑ ‑
54 MR HUGHAN: But ‑ ‑ ‑
55 HER HONOUR: If you would like me to, in terms of the order that’s completed today for custody management issue, did you want us to make a note about that 10-milligram issue or not?
56 MR HUGHAN: No, your Honour. I mean, your Honour made ‑ ‑ ‑
57 HER HONOUR: All right. The gaol: they’ve been made aware of it.
58 MR HUGHAN: Yes. They’ve made that decision, and he will be seen by a – the plan is for him to be seen by a psychologist tomorrow, and then a decision will be made as to where he goes and the circumstances in which he would go there.
59 HER HONOUR: All right. What we might do is my associate will prepare the revised order with that condition in relation to mental health. That should have been on there in the first place, but in any event ‑ ‑ ‑
60 MR HUGHAN: We’ve got it now.
61 HER HONOUR: ‑ ‑ ‑ we will have a short adjournment, and then once that’s done, Mr King can sign that order.
62 MR HUGHAN: If your Honour please.
63 HER HONOUR: All right.
- - -
0
0
0