Director of Public Prosecutions v King
[2013] VCC 1409
•8 August 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR 12-01588
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LIAM KING |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 8 August 2013 | |
CASE MAY BE CITED AS: | DPP v. King | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1409 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C. Burnside | Director of Public Prosecutions |
| For the Accused | Mr M. Phillips |
HER HONOUR:
1 Liam Billy King, you have pleaded guilty before me to one charge of aggravated burglary and one charge of recklessly causing serious injury. The facts underlying your offending are as follows.
2 On 27 January 2012, you and your then girlfriend attended a birthday party in Mornington where you remained for about half an hour, leaving at about midnight. Your girlfriend stayed at the party where she drank heavily and ended up having a rest in one of the bedrooms. During that time a male at the party tried to kiss her while she was under the bed covers. She told him that she had a boyfriend and left the room but also reported the incident to you and asked you to pick her up.
3 You then arrived at the house at about 4 am and spoke to your girlfriend outside the house, telling her to wait in the car and then expressed some anger at those in the house for failing to protect your girlfriend. You knocked on the front door. One of those inside refused to let you in, then the victim, Mr Down, let you in, the two of you having been friends for about a year.
4 You approached the man who had approached your girlfriend and tried to punch him but Mr Down grabbed your arms and said "Not inside, Kingy" and you left after being told to do so by another house occupant, Ms Russell. You saying at the time you would be "..back with my boys".
5 You then drove to the car park at a nearby shopping centre where you were joined by a second vehicle which you got into and re-attended at the Mornington address. You were seen by Ms Russell running towards the front door. At the same time she saw two other men with hoodies and bandanas over their faces run into the back yard, one of them carrying a steel baton in his hand. She was scared and ran into the garage and hid behind a bin. You then smashed the glass window next to the front door, reached in and opened it. The two unknown disguised offenders came in through a sliding glass door at the back, one of them using the baton to smash that door.
6 They came in the house at the back, you ran down the hallway and began searching the rear bedrooms for the man who had approached your girlfriend. Mr Down was sitting in a dining room chair and stood up when the glass was smashed and seeing the three of you assumed they were looking for this particular male and yelled out that he wasn't there. He was then hit in the back of the head by one of the co-offenders with the baton which caused a laceration requiring stitches and placed his hands over his head. He was pushed into a wall which called a hole in the plaster, fell to the ground and then was hit in the left leg below the knee with the baton, causing a fracture to the fibula.
7 Your actions in entering the premises underlie Charge 1 on the Indictment, aggravated burglary. The assault to Mr Down underlies Charge 2, recklessly causing serious injury, which charge you face on an accomplice basis. Other persons in the house hid in the bedroom while Mr Down was being assaulted and a co-offender with the baton kicked open the door to the room. However, you and the two co-offenders left the house.
8 Mr Down was found bleeding on the floor from the head wound, an ambulance was called and he was taken to the Frankston Hospital where he was treated in casualty for a broken leg and cut to the head.
9 Later that day you telephoned Mr Down apologising, saying you didn't mean anything to happen, that you had “fucked up” and the next morning sent him a message asking, "Hey Bud, how are you feeling today?"
10 A few days later you paid $700 to Ms Russell and Mr Down for damage to the house.
11 You attended the Mornington Police Station on 8 February 2012 where you made a "no comment" record of interview and refused to identify your co-offenders.
12 I was informed by your counsel and by the prosecutor in this case that there were early negotiations where you indicated a willingness to plead to a properly framed indictment, the sticking point being your adamant position that you had no idea that those you recruited to assist you on that night had or would bring a weapon with them. You were originally charged with aggravated burglary involving use of an offensive weapon and a very short contested committal was conducted, confined to a particular issue. Very soon after that committal was concluded, a plea to aggravated burglary on the basis of you being aware of the presence of others in the house, together with the charge of recklessly causing serious injury was negotiated and ultimately you entered a plea of guilty on the morning of the trial.
13 I do accept that you indicated a willingness to plead, although that was not finalised until the morning of the trial, at an early stage. I accept that more than utilitarian value should be given to that plea which I regard as being evidence of remorse, particularly considering your apology to the victims and your early monetary compensation to them. Further, ultimately in May this year you, unusually, sought to have your bail revoked and have been residing at the Melbourne Assessment Prison since and I also regard that action as indicating remorse on your part and a willingness to take responsibility for your actions.
14 You have a limited prior criminal history limited to appearances primarily in the Frankston Children's Court and one appearance in the Frankston Magistrates' Court. Your initial appearances in the Children's Court related to driving offences. You have been dealt with for using indecent language in a public place. In 2006, you were placed on a good behaviour bond without conviction on a charge of assault with a weapon. It would appear that you were dealt with again in 2007 for breach of that bond which seems to have been dismissed.
15 MR PHILLIPS: No, Your Honour, it was dismissed on that day so it was a 12 month bond imposed on the 13th and it automatically comes before the court and it was dismissed on that subsequent date.
16 HER HONOUR: So an appearance on 13 July 2006 for assault with a weapon which a good behaviour bond was complied with by you and ultimately dismissed. Then on 18 April 2011 you were fined $800 without conviction on a charge of recklessly causing injury which essentially involved a physical fight with another man over a girl.
17 The offending that has brought you before this court certainly is a marked escalation of that prior criminal history.
18 I now turn to your personal circumstances. You are 24 years of age and were 23 at the time of this offending. You have had a difficult and somewhat traumatic life. Your parents, who remain supportive of you - and I note that you have been well supported in court by family and friends, - separated in circumstances of some volatility which you witnessed and, indeed, a psychological report compiled when you were about six notes that you were presenting at that time as a child who was anxious, showing defiance, having altercations in the playground and were described as a child who came from a background of "...major domestic violence and instability, one could argue ... and suggest it is amazing he has remained so stable."
19 The paediatrician, Dr Adrian Alterhurst, in a report dated 4 January 1995 noted - and I regard this as significant in relation to the offending before this court - that at that stage you had started to "openly blame himself for his parents unhappiness".
20 You remained living with your mother and had contact with your father who undertook an amount of night work as a security guard. Ultimately your mother re-partnered unhappily, to a man who was then a policeman and I understand has now been dismissed from the Force, but he was violent to yourself and to your mother. Your mother wrote a letter to the court which I found extremely helpful. She described the years of domestic violence at the hands of her former partner as being so extreme that at 14 you went to live with your father because, to quote your mother, "It was unbearable at our home". It appears your stepfather’s behaviour was so bad that subsequently your mother and your step-brother, born of the relationship, were awarded Crimes Compensation.
21 You went to live with your father, as I have said, but difficulties arose in that he was under some stress, it would appear, from criminal activity that he was the subject of by persons who had attended premises where he was acting in a security role and your counsel informed me that your father feels that in those years he failed to give you the sort of supervision and support that you needed.
22 It would also appear from the material I have received that from a fairly early age there were learning difficulties apparent and from about the age of nine it was picked up that you may have some sort of dyslexic problem. In any even, the difficulties at school went on. I received a further report from a Mr Simon Blair, a psychiatrist who, it seems, was noting that at school you were having trouble fighting, there was a lot of anger, he described you as an unhappy boy. Ultimately, at the age of 15 at the conclusion of Year 9, you left school.
23 You then began what I regard as a solid work history. You started a carpentry apprenticeship which ended when the company got into financial difficulties and let you go. You then undertook an amount of labouring work and then ultimately undertook a roof plumbing apprenticeship which you completed, taking four years and worked for that company for about 12 months after that. I am assuming this is a period of time referred to by your mother at a time that you blossomed. Note had been made that you were a fairly isolated child, but at this period of time she says you began new friendships, met a lovely girl, seemed to come out of your shell, was living independently, paid rent, bought two cars, owned furniture and ultimately became a qualified plumber.
24 There were, however, a couple of unfortunate and very difficult events which seems to have intervened in that time. In 2007, you were involved in a fatal accident where you were the driver of a vehicle which was making a right hand turn and in the process of doing this a motor cyclist attempting to overtake you on the right hand side after having come from several cars back cannoned into your car and was killed. This was an extremely traumatic event for which it appears you were not counselled and basically it would seem buried yourself in your work and your life.
25 In 2011, as a result of the incident which led to you being fined in the Magistrates' Court, that is the charge of recklessly causing injury, you broke your hand and this meant that you were off work for some time. Your counsel informed that you had intermittently used cannabis from about the age of 15, experimented with some drugs but in your late teens began sporadic use of Ice. Unfortunately, once you could not work, the various psychological problems which were no doubt bubbling away beneath the surface beneath then emerged and you dealt with by use of that highly addictive substance, methylamphetamine, that is Ice.
26 I understand that in the 12 months leading up to this incident, although you had resumed work, you had also established an entrenched Ice use habit and at the time of this offending had been on some sort of Ice binge and been awake for four days.
27 Your counsel informed me that it was your impression that your girlfriend had, in fact, been the subject of some sort of attempted rape at the time that you offended in the way that you did. Certainly I accept that at the time of this offending your enraged reaction to what had occurred can be attributed to your drug habit, the effects of it, which are unfortunately all too well known to this court.
28 I have to tell you, Mr King, that Ice seems to underlie, along with excessive alcohol use, virtually every stupid, violent piece of offending committed by young men between the ages of about 17 and 35. It is, as you know, an extraordinarily addictive drug, the more you take, the more you need, the bigger the highs, the bigger the lows, the more you need to dig yourself out of the low the next time round and quite apart from the sleeplessness, it is quite clear that it has a major mood altering effect. In fact - and I am just telling you this for your own information, I am sure PENDAP has made this clear to you - any amphetamine-based drug can interfere with the neural pathways of the brain. In other words, prolonged use of amphetamine or any of its derivatives can lead to permanent organic, that is physical damage to the brain. It can leave long-term users with a permanent psychiatric condition, usually manifesting itself as a form of paranoid schizophrenia.
29 In other words, to use a colloquial term, you could have an entirely fried brain, a condition for which there is no cure, simply management. Amphetamine is an extraordinarily dangerous drug and it is particularly dangerous for young men whose brain’s do not stop growing and developing until they are 29 and are hence particularly vulnerable to the physical ravages of amphetamine. You could have blown your neural pathways apart, is what I am saying to you. That is why amphetamine and any of its derivatives are really dangerous. You have to use a lot of it over a period of time for that to occur, but you can be left with a permanent psychiatric condition by use of that drug, and Ice is particularly dangerous because it is such an addictive form of amphetamine, as you know.
30 You continued work with your employer until he became aware of this offending as a result of certain persons visiting the workplace and you were then sacked. It would appear for most of 2012, you spent your life in a downward spiral, your drug use increased. I am sure your despair, your mood drastically plummeted. You lost your independent living, you had to sell a car, you lost virtually all your possessions. You ended up living back with your father. In other words, you lost everything you had gained. The relationship which was at the heart of all this was short-lived and soon came to an end, and I am informed that you have subsequently had another relationship also unsuccessful, which is probably pretty normal for a young man your age.
31 But in any event, by November 2012 I am satisfied your position was fairly dire. Fortunately, you have taken a number of positive steps. Firstly, you sought assistance for your drug use which, in my view, is fundamental to your ultimate rehabilitation. You attended the very well known and respected PENDAP, Peninsula Health the Peninsula Drug and Alcohol Program. I received a report from the forensic clinician, Denise Wayne, dated 17 April 2013 outlining that you first attended with her on 12 November 2012 and went on to attend eight further scheduled appointments with her. She described you as making a positive effort to attend sessions punctually and that at no time did you appear drug or alcohol affected.
32 The treatment plan you undertook involved intervention focussing on principles of harm minimisation, education, information, relapse prevention and anger management. All of them are highly pertinent to you both in terms of your psychological difficulties and in relation to the effects of your drug of choice, that is methylamphetamine.
33 You reported a significant reduction in your illicit drug use and she described you as implementing positive strategies to address past anger issues. You participated in a Mens Behaviour Change Program, a 20 week course facilitated by Peninsula Health.
34 You also acknowledge that your past behaviour is unacceptable and Ms Wayne was of the view that you appeared to be implementing developed consequential thinking strategies. All very positive stuff.
35 In addition, you undertook further education, again an extremely positive step, particularly for a young man who has a lot of his life to live. You began an Advanced Diploma of Building Design at the Frankston Campus of Chisholm Institute and I received a report from a teacher, David Christie, at Chisholm dated 30 July 2013 noting that you attended classes from 11 February until 22 April this year, successfully completing all the assessment tasks, averaging a credit pass grade and were described by him as respectful and attentive to your studies and participating in class discussion with insightful comments.
36 Mr Christie concluded, "His knowledge of the building industry helped his studies and allowed him to impart knowledge to other less experienced students. We regret Liam leaving the course as we saw him as a positive class member and believe that he was capable of completing the course." I am assuming that what you did was complete a semester and were unable to re-attend because you went into gaol.
37 It is certainly your intention, as I understand it, to resume those studies on leaving gaol. I note that your mother has described you as being "...very clever with any art and drawing and anything using his hands. He is brilliant with anything visual." And it would appear that those strengths are strengths that you want to utilise in forging out a career for yourself.
38 Whilst in gaol, you have undertaken a number of the usual courses there. I received certification to the effect that you have undertaken a Coping Inside Managing Worry program, that you have also completed a Coping Inside Managing Loss program, you have undertaken a Basic Emergency Life Support program, a Participate in Workplace Safety Arrangements program and you have undertaken a Baristas Course. So you are using your time well.
39 In addition, your counsel informed me that in gaol you have undertaken a floor sanding and polishing course. I was also handed a urine test conducted on you in July which was negative for the presence of any drugs. So, all in all, this is very positive progress on your behalf. It has been initiated by you and I congratulate you on this.
40 The offending, of course, is extremely serious and in recent years particularly the courts have been expected to deal with the charge aggravated burglary with some severity. The victim impact statements are important in that they indicate the very severe effect you have had on the lives of those who were the subject of this attack. Mr Down, in his victim impact statement, noted that he has got a permanent scar on his forehead. He lost at least $3600 having to take two weeks of course off work, should have stayed off longer but could not afford to. And he describes the subsequent emotional trauma as leaving him with less confidence going out after what he describes as "being brutally bashed for no reason". That is going to affect anybody's confidence in the world around them and the safety of the life that they lead. He said, "My physical appearance is nowhere near as good with a big scar on my forehead", and I am assuming he is also a young man in his 20s and so that would be of quite some significance to him.
41 Ms Russell suffered a great deal as well. Because of the fear she experienced from this invasion of her home she moved from the house. She broke the lease which cost her a great deal of money. Ultimately she said "I was still scared and felt I couldn't trust anyone because the two co-offenders were not identified, so decided to leave Melbourne. I moved to Darwin as I had been there several times on holiday." That cost her something in the region of $800. She had to start taking sleeping tablets, she was waking at every noise. She was diagnosed with adjustment anxiety initially. She had to go for counselling for anxiety and depression. She said that once she had been in Darwin for a while she was able to come off medication but a recent event triggered the anxiety, she said "I have now been diagnosed with post traumatic stress disorder and am on sleeping tablets and under a psychologist." So that is well over a year later.
42 She says she is still distrustful of strangers, she feels anxious if a car pulls up outside her house at night. If there is a car parked in her street that she does not recognise, she writes down the registration number. She cannot get close to people because she gets anxious, overwhelmed and "feel panic so I push them away". So this has been a very profound and long-standing effect that your actions that night have had. I understand that they were fuelled to some extent by your underlying psychological problems. I commented during the plea on the possibility of you having early developed an over-protective streak in relation to your mother that has transferred itself to subsequent girlfriends, I am not sure. But ,at the end of the day, it was your use of Ice, I am satisfied, that led to your enraged reaction primarily and you need to bear that in mind when you are thinking about drug use in the future and the long term effect that your actions, when under the influence of Ice, have on other people when you are looking at what will be a long term struggle against resuming drug use.
43 It has not been suggested otherwise than that I should deal with you by way of a sentence of imprisonment to be immediately served and it appears evident to me that you have accepted this by the fact that you have voluntarily put yourself in custody. I do regard you as a young man with positive prospects. Your parents are now in settled personal relationships, they are supportive of you. Both sides of your family have come together to assist you through these court appearances. You have had severe consequence to your actions which I am satisfied you have taken on board, as seen by the way in which you have undertaken the rehabilitative steps that you have. You are still a young man.
44 For the purposes of the Sentencing Act, a young offender is described as an offender up to the age of 21. Ordinarily in cases of this kind, principles of general deterrence, that is sending out a message to other people in the community that if they behave in a particular way this will be the consequence. Sentencing in this way is a means of expressing a court's disapproval of behaviour which usually dominate the sentencing scenario in such cases, usually dominates as a principle a sentencing judge like myself must have regard to. Although you are not 21, you are not far off it, and you were even closer to it at the time of this offending - and I do regard you as being a relatively young offender which is important because it has long been recognised that where an offender is relatively young, rehabilitation is more important than where an offender is a degree older because you have got your life ahead of you and your rehabilitation is important not just to you but, in particular, to the community.
45 I am satisfied not only that rehabilitation does have a larger role to play in the sentencing exercise before me than would ordinarily be the case, but that you have made positive steps which, on balance, I am also satisfied you intend to continue on your release from prison. Importantly, your counsel informs me you have cut all ties with "your boys", some of whom have threatened you in the interim and you intend to continue avoiding them on your release from prison.
46 One of the matters which a court must have concern when sentencing a relatively young offender with a relatively confined criminal history such as yours, is the need to avoid sentencing a person of youthful age to a term which could result in them re-forming criminal associations which can get in the way of any rehabilitation. In other words, Mr King, it's largely a matter for you as well but I do not want you coming out of gaol with a whole set of beaut new mates who you feel are the only ones who now understand you. I hope you do not make that mistake. But I am also, in sentencing you - in terms of the community's overall well being - anxious to avoid such a consequence to any sentence I impose.
47 As a result of all these mitigatory matters that I have outlined, it is my view, and I note that it is of course not resiled from by the prosecution, that I should sentence you to a term of imprisonment which contained a more than usual lengthy period between minimum and head term - that is, a more than usually lengthy period of parole, I therefore sentence you as follows.
48 Charge 1, aggravated burglary, you are sentenced to two years' imprisonment; on Charge 2, recklessly causing serious injury, you are sentenced to one years' imprisonment and I order that six months of the sentence imposed - I beg your pardon, I make it 18 months in relation to Charge 1 and 12 months in relation to Charge 2 and I order that six months of the sentence imposed on Charge 2 be served cumulatively to the sentence imposed on Charge 1, giving a total effective sentence of two years. I order that you serve eight months of that sentence before becoming eligible for parole.
49 I declare that 98 days of that sentence have already been served by way of pre-sentence detention. You have got about five months to go. You heard what the recommended sentence was from the prosecution.
50 OFFENDER: Yes.
51 HER HONOUR: I am giving you a real opportunity here. When you come out (I am going to forward all these reports to the Parole Board) but when you come out there will be a number of conditions attached to parole, you do not want to commit any offence while you are on parole. You need to take this opportunity and run with it.
52 So that gives you about another five months, keep your life in order, settle down, get what you can out of gaol.
53 OFFENDER: Yes.
54 HER HONOUR: And then come out and start again. You counsel will tell you this but certain offending on parole which could result in the cancellation of your parole, if you are given a further sentence for further any offending on parole, has to be served cumulatively to whatever outstanding a portion of parole is owed. So if you breach by parole by offending you will owe them 16 months, any sentence you get for any offending on parole will be served cumulatively to the 16 months, if your parole is cancelled. You have got a lot to lose if you do not make use of this opportunity. Do you understand?
55 OFFENDER: Yes.
56 HER HONOUR: So you will have 16 months hanging over your head by the time you get out.
57 Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentence you to a term of imprisonment of two years and nine months and I would have ordered that you serve a minimum term of 20 months.
58 OFFENDER: (Indistinct).
59 HER HONOUR: I am going to order that you provide a forensic sample to police which will be a scraping from the mouth. I need to advise you that if you do not provide that sample when requested, police may use reasonable force in order to obtain that sample. Do you understand?
60 OFFENDER: Yes.
61 HER HONOUR: Is there anything else I need to attend to?
62 MS BURNSIDE: No, Your Honour.
63 HER HONOUR: Very well, I am going to return the materials to you, Mr Phillips. I thank you very much for your assistance, I forgot to add that counsel's plea was extremely helpful, as were the submissions by the learned prosecutor. We will hang on to the folder for the time being, I think.
64 MR PHILLIPS: Thanks, Your Honour.
65 HER HONOUR: I want those reports to go to the Parole Board. I will give you the originals back as well, Mr Phillips. Good luck, Mr King.
66 OFFENDER: Thank you, Your Honour.
67 HER HONOUR: I hope I see you again about as much as you hope you will see me again, I would imagine, Mr King. Thank you. We will adjourn to 10.30.
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