Director of Public Prosecutions v Knight&Anor

[2020] VCC 916

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 18-01108

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL KNIGHT

BRANDON MAY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 June 2020
CASE MAY BE CITED AS:	DPP v Knight&Anor
MEDIUM NEUTRAL CITATION:	[2020] VCC 916

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Schwartz
For Accused Knight	Mr I. Michaelson
For Accused May	Mr P. Skehan

HIS HONOUR: 

1Daniel Knight and Brandon May, you have each pleaded guilty to one charge of home invasion and one charge of intentionally causing injury.  Each of those crimes carries a maximum penalty of 25 years and 10 years respectively.

2You have each pleaded guilty and each have expressed appropriate remorse.  You must each get the utilitarian benefit of that plea of guilty. 

3Insofar as you, Mr May, are concerned, you have no prior convictions and nothing since.  So far as you are concerned, Mr Knight, you have one prior matter, which was a without conviction bond and nothing since.  Accordingly that, as you now approach your mid to late-20s, each of you has a relatively impeccable history.

4There has been a delay now of over two and a half years.  This matter was resolved effectively, in terms of a plea, in April of last year, as I understand it, and because there was going to be a contest about some factual matters on the plea and because of the intervention of COVID-19, the matter has only recently come on.  That gives a very significant delay and it is a delay which I will take into account and refer to again in a moment.

5The offending that I am about to describe has to be regarded as serious.  In the normal course of events, it calls for general and specific deterrence, as well as denunciation and appropriate punishment. 

6As I have indicated already, I have sentenced one co-accused and I will be going into some detail insofar as he is concerned, because obviously there are matters of parity and the Crown's submission is that this should be a sentence involving custody and as I understand it, a minimum term.

7One other accused is conducting a trial in regard to this matter, so I will be careful what I say about him, if anything.

8A Joshua McLean was 25 years old at the time of the offending.  You, Mr Knight, were 24 years old and you, Mr May, were 24 years old.  A man called McGarry was 24 years old at the time of the offending and resided in Shepparton.  He was, at that stage, co-habiting with a Ms Antonowicz, who was 24 years of age at the time.  Mr McLean and Ms Antonowicz had been in a relationship for over eight years and were engaged to be married and that relationship had ended in early to mid-August of 2017. 

9Mr McLean and Mr McGarry had gone to high school together and their friendship had ceased about a year and a half prior to the alleged offending, as they had grown apart.  Mr McLean apparently told police and I will be careful what I take into account here, in terms of what other people have said, that
Mr McGarry had been his best friend. 

10About two to three weeks prior to the offending, Mr McLean and you, Mr Knight, and a Taylor Milne, a woman, went to Shepparton to confront Mr McGarry and Ms Antonowicz about whether they were in a relationship.  Ms Milne had been in a relationship with McGarry and they were to be married in November of 2017.  That was about roughly a couple of months later.  Each of them said that there was nothing going on between them. 

11Shortly after that, Mr McLean found out that in fact that was untrue and that
Ms Antonowicz was in a relationship with Mr McGarry.  A number of you were known to each other and because of Mr Martin's position, I will not take that any further.

12On around about 6 o'clock on 9 September, four people attended a party in Shepparton East.  That was a going away party for a Mr Brereton. 
A Mr Shannon was also in attendance and had driven to the party. 

13At the party alcohol was consumed.  A conversation turned to the topic of the relationship between Mr McGarry and Ms Antonowicz and people were, in effect, saying what they would have done to McGarry if they were in
Mr McLean's position.  Mr McLean became agitated and worked up and I take into account there is a certain element of peer pressures and revving up involved in all this and also involving the use of alcohol for three people who had no real previous involvement with the criminal law. 

14In any event, a vehicle driven by Mr Shannon eventually got over to the property and everybody went to the house.  Mr Shannon said that four accused got out of the car and went towards the house, but he could not see who went in.  He was requested by someone, but it was not Mr May, to go and see Mr McGarry.

15A few minutes before 11 o'clock, he arrived at Jonagold Court in Shepparton and parked out the front.  Mr McGarry and Ms Antonowicz were apparently in the master bedroom.  Mr Shannon stayed in the car and the others, including you two, went towards the house, where somebody yelled out, 'You've had this coming, you dog'.  McGarry got out of bed and opened the door.  Ms Antonowicz also got out of bed and walked to the front door to see what was going on and Mr McLean and you, Mr Knight, were seen.

16It appears that you, Mr May, may have broken a window and you have made some admissions in relation to that and McGarry started backing away down the hallway.  The door was kicked open and Mr McLean, you, Mr Knight, and you, Mr May, entered the premises.  McLean used one arm to push her, Antonowicz, out of the way.  She went into the bedroom and closed the door.

17I have heard her cross-examined on a Basha inquiry, as we used to call them, in relation to the trial of Martin and I will say no more about that.  I would not have regarded her as a particularly satisfactory witness, but in any event, you have each pleaded guilty and that is the end of that. 

18McGarry was pushed from behind by somebody and he fell into a window.  Whether that was deliberate or accidental, I am unable to determine.  He tried to turn around so his face would not make contact with the window.  It broke as he went through it with his backside.  He was pulled back into the house and thrown into the breakfast bar.  He was further assaulted.  Mc Lean punched him several times to the face and McGarry said he felt kicks and punches on both sides of his body.  He was being called names like, 'Cunt' and, 'Dog'.  A Jim Beam bottle was smashed. 

19I make it very clear that I am not sentencing either of you on the basis of that bottle having been used as a weapon, it is a home invasion charge.  The charge itself does not involve the use of a weapon and in fairness to each of you, I am not regarding that as the cause of the injury, to which you also pleaded guilty.

20Everybody then left the house and drove off.  Mr McLean said to his uncle that he had, 'Fucked up'.  Ms Antonowicz drove McGarry to the Goulburn Valley hospital.  He had superficial lacerations to the top of his head, ear, arm, left leg and left foot, a bruised eye and a split lip.  He had lacerations to his calf and ankle which required sutures and other wounds were cleaned and dressings were applied. 

21It is clear in this situation that the lacerations to the calf and the ankle came from going through the window and it can be said that the injuries sustained by the actual assault itself and what was intended are at the lower end.  I say that because I have seen a significant number of comparative cases in regard to this.  I must bear in mind that the charge is injury, not serious injury and in my view, I have seen far greater incidents of injury than the one that was caused here.

22Interviews then took place and I do not need to go through that.  You, Mr May, made certain admissions, which in the light of the overall evidence, were of real significance to the Crown and that gives your plea of guilty greater weight. 
As I have already indicated, you must each get the utilitarian benefit of that plea of guilty and whilst the records of interview, to a certain extent, were
self-justificational, it is a milieu in which this occurred, which I would hardly find that particularly surprising.

23In any event, each of you was originally charged with aggravated home invasion, which carries a mandatory minimum term, for obvious reasons.  Neither you nor Mr McLean was prepared to plead to that and ultimately, it was a settled indictment and as I have already indicated, it is a situation where the delay is of significance.  There are no victim impact statements before me and in all these circumstances, that does not really surprise me.  The ordinary result in matters such as this would be a custodial sentence and I said that to
Mr McLean when I sentenced him back in October of 2019. 

24Before I go onto the particulars or the details relevant to each of you, I go back to those sentencing remarks of Mr McLean.  His circumstances were that he was 25 years of age, that the offending was out of character.  I accept that is the same with each of you.  He had no priors or anything pending.  Again, the situation with each of you.  There was a significant delay for him and there is an even greater delay for each of you.  That greater delay is not caused by any fault on your part and is significantly contributed to, it would seem, by the COVID-19.  But in any event, because I will be dealing with delay again in a moment.

25As I have indicated, each of you made admissions and remorse, as did
Mr McLean.  He had complied with bail, as indeed have each of you.  He had a good work history and a good work future, as indeed have each of you. 

26I indicated during the course of the plea, when I heard character material placed on his behalf in that, basically hard-working, young country man, evidence that I would have given a community corrections order in any event.  I then went on to explain that in his situation, there were special or exceptional circumstances in relation to his younger brother, which would have justified a community corrections order effectively by themselves.  I did take those matters into account, but I made it clear then and I make it clear now, that the special circumstances involved with him of the mercy were not in any way mandated the penalty that I then imposed.

27I then looked to other authorities in regard to all this.  Before I go into your personal circumstances and I think from the outset I can say the same things effectively that I said to Mr McLean.  The sentence imposed - as I said then.  This is from the case of Tom Goonan, 'The sentence imposed in the present case took account of the mitigating factors mentioned above.  The respondent's limited criminal record', [you have none], 'His Honour's favourable view of the respondent's prospects of rehabilitation' and as I said, again, I think it is the same with you, I think yours are excellent.  In the circumstances of that case, His Honour was entitled to show mercy to the respondent and take account of the fact the he was a full-time carer of one of his daughters and he shared the care of his other daughter with her aunt.

28As this court recognised in the DPP v Leach:

'It is particularly important that this court should not devalue or deny the right of the sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of the offender ought be grasped.  That after all may be a decision which rebounds very much to the benefit of the community.  A sentencing judge should be astute to investigate whether a non-custodial disposition is to be referred, even in the case of a serious offence, with in the long-term, the community's interest will be served by that course.  This court should seek to promote public understanding to the fact that, apart from the interest of the individual whom has sought to rehabilitate, an important interest in itself is a vital community interest in maximising the prospects of rehabilitation of an individual who is convicted or been convicted of a serious crime.'

29Then also when I sentenced Mr McLean, referred to the decision of
R v Bradshaw, where I quoted:

'Parsimony requires sentencing judges to give a proper consideration to non-custodial options.'

30As is of course stated in Boulton and as I indicated with Mr McLean, I am not going to go through Boulton in detail, we all know what that says. 

'A community corrections order provides a flexible mechanism for imposing the sentences both punitive and rehabilitative which can be fashioned to address the particular circumstances of the offender and causes of the offending to minimise the risk of re-offending by promoting the offender's rehabilitation.  As the order of seriousness of the offending conduct increases so that the likelihood that such a disposition will be appropriate diminishes, but it may remain an option that is open, even in cases of very serious offending.'

31In this particular matter, I am well aware of decisions such as Hogarth and the like, which talk about the situation of confrontational aggravated burglaries and I have been through a significant number of comparative cases.  In the ones where a custodial sentence of significance has been imposed, it is almost invariably the case that weapons were used.  I sentence neither of you in relation to a weapon.  In those matters, people have gone with weapons, the victims have been beaten severely with poles and the like. 

32I regard the offending in this matter is middle or low range, whilst it is a situation of going there as a deliberate confrontation.  I do not think that the intention was to do anything like this at the time you arrived and it got out of control virtually on the spur of the moment once you were all there.  I think it is four
alcohol-affected young men with very little experience in the criminal jurisdiction egging each other on and the matter getting out of control.  As Mr McLean said to his uncle, 'I fucked up, Uncle Rob' and I think that is the situation with each of you. 

33In these circumstances, neither of you have an ongoing alcohol problem.  Neither of you have a drug problem.  Each of you has a stable family situation.  Each of you has a very good work record and a good future record and I think the risk of any of you, and that includes you two, doing this again is remote. 

34So as far as general deterrence is concerned, obviously that has to play a part and I have already indicated, I am not going to go through the principles of Boulton.  Obviously a community corrections order with a very significant number of work hours has an aspect of general deterrence and denotes that the community will not tolerate this sort of behaviour, no matter how justified it may seem.  There was obviously a significant degree of emotion involved in all this and I will briefly go through the circumstances particular to each of you and leave it from there. 

35The first matter which relates to each of you is the current COVID-19 circumstance.  That was a circumstance which Mr McLean, of course, could not avail himself of, but you can.  As I understand it, the present situation is that, were you to be in custody, you would go into quarantine for a period of four days.  There would be no personal visits.  Despite what people might say, there are virtually no programs taking place.  There will be no prospect in the foreseeable future of any form of rehabilitation or betterment being included within a custodial sentence and each of you, of course, would have the fear of infection and each of you, of course, is in a situation where one has a small child and one is about to, as I understand it and you obviously have the fear of infection and a fear of difficulties to your families.  In those circumstances, or in these circumstances, they are very strong concerns indeed.

36I then, in terms of both of you, look at the question of delay.  And in that respect, I refer to the words of Mr Calloway J in R v MWH back in 2001.  He said:

'The effects of delay that are important for sentencing, as in
The Queen v Law, "The prisoner's age at the time of sentencing may mean he's less likely to reoffend.  His health or life expectancy may make service of a sentence of imprisonment more onerous than usual.  There may be considerations of fairness, especially where the delay is attributable to the prosecution [but I don't find that here] or there has been a significant period of uncertainty or (indistinct) of liberty after the offences came to light.  [That certainly exists here].  There may be practical considerations that require a marked degree of leniency to be extended.  The foregoing is by no means an exhaustive lesson (indistinct words) most important potential effect of delay, namely rehabilitation.  The person standing to sentence may have been rehabilitated in one or more ways.  He may have given up a form of substance abuse that attributed to the offending.  He may have reordered his life.  He may have changed morally, so quite apart from being older.  He would not be likely to re-offend.  He may have suffered genuine remorse in a sentence of repentance, not just sorrow of being caught and fear of punishment.  So far as possible, a lengthy process of rehabilitation should not be halted or endangered via the sentence imposed."'

37There is some interpolations by me in there obviously.

38This is a situation where each of you has rehabilitated to a large extent.  It is often the situation with matters such as this where people drop their bundle.  Each of you has endeavoured to get on with life.  Each of you has continued to work and it is clear from the references provided that each of you is a valued and useful member of the community and particular in a workplace.  It is not a good thing for a sentencing judge to have to say, but to see two young men in this situation with good work records and good work prospects is not the most common thing that one comes across and I think the proper recognition should be given to it.

39I have had, as I have indicated beforehand, both assessed for community corrections orders and you have both been found to be acceptable.

40In terms of each of you personally, I do not propose to go into massive detail, because I do not know that there is that much need to do so. 

41Firstly, you, Mr Knight, I have indicated already, you accept that this is totally out of character.  The chances of you doing it again are very limited, if not
non-existent.  I have gone through all the other matters.  You clearly have good work references, you clearly have family support.  I looked at the references and they have been tendered on your behalf. 

42The circumstances of your childhood and family history are that you were born in Queensland.  You are now 27 years of age.  You were raised in the Goulburn Valley.  You have never met your biological father.  You have had two
step-fathers, one until the age of nine and your mother's current partner.  You had a difficult upbringing.  Your mother and step-fathers were both alcoholics.  You were exposed to domestic violence from a young age.  You have one older sister and one younger brother.

43You clearly were able to, upon leaving school and I am not quite sure when that was, been able to get and maintain employment.  You have good family support.  Your personal circumstances I accept from the submissions of your counsel bode well your prospects of rehabilitation. 

44You and your current partner are in a stable relationship.  Your current partner is now something in the order of seven months pregnant and she will be having, or intends to have unpaid maternity leave.  You are both purchasing your own home and you were supported at court by other relatives who were able to come in and you are observations held in high regard.  In that situation the submission is that you are extremely remorseful and you have turned your life around. 

45The submissions again point out, as I think I have already indicated, that your post-offence conduct indicates a genuine real desire to not behave in such a way again.  I think, as your counsel says, it is an excellent prospects of rehabilitation and an excellent prospect of a law-abiding future.  You have all the matters going for you which can support that rehabilitation, is a stable relationship, work, a child in the near future and all those matters I think operate very much in your favour. 

46You, Mr May, are in a somewhat similar situation.  You were born in Shepparton.  You are now 26, as I calculate it.  You are close to a brother, who had been in a lot of trouble with police.  Your background was somewhat similar, in that your father was an alcoholic and you used to be physically assaulted.  Your mother used to stand up for you.  Your parents separated when you were about 14 years of age.  Your father, who was an alcoholic, at that point gave up alcohol four to five years ago and things have been pretty good since then.

47You had an uncle who is about 55 years of age.  He died of cancer in March 2020. You were very close to him and you idolised him because he had done something with his life.  You tried to emulate what he did, that is, in terms of getting out and working and having a family. 

48Your education was at Wanganui secondary college.  You left at the end of Year 11 to start shopfitting and you had a bare pass in Year 11.  Your mother wanted you to go to trade school, but when you did leave, you went and immediately obtained an apprenticeship.  You obtained an apprenticeship in shopfitting with a Mr Hillier and through him you became interested in BMX bikes.  As I understand it, that apprenticeship was completed.  In the middle of 2016, you went to work at the abattoirs and obviously that work went well.  You were able to, in early-2017, do an Australian Institute of Fitness course.  You have completed that course and it cost a significant amount of money, which you paid for yourself while staying in Melbourne. 

49You then, from February 2017, began doing plastering and you had an apprenticeship in that.  You completed that apprenticeship, but lost your job because the owner no longer received Government subsidies.  You then went onto further plastering work, which up until March of this year, which was closed because of the COVID-19.  Since then you have been working with a Mr Jeffries and Mr Loch plastering and from mid-April of this year until now, they are doing big building and in north-east Victoria.

50As I have already indicated, in these circumstances where there is serious charges pending, it is often the situation that young men simply drop their bundle.  You, as has Mr Knight, not done that and each of you has endeavoured to do the best you can. 

51I do not think I need to go through the various histories of injuries from the bike riding.  You do have a young child who has significant medical problems and indeed I am informed, was hospitalised last night. 

52You are now in a stable situation with work.  You still have the hobbies of bush walking and riding.  You play with your daughter and that has a very clearly stabilising effect upon you and should give you great confidence and ambition as to what you may do in the future.

53Again, as of Mr Knight, I have taken into account the references tendered on your behalf and I note that one of those is from a former sergeant of police and whilst - one has to be a little bit careful of such matters.  My experience in the criminal law over a long period of time, is that senior police do not give references like that unless they mean them and that reference does carry significant weight with me.  Mr Still, a former sergeant says that you do have a very supportive family and that you will be supported unconditionally.

54As I indicated, I take all that into account, as well as the work references which have been put before me.

55Accordingly, when I look at the circumstances upon each of you, I am of the view that even if it does involve an element of mercy, it is a mercy, that is not brought about by effect on others, but brought about simply by the fact that I see you as two young men who have done the right thing up until this one night of madness and the right thing subsequently and have done everything you can to rehabilitate.  To put you in a custodial situation at this point in time would seem to me to serve no useful purpose and I am well aware of the principles of general deterrence and I will be giving a community corrections order if you each agree, which will be of real significance. 

56Insofar as Mr McLean is concerned, I think I have dealt with the question of parity.  The exceptional circumstances for mercy in his situation do not exist in yours, but they were not determinative of his sentence in any event.  Otherwise it seems to me that the three of you, and I make no mention of Mr Martin, are all on a pretty equal footing, in terms of your worth to the community and I do not propose to do anything which would jeopardise that.

57Accordingly, if you each agree, you will be placed on community corrections orders.  They will be with conviction, which is a punishment in itself.  Bearing in mind the seriousness of the offending, they are home invasions and bearing in mind the need for general deterrence, those community corrections orders will have a very significant number of work hours, namely 400.  They will be for a period of four years. 

58We hope that a situation where you are working five days a week and that is going to eat into your weekends with young children to look after, et cetera, that is going to be a very significant punishment for each of you and I think it sends a message to others who may, in those circumstances, be like-minded, insofar as this sort of offending is concerned.  You just cannot do it. 

59I am not going to put any other conditions on the order.  I do not see any real point in doing that.  I think the work hours is sufficient, bearing in mind the rehabilitation, as you have already gone through. 

60MR MICHAELSON:  As Your Honour pleases.

61MR SKEHAN:  As the court pleases.

62HIS HONOUR:  Yes, if counsel would not mind accompanying my associate to get these signed. 

63Would you just stand up for me for a second, fellas, if you would. 

64All right, I have put you on CCOs for four years, 400 hours, right?  That is a lot of hours for two fellows who are working most of the week.  That is done because it is serious stuff.  You cannot do this.  In these situations, sometimes we end up with dead bodies, all right?  It just gets out of control.  If this guy had gone through that window in the wrong way, you could be over the road with people with red robes, giving you 20 with a 10, all right?  So just have a bit of a think about that. 

65If, I want to make it really clear to you, if you breach this community corrections order by offending of this sort, that is, violence, and you are brought back before me, I will lock you up.  All right?  I keep this and that is what is going to happen.  I am giving you a very significant number of hours so that other young fellows who might want to act like this, know that the consequences can be fairly dramatic.  But other than that, it is done to try and save you and your families and hopefully you can abide by it.  All right, thanks.

66So far as s.6AAA is concerned, I think it was with Mr McLean, I refused to do it and I will just make it clear that in my view, in this situation, it is meaningless.  Because of the length of time, I have to do one, so I will just simply say, two with a one.  Though obviously, had this been denied and fought out as a trial, a lot of the mitigatory material would have disappeared, so that is no more than almost an uneducated guess.  I make that clear.

67MR SKEHAN:  As Your Honour pleases.

68HIS HONOUR:  No, all right.  Well, those remarks, as I said, they are very much just off key words, so they will be revised, nothing will change.  As soon as I say that, I never do change it, but just in case there is something I have missed because I did have a number of words, it will be included, but counsel will know what that is. 

69MR SKEHAN:  As Your Honour pleases. 

70HIS HONOUR:  All right, thanks, Ms Schwartz. 

71MS SCHWARTZ:  Thank you.

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