Director of Public Prosecutions v Lagzdins

[2016] VCC 1964

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01705

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL LAGZDINS

---

JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 December 2016
CASE MAY BE CITED AS:	DPP v Lagzdins
MEDIUM NEUTRAL CITATION:	[2016] VCC 1964

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton
For the Accused

HIS HONOUR:

1Michael Lagzdins, you can remain seated for the time being.  You have pleaded guilty to an indictment charging you with aggravated burglary with false imprisonment and intentionally causing injury.  The victim was, in each case, your former partner.  All of the offences occurred on or about 20 June 2015 through to 22 June 2015.

2You have also admitted a related summary offence, being an offence of contravening a family violence intervention order between 20 June and
22 June 2015.  You have admitted a number of prior convictions and court appearances, going back to 1998. As was discussed during the course of the plea hearing, those are clearly relevant offences, in the sense that you have a history of family violence.

3The prosecution tendered and read to the court a summary of prosecution plea opening.  That is Exhibit A, I incorporate that in its entirety in to these reasons for sentence.  The facts are not in dispute, and catalogue the offending which you perpetrated upon your victim over a sustained period of time.  There was a deal of the plea opening which was devoted to the context in which the offending occurred. It shows a build-up, to the offending conduct, and circumstances in which your victim was already in fear of you. She was entitled to the protection of her own home. You violated that in a serious way, and inflicted a serious and sustained beating upon her, as well as a sustained period in which you imprisoned her falsely against her will.

4This was an appalling series of offences, as your counsel has readily accepted.  And I can see now you are remorseful for your conduct.  You accept your criminal responsibility. The letter that you have written to me, I thought, was well-balanced and supports the proposition that you are genuinely ashamed and sorry for what you did.

5The matters personal to you are highlighted in the materials which are contained in Exhibit 1. Your counsel helpfully provided a summary of submissions on your behalf where he identifies your background, you being 38 years of age.  You have had good family support, you have had good education, you have had plenty of opportunities in your life, and have achieved a university degree, albeit with some false starts.  But your adult life has been blighted by alcohol.  Whilst there may be other psychological issues that have borne upon your past conduct; your criminal record, I think, is attributable to the lack of capacity you have to control your impulses when you are under the influence of alcohol, and to deal with situations where there is tension in personal relationships between you and your then-partners.

6Sooner or later, you are going to have to overcome, finally and totally, your alcohol addiction.  Because I have no doubt that if you continue to drink, you will have the same problems blighting you for the rest of your life.  I suspect that now you have had the opportunity of drying out over a sustained period of time in custody, and I accept that you have dried out, and that you have been away from substance abuse during the 18 months you have been in custody, and have had time to reflect upon your past conduct as well as your future aspirations, that if, and it is a big if, you are able to maintain the progress that you have made, then you have good prospects of rehabilitation.  If you can beat alcohol, I do not think the courts are going to be troubled by you again.  There may be anger management issues, but it seems that you have been prepared to deal with those as well, and will continue to seek help for that aspect of the difficulties that you have psychologically.

7So at the age of 38, you have the chance now to put all this behind you, and build upon the university degree that you achieved just a few years ago.  You have had another setback in that you have unfortunately had a nasty injury to your neck. I imagine that will have impacted upon your capacities to deal with your alcohol addiction and the effects of the drugs that you have been taking for that have no doubt worked against you in terms of your capacities to deal with alcoholism. 

8You unfortunately have committed offences of a not too dissimilar nature in the past, and I cannot ignore those.  They may not be as serious as this series of offences, but it ought to have brought you up short on more than one occasion.  It ought to have told you that you had a problem, and that you would get into more serious trouble if you continued to drink.  A man as intelligent as you ought to have the capacity to seek, obtain, and maintain the help needed to get you off alcohol, and get you off permanently.

9It does not detract from what I now would perceive to be reasonable prospects of rehabilitation, but it does leave me with some concern, and therefore a need, I think, to impose a sentence that pays reasonable heed to specific, that is, individual deterrence. That is deterring you from committing further offences.  As well as most importantly deterring others from committing further offences of this kind.  Family violence is a blight on the community, and it is important that the courts express denunciation in the clearest possible terms, and impose sentences that have the capacity to deter others from committing offences of this kind.

10It has not been suggested that alcoholism is an excuse, but it is the context in which this offending has occurred.  Unfortunately, domestic violence frequently occurs in circumstances of substance abuse, be it alcohol or other illicit substances, and it is not to be excused on that basis. 

11You have been in custody now for 18 months or thereabouts. A significant part of that period, has been served, or at least you have had to undergo strict conditions, being out of your cell for an hour a day.  An I take that into account in assessing an appropriate sentence.

12It has, though, given you the opportunity of demonstrating a willingness to proceed with your rehabilitation so far as the programs available in prison are open to remand prisoners.  You will be well aware, being at Marngoneet, that there will be courses open to you as a convicted prisoner that were not available to you as a remand prisoner. 

13You have pleaded guilty, that is very much in your favour.  It is a little unfortunate that it took a while to get to the point of actually indicating the pleas that you have made. That has impacted upon the victim.  I am bound to take into account the victim impact statement, which has been put in moderate language and is well-balanced.  But one can imagine that your conduct will have had a lasting psychological impact upon her, as well as of course the physical harm that you did her.

14You are entitled to full credit for your plea of guilty, albeit not a plea at the earliest reasonable opportunity.  It has saved a trial, saved her from ultimately having to give evidence, either in the committal or a trial, and it has saved the community the cost and the inconvenience of a trial.  It also, I think, supports the proposition that you genuinely accept your criminal responsibility at this time.  And it is supportive of the submission that you are genuinely remorseful also.  And I accept that you are.

15It has been hanging over your head for 18 months, I take that into account.  It must have been a difficult time for you, knowing that you faced a term of imprisonment, and not knowing how long that was going to be.  But it is very much to your credit that you have used the time wisely and demonstrated an interest in and capacity for rehabilitation, I give you considerable credit for that.

16The references that have been provided on your behalf speak of a different man. Not the person that your victim on this occasion and your past victims have seen.  Not the angry man, not the drunken man who is violent. They have difficulty in accepting that it is the same person.  I imagine your parents have difficulty in accepting it is the same person.

17All of that will not have been lost on you. You now have responsibility to live up to the expectations of those people who have written references on your behalf, and your parents, who support you. 

18The submission of your counsel that I should impose a sentence of two years or less with a community correction order is an attractive one in some respects, in that you seem to be well on the way to rehabilitating yourself. However, I have to give proper value to other sentencing considerations. These offences, as the Court of Appeal and Parliament have made clear, are serious offences.  Aggravated burglary carries a maximum term of imprisonment of 25 years, intentionally causing injury, ten years, and false imprisonment ten years.  Contravening an intervention order too, is a serious offence.  However, that offence in context of the other offences pales into relative insignificance in this particular case.

19Aggravated burglary in particular is an insidious crime, in that it makes people feel insecure in their own homes.  And even though you have been locked up, the lasting effects of somebody whose privacy and security are violated in that way, naturally would be significant.  And that is why it is to be regarded as a particularly serious offence.

20There are many worse cases of aggravated burglary that come before this court, however this is still to be regarded as a serious offence of its kind.  The Court of Appeal has made it clear that sentences, which a few years ago might have been regarded as current sentencing practice, are too low, and the courts have to pay proper regard to a more serious sentencing regime.

21The false imprisonment is a serious offence of its kind, sustained and accompanied by some quite unpleasant threats, and the intentionally causing serious injury is a particularly serious offence of its kind.  It is fortunate that you did not cause more serious injury than you did. I note that photographs of this kind with the face swollen can exaggerate the seriousness of the injuries. One has got to look at the actual injuries rather than the emotional impact of seeing a photograph or photographs which show the swollen face. But nevertheless, it was a nasty beating, and it is not the first time that you have used violence in these circumstances. Therefore I have to treat that as being a particularly serious offence of its kind.

22Doing the best I can to balance the sentencing considerations that I have to take into account, and recognising that a sentence has to be modified to have regard to the totality principle, that is, not imposing a crushing sentence upon you.  Therefore there will be periods of cumulation, but not total cumulation of sentence, as between the sentences appropriate to individual charges. It is also necessary that I pay proper regard to facilitating your rehabilitation.

23Giving what seems to me to be appropriate value to all of those considerations, I am ready to impose sentence upon you, would you please stand?

24MR HUTTON:  Sorry, I apologise for interrupting Your Honour, my instructor and I just picked up, and it might have been a slip in the tongue, you referred to intentionally causing serious injury.

25HIS HONOUR:  I am sorry.

26MR HUTTON:  It is only intentionally causing injury, which has a lower penalty, and before Your Honour ‑ ‑ ‑

27HIS HONOUR:  Yes.  I think I made the distinction in saying that it was fortunate that he did not have an offence of intentionally causing serious injury.

28MR HUTTON:  Just to be clear, I think.

29HIS HONOUR:  But I may well have said that, and I am grateful for picking me up on that.  I make it clear I am not imposing sentence upon you for intentionally causing serious injury, but I regard the offence of intentionally causing injury as being a serious offence of its kind, and as I have tried to point out, you are fortunate that you are not up on an offence of intentionally causing serious injury, because the kind of beating that you inflicted might have caused a serious injury.

30All right.  I am now ready to impose sentence upon you, would you please stand?

31Dealing first with the indictment:

32On Charge 1 of aggravated burglary, I convict you and sentence you to imprisonment for a period three years and nine months. 

33On Charge 2 of false imprisonment, I convict you and sentence you to imprisonment for a period of 18 months. 

34On Charge 3, of intentionally causing injury, I convict you and sentence you to imprisonment for a period of 30 months. 

35On the summary offence of contravening the family violence intervention order, I convict you and sentence you to imprisonment for a period of three months. 

36The sentence of three years and nine months on Charge 1 is to be regarded as the base.  I impose three months of the sentence on Charge 2, and 15 months of the sentence on Charge 3 cumulatively upon one another, and upon the sentence of three years and nine months on Charge 1.

37That makes a total effective sentence of five years and three months, is that right?

38MR HUTTON:  Yes Your Honour.

39HIS HONOUR:  And I order that you serve a period of three years and three months before you become eligible for parole.  I declare 537 days presentence detention as time to be reckoned as served on the sentence that I have imposed, and deducted administratively from the time that you will actually have to serve, and I order that that fact and the details be noted in the record of the court.

40But for your pleas of guilty, I would have sentenced you to imprisonment for a period of seven years with a non-parole period of four years and six months.

41I make the order for forfeiture and for the provision of a forensic sample in the terms of the drafts with which I have been provided.  So far as the provision of a forensic sample is concerned, during the period of your incarceration, you will be approached by an authorised officer to provide a scraping from the inside of your mouth.  If you do that, that is the end of the matter.  If you fail or refuse to do that when requested, then the authorised officer will be entitled to take blood and may use reasonable force to do that.  And I am sure you will not put them to that trouble.

42Are there any other orders I need make?

43MR HUTTON:  No, Your Honour.

44HIS HONOUR:  No.  All right, take a seat for a moment, I will just draw up those orders.  Yes, those orders are now signed, thank you. 

45MR HUTTON:  As Your Honour pleases.

46HIS HONOUR:  Thank you.

‑ ‑ ‑