Director of Public Prosecutions v Lea

[2024] VCC 590

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00987

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL LEA

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2024
DATE OF SENTENCE:	7 May 2024
CASE MAY BE CITED AS:	DPP v Lea
MEDIUM NEUTRAL CITATION:	[2024] VCC 590

REASONS FOR SENTENCE
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Subject:Criminal law – Sentence

Catchwords:              Aggravated burglary – Armed Robbery – Armed with machete –Accused known to victims – Serious offending – Premeditated – Traumatic background – Bugmy principles applicable – History of alcohol and methamphetamine abuse – Acquired brain injury – Relevant criminal history – Offending occurred some 5 months after release from prison – Poor prospects of rehabilitation – Some level of remorse – Late plea of guilty.

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571

Sentence:                  3 years and 6 month’s imprisonment with a non-parole period of 2 years and 3 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Ms M. Walker	Melinda Walker

HIS HONOUR:

1Daniel Lea, you have pleaded guilty to an indictment containing two charges. Charge 1 is an offence of aggravated burglary, contrary to s 77 of the Crimes Act 1958, and Charge 2 is an offence of armed robbery, contrary to s 75A of the Crimes Act. Both of these charges carry a maximum penalty of 25 years’ imprisonment.

Circumstances of the offending

2An agreed prosecution opening was read aloud in Court.[1]

[1]Exhibit A.

3The victims in this matter are Douglas Hill and Tara Lowe. Mr Hill had known you for some five years. Mr Hill owned a Holden SS Utility Vehicle worth approximately $25,000. You had also met Ms Lowe before the date of the offending.

4On 26 August 2022 at around 1:00am, you and an unknown male attended at Mr Hill and Ms Lowe’s home in Kyabram. You began banging on the door and demanded to be let in.

5Mr Hill was in bed at the time and pretended he was not home. He called the police.

6Police attended Mr Hill’s home a short time later. When the police arrived, you and the unknown male had left.

7The following night on 27 August 2022, at approximately 7:15pm, Mr Hill and Ms Lowe were at home in bed. You attended their house again and started banging on the front sliding door. Ms Lowe stayed in bed, but Mr Hill got up and went to the front door. He opened the door, and you walked straight past him and into the living room.

8You had a large knife in your hand. As you walked into the living room, you demanded Mr Hill give you $20,000 or the SS Utility, otherwise he would get a ‘shotgun in the guts’.[2]

[2]Charge 1 – aggravated burglary. Obviously complete upon entry.

9Mr Hill described the knife as being approximately two feet long with what looked like dark coloured tape around the handle. While you were talking to Mr Hill, you raised the knife to shoulder height once or twice. After you made the threat, Mr Hill told you the money was at his father’s place and that he would go and get it for you. You said you would take the vehicle and give it back when Mr Hill gave you the $20,000.

10At some stage, you and Mr Hill went to his bedroom to find Mr Hill’s phone. You demanded Ms Lowe’s phone from her so she could not contact anyone. She gave her phone to Mr Hill. Ms Lowe saw you were holding a large machete type weapon and could hear you demanding $20,000 or Mr Hill’s Ute.

11Mr Hill continued to negotiate with you. He was fearful that you would use the knife if he did not do what you asked. During the time you were in their house, you smoked a cigarette and drank a can of alcohol.

12Ultimately, you said you were taking the Ute. At this point, Mr Hill was extremely scared and sent a text message to his friend to try to get the police to attend.

13The vehicle was parked behind a locked gate. Mr Hill got the key for the padlock to the gate and walked out the front door to the vehicle. You removed Mr Hill’s CCTV hard drive from the property and followed Mr Hill to the vehicle.

14Mr Hill took some items out of the vehicle and handed you the keys, following which you got into the vehicle and drove off.[3]

[3]Charge 2 – armed robbery.

15Once you left, Mr Hill called triple zero.

16Police attended at around 8:15pm and spoke with Mr Hill and Ms Lowe. Despite knowing you, they did not identify you at the time, and said the offender was unknown. CCTV footage obtained from the neighbouring property showed a vehicle exiting Mr Hill’s address at approximately 8:04pm and driving east along Underwood Grove.

17In the early hours of 1 September 2022, emergency services responded to a report of a vehicle crashing into a fence at the intersection of Mellis and Forrest Streets in Kyabram.

18Police arrived at around 1:26am to find a white Holden Commodore Ute with false registration plates, along with a black Honda motorcycle in its tray, but no individuals inside. Upon checking the vehicle's VIN,[4]  it was revealed to be Mr Hill’s stolen vehicle. A large machete and a telephone were found inside the vehicle.

[4]Vehicle Identification Number.

19Mr Hill informed the police that you had stolen the vehicle, stating he had been initially hesitant to report you out of fear.

Arrest and Interview

20You were arrested by police on 3 November 2022 and taken to Echuca Police Station to be interviewed. You exercised your right to silence.

21You were charged and remanded in custody where you have remained.

Victim Impact

22No victim impact statements have been filed. However, it is plain that the incident would have been extremely frightening. Mr Hill and Ms Lowe were initially too scared to tell the police of your involvement.

Criminal history

23You have a criminal history spanning some 12 years between 2009 and 2021.[5] In 2010, you received a partially suspended sentence from this Court for an offence of recklessly causing serious injury. You breached the suspended term and the sentence was reinstated in 2013. In March 2013, you were sentenced to an aggregate term of 12 months’ imprisonment with a non-parole period of 6 months for offences including reckless conduct endangering life, prohibited person use a firearm, use a loaded firearm in a populous place and two offences of make a threat to kill. In October 2017, you were placed on a Community Correction Order (‘CCO’) for driving offences. In September 2018, you were sentenced to a further CCO for a number of offences which included possess controlled weapon without excuse, possess dangerous article in a public place, possession of drugs of dependence and road traffic offending. You were also re-sentenced for breaching the CCO imposed in October 2017. This CCO was varied but remained operative. On 13 April 2021, this Court sentenced you to 3 years and 9 months’ imprisonment with a non-parole period of 2 years for an offence of reckless conduct endangering serious injury and prohibited person possess a firearm. Your last appearance was on 27 April 2021, when you were re-sentenced for breaching the 2017 CCO once again, and also breaching the CCO imposed in 2018.[6] In addition, you were sentenced for theft of a motor vehicle, shop theft, reckless conduct endangering life and other driving matters. You received an aggregate 4 month term of imprisonment concurrent with the term imposed by this Court on 13 April 2021, which you were still serving.[7]

[5]Other than two appearances in this Court, the remaining have been in the Magistrates Court.

[6]Breaches of the CCOs were accepted and both orders were confirmed.

[7]Also received a financial penalty in respect of some of the driving matters.

24In respect of the sentence of 3 years and 9 months’ imprisonment imposed by this Court, you were released having served the entirety of the sentence on 10 March 2022.[8] Therefore, this offending before me occurred some five months following your release.

[8]Pre-sentence detention of 719 days was declared upon sentence on 13 April 2021.

Personal circumstances

25You grew up in Swan Hill and are the eldest of three children. Your parents separated when you were very young and your contact with your father since has been limited.[9] Your mother re-partnered. Her new partner was extremely violent and would assault you. Your mother made you leave home when you were only 12 years old. You were homeless, living on the streets. At some stage, your mother moved to Queensland with your younger brother. You followed her to Queensland, staying with her for two weeks before she kicked you out again. You returned to Swan Hill. Around the age of 16, you forged a close relationship with the mother of one of your friends and treated her as your mother. You began living with that family.

[9]See [21] of Ms Danswan’s report – exhibit 2.

26Your adoptive mother passed away in 2019 whilst you were on remand. You have had no contact with your biological family for many years.

27Your education was limited. You left school not having completed Year Seven.

28Unfortunately, you have been abusing alcohol all your life from a young age. Other than the periods when you have been in custody, you have been drinking large quantities of alcohol consistently.

29You have had two past relationships which have produced four children. You have no contact with any of these children. You are currently in a supportive relationship with Ms Polychrone. You have now been together for around two years, although you did have a period of separation. Together, you have a son who was born in February 2023. I have had regard to Ms Polychrone’s reference. She is looking forward to having you back home so that you can commence your lives together as a family.

30On 7 June 2014, you were involved in a road traffic accident resulting in an acquired brain injury.

31You were walking home in a state of intoxication and were struck by a car. As a result of this accident, you sustained a number of injuries including an undisplaced fracture to the skull, small blood clot in the brain, a black eye, swollen jaw, lacerations to the right side of the head and nose and abrasions to the right arm, elbow, thigh and knee.

32You were discharged from hospital on 8 June 2014 with advice regarding a head injury. You continued experiencing ongoing headaches, dizziness and flashbacks of the accident. You were presenting with symptoms of post-traumatic stress.

33Following this accident, you began using methamphetamine. That use continued right up to your remand in custody in November last year.

34I have had regard to Dr Nathaniel Popp’s neuropsychological report. Dr Popp assessed you on 12 September 2022 to ascertain the impact of the motor vehicle accident. He reports that your overall intellectual functioning was in the low average range. He states that you have demonstrated impaired learning and memory capacity, and cognitive, emotional and behavioural difficulties. Your cognitive impairment consists of forgetfulness and issues with memory and recall.

35As summarised in Ms Daniella Kocic’s psychological report, it is expected that your neurological impairments have stabilised and further improvement or deterioration is not expected.[10]

[10]Exhibit 3, [33] - [34].

36Ms Kocic, referred to a report authored by Dr David Szmulewicz, which stated that you do not have any physical limitations, such as walking, climbing stairs, sitting, or attending to personal activities of daily living, as a result of the road traffic accident.[11]

[11]Ibid [31].

37Ms Kocic opined that while you presented with unresolved trauma, your current symptom profile did not currently warrant a diagnosis of post-traumatic stress disorder.[12]

[12]Ibid [84].

Gravity of the offending

38The maximum penalty in respect of charges 1 and 2 makes plain the seriousness with which Parliament views these offences. At the time you entered the property your intention was to steal. You were alone and did not cause any damage to effect entry as the door was opened by Mr Hill. The time of entry was during the  evening and Mr Hill and Ms Lowe had gone to bed. You were armed with a large machete in circumstances where you knew or were reckless as to the presence of a person in the house. The fact that you were armed, and your knowledge of a person or persons present inside, are not separate aggravating circumstances but elements of the aggravated burglary. What transpired in the house was calculated to cause fear in order to steal the vehicle. The offending involved some pre-planning and your presence inside the victim’s home cannot be described as momentary. Offending involving entering dwellings in the evening hours while armed and committing further offending inside the dwelling, instill fear and terror in the occupants. It was out of fear that, despite knowing you, Mr Hill did not inform the police who attended shortly after, about your identity. While your conduct would have engendered fear in your victims, I accept that no actual violence was employed. You have no recollection of the offending. It appears your offending was motivated in order to fund your continued use of methamphetamine.

Matters in mitigation

39On your behalf, Ms Walker presented a plea in mitigation relying upon written plea submissions dated 18 February 2024.[13] The following material was tendered during the plea:

(i)Psychological report dated 12 May 2020 prepared by Ms Kerrin Danswan.[14]

(ii)Psychological report dated 16 February 2024 prepared by Ms Daniella Kocic.[15]

(iii)Neuropsychological report dated 12 September 2022 prepared by Dr Nathaniel Popp.[16]

(iv)Reference from Ms Pauline Vicary dated 17 February 2024.[17]

(v)Reference from Ms Ella Polychrone dated 17 February 2024.[18]

[13]Exhibit 1.

[14]Exhibit 2.

[15]Exhibit 3.

[16]Exhibit 4.

[17]Exhibit 5.

[18]Exhibit 6.

40I have taken into account all the material that has been tendered on your behalf.

41This matter proceeded to a contested committal hearing where the victims were cross-examined. It resolved only recently after further evidence was served by the prosecution confirming the presence of your DNA on the recovered machete. It is by no means an early plea but nevertheless entitles you to a utilitarian benefit. I note that the ultimate charges you pleaded guilty to differed from what you were initially facing. A trial in this court has been avoided, saving valuable court time and expense and you have avoided the victims from having to give further evidence. It is also reflective of an acknowledgement by you of your responsibility for the offending.  

42I am prepared to give you the benefit of doubt that your plea demonstrates some evidence of remorse. I note Ms Kocic’s observation:

In the aftermath of the offending, Mr Lea was able to recall the police arresting him, however, he “had no idea what it was about”. Mr Lea’s level of remorse for his actions was limited due to his memory deficits, he stated “I have no knowledge of it, so why would I feel anything about it?”

43I do bear in mind that the details surrounding the circumstances of your offending were impaired due to your acquired brain injury.[19]

[19]Exhibit 3 [85].

44You have endured a traumatic background, devoid of affection, support or guidance. You were subjected to violence and made to leave home at the tender age of 12. You remained homeless for some time and were deprived of any meaningful education.

45Ms Danswan states:

He has been drinking from his youth and this is likely the result of childhood neglect and early exposure to homelessness, lack of education and a sporadic working history. Mr Lea’s life has typically lacked routine and has been defined by rejection from his biological family and feelings of low self-worth, depression and social anxiety.[20]

[20]Exhibit 2 [73].

46I accept that you have had a very disadvantaged background, devoid of parental love or guidance. Not only have you lacked guidance, you have been subjected to violent assaults at the hands of your mother’s partner. You have been left to fend for yourself living on the streets and exposed to alcohol from a young age.  Accordingly, I am able to moderate your moral culpability in a general sense, in accordance with the principle in Bugmy.[21]

[21]Bugmy v The Queen (2013) 249 CLR 571.

47Since being remanded in custody, your partner gave birth to your son, who is now about 15 months old. Other than one online visit on Father’s Day, you have not been given approval to see your son. Bearing in mind the distance, you have one visit a month with your partner. I accept that not being able to be there for your son and partner will make your time in custody more burdensome.

Sentencing purposes

48You have a long and relevant criminal history. Any sentence must seek to deter you from continuing to offend. The community must also be protected. General deterrence, just punishment and denunciation of your offending conduct are also important sentencing purposes.

49I also take into account your rehabilitation. However, I am unable to have any confidence in your prospects of rehabilitation. According to both Ms Danswan and Ms Kocic’s assessments, your risk of reoffending remains high.[22]

[22]Exhibit 2 [78] and exhibit 3 [70].

50Despite indicating to Ms Danswan in May 2020 that you were motivated to change your lifestyle and address your alcohol and substance use issues in memory of your adopted mother, who made it known to you that she did not approve of your offending and drug and alcohol use, you have failed to do so. You committed this offending in August 2022 in the context of a significant and ongoing abuse of methamphetamine and alcohol.[23]

[23]Exhibit 1 [4].

51I note the recommendations made by Ms Kocic at paragraph 94 of her report.

52Ms Kocic states:

Considering the chronicity of Mr Lea’s maladjustment, criminal history, and polysubstance abuse it is likely that he would require intensive long-term support to minimise his risk of recidivism. Therefore, irrespective of any custodial sentence, he would benefit from a period of support and supervision after his release to support the transition between prison and the community, link in with relevant support services and treatment, and ensure continued engagement.[24]

[24]Exhibit 3 [94](n).

Sentencing submissions

53On behalf of the prosecution, Mr Cordy emphasised that this was serious offending that must have been planned. It cannot be described as momentary and would have been a frightening experience. He pointed to your risk of re-offending as being ‘high’. He submitted that the principles of general deterrence, specific deterrence and denunciation loomed large. Your prior history required emphasis to be given to the protection of the community. In all the circumstances, it was submitted that a head sentence with a non-parole period was necessary to do justice to all the sentencing purposes.

54On your behalf, Ms Walker quite properly conceded that the offending was serious. However, she submitted in light of the matters in mitigation and your need for structured support in the community, full justice could be done to all sentencing purposes by imposing a term of imprisonment with a lengthy CCO.

55In my view, having taken into account all relevant matters and circumstances, a combination sentence would not adequately punish you for offending that on any view is grave. I note that you have had opportunities in the fairly recent past with CCOs which you have breached.

Sentencing

56Having considered all relevant matters and circumstances, Mr Lea you are convicted and sentenced as follows:

·        On Charge 1, aggravated burglary, you are sentenced to 2 years and 6 months’ imprisonment.

·        On Charge 2, armed robbery, you are sentenced to 3 years’ imprisonment.

57I bear in mind the question of totality and the fact that the offending arises out of the same incident. However, the armed robbery is a discrete offence committed after you had entered the house.

58The sentence on Charge 2 will be the base sentence. Six months of the sentence on Charge 1 will be served cumulatively on Charge 2.

59That makes a total effective sentence of 3 years and 6 months’ imprisonment.

60I direct that you serve 2 years and 3 months’ imprisonment before becoming eligible for parole.

61If you are granted parole, I reiterate Ms Kocic’s observations referred to at paragraph 52 of these reasons, that you would benefit from structured support to assist your transition back into the community. I note that other than a period of some five months, you have been incarcerated for a period of around five years since April 2019. It is hoped, in circumstances where you have a supportive partner and a young child, that you make every effort to change your life for the better.

Pre-sentence detention

62Pursuant to s18 of the Sentencing Act 1991, the period of 551 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.

Section 6AAA declaration

63Pursuant to s6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 4 years and 6 months’ imprisonment with a non-parole period of 3 years and 2 months.

Other orders

64In accordance with s89(4) of the Sentencing Act, your driving licence is cancelled and you are disqualified from obtaining a further licence for a period of 15 months from today’s date, 7 May 2024.

65I grant the two forfeiture orders sought by the prosecution.

66His Honour: Thank you. Mr Cordy, anything arising?

67Mr Cordy: No, your Honour. Thank you.

68His Honour: Ms Walker?

69Ms Walker: No, your Honour. Nothing arising.