Director of Public Prosecutions v Leeman

[2015] VCC 1917

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01316

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL LEEMAN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	28 October 2015
CASE MAY BE CITED AS:	DPP v Leeman
MEDIUM NEUTRAL CITATION:	[2015] VCC 1917

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 C. Duckett	Office of Public Prosecutions
For the Offender	Mr A. Malik	Victoria Legal Aid

HIS HONOUR: 

1Daniel Leeman, you and the victim were domestic partners for approximately seven years.  You had a child together and you were both the parents to her other three children.  In early 2015, you and the victim separated.  You moved out but returned and stayed with the victim from time to time.  The victim then obtained an intervention order in March of 2015, preventing you from committing family violence or being aggressive.

2It seems that the relationship that you had had was blighted by the use of ice by both of you.  You took up ice at the age of 31 after years of heavy cannabis abuse.  In addition to you and the victim using drugs, it seems she had a problem with uncontrolled gambling on poker machines.  The strains of limited money being available for household expenses added to the deterioration in your relationship.

3In this context, and while in the midst of an ice binge, you went to the victim's house on 2 June 2015.  A man was there.  You wanted him to go and you to stay.  The victim said that the other man was staying and you were to go.  You were shattered and left the house in tears.  Unfortunately you ruminated on things and in the early hours of 3 June you sent a pleading text message.  The response from the victim was harsh.

4You reacted very badly with a threatening text.  Unfortunately you did not leave it at that.  Within minutes you went to the victim's house, you were let in, you were aggressive and the victim had to call the police.  You left before the police arrived.  Again you did not leave it at that.  You had the opportunity to stop and not trouble your ex-partner anymore but you did not stop.

5You returned an hour later, banged on the windows and then kicked a door off its hinges.  Once in the house, you told the victim you were going to slit her throat and kill yourself.  You took the victim's phone to prevent her calling the police.  The children were awoken and they were in fear.  The eldest one ultimately rang the police. 

6You picked up two knives from the house, you continued to threaten to kill everyone.  The victim got all the children out of the house to her neighbours.  By the time the police arrived, you had left, you were arrested nearby, you have remained in custody since that date. 

7You pleaded guilty to aggravated burglary with the intent being to assault, knowing that a person was present when you entered as a trespasser.  You also pleaded guilty to damaging to the door and the summary offence of breaching the intervention order.

8In assessing the gravity of the aggravated burglary, I am guided by the Court of Appeal decision in the DDP v Meyers.  Thus, I note that you were intent on assault when you entered, but as it turned out there was no physical assault.  You were aggressive and threatening, but fortunately not physical. 

9You caused great fear to your victim and, shamefully, to the children.  The victim was entitled to feel safe in her home.  You had been told not to come to the house and the police had been called because of your earlier aggression.  You picked up knives which made your threats all the more chilling.  You are not charged with the crimes of threat to kill or an aggravated burglary involving weapons, so you will not be punished as if you were charged for those offences.  But this conduct does reveal the nature of the terrifying ordeal the victim and the children faced.

10As to your personal circumstances, you are now 38.  You are a qualified diesel mechanic but of late have worked on building sites using heavy digging machinery.  You had a five year relationship from the age of 18.  You have two children from that time.  You have maintained good relationships with your ex-partner and I note that your children have attended today.

11As already noted, you have been troubled by drug use for many years.  Not surprisingly, the psychologist who saw you for this plea concluded that you "Satisfy criteria for 304.4 stimulate use disorder amphetamine type substance in early remission in a controlled environment."  I interpret all that as meaning you are a drug addict.  But now that you are in prison, you are not using drugs.  Indeed you have returned clean urine samples in prison and done what courses you could in prison to assist in understanding drug use and putting it behind you.  I note your efforts were thwarted by the riots in the prison in June of this year.

12I have not yet mentioned your two prior court appearances, one was when you were 18 when you assaulted a police officer and swore in public.  You were fined without conviction.  Nearly 20 years later you were fined for having a handgun and lighting a fire in the open without permission.  The firearms offence is not to be dismissed but otherwise your very limited criminal history is of little relevance.

13This offending at aged 38 is far away the most serious you have committed.  I do not consider much weigh needs to be given to deterrence to you, I am fortified in this regard as you have pleaded guilty and have expressed remorse which are all good signs.  I consider that if you stay permanently away from drugs you can reform and restart your life as a solid working man, and one who has behaved in the past until your relationship deteriorated.

14You have developed good insight into your problems and the consequences of drug abuse.  You seem well motivated to do better on your release.  Your employer thinks highly of you and wants you back.  You have family support and importantly stable accommodation on your release.  Your brother stands by you and Mr Leeman you should not let him down.  All in all your prospects of permanent reform are good. 

15Your plea of guilty means that your sentence will be less than otherwise it would have been. 

16The principal sentencing purposes are denunciation, you did the wrong thing and there must be consequences.  Also the message must be clear to anyone, to any cowardly male who resorts to violence when a relationship ends.  The community is well tried of men who act with aggression towards women who simply want to end a relationship.  The fact that you were affected by ice at the time is no excuse and the message of deterrence must make it clear that using that drug and causing violent mayhem will be met with punishment and it will not be mitigated because the offender was affected drugs.  Indeed, such drug use make men like you more unpredictable.

17You have been in custody for just under five months, 147 days.  Your counsel urge that there be no further imprisonment that rather you be released immediately on a community corrections order.  The prosecution emphasise the serious aspects of this crime that have been mentioned already.  In the end the prosecution said the time in custody thus far was moderate and not enough.  But in the end the prosecution said no error would be made if I impose no more gaol.  The prosecutor was concerned about you returning to the same work environment given that is where you took up ice, a community corrections report also expressed concern in this regard, and I am troubled by that as well.

18Your counsel relied on the principles articulated by the Court of Appeal in Boulton v R.  In particular, that unlike prison, a community corrections order can satisfy the sentencing purposes of punishment and rehabilitation simultaneously.  The Court of Appeal has made clear that the sentencing landscape in this state has changed.  In effect, criminal conduct previously punished only by gaol can now be punished by community corrections order with or without gaol sentences.  The court said that sentencing judges need to recalibrate from previous times. 

19Guided by these new principles, I remain still anxious that your violent behaviour in all of the circumstances will it be sufficiently punished by 147 days' imprisonment and a community corrections order.  I am certainly of a view that a community corrections order involving drug treatment is necessary for you.  I cannot overlook that my sentence must contribute to the deterrence of other men who may be minded to react violently when a relationship ends.

20The Court of Appeal has made clear the importance of general deterrence in these crimes involving domestic violence.  In Pasinis v R the Court of Appeal said "Historically perpetrators of family violence were rarely prosecuted.  Even when offenders were convicted of such offences, they often receive lenient sentences.  Fortunately the criminal law now gives greater recognition to the devastating effects of family violence."  It went on to say "This makes both specific and general deterrence very important factors in sentencing men who assault there partners."  I know that you did not assault your partner in terms but the general principles are clear that family violence of the kind that you perpetrated, there must be general deterrence as an important sentencing factor.

21However in the email I am impressed by your efforts in prison, your expressed determination to put drugs behind you.  What has been set up for you on release gives me some confidence.  A long community corrections order will act as punishment to you and it is a deterrent.  You do work long hours in the construction industry, but that will have to be in addition to or yield to the significant number of unpaid hours of work that this community corrections order will require.

22Mr Leeman you are to be given a very significant chance.  In the end I am not going to ask that you, or order that you do anymore gaol.  I would rather imprison you for the 147 days, declare that you have served it and ask you to do a community corrections order.  There may be some in the community that think I am naïve and that I have been too lenient.  Well you will be the proof of that in one sense, because if you are back before me for breaching this community corrections order, do not doubt for a moment that you will do a lengthy period of gaol.

23For committing the crime of aggravated burglary, criminal damage and for the summary offence of breaching an intervention order I intend in the circumstances to impose an aggregate term that will be a single gaol term of 147 days of imprisonment.  I note that you have served 147 days, that has been reckoned and I declare that the 147 is part of the sentence that I have just imposed.  I will enter that declaration in the records of this court, making it crystal clear to the authorities, prison authorities that you have served every day of the imprisonment that I have imposed.

24In addition, I order that you be placed on a community corrections order for three years.  There are conditions that apply to everyone on a community corrections order and then will be outlined shortly. 

25The conditions that apply specifically to you are the following.  That you must within the three years do 350 hours of unpaid community work.  You must be under supervision.  You must do programs to deal with your drug problems and you must do other programs that might assist you in not reoffending.  There will be a document produced shortly and it will be provided to you.  If you consent to it, sign it, and that will set up the community corrections order.

26Had you pleaded not guilty to these offences and been found guilty of them, you would have received a sentence from me of three years with a non-parole period of 18 months.  I make clear that you have observed 147 days.  Are there are other orders sought?

27MS DUCKETT:  Just the 464 order Your Honour.  Your associate has it.

28

HIS HONOUR:  The prosecution have asked me to make an order that you provide a forensic sample.  That is a scraping from your mouth and I intend to grant that order, the reasons that I do that are the seriousness of the offending and it is in the public interest that I grant such an order.  What I have to make clear to you is that there is a window of time in which you must go to a police station and undertake this process.  That will be a period of 28 days from now, the window opens, and it is opened for four weeks.  You must go to a police station in Hazelwood Road, Morwell, is that nearby?  Where is

he ‑ ‑ ‑

29MS DUCKETT:  Yes.

30MR MALIK:  Yes, Your Honour, he's living in Morwell.

31HIS HONOUR:  In Morwell, yes.  I must make it clear to you when you go that if you do not cooperate with the people who are taking the sample they are authorised to use reasonable force to enable a forensic procedure to be conducted, just cooperate.  We expect, Mr Leeman, the prison authorities will wish for you to head downstairs to make sure there is nothing that further holds you in prison or those sorts of things.  So I cannot just release you from the court apparently, and I have got other things that I have got to do so we will move quickly on that. 

32(At this stage the court proceeded with another matter.)

33Mr Leeman, this order lasts for three years, it starts on 28 October and goes to 27 October 2018.  So you are going to be on supervision until you are 40, beyond it.  All right, you have to - these are the mandatory terms that apply to everyone.  The first one is important, listen to this.  You must not commit another offence which could be imprisoned during the time that the order is in force, all right?  Almost every offence you can think of is punishable by imprisonment.  Having drugs on you, possession of drugs, certainly ice, would be a crime punishable by imprisonment, just having it, and you will come back before me and that will be that.

34You must comply with any obligations or requirements under the sentencing regulations and I want to take a photograph of you to identify you, so comply with that.

35You must report to and receive visits in the Office of Corrections, you must report to the Community Corrections Centre that is at Morwell, Anne Street Morwell, the full address here, within two clear working days of this order starting.  So get out and go straight away.

36You must let the community corrections officer know within two clear working days if you change your address or your job.  In other words, keep them informed.

37You must not leave Victoria without getting permission to do so, just going over the border for any reason, fishing or long holiday, you must tell them what you are doing.  You must obey all lawful instructions from, and directions of, the Office of Corrections.  All those things apply to everyone, what applies to you is 350 hours of unpaid community work over three years.  That is a lot and it is because your crime in previous eras would have seen you do three years in gaol.

38You must be under supervision of a community corrections order for that three years and you must undergo assessment and treatment, including testing for drug abuse and dependency as directed by the Office of Corrections.

39You must participate in programs and courses that address factors relating to your offending as directed by them, men's behaviour programs and so on.  All right.  Can you sign that it brings the matter to an end.  Mr Malik if you can just take this down to him.

40MR MALIK:  I will, Your Honour.

41HIS HONOUR:  Sign that and you will get copies.  Ultimately Mr Leeman, well I have said it enough times I just do not want to see you again.  Thank you counsel for their significant assistance, is anything else required?

42MR MALIK:  No, Your Honour.

43MS DUCKETT:  No, Your Honour.

44HIS HONOUR:  Thank you.  We will stand down and the next matter will be brought up, thank you.

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