Director of Public Prosecutions v Lemmon
[2023] VCC 1480
•23 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-02014
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CANDICE LEMMON |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 23 August 2023 | |
CASE MAY BE CITED AS: | DPP v Lemmon | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1480 | |
REASONS FOR SENTENCE
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| Subject: | CRIMINAL LAW |
Catchwords: | Aggravated burglary – contravention of Family Violence Safety Notice – Intention to cause harm or fear for safety – Summary Charge – Unlawful assault – Accused is an Aboriginal woman – Prior criminal history – Accused previously serve a 15-month Community Corrections Order in New South Wales – Accused found suitable for placement on a Community Corrections Order |
| Legislation Cited: | Crimes Act 1958 (Vic) |
| Cases Cited: | |
| Sentence: | 14-month Community Corrections Order |
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Liantzakis | Office of Public Prosecution |
| For the Accused | Ms J. Swiney |
HER HONOUR:
1 Candice Lemmon, you have pleaded guilty before me to one charge of aggravated burglary and one charge of contravening a family violence safety notice intending to cause harm or fear for safety. You have also pleaded guilty to one summary charge of unlawful assault, which was uplifted for hearing in these proceedings pursuant to s145 of the Crimes Procedure Act.
2 The facts underlying the offending are as follows. On 11 January 2021, at about 9 pm, you and the victim, who was your then partner, Jesse Lee Lloyd, were at your home address with your brother and sister in Bridge Street West in Benalla.
3 All of you had been using alcohol and cannabis while socialising. Mr Lloyd was sitting outside with your sister when you charged out from inside the house after apparently reading text messages and Facebook messages between he and another female.
4 You threw a drinking glass at him which narrowly missed him and smashed. Your sister restrained you while you tried to get to Mr Lloyd. And you, while grabbing out with him, got hold of his singlet collar and necklace, causing it to break and he ran in the house to escape you.
5 You followed him, entering the door with such force it cracked the door frame and the two of you argued further in the kitchen in the presence of your child, who was then removed by your sister. You became distressed and more agitated when you tried to find your son, who was outside the property and called your father, who then called police.
6 Police then attended about 9.40 pm and while they were speaking to Mr Lloyd you appeared from behind him. Whilst he was talking to police about what he said you had done to him you told him he was lying and police had to separate the two of you.
7 You were detained for the purposes of applying for a family violence safety notice whilst Mr Lloyd arranged to stay at his grandmother's house.
8 You were served with a family violence safety notice at about 11 o'clock that night, which was explained to you, the conditions including that you could not commit family violence against a protected person, approach, telephone or contact by email or text person, a protected person, or be within 5 metres of the protected person or cause another person to engage in conduct prohibited by police.
9 You left the Benalla police station at about 11.30 and returned home.
10 Mr Lloyd, meanwhile, arrived at his grandmother's house with your son where also were housed five children aged between 11 and 15, who were being minded by his grandmother. He then went to sleep with your son sleeping next to him at about 12.30 am, that night 12 January 2021.
11 At about 1.48 am you were captured on CCTV footage wearing black, walking towards the house where you arrived at about 2 am. You climbed into an open bedroom window and found Mr Lloyd asleep in the bedroom with your son sleeping beside him. You climbed on top of Mr Lloyd, waking him, restricting his movements and brandishing a claw hammer and knife in a threatening manner.
12 These actions underly Charge 1 on the indictment, aggravated burglary and Charge 2, the contravention of the family violence safety notice and summary Charge 6, unlawful assault.
13 You shouted at him, 'I want my son you are not taking him off me, I will stab you'. You lunged towards Mr Lloyd's face and chest with that knife and hammer, threatening to stab him. He grabbed your arms as you lunged toward him and pushed you towards the end of the bed, causing you to fall. You used a knife as he did this to lash out at him, causing a cut on his right calf.
14 Mr Lloyd tried to reason with and restrain you while you were still holding the knife, managing to pry the weapons from your hands before throwing them across the room.
15
Your child was screaming throughout this. You went to retrieve the knife and hammer and then other members of the house, including Mr Lloyd's grandmother and some of the children came in. Ms McGuiness, Mr Lloyd's grandmother saw you crouched on the bed holding a knife and hammer. She told you to give them to her. You ignored her and you reached towards
Mr Lloyd saying, 'Give me my baby, give me my baby'.
16 You eventually handed over the weapons to Ms McGuiness, said you would leave the bedroom with her and when told about the court case in the morning, presumably in relation to the family violence safety notice, you ran back into the bedroom where you dove at Mr Lloyd again, trying to get to your son. Eventually you were driven back to your home at about 2.14 am.
17 That incident therefore, although full of violence and concerns lasted less than 15 minutes.
18 You attended the Benalla Magistrates' Court at 9 am for the mention and at that time Mr Lloyd gave a statement to police and you were arrested that afternoon. You denied being there or of anything happening.
19 The maximum penalties are 25 years imprisonment or 3,000 penalty units on Charge 1, aggravated burglary. Five years imprisonment or 240 penalty units on Charge 2, contravention of a family violence safety notice. And three months imprisonment or 15 penalty units on summary Charge 6. No victim impact statement was made.
20 The matter was settled at a case management conference following a contested committal in September of 2021, where witnesses were cross-examined and you pleaded not guilty.
21 I now turn to your personal circumstances.
22 You are now aged 27. You are an Aboriginal woman who was born in Tamworth, where you lived with your parents and your sisters until you were about seven or eight. Unfortunately, at that time your father was placed in custody and whilst he was in custody you and your sisters were removed from your mother's care and placed with your paternal grandmother, who then raised you and who you have lived with for the rest of your childhood and adolescence.
23 You enjoyed and continue to enjoy a very close relationship to your grandmother. You have maintained close relationships with your sisters and with your father. Your mother came and went from your life after that, she, living between Darwin and Tamworth.
24 You completed Year 8 at school and then left school in order to take up employment at organisations such as Red Rooster and Safeway, and when you turned 18, began working in bars and clubs in the Tamworth area.
25 You then moved to Darwin to take up the same employment and where your mother was living and it was at that time that you met your ex-partner and the victim in this matter, Jesse Lloyd.
26 In 2018, the two of you moved as a couple to the Gold Coast, where you lived until his grandmother asked you to move to Benalla to help with younger siblings that she was looking after. You began working in bars in Benalla.
27 Your son, Jesse, was born in 2020. At the time of this offending, you were having difficulties with alcohol and it was in that context that there were difficulties between yourself and Mr Lloyd and this offending occurred.
28 You do have some prior criminal history. Between 2012 and 2015 you appeared in both the Tamworth and the Moree Children's Court, charged with larceny, destroying property and on one occasion being placed on probation for 15 months for assault occasioning actual bodily harm. You - excuse me - - -
29
MS LIANTZAKIS: Your Honour, I might just note that prior to 2015,
they are aged over 10 years ago and would be inadmissible, being in the Children's Court.
30 HER HONOUR: Thank you. I am reminded by the prosecutor that some of these charges are of course more than 10 years old and therefore not admissible for the purposes of your sentencing. But in any event, their age means that I do not regard them as particularly relevant to the sentencing exercise before me.
31 You were remanded in custody following these offences and then bailed to your father, who drove you back to Tamworth and you had some contact with your son.
32 In the meantime Mr Lloyd moved to Darwin, taking your son with him. At that time due to the stress and distress that you were experiencing at being separated from your son, you began using methylamphetamines or ice, which was the time that this first in your life appears to become a difficult time for you.
33 You were during that time pulled over by police whilst driving. You refused to undertake a drug test and were then placed in custody and ultimately received a sentence of imprisonment, comprising two and a half months in jail and then two months within a residential rehabilitation program within the gaol. Then were placed on a community corrections order, 15 months in the community under which you are still operating.
34 You have received counselling as a result of those programs you have undertaken for both drugs and alcohol and I received some certificates in relation to the programs that you have undertaken whilst both in custody and on the order.
35 You returned to Tamworth but were still struggling with the difficulty of not seeing your son and you travelled to Darwin at the invitation of Mr Lloyd, who asked you to reconcile with him. You did this for six to seven months. You began working. The two of you looked at building a house together and being parents together.
36 However, your counsel tells me that Mr Lloyd became controlling and violent and your father came to Darwin in order to collect you and your son, taking you both back to Tamworth.
37 You received legal advice from a Family Law practitioner at the time, who told you simply to wait and see what happened but, in the meantime, Mr Lloyd took legal action and obtained a recovery order in relation to your son four months ago.
38 You therefore are again separated from your son. However, I was informed that as a result of the drug and alcohol rehabilitation that you have undertaken you have not used drugs since 2022, the time of your arrest. And whilst you still drink some alcohol it is in a very moderate fashion and this is not a problem for you.
39
You are living in Tamworth with your sister in a house that she shares with her husband and you continue to enjoy the support of your father and your grandmother. You appear, it would seem, to have achieved stability in your life, even though the issue of separation from your son is still a live issue for you. And although matters have again broken down between yourself and your
ex-partner, I was informed by your counsel that you do have solicitors and are undertaking proceedings hopefully, to see you resume the contact that you want with your son.
40 It was submitted to me by the prosecution that I should deal with you by way of a combination disposition, that is, a term of imprisonment coupled with release on a community corrections order.
41
My concern is that if I do that there will be difficulties in the progress that you have made. I am concerned about the distress that this might cause in a situation where even though the fraught issues surrounding yourself, your
ex-partner and your distance from you son still remain live, you are living in a stable way with very good supports around you.
42 I am satisfied that the protective factors in your life should not be interrupted in that the interests of the community as a whole are best served in that way.
43 I have had you assessed for a community corrections order. It is my intention (and you have indeed been found suitable for placement on that order) that the order be transferred to New South Wales, so that you can continue on the order you are already serving up there, combined with this order.
44 For this to be achieved, I must impose an order which does not involve work hours and it was submitted to me by the learned prosecutor that this means the punitive aspects that an order should contain will not be able to be achieved in this way.
45 You are a young Aboriginal woman. Your partner is Aboriginal. Your family is Aboriginal. There has been particular attention paid to the effects of intergenerational violence and deprivation. This certainly seems to have played out within your own family.
46 I am impressed with the efforts you have made. Even though it means ultimately a gaol sentence had to get you back on the rails again, you were certainly operating within what could be called a highly charged emotional scenario, involving the custody of your son.
47 You are the perpetrator, quite clearly, of domestic violence to which the courts are urged to respond in a stern way. As I commented on the plea, it does not seem to me in the circumstances, unlike many cases involving domestic violence, that the victim of these incidents stands in any particular physical danger from you or that you have the sorts of controls and concerning capacities in relation to Mr Lloyd, in the way that is often seen in cases where the perpetrator is a bigger and stronger male with a history of violence.
48 I am in no way approving of your actions. I note, however, that they took place in the scenario of you being much affected by alcohol. Indeed, this is what you told the community corrections assessment officer at the time you were being assessed for this order.
49 I am satisfied that ultimately you have dealt well with both your drug and alcohol problems and you are in a stable situation with good supports, as I have said. You are also engaged in important legal proceedings relating to your son.
50 I do not see you as posing a threat to the community, from which it needs protection, very often that community, being the victim of domestic violence. This is not one of those categories. It is my view the community is best served by you continuing in the stable scenario you are currently in, under the supervision of the community corrections order.
51 It is my view, however, that a community corrections order should contain both a condition that you attend for mental health difficulties and for drug and alcohol treatment. Not because that appears to be live but because it needs to be supervised, if I can put it that way.
52 The mental health treatment condition I am going to impose is around assisting you through this very distressing time you are going through, where you are separated from your son, seeking custody, where in the past that distress has led you to abuse drugs and alcohol and to behave in the way you did that brought you before this court for the first time.
53 The three charges all arose very much from the same 14 minutes incident and therefore in my view should be dealt with on an aggregate basis.
54 I propose therefore, placing you on a community corrections order. Can you stand up, please, Ms Lemmon? I can only place you on this order with your consent, so I have to explain the conditions to you. All right?
55 They are firstly, that you must report to the Community Corrections Office within two working days of the making of this order, that is, by Friday of this week.
56 Whilst you are on the order, which will last for 14 months, you must not commit any offence punishable by imprisonment. That does not mean you have to be charged and then gaoled.
57 It means that if you commit an offence that carries a gaol term, for example, like stealing a box of matches from Woolworths, that will be enough to breach the order and you will be brought back before me and I will re-sentence you.
58 Ordinarily, with this order you may not leave Victoria without the permission of the Community Corrections Office. As has been noted in a report to me from Community Corrections, you will need to remain in Victoria white the transfer across to New South Wales takes place.
59 You must obey all lawful instructions of the Community Corrections Office. You must report to and received visits from the Community Corrections Office as directed. You must not attend upon the Community Corrections Office under the influence of drugs and alcohol. And you must report any change of address or employment within 48 hours of the making of that change.
60 I am going to order that you undertake treatment and rehabilitation for substance abuse and I am going to order that you undertake treatment and rehabilitation for mental health difficulties. Are you prepared to enter that order?
61 ACCUSED: That's like - sorry, Your Honour, that's like counselling and - - -
62 HER HONOUR: It is like counselling. So, there is counselling for drugs and alcohol and look, if everything is going fine that will not amount to much and counselling for - on a psychologist. Yes.
63 ACCUSED: Just on the outside not - - -
64 HER HONOUR: It is - no, I am not putting you - this is on the outside.
65 ACCUSED: Yes, Your Honour.
66 HER HONOUR: All right?
67 ACCUSED: Yes.
68 HER HONOUR: The order is about you remaining in the community and abiding by those conditions. Are you prepared to enter that order?
69 ACCUSED: Yes, Your Honour.
70 HER HONOUR: Thank you very much. Have a seat and we will just get it sorted for you. Thank you.
71 MS LIANTZAKIS: It's also the disposal order, Your Honour, for - -
72 HER HONOUR: Yes. Now what have I done with that? I am a great one for losing those.
73 MS LIANTZAKIS: I have a copy of that, Your Honour.
74
HER HONOUR: Thank you. If you would like to hand I up I will sign it now.
As I said, I can well understand why the prosecution sought the disposition that it did. But overall, whilst there is some offending from your - between 11 and eight years ago and the subsequent offending whilst you living in Tamworth. This offending is far more serious than your offending in a general sense and as I said, was fuelled by a domestic situation relating to your son and whilst you were under the influence of alcohol. These are matters which have been attended to and which as causes of this offending no longer seem to be of concern but have been resolved as best they can be. Thank you. All right.
75 HER HONOUR: I have just got to get this order printed out and just make sure it is all sorted with Corrections before you head back to Tamworth. All right?
76 ACCUSED: Yes.
77 HER HONOUR: Thank you. How old is Jesse now?
78 ACCUSED: Three and a half.
79 HER HONOUR: Three and a half, he'd be stamping around and saying no a bit, would he or is he past that?
80 ACCUSED: Definitely - definitely spent a bit of time in the Territory, Your Honour.
81 HER HONOUR: Yes.
82 ACCUSED: He's a wild boy.
83 HER HONOUR: Is he? Yes.
84 ACCUSED: He's lovely though.
85 HER HONOUR: Yes. I thank counsel for staying back late.
86 MS SWINEY: Of course, Your Honour.
87
HER HONOUR: Yes. Thank you very much. All right. We will just get you to sign that, thank you, Ms Lemmon and then I will sign it and then you can go. Thank you. Thank you very much. Yes. Thank you. We will adjourn to
10 am tomorrow morning. Thank you so much.
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