Director of Public Prosecutions v Levy (a pseudonym)

[2019] VCC 718

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

AT BAIRNSDALE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

AUSTIN LEVY (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Bairnsdale
DATE OF HEARING:	17 May 2019
DATE OF SENTENCE:	22 May 2019
CASE MAY BE CITED AS:	DPP v Levy (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 718

REASONS FOR SENTENCE
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Subject:  

Catchwords:  Intentionally cause injury; Make threat to kill; Aggravated burglary; Family violence; General deterrence; Specific deterrence; Youthful offender; Good prospects of rehabilitation

Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward	Office of Public Prosecutions
For the Accused	Mr G. Casement	Sullivan Braham Barristers & Solicitors

HIS HONOUR:

1Austin Levy[1], you have pleaded guilty to the following charges:

[1] This sentence has been anonymised by the adoption of a pseudonym in place of the name of the accused.

2Charge 1, intentionally causing injury contrary to s.18 of the Crimes Act 1958. The maximum penalty for that offence in 10 years imprisonment.

3Charge 2, making a threat to kill contrary to s.20 of the Crimes Act 1958. The maximum penalty for that offence is 10 years imprisonment.

4Charge 3, aggravated burglary contrary to s.77(1) of the Crimes Act 1958. The maximum penalty for that offence is 25 years imprisonment, and;

5the related summary offence of contravening a family violence intervention order contrary to s.123(2) of the Family Violence Protection Act 2008. The maximum penalty for that offence is two years imprisonment or fine of 240 penalty units.

6You pleaded guilty at committal mention and I have taken your early plea into account in your favour in mitigation of sentence.  By your plea you have spared your father the trauma of giving evidence against you and it is also evidence of remorse for your offending.

7You have admitted a limited criminal history.  Although of significance is the fact that you were convicted of persistent contravention of a family violence intervention order at the Frankston Magistrates' Court on 31 July 2018 and fined $1,200.  This was less than three months prior to your offending in this instance.

8A prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows –

9On 31 October 2017 a family violence intervention order was taken out at Sale Magistrates' Court preventing you from contacting your father or attending his home in Maffra.  A similar order was in place in relation to your mother.  These orders were necessary due to your erratic and threatening behaviour which was caused by your escalating use of the drug methylamphetamine.  Despite the existence of the order your father permitted you to live with him in September and October 2018 as you were then homeless.

10On 15 October 2018, following a dispute with your father regarding the payment of living expenses, you assaulted him and threatened to kill him.  Your father telephoned the police and you left the premises.  Later that evening you returned to the premise and smashed windows and your father's furniture and his belongings.  Police attended and you were arrested by them and taken into custody where you remain.

11Your father suffered pain and bruising to his head and ribs as a result of your offending, and I have no doubt that your crimes must have had a deeply distressing and traumatic affect upon him.  He withdrew his Victim Impact Statement before the case against you began and has attended this hearing by way of video-link.

12Family violence in any context must be deterred by the court and the sentence that I impose must be calculated to deter others from offending in this manner.

13In my opinion, specific deterrence is also a relevant consideration in your case.  You must also be punished for your appalling attack on your father when he assisted you by allowing you to return home.  What you did was, in my opinion, serious and your offending must be denounced by this court.  Families must be protected from offending of this type.

14I now turn to your personal circumstances.

15You were born on 3 June 1993 in East Gippsland and will soon turn 26.  You are one of your parents six children.  They ran a general store and were fully occupied in that occupation and you were to some degree left to your own devices.  Your schooling was disrupted by learning difficulties and you left school during Year 10.  Your parents separated at this time and I accept that this too disrupted your personal development.

16I have received in evidence a psychological report of Dr Leon Turnbull and a reference from your sister's partner, Mr Aaron Pyres.  I accept that you have developed a depressive condition in the past two years or so and have
self-medicated with methylamphetamine.  That destructive and dangerous substance is the root cause of your offending and you require ongoing treatment and counselling for drug addiction.

17Your attack on your father occurred when you were either under the influence of methylamphetamine or withdrawing from its effects.  In some ways it can be said that you and your family are victims of the criminals who import, manufacture, and traffic that substance.  I accept that prior to you using methylamphetamine you were generally a placid and gentle person.

18Whilst you are not a young offender for the purposes of the Sentencing Act 1991 you are nevertheless a youthful offender and the period you have spent in remand is your first time in custody.  In these circumstances, rehabilitation is an important factor in your case, and I accept that with the support of your family and treatment for your drug addiction your prospects for rehabilitation may be regarded as good.

19The prosecution accept it is open to me to impose a sentence of imprisonment together with a Community Correction Order in all the circumstances of this case, and I had you assessed for Community Corrections Order.  Corrections Victoria have reported to the court that you are suitable for such a disposition and I intend to impose one in this case.

20In the result, the sentence of the court is as follows -  

21On the charges before the court you are convicted and sentenced to an aggregate term of imprisonment of eight months.

22I also impose as part of that aggregate sentence a Community Correction Order for a period of 18 months on the core conditions provided for in the Sentencing Act 1991 and on the further special conditions that during the period of the order you be under the supervision of a corrections officer; that you undertake treatment and rehabilitation in relation to drug addiction; that you undertake during the course of the order offending behaviour programs, in particular an anger management course; that you perform 120 hours by way of unpaid community work and for the period of the order you reside with your mother.

23Do you agree to entering an order on those conditions?

24OFFENDER:  Yes.

25HIS HONOUR:  I declare that you have served 219 days by way of pre-sentence detention, not including today.

26But for your plea of guilty I would have sentenced you to a term of imprisonment of 12 months together with a Community Correction Order.

27I will make the forensic sample order sought by the prosecution. 

28I am making a forensic sample order in your case, Mr Levy.  The police are entitled to use reasonable force to obtain that sample.  It is a simple procedure, a sample of your saliva will be taken.  You are required to cooperate with the police in that regard.

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