Director of Public Prosecutions v Liam Van Breda
[2015] VCC 368
•19 February 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-02055
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Liam VAN BREDA |
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JUDGE: | CHIEF JUDGE ROZENES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2015 | |
DATE OF SENTENCE: | 19 February 2015 | |
CASE MAY BE CITED AS: | DPP v Liam VAN BREDA | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 368 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Aggravated burglary – Intentionally causing injury – Theft – No prior criminal history
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Ballek | Office of Public Prosecutions |
| For the Accused | Mr A Malik | Victoria Legal Aid |
HIS HONOUR:
1 Liam VAN BREDA, you have pleaded guilty to one charge of aggravated burglary, one charge of intentionally causing injury and one charge of theft. You have no prior convictions.
2 The facts of this case were opened by Mr Ballek, who appeared to prosecute in this matter, and are contained in the Summary of Prosecution Opening, Exhibit A.
3 In brief summary, on the evening of 27 October 2013 you, together with your co-offenders Stephen Norman and Thomas Gniot, attended the victim’s house in Werribee. Norman knocked on the front door of the victim’s unit and asked whether a man by the name of “Wayne” lived there. The victim told Norman that no one named Wayne lived there. About ten minutes later Norman returned to the victim’s unit and began knocking heavily on the front door and front window. Norman told the victim that he was going to stay there all day.
4 Shortly thereafter, the victim noticed that Norman had come around to the rear of the unit with two males, one of whom was you, the other your co-offender, Gniot. The victim recognised you and Gniot from a friend’s house. The victim then became aware that you, Norman and Gniot were trying to manually open his garage roller door. The victim saw the roller door being lifted up, panicked, and ran to his bedroom at the front of the unit and hid in the cupboard. You and your co-offenders then walked under the roller door and entered the garage of the unit (charge 1 – aggravated burglary).
5 You then entered the victim’s unit through the kitchen door. Gniot was carrying a silver broom handle which he had taken from the victim’s garage. You and your co-offenders found the victim hiding in his bedroom cupboard, at which point he was punched to the head and body for about three minutes. You and Gniot held him down on the bed while Norman continued to punch him to the head and body. The bulk of the assault was carried out by Norman.
6 You and Gniot then left the bedroom while Norman continued assaulting the victim. The victim was then told to go into his lounge room where he saw Gniot holding a kitchen knife. The victim was asked for his wallet and for money while he sat on his couch, with Norman slapping him about the head ten to 15 times. Gniot then picked up a baseball bat and hit the victim over the head with it. You and your co-offenders laughed at your victim and told him he was a woman beater. Norman took out a mobile phone and took a photo of the victim, telling him he would send the photo to the daughter of a friend of the victim. You and your co-offenders then flipped the victim’s coffee table over, spilling items onto the floor. You then told the victim to get up and open the front door, and as you left threatened to slit his throat if he contacted the police.
7 As a result of the assault, the victim suffered facial injuries, cuts to his hands, shoulder pain, swelling to his right eye socket and eyelid, and a cut to his tongue (charge 2 – intentionally causing injury). You and your co-offenders stole the victim’s mobile phone and a pouch of tobacco (charge 3 – theft).
8 On your behalf your counsel, Mr Malik, submitted that I take the following into account by way of mitigation:
(a) that you pleaded guilty and did so at an early point in time;
(b) that your are a youthful offender;
(c) that you have, by your plea of guilty, demonstrated remorse for your actions;
(d) that you lack prior criminal convictions; and
(e) that your prospects of rehabilitation should be assessed as excellent given your relative youth.
9 Mr Malik further submitted that, in light of the factors raised above, the appropriate sentencing disposition that should be imposed upon you is a Community Correction Order. He further submitted that you accept your offending was, despite any real forethought or planning, very serious, involving an assault against the victim in his own home, and that your offending was aggravated by the fact you assaulted the victim with two other co-offenders.
10 I turn now to circumstances person to you. You are now aged 20, having been born on 24 August 1994. At the time of your offending, you were aged 19. You have one younger and one older sister. Your parents separated when you were five years old. Your father passed away in December of last year, and your mother works full time in a senior training position for a television company. You report enjoying a good relationship with your mother’s current partner. You were originally raised in Werribee before moving to South Australia at the age of three, returning to Melbourne when you were aged 12. You had learning difficulties at school and were ultimately diagnosed with ADHD. In his report dated 10 February 2015, Exhibit VB2, Ian Joblin, psychologist, points to a number of questions and answers you provided in your record of interview with police that demonstrate your learning difficulties, notably that you could not comprehend the caution given to you at questions 13, 14 and 17. Since leaving school, you were employed for a few weeks at Hand Brake Turn before attending TAFE, embarking on a logistics and transport course, ultimately obtaining a Certificate III. You have been sporadically employed since 2013 and are currently in receipt of a disability pension.
11 You acknowledge that you regularly drink alcohol, but report that this was not a factor at the time of your offending. You further acknowledge using cannabis as a way of self-medicating symptoms of anxiety, having commenced smoking it while living in South Australia. Ice has also been a significant problem for you, with you reporting to Mr Joblin that you smoked it daily whilst living in Werribee. Since being interviewed by police, you moved to the Northern territory to live with your aunt. During this time, you engaged with the Salvation Army Drug and Alcohol Service (Sunrise Centre), and were referred for psychological counselling. I am informed that you have attended a psychologist at the Wyndham Vale Psychological Service at least six times. Such sessions will, if continued, greatly assist your rehabilitation into the future.
12 Mr Joblin said that your intelligence can be defined as limited, but that you are not defective. He further noted that you have had social difficulties and problems that can be attributed, at least in part, to the absence of any meaningful or consistent father figure in your life. In his opinion, your use of drugs was related to your strong wish to develop friends and associates however, as is often the case, this use of drugs impaired your ability to obtain employment. Ultimately Mr Joblin expresses difficulty in providing a specific diagnosis in your case, and cites the possibility that you may suffer, or have in the past suffered, from a neurological disorder, but that evidence to confirm this is absent. He concludes by remarking that you would face considerable difficulty if placed in a custodial setting, and that you would benefit from a rehabilitative and educative disposition.
13 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
14 Despite the seriousness of your offending, I accept that you were waiting across the road from Norman as he attempted to enter the victim’s house, that you assisted Norman in gaining entry into the garage and then through the kitchen door, and that you were then ‘taken along for the ride’, so to speak, due to your desire for social inclusion and to impress people you looked up to, however misguided your opinions may have been. I have no doubt that you were influenced to a significant degree by your co-offenders.
15 This said, special considerations apply to the sentencing of young offenders. Rehabilitation is considered far more important than punishment and where possible the sentencing of youthful offenders should not be used as appropriate occasions for the giving of general deterrence messages. Ultimately I am persuaded that the appropriate sentencing disposition that should be imposed in this case is a Community Correction Order. I intend to impose an aggregate sentence in relation to these offences.
16 Would you please stand.
17 On each of charges one, two and three, you are convicted and I order that you be placed on a Community Correction Order with program conditions for a period of 18 months. I have received a report from Corrections Victoria which indicates your willingness to comply with such an order. The order commences today. Do you agree to comply with the conditions of the order?
18 OFFENDER: I accept.
19 HIS HONOUR: Very well. The core conditions of the order are:
(1)that you not commit whether in or outside Victoria during the period of the order, any offence punishable on conviction by imprisonment;
(2)that you report to the specified Community Correction Centre within two clear working days after the coming into force of this order. In your case that place is the Werribee Community Correctional Centre at 587 Synnot Street, Werribee;
(3)that you report to and receive visits from a Community Corrections Officer;
(4)that you notify an officer at the Werribee Community Correction Centre of any change of address or employment within two clear working days after the change;
(5)that you not leave Victoria except with the permission of an officer at Werribee Community Correction Centre; and
(6)that you obey all lawful instructions and directions of the Community Corrections Officer.
20 In addition, I propose to impose four further conditions, namely:
(1) that you perform 150 hours of unpaid community work over a period of 18 months as directed by the Regional Manager;
(2) that you undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager;
(3) that you undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager; and
(4) that you undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager.
21 I make an order pursuant to section 464ZF of the Crimes Act 1958. I do so because of the seriousness of the circumstances of the offending, and because the application is not opposed. I am obliged to tell you though that notwithstanding that you have not opposed to the procedure, I am obliged to inform you that if you resist the taking of the sample, reasonable force may be used.
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