Director of Public Prosecutions v Lineen
[2013] VCC 1124
•19 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL DIVISION
Case No. CR-13-1070
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL PETER LINEEN |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 19 June 2013 | |
DATE OF SENTENCE: | 19 June 2013 | |
CASE MAY BE CITED AS: | DPP v. Lineen | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1124 | |
REASONS FOR SENTENCE
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Subject: Kidnapping – Recklessly causing injury
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 4 years’ imprisonment – Non-parole period of 2 years 3 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Maxwell | Office of Public Prosecutions |
| For the Accused | Mr D. Ferguson | Robert Stary Lawyers |
HER HONOUR:
The Offence
1 Daniel Lineen, you have pleaded guilty to one charge of kidnapping and one charge of recklessly cause injury. The maximum penalty for kidnapping is 25 years' imprisonment. The maximum penalty for recklessly causing injury is five years' imprisonment.
Circumstances of the offending
2 The full circumstances surrounding your offending are set out in some detail in the prosecution opening. On Wednesday, 9 January 2013, you attended at 3 Dederang Drive in Clifton Springs. Eleanor Brew lived there with her son, Michael, aged four and daughter Amber, aged 13 months. You had been in a relationship with Ms Brew for approximately two years and Amber is your daughter from this relationship.
3 During this visit you were abusive towards Ms Brew and informed her that she had ruined your life and that you were going to kill yourself. You grabbed her mobile phone and threw it down the hall while she was trying to call the police. When you left, you told her that this would be the last time she would see you and repeated that she had destroyed your life.
4 On Thursday, 10 January at approximately 2 am you returned to the house. Ms Brew observed you standing outside the lounge room sliding door and let you in on the basis that you had told her that you just wanted to talk. Once inside the house you wanted to know why she had had sex with another man and you started talking about your past together and your efforts to make the relationship work. Unfortunately, the situation went downhill from then on.
5 In summary, it involved you calling Ms Brew a slut and following her around the house ranting and making snide remarks, grabbing the back of her shirt and pulling her to the floor of the laundry, getting on top of her and trying to tie her wrists with a dark coloured rope or cord which you told her you had found in the house, telling her during this process that you were going to hurt her as much as she had hurt you, grabbing her around the throat with your hands which caused her difficulty in breathing. When Ms Brew heard her son Mikey in the hallway and yelled out to him to run, trying to put your hand over her mouth to stop her from shouting, then pulling her onto her back and sitting on top of her and trying to tie the rope around her wrists, whispering in her ear that as long as she did what you asked the kids would not be hurt, denying that you were going to kill or rape her but saying you were going to hurt her like she had hurt you.
6 Shortly after these events had taken place Mikey came back near to the room and said, "Daniel, you can't hurt mummy" and told you to stop. You replied to Mikey, "Your mum better listen or you'll be the one who is going to get hurt." You looked Ms Brew in the eye and said, "If you don't let me tie your hands, I'm going to kill Mikey."
7 Ms Brew complied as she did not want her children getting hurt and the events that then unfolded included you wrapping the rope around her wrists, waist and around her left thigh, pulling her by the rope to the bedroom and stuffing a purple nightie into her mouth and tying a g-string around her throat, taking her to the front room and telling her to do as you asked or Mikey would get hurt, picking her up and taking her over your shoulder outside and onto the path where she screamed for help and yelled at the top of her voice, "He's going to kill my son."
8 You then threw her to the ground and stuffed the nightie back in her mouth. She was screaming and biting your fingers. You left her there and turned to go back inside. Mikey was standing just inside the front door and you picked him up and threw him inside which resulted in him hitting the door frame and landing on a shoe rack. This impact caused the window next to the door to smash. The charge of recklessly causing injury results from your actions in throwing Mikey in this manner.
9 After Ms Brew said that she would not scream if you left the children alone and did not hurt them you threatened to put her and Mikey in the boot of the car if they made a sound. Ms Brew then begged you to take Mikey to hospital and you told her that she would be able to take him later. You then drove her and the two children to Ballarat where, after making sure that they had everything they needed, you left them in the CBD.
10 Ms Brew then attended the Ballarat Police Station where she reported the incident to the police. She and Mikey were taken to hospital and were found to have suffered, Ms Brew - a haematoma to her right elbow, linear lacerations and abrasions around her mouth and wrists and Mikey, 2 centimetre lump to the back of his head and some scratches and bruising.
11 Later that day the police got in touch with you and arranged to meet you at your parent's house where they arrested you and conveyed you back to the Geelong Police Station for the purpose of an interview. You made a "no comment" record of interview.
Personal background
12 Your counsel provided the court with your personal background and further details were contained in the report of Mr Newton dated 15 June 2013. You were born on 10 March 1989 and you had two brothers. Unfortunately your older brother drowned when you were an infant and this event apparently overshadowed your childhood.
13 You have a close relationship with your father but you have been estranged from your mother and younger brother. Your parents relationship is conflicted and they separated in early 2013.
14 You were a good student at school academically. However, you had some behavioural issues and you were bulled due to your small stature. Despite this, you completed your VCE and obtained good marks. You went to University in Tasmania where you obtained a degree in Botany and Zoology. While you apparently have an ambition to work in conservation you have been working as a bar tender and waiter since completing your degree.
15 You have been a soccer referee for some 11 years and you have refereed at championships all over Victoria. While your intelligence falls in the high average level, Mr Newton in his report describes you as narrowly failing to meet the criteria for borderline independent personality.
16 This is because you harbour feelings of self doubt and inadequacy with a strong fear of separation or abandonment which leads you to place an intense importance-ship on your intimate relationships.
17 Mr Newton is of the opinion that the intensity of this is overwhelming for you and that it is likely that at such times you would have difficulty thinking rationally or utilising the otherwise conflict management skills which you do have.
18 In the past, you have tried to harm yourself and Mr Newton considers that it is vital that precautions remain in place to protect you in this regard. In his opinion, you are experiencing significant psychological distress and your symptoms are such that you meet the diagnostic criteria for adjustment disorder with mixed disturbance for motion and conduct. Your social difficulties are likely to make you a relatively vulnerable prisoner and there may be some merit in giving you a relatively long parole period to ensure that you are supervised while receiving the treatment you require.
19 In his report, Mr Newton refers to the fact that through the C.R.E.D.I.T. Bail program you are currently receiving treatment from Mr Murphy, a clinical psychologist. Mr Murphy reported that you have attended ten sessions and that you presented with no abnormality of thought. You seemed to have a good insight into the causes of your current mood and you did not report any risk of harm to self or others.
20 The causes of your anxiety and depression were, in all the circumstances of this case, not surprising. Your mood related to feeling stressed about the court proceedings, regret and remorse about the separation from your daughter, the restrictions on your life and fear of prison.
21 Mr Murphy reported that you were often emotional when you reflected on your relationship with Ms Brew and the behaviour that had brought you to court. You told him that it would take you a long time to forgive yourself for your behaviour. Mr Murphy considered that you were genuinely remorseful.
22 A letter from the You Yangs Medical Clinic confirmed that you had suffered from severe anxiety and that you had been referred to Derek Goodman for counselling in 2012. A letter from Ms Lyons, a family therapist confirmed that you had attended relationship counselling on at least three occasions in late 2012.
References
23 Your counsel also tendered a number of references on your behalf. Kimberley Butcher, who is a friend of your girlfriend, sees you two to three times a week. She said that you told her that you were haunted by your actions every day and you feel that you need to punish yourself for the hurt, distress and trauma that you caused your ex-girlfriend, her son and your own daughter.
24 Angela Zutman and Adam Key referred to your love of Siberian Huskies and the responsible way in which you looked after your dogs. In other character references, you were referred to as being reliable, trustworthy and caring, a very determined referee, hard-working and aspiring, officiating at the highest level possible in Victoria, as having a personal drive for perfection which enabled you to lead from the front creating a level of service for all the floor and bar staff to aspire to.
25 Despite the difficulties you have had in your relationship with your father, it was apparent from his reference that he loves you and that he accepts in hindsight that there were issues which had a negative impact on your development, growth and maturity. He refers to your anguish and grief in losing contact with your young daughter and says that to your credit you have been working very hard to put your life back together again.
26 In her reference, your mother confirms that you have worked very hard to get your life back in order and that you have been very remorseful for all the pain and suffering you have caused family and friends.
Sentencing submissions
27 In his plea on your behalf, your counsel referred to the strain that you had been under prior to the offending. You had been very keen to get your relationship with Ms Brew back on the track, in particular, as you had a young daughter together. You had attended counselling in the hope that you would get back together and you were very upset when you discovered shortly prior to your offending that she had been seeing someone else at the time.
28 In her character reference, your mother referred also to the pressure you had been under financially, physically and emotionally at the time. You had been working long hours and you had been involved in a car accident due to falling asleep at the wheel. As a result, you were on medication for back pain.
29 Despite these matters your counsel acknowledge that given the nature of your offending, a term of imprisonment was called for. However, he relied on Mr Newton's report in submitting that a relatively long period of parole was appropriate.
30 In addition, he relied on the following mitigating matters. Your plea of guilty at the earliest opportunity which had saved the state time and money and saved the witness the trauma of a court hearing, your relative youth, your genuine remorse at your offending, your lack of prior offending, your participation and treatment with Mr Murphy with whom you have developed a good therapeutic relationship and the fact that you had established a new relationship with a young woman who is aware of your issues and your offending.
31 It was submitted that given these factors and your previous good character, work ethic and academic qualifications your prospects for rehabilitation were good. Your counsel also urged the court to take into account the matters outlined in Mr Newton's report and to reduce your moral culpability. In particular, he asked the court to accept that your difficulties in coping with the loss of personal relationships could be related to your dysfunctional family environment. In addition, it was submitted that your social difficulties were likely to make you vulnerable in the prison environment.
32 The prosecutor conceded that your prospects for rehabilitation were good as you had no criminal history as well as a good work record and you had shown genuine remorse for your crime. With respect to any reduction in your moral culpability it was accepted that a small reduction would not be inappropriate given the matters set out in Mr Newton's report. However, she also submitted that general deterrence was a paramount sentencing consideration in that your offending was a serious example of the crime of kidnapping which had occurred in the context of a breakdown of a relationship. An aggravating feature of your offending was that the children were home and Mikey was a witness to your conduct.
Sentence
33 In sentencing you I have taken into account all the matters put in mitigation of your offending. I have given you a discount for your plea of guilty and I accept that you are remorseful for what you did. I also accept that given your otherwise good character and despite your issues with interpersonal relationships that your prospects for rehabilitation are good. In particular, in view of the good therapeutic relationship you were able to build with Mr Murphy.
34 I have taken into account all the matters contained in Mr Newton's report and I accept that the dysfunctional family environment played a role in the development of your difficulties in dealing with interpersonal stress.
35 In view of this I have moderated your sentence to a small degree. In moderating your sentence I have also accepted that you would be more vulnerable in prison due to your various issues. However, I must also take into account both general and specific deterrence. You put Ms Brew through a terrifying ordeal. It was humiliating and degrading and all the worse because it was done when her young son, Mikey, was in the house as well as your baby daughter.
36 It is clear from her Victim Impact Statement that it was a terrifying experience for her and no doubt had caused great fear to Mikey who was only four years old at the time. In fact, Mikey showed considerable courage when he approached you at one stage and told you that you should not hurt his mother and that you should stop. While you said later that you loved Mikey and you never wanted to hurt him, the fact is that you were reckless and injured him by throwing him.
37 At one stage you told Ms Brew that unless she let you tie her hands you were going to kill Mikey. This was an awful threat for you to make. It is hard to imagine a worse threat to make to a mother of a young child and you should be thoroughly ashamed of yourself.
38 In her Victim Impact Statement Ms Brew refers to how she has struggled with shock, disbelief, severe anxiety and fear. She suffers from flashbacks, she has trouble eating and sleeping. She has also struggled with guilt for exposing her children to danger. She was unable to work and stopped her studies an incurred relocation expenses in moving interstate in search of safety. With respect to Mikey, she said he suffered from sleep disturbances and nightmares and often asked why Daniel did those naughty things.
39 Please stand up. Taking into account all the various sentencing considerations I sentence you as follows:
40 I sentence you on the charge of kidnapping to three years and six months' imprisonment.
41 I sentence you - on the charge of recklessly causing injury to 12 months' imprisonment. Six months of the sentence on Count 2 is cumulative on the head sentence on Count 1.
42 This results in a sentence of four years. I fix a non-parole period of two years and three months. But for your plea of guilty I would have sentenced you to six years to serve four years. I declare pre-sentence detention of 35 days. I make a 464ZF order due to the seriousness of offending and because it was by consent and I make the disposal order that was requested by counsel. Is there anything else
43 MS MAXWELL: No, Your Honour.
44 MR FERGUSON: No, Your Honour.
45 HIS HONOUR: Mr Lineen can be removed.
46 (Prisoner removed.)
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