Director of Public Prosecutions v Litton
[2017] VCC 1917
•13 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01979
Indictment No H11872046
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL ANTHONY LITTON |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 December 2017 | |
DATE OF SENTENCE: | 13 December 2017 | |
CASE MAY BE CITED AS: | DPP v Litton | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1917 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Make threat to kill, deal with property suspected of being proceeds of crime, carry dangerous article
Legislation Cited: s 20, s 95 Crimes Act 1958; s 7(1) Control of Weapons Act 1990
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C Foot | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr A Hale | Ann Valos Criminal Law |
1 Michael Anthony Gary Litton, you have pleaded guilty to one charge of make a threat to kill.[1] In addition, you have agreed to my dealing with two related summary charges[2] and you have pleaded guilty to those charges; namely, summary charge 5 (deal with property suspected of being the proceeds of crime)[3] and summary charge 7 (carry a dangerous article).[4]
[1] Contrary to s 20 Crimes Act 1958
[2] Pursuant to ss 145 and 242 Criminal Procedure Act 2009
[3] Contrary to s 195 Crimes Act 1958
[4] Contrary to s 7(1) Control of Weapons Act 1990
2 The maximum penalty for make threat to kill is 10 years’ imprisonment.[5] The maximum penalties for the related summary offences are: deal with property suspected of being the proceeds of crime — 2 years’ imprisonment;[6] and carry a dangerous article — 6 months’ imprisonment or 60 penalty units.[7]
[5] Pursuant to s 20 Crimes Act 1958
[6] Pursuant to s 195 Crimes Act 1958
[7] Pursuant to s 7(1) Control of Weapons Act 1990
The Facts
3 The prosecution has filed a prosecution opening dated 13 November 2017, which I have been told by your counsel I can treat as a statement of agreed facts.[8]
[8] Exhibit P1
4 The offences were all committed in the early hours of 4 July 2017 at 107 Seventh Avenue, Rosebud (‘the Seventh Avenue address”).
5 About a month prior to the offending, you met Diana Zaslavska through a mutual friend. She was living at the Seventh Avenue address with her girlfriend, Ramona Hanlon, and Zaslavska’s 2 year old son. You had been interested in starting a romantic relationship with Zaslavska, however she rejected your advances in the weeks prior to the offending.
6 From about 8 pm onwards on 3 July 2017, you sent a series of text messages to Hanlon including: “Listen lady sick of you treating me like a fuck head goes I’ll meet you out the frunt (sic)” followed by “haha have your courage wake”.
7 In the early hours of 4 July 2017, you walked to the Seventh Avenue address, where Hanlon and Zaslavska were living. You were carrying an axe and had a kitchen knife strapped to one of your arms with duct tape. (Related summary offence charge 7 — carry a dangerous article — a charge covering both the axe and the kitchen knife).
8 You arrived at the Seventh Avenue address shortly after 3 am. It is unclear what occurred at that address, as both Hanlon and Zaslavska have refused to cooperate with police.
9 A call was made by Zaslavska to emergency services requesting their attendance. She left the premises with her 2 year old son in her motor vehicle.
10 Police arrived at the address at 3:35 am and were met by Hanlon on the nature strip. She told them that you were inside the house. Police entered the property and observed that you were in the kitchen. The axe was on the kitchen bench. You then threw the knife that was strapped to your arm at the kitchen bench.
11 You were agitated, aggressive and pacing around the kitchen/lounge room area. You refused numerous police demands to get on the floor. Police then deployed OC foam, with little effect. Eventually you slipped on a pool of foam on the kitchen floor and police were able to arrest you.
12 Zaslavska and her young son returned to the premises as police were in the process of removing you. As police were removing you from the house, you yelled at Hanlon: “Don’t you make statements. If you make a statement I will fucking kill you.” This was heard by police members. (Charge 1 — make a threat to kill).
13 Your counsel at the plea hearing directed my attention to the statements of the attending police officers, which provides the context in which you made this threat.[9] It is clear that at the time you were drug and/or alcohol affected and in a highly agitated state, having just been subdued by police using OC foam. Your counsel accepted that your state of intoxication was not a mitigating circumstance.
[9] See Statement of L/S/C Steve Drew, acknowledged 7 July 2017, depositions pp 23–27; Statement of S/C Simon James Gibson, acknowledged 7 July 2017, depositions pp 33–36.
14 Your wallet was located in the kitchen of the Seventh Avenue address. It contained a Victorian driver licence in the name of Luke Stuart. This licence had previously been reported as stolen. (Related summary offence charge 5 — deal with property suspected of being proceeds of crime).
15 Police observed damage caused by you to the front timber gate, glass front door, inside plaster wall and the kitchen bench. These are uncharged acts relied upon by the prosecution as part of the context.
16 You were transported to the Frankston police station where you were held for a number of hours prior to interview, owing to your intoxicated state. You were then interviewed by police. During the interview you told police:
a.That you strapped the knife to your arm with duct tape before you left so you didn’t lose it.
b.That you had known Ms Zaslavska for about a month and that you had spoken to her about starting a relationship with you.
c.That you now thought Ms Zaslavska was: “the most treacherous thing I’ve ever fucking met”.
d.That your reason for going around to the Seventh Avenue address was for “A bit of a reception, no — a bit of intimidation, nothing to her apparently or allegedly had happened. I don’t know what’s happened. I don’t know if I’ve hurt anyone. I don’t know if — what’s gone on”.
e.That you were invited into the house.
f.That you acquired the axe in some long grass on the way to the address.
g.That your difficulty with remembering what happened that night was due to your taking about 20 Rivotril (a benzodiazepine) before you left your home.
h.That the driver licence you possessed in the name of Luke Stewart just appeared one day in your wallet and that you do not know how it got there.
Victim Impact
17 No victim impact statement was made in this case. Ordinarily, where no victim impact statement has been tendered, a sentencer may draw reasonable inferences regarding the impact of an offence upon the victim. However, in the unusual circumstances of this offending, where the victim and her partner were completely uncooperative with police, I am unable to make any firm findings regarding the impact of your crime on the primary victim or her partner, although I do note the observation of Sgt Neale that: “Although the victim's (sic) refused to make statements Zaslavska was visibly shaken at what had occurred”.
18 I note that Ms Mynard, a clinical psychologist who interviewed you for the purpose of preparing a psychological assessment report, formed the opinion that you ”had a lack of insight about [your] behaviour, the impact of [your] substance use on other people and how [your] offending affected the victims”.[10]
[10]Report of Alison Mynard, clinical psychologist, dated 16 November 2017 (Exhibit A3) p 5
Offence Seriousness
19 I accept your counsel’s submission that this example of the offence of make threat to kill falls towards the lower end of seriousness; although, it is concerning that the purpose of the threat was to discourage a witness from making a statement implicating you in other crimes. Nonetheless, it seems clear that Ms Hanlon had no intention of cooperating with police in any event. She said to police: “I’m not a rat”.[11] She was not forthcoming with any details regarding what had occurred inside the Seventh Avenue address and she refused to make a statement.[12] Ms Zaslavska told S/C Gibson that she “does not make statements or give evidence”.[13]
[11] Statement of L/S/C Steve Drew, acknowledged 7 July 2017, depositions p 26
[12] Statement of Sgt Edwina Neale, acknowledged 8 July 2017, depositions p 30
[13] Statement of S/C Simon James Gibson, acknowledged 7 July 2017, depositions p 35
20 Moreover, at the time of uttering the threat, you had been subdued by police using OC foam, from which you were still affected, and you were under the control of several police officers. Accordingly, there was no risk of your carrying out the threat.
21 You told Ms Mynard that on the night you committed the present offences you were intoxicated with Rivotril (benzodiazepine), methylamphetamines and GHB.[14] Your counsel conceded that this was not a mitigating circumstance.
[14]Report of Alison Mynard, clinical psychologist, dated 16 November 2017 (Exhibit A3) p 7
22 I accept that your offences did not involve much planning, although you had armed yourself with the axe and the kitchen knife prior to attending the premises where the offending occurred. I accept the threat to kill was impulsive and uttered when you were under police restraint and being berated by Ms Hanlon. According to S/C Chance, “there was ongoing aggression between [you] and the two females” and Ms Hanlon and Ms Zaslavska were egging you on and encouraging you to continue to resist the control of S/Cs Chance and Gibson.[15]
[15] Statement of S/C Melinda A Chance, acknowledged 29 July 2017, depositions pp 38-39
Personal circumstances
23 You were aged 28 years at the time of this offending and you are currently aged 29 years.[16] You initially lived with your grandmother until you were about 3 years of age when you returned to the care of your mother and step-father. You have had intermittent contact with you biological father over the years. You consider your step-father had been a significant father figure to you for most of your life. Sadly, he died of cancer when you were aged 19 and you feel this has “wrecked” you, because you and he had been so close.
[16] Date of birth is 13 October 1988.
24 You have never been in a long-term romantic relationship. Your mother and siblings are supportive of you and a number of family members, including your mother, some nephews and a close friend, were present in court during the plea hearing. I was told you have had telephone contact with your biological father whilst you have been in custody on remand for these charges.
25 You had an unsettled childhood and education owing to unstable housing and your mother’s drug addiction. Because the family moved frequently you attended ten different primary schools. You had difficulty concentrating at school and you are barely literate, poorly educated and have possible learning difficulties. You have worked in various unskilled jobs from the age of 16 and have a good job record.
26 You have an extensive prior criminal history going back to August 2008, which mostly consists of drug related, dishonesty and driving offences. However you do have a prior finding of guilt for assault police in 2008, for which you were convicted and fined. I do not regard this matter as particularly relevant to the present charges.
27 Most concerning, in the context of the carry a dangerous article charge, are your prior convictions for non-prohibited person possess general category handgun without a licence, two charges of possess unregistered general category handgun, possess cartridge ammunition without a licence, possess/use body armour without approval and carrying a controlled weapon without excuse. You also have a number of prior convictions for dealing with property suspected of being the proceeds of crime. In the past you have been sentenced to imprisonment; the longest sentence being 2 years 9 months’ imprisonment with a non-parole period of 18 months imposed in August 2013. Some 3 months before committing the present offences, you were before the Frankston Magistrates’ Court charged with a number of drug, dishonesty and possess weapons offences and you were convicted and sentenced to a CCO for 24 months with 250 hours of community work and a number of other rehabilitative conditions.
28 You have been remanded in custody since the day of these offences and you currently work as a unit cleaning billet.
29 You have no medical conditions, but you do have a significant history of illicit drug and alcohol abuse. You started smoking cannabis at age 9 and by 12 you were smoking cannabis daily. You began drinking alcohol regularly from 14 years of age. You commenced using “speed” (methylamphetamine) and ecstasy at 19 years of age. You were also using “ice” (methylamphetamine) and GHB on a regular basis at age 23. You also have a regular pattern of abuse of benzodiazepines.
30 A report from Ms Alison Mynard, clinical psychologist, dated 16 November 2017 was tendered by your counsel on your behalf.[17] She reported as follows:
[17] Exhibit A3
(a) That prior to your present period in custody, you often felt depressed, but since being on remand you feel that your mood has lifted.
(b) You scored in moderate ranges of anxiety on the Beck Anxiety Inventory.
(c) In the sixteen months that you were in the community following your release from prison, your drug use became out of control, triggering psychotic symptoms. However, Ms Mynard was not prepared to diagnose you as suffering from paranoid schizophrenia at this time.
(d) Over the years you have exhibited impulsive behaviours, risk taking, self-harming, suicide ideation, feelings of emptiness and angry outbursts.
(e) You reach the diagnostic criteria for a Borderline Personality Disorder, with instability in relationships, instability in your sense of identity and instability in your emotional state.
(f) Ms Mynard also diagnosed you as suffering from: Major Depressive Disorder, Generalized Anxiety Disorder, Stimulant Use Disorder and Stimulant Induced Psychosis.
(g) Ms Mynard opined that: “At this stage [your] symptoms appear to be a combination of drug induced psychosis, the behaviours associated with intoxication of methylamphetamines and the erratic nature of Borderline Personality Disorder presentation.”
(h) She is of the opinion that your drug and alcohol use has been a long-standing solution for you to manage your complex mental health issues.
(h) Ms Mynard made a number of recommendations for treatment of your mental health issues. I am of the opinion that a relatively lengthy CCO with rehabilitative and treatment conditions will facilitate your rehabilitation and reduce the risk of your reoffending in the future. I direct that a copy of Ms Mynard’s report be provided to the community corrections centre manager supervising your CCO.
Mitigating circumstances
31 You pleaded guilty at an early stage in the proceedings on 27 September 2017 at the committal case conference. I accept that your plea has utilitarian value and is indicative of an acceptance of responsibility on your part and a willingness to facilitate the course of justice. I am also prepared to find that your early plea of guilty is indicative of remorse.
32 I accept that the circumstances of the offence of make threat to kill are at the lower end of the scale of seriousness for this offence and that to some extent there was some causal connection between your offending conduct and your mental health issues. Although, I note your counsel on the plea conceded that no Verdins principle is engaged in your case.[18]
[18]R v Verdins (2007) 16 VR 269
33 I also accept that whilst in custody, you have abstained from using illicit drugs, you have worked as a unit billet and you have gained some insight into the reasons for your criminal behaviour. This augers well for your prospects of rehabilitation, which at best I can only assess as guarded. However, it does mean that I can give less weight to specific deterrence and protection of the community than I otherwise would.
Current sentencing practices
34 I have given consideration to current sentencing practices for the offences before me in light of the recent decision of the High Court in DPP v Dalgliesh (a Pseudonym).[19] As is so often the case, the circumstances of the offending conduct and the personal circumstances of the offenders are so varied that the assistance provided by sentencing statistics and the sentences imposed in other cases for offences of a similar character is necessarily limited. Nonetheless, I have tried to garner some understanding of sentencing patterns in this State for these offences.
Application of Sentencing Principles
[19] [2017] HCA 41
35 Threat to kill is a serious offence as indicated by the maximum penalty of 10 years’ imprisonment. Moreover, while this does not apply in your case, it is also an offence which falls into the statutory category of serious violent offence.[20] Accordingly, general deterrence, denunciation and just punishment must be given significant weight in sentencing you.
[20]Sentencing Act 1991 s 6B and schedule 1, clause 3(b)(iii)
36 Your prior criminal history for dishonesty offences and firearms and other weapons related offences is concerning. Accordingly, specific deterrence and protection of the community must be given some weight, given your reasonably extensive prior criminal history. For the reasons previously stated, I can only adopt a guarded approach to your prospects of rehabilitation.
37 Ultimately, your counsel accepted on the plea that a combined sentence of imprisonment and an intensive community correction order was necessary in order to achieve the purposes for which the sentence on the make a threat to kill charge is imposed. I accept his submission that time served (being 163 days’ imprisonment) is a sufficient custodial component of the overall sentence.
38 I have taken into account the submissions made this morning on behalf of the Director by Ms Bye in relation to the Director's attitude to a combined sentence of imprisonment together with the CCO. It seems to me that the longest period of custodial sentence I could properly impose in your case would only give me the discretion to order a non-parole period of six months, and in my view that is not a sufficient time for you to be properly supervised in the community so as to advance your prospects of rehabilitation and ultimately protect the community from your further criminal offending behaviour.
39 The CCO I propose will be as follows and this is only on the make threat to kill charge. The order will be for two years. It will commence upon the completion of your imprisonment which is today but there will be some administrative arrangements that need to be made so I do not know exactly when you will be walking out the door of wherever you are. But whenever that is you must report to the Rosebud Community Correctional Services and the address is there within two clear working days after you are released from gaol.
40 The mandatory terms that apply to all community corrections orders are you must not commit another offence for which you could be imprisoned during the time that the order is in force. You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011. You must report to and receive visits from the Secretary or his delegate. You must report to the community corrections centre within two clear working days of the order starting. You must let a community corrections officer know within two clear working days of you changing your address or work. You must not leave Victoria without first getting the permission to do so from the Secretary or delegate and you must obey all lawful instructions from and directions of the Secretary or delegate.
41 The further conditions that will be applied to you in your case are:
Supervision. You must be under the supervision of a community corrections officer for a period of two years.
Treatment and rehabilitation. You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional matter. You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the regional matter. You must 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. You must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager, and I have specified in the order that that is to include an anger management program and a men's behaviour program.
Judicial monitoring. You must reappear at court for a review of your compliance with the order as directed by the court. You must attend for review on 16 March 2018 at 9.30 am at the Melbourne County Court. A report is to be prepared and provided to the court by close of business on 9 March 2018.
Residual conditions. You are to remain abstinent from drugs and alcohol for the duration of the order.
42 Now, do you understand the terms and conditions of the proposed community corrections order as I have explained them to you?
43 OFFENDER: Yeah.
44 HIS HONOUR: And do you consent to me making an order in those terms?
45 OFFENDER: Yes.
46 HIS HONOUR: Do you understand that that order will be made in addition to a sentence of 163 days' imprisonment which you have already served?
47 OFFENDER: Yes.
Stand up Mr Litton
On charge 1 on the indictment (make a threat to kill) you are convicted and sentenced to 163 days’ imprisonment with a two year CCO with the conditions I have explained to you and which you have agreed to.
On related summary charge 5 (deal with property suspected of being the proceeds of crime) you are convicted and sentenced to 7 days’ imprisonment.
On related summary charge 7 (carry a dangerous article) you are convicted and sentenced to 1 month’s imprisonment.
I order that the sentences I have imposed on related summary charges 5 and 7 be served concurrently with the sentence of imprisonment I have imposed on charge 1 on the indictment and with each other; making a total effective sentence of 163 days’ imprisonment.
I declare pursuant to s18 of the Sentencing Act 1991 that the period you have served in custody in relation to these offences is 163 days (including this day) which is to be reckoned as a period of imprisonment already served under the sentences I have just imposed and I direct that that declaration be entered in the records of the Court.
Mr Litton, the effect of that declaration is that you have served the custodial component of this sentence and you will be released from custody as soon as is administratively possible. You will then have two clear working days to report to the Rosebud Community Correction Service.
Pursuant to section 6AAA of the Sentencing Act 1991 I state that but for your pleas of guilty I would have sentenced you to a total effective sentence of 14 months’ imprisonment with a non-parole period of 8 months.
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