Director of Public Prosecutions v Llewelyn

[2025] VCC 737

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00416

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL LLEWELYN

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2025
DATE OF SENTENCE:	30 May 2025
CASE MAY BE CITED AS:	DPP v  Llewelyn
MEDIUM NEUTRAL CITATION:	[2025] VCC 737

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Theft; intentionally damage property; common assault

Legislation Cited:      Sentencing Act

Cases Cited:Bugmy v The Queen 249 CLR 571; Khoshaba v The King [2023] VSCA 65

Sentence:                  9 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms N. McGregor	Office of Public Prosecutions
For the Accused	Mr G. Heughan	Ann Valos Criminal Law

HER HONOUR:

1Michael Llewelyn, on 4 March 2025 you pleaded guilty to one charge of intentionally damaging property and two charges of theft. On 18 March 2025 a jury found you guilty by a majority of a further charge, common assault. All of these offences occurred in the same incident.

2A charge of causing injury in the same incident was withdrawn from the jury, and you were found not guilty in respect to two charges of common law assault. One of those charges involved an allegation that you brandished knives at the victim, the other that you grabbed her by the throat.  You were also found not guilty of aggravated burglary, in respect to the same incident.

Summary of Offending

3Ms Gregory is the victim of these charges.  You had been in a casual relationship with her for several months at the time of the offending. Your relationship, such as it was, was characterised by frequent drug use, mostly methylamphetamine, and what was described as infrequent sexual intercourse. You and Ms Gregory would socialise at either one of your houses, sometimes in the company of acquaintances, and smoke methylamphetamine.

4In the early hours of 26 March 2017, you learned that Ms Gregory and a male friend of yours might be engaged in sexual activity together.  You were very angry at the allegation and decided to go over to her apartment, to see if he was there.  When you arrived, you saw his car nearby.  You entered the home of Ms Gregory via a side door, which was unlocked.

5You went to Ms Gregory's bedroom which was in the upstairs of the house and saw her in bed with this man. She woke up to see you in the doorway. You then left and went downstairs. You told the police that you 'lost it' and smashed the kitchen door. You pleaded guilty to Charge 6, a charge of criminal damage, on that basis. 

6Ms Gregory got dressed and followed you downstairs.

7The two of you had a confrontation in the kitchen, which involved shouting and swearing. Ms Gregory shoved you away from her, causing you to fall back into the kitchen wall, which caused damage. You responded by pushing her head into the door which caused damage to the door. The jury found you guilty of that charge.  Thus, I will sentence you on the basis that the damage to the door (Charge 6) was caused by the conduct of pushing Ms Gregory's head into the door.  The door was closed at the time. Ms Gregory described it has her head being 'cracked into the door'.[1]

[1]Transcript 57.4

8You then left Ms Gregory's home, taking with you her Samsung Galaxy phone, and her wallet containing bank cards, cash, and driver's license. She realised you had taken them after you had left.  You pleaded guilty to two charges of theft, in respect to those items (Charges 8 and 9).

9Ms Gregory complained to the police the next day, 27 March 2017. Later that day you were formerly interviewed, and you exercised your right not to comment.

10On 30 March 2017 police executed a search warrant at your address and located Ms Gregory's phone and wallet.

VIS

11Ms Gregory made a victim impact statement outlining the effects of your offending upon her. She describes not feeling safe in her home, which appears for a time to have been close to yours, and she said that her mental state was 'really impacted' by seeing you drive past every day. Her oldest son knows there is a 'bad man we hide from', although her younger children are not able to understand that yet.

12Ms Gregory stated that despite your offending she is trying to forgive you. She says while she is worried she may not ever move past your offending, against her she is happy that she 'gets to try'.

Personal Circumstances

13You were born in 1986 and are now 38 years old. You were adopted from an orphanage in Thailand when you were around two years old by your adoptive parents who lived in Bendigo. Despite a number of issues that troubled your childhood, you have described your parents and your childhood as stable and 'the best [you] could think of'.

14You have no knowledge of your biological parents. You explained to Ms Mynard, a psychologist who assessed you in 2023, that you pretend your early childhood is not distressing you, but you find speaking about it triggering and upsetting. You also told her that you did not want to contact your biological parents because you did not want your adoptive parents to feel insulted or that you did not appreciate their care.

15Your parents also adopted a three-year-old girl from the same orphanage in 1994, when you were around eight years old. You report that you had a normal sibling relationship with your sister.  She now has three children of her own. You say that you and she do not have much contact now due to influencing each other negatively.

16Your parents would take you and your sister on trips to Thailand to help you understand where you were from and to connect with your heritage. They took you to other countries and places within Australia. You say your parents were focussed on taking you and your sister on these trips and were not materialistic.

17You attended Maple Street Primary School, where you report you were the only student from a diverse background, which sometimes made you feel isolated. You then attended Creek Street Christian School from Years 7 to 9. You say that you were an average student, and that you could achieve good grades when you applied yourself. You enjoyed playing sports, which you were very good at.

18You say that you became overly confident at that time, and that you had decided that you would not allow others to take advantage of you, it seems to me that you turned from being bullied into being the bully. You held a part-time job at Safeway and would steal cartons of cigarettes to sell at school. Your parents would sometimes have to come to the school to intervene due to your behaviour.

19In Year 9 you moved to another secondary school and moved again to Bendigo Senior College for Years 11 and 12. This was the school where your father worked. You completed VCE, achieving a good result, particularly in mathematics, in which your father had tutored and encouraged you.

20You moved to Melbourne in 2005 and lived in a share house. There was drug use in that house, and you report a disagreement with the housemates. In 2007 you came back to Bendigo and lived with your parents.

21You worked at Safeway when you were in your teens but were fired when you were caught stealing. You completed an electrical apprenticeship, after you finished VCE, but you have since been disqualified as a result of taking cash jobs and bypassing meters. You began a pre-apprenticeship in 2005 and worked on the construction of a new primary school as a result.

22You spent three years in the army before you were discharged. You say that you liked the feeling of achievement but it was not the right fit for you. Your last employed position was for a fencing company in Bendigo.

23You have lived with your parents for numerous intervals in between periods of incarceration. Your parents are getting older, and although they still support you, you stated in 2023 that they no longer visit you in custody, and would only talk to you on the phone.

24You have a child with the victim of the offending for which you were sentenced in 2023.  She was 14 or 15 at the time she became pregnant.  I have no information about how much contact you will be permitted to have with your child.

25In your recent period of incarceration, you have completed courses related to employment, substance abuse, and personal development. 

Drugs and Alcohol

26A significant factor in your life is your abuse of drugs. You first report using drugs such as amphetamines, ice and MDMA when you moved to Melbourne in your early 20s, using on 'special occasions' and at festivals.  After a period of incarceration in 2011 you began to associate with people whom you had met in custody, and you started using ice more regularly, smoking three to four days in a row and then abstaining for a few days.  In 2023 you told Ms Mynard you had been using drugs less, but you were still addicted and you would become anxious if you did not have a ready supply on hand.

Mental Health

27

You were sexually assaulted by a family friend when you were nine years old. The perpetrator was the partner of your father's best friend. You say you knew it was wrong, but when you were questioned about it the next day you brushed it off.  The first time you told anyone else about this you were 24 years old, and you still do not like to talk about it.  Your father maintained a friendship with that man, and you chose not to interfere with that by telling your father what had happened. 

Ms Mynard notes that you 'feel dismissed, confused, and self-blaming' that your parents remained friends with the person who assaulted you, and the partner.

28Ms Mynard observed that you were not securely emotionally attached to anyone in your very early life while you were in the orphanage in Thailand. She considered that both this, and the abuse that you suffered as at the age of nine may have caused your emotional and moral maturity to be underdeveloped, contributing to a 'lack of emotional awareness, impulsivity, and lack of consequential thinking'.  She considered your emotional intelligence was very low.

29

On testing your scores indicated severe ranges in anxiety and depression, consistent with your description of brooding and having trouble coping with negative emotions.  You have had depression, including suicidal ideation. 

Ms Mynard diagnosed Generalised Anxiety Disorder, Persistent Depressive Disorder, past drug induced psychosis and stimulant use disorder.

Criminal Record

30You have a significant criminal history.  I was provided not only with your history occurring before these offences, but also the subsequent record.

31

The first matters on your adult criminal record are from 2004, when you were

18 years old.  Between then and 2009 you were before the courts several times, for dishonesty and driving offences. 

32The first term of imprisonment actually to be served which you received was in 2011, after you had breached various community based dispositions and suspended sentences.  In 2014 you received a new CCO with conditions related to drug abuse, and mental health treatment, including an anger management course.  This was for a range of offences including drug possession, intentionally causing injury, and dishonesty offending.  You were breached on those orders in 2015.

33In 2016 you were sentenced to a year imprisonment, with a non-parole period of six months for a range of offending, including breaching a family violence safety Notice. 

34The offending in this case was committed in March 2017.  In October 2017 you were sentenced for recklessly causing injury, persistent breach of family violence intervention order, possessing drugs, and making a threat to inflict serious injury.  You received 90 days, to be followed by a CCO. 

35You were then sentenced in September of 2018 in the County Court to a total of three years, with a non-parole period of two years, for trafficking to a child, persistent contravention of a family violence intervention order, trafficking, recruiting a child to engage in a criminal act, and dishonesty offending, amongst others.  A further six months sentenced was imposed in December 2018, for trafficking charges which was related to information found on your phone shortly after the offending against Ms Gregory.  Three months of that sentence were ordered to be served concurrently with the other sentences imposed in 2018.

36In 2022 at Bendigo Magistrates you were sentenced to a total of four months, to be followed by a CCO, for offending against your parents, including persistent contravention of a family violence order, stalking and making a threat to inflict serious injury. 

37You are still serving the sentence of six years and six months with a non-parole period of four years and six months imposed by Chief Judge Kidd, as he then was, in August 2023, for sexual penetration of a child under 16 and other offences.  You will become eligible for parole on that sentence in late 2026.

38Your criminal record is relevant to your prospects of rehabilitation, and also to the issue of totality, both of which I will come back to later.

Matters Raised in Mitigation

Pleas of Guilty

39First, you pleaded guilty to three charges for which you fall to be sentenced, and were found guilty of one further charge, being the charge of common law assault.  You are entitled to a discount in your sentence in respect to the charges where you pleaded guilty, although due to the contesting of Charge 5 the potential utilitarian benefit did not actually arise. 

Bugmy

40At the plea hearing your counsel submitted that your history of having been abused should be accepted as having some impact in mitigation. In his sentence, Kidd CJ acknowledged that the principles in Bugmy had some general application to you, although he noted that you did not have a childhood of profound disadvantage and so the effect on the sentence was more modest.  

41I also accept that there is some application of these principles in respect of this offending, although the crimes for which I must sentence you are not sexual offending, and so the matters raised by Ms Mynard regarding your sexual boundaries do not have any application. Your childhood was marked by instances of trauma which have impeded your emotional development, and this has had some effect on your ability to control your emotions and reactions.

Prospects of Rehabilitation

42Chief Judge Kidd said that he was pessimistic about your prospects generally. Your criminal history, in combination with the issues discussed by Ms Mynard certainly give rise to some concerns.  You have committed a range of offences, and breached many court orders, of different types.  Your emotional immaturity, and ongoing issues in respect to drugs present real issues for you to overcome if you are to remain offence free in the future.

43It is to your credit that you have done the courses more recently whilst you have been serving your sentence.

Totality and delay

44The offending in this matter occurred more than eight years ago, and since then you have completed:

§Sentence of 90 days, with a CCO for family violence offending

§Sentence of 3 years, with a non-parole period of two years, for drug and other offending;

§Sentence of six months for other trafficking, three months which was concurrent with the three years I just mentioned; and

§Four months imposed in 2022 for a range of other offending.

45The offending for which you were sentenced by Chief Judge Kidd in August 2023 was committed after your release from custody in 2021 and before and after the 2022 sentence. You were arrested in respect of those charges of sexual penetration of a child under the age of 16 on 21 May 2022.  You were sentenced to six years and six months, and are still serving that sentence.

46Your barrister submitted that the principle of totality meant that any sentence I imposed should be wholly concurrent with the sentence you are presently undergoing.  He argued I should ask myself what sentence you would have received if you had been sentenced at the same time for the current matters and for the offending for which Chief Judge Kidd sentenced you. 

47I do not accept that there should be complete concurrency with the sentence you are still serving.  The offending against Ms Gregory is distinct from all the other offences for which you have been sentenced since.  The only link to the six months imposed in December 2018 is that that offending was around the same time as the offences for which I will be sentencing you.  Whilst those past sentences are part of your history and circumstances,[2] they do not themselves lead to a discount in the sentences to be imposed by me by the application of the principle of totality.

[2]Khoshaba v The King [2023] VSCA 65, [21]

48The offending for which you are currently serving a sentence took place around four years after the offending before me and is of quite a different character.  If complete concurrency were ordered this would fail to reflect that Ms Gregory is a separate victim of your crimes, in a wholly unrelated incident.

Gravity of Offending

49It was submitted that the reason for you committing these offences was that you felt Ms Gregory and the man she was with had betrayed you.  This must be considered in context.  You were not in a committed relationship with Ms Gregory.  One of the motivating factors in her taking up with the other man was that you yourself were engaged in sexual activity with other women.  I accept that you also felt betrayed by the other man, who had been living at your apartment.  This motivation is not mitigating.

50I accept that your violent emotional reaction to seeing them together was in keeping with the emotional immaturity and reactivity noted by Ms Mynard, and this reduces your moral culpability, only to a small degree.

51Whilst you did not return them of your own volition, Ms Gregory did recover her phone and wallet, after the police had searched your flat for other reasons.

Sentence

52In arriving at sentence I must have regard to the principles of general deterrence and also in your case, give substantial weight to specific deterrence.  There are also the sentencing factors of just punishment, denunciation, and protection of the community.  This was an angry assault on somebody who, whilst in a casual relationship had been an intimate partner of yours, and your actions in taking the phone and her wallet were effectively revenge for the perceived wrong.  The offences against her were committed in her own home where she was entitled to feel safe.  Your conduct should be condemned.

53The sentences are as follows.

54Charge 5 – charge of common law assault – three months' imprisonment.

55Charge 6 – criminal damage - three months' imprisonment.

56Charge 8 and Charge 9, both being of theft - I will impose an aggregate sentence of six months' imprisonment.

57Two months of the sentence on Charge 5, and one month of the sentence on Charge 6 are to be served cumulatively upon each other and upon the six months aggregate which I imposed on Charges 8 and 9.  I have reduced the amount of cumulation in respect to Charge 6 because of the closely related circumstances between that and the charge of common law assault. 

58The total effective sentence is nine months' imprisonment.  I direct that four months of the sentence I have imposed today to be served cumulatively upon the sentence you are presently serving. 

59There is no pre-sentence detention to declare.

60Pursuant to s6AAA I note that on Charges 6, 8 and 9 you have pleaded guilty.  It is rather artificial to give a s6AAA declaration where there is also a jury verdict on Charge 5, but I say that combined, if you had not pleaded guilty to those three charges the total effective sentence would have been 12 months' imprisonment.

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