Director of Public Prosecutions v Lloyd

[2022] VCC 540

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00872

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL LLOYD

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2022
DATE OF SENTENCE:	13 April 2022
CASE MAY BE CITED AS:	DPP v Lloyd
MEDIUM NEUTRAL CITATION:	[2022] VCC 540

REASONS FOR SENTENCE

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Subject: Aggravated burglary, Making a threat to kill, Criminal damage and others

Sentence: 4 years and 6 months imprisonment. 3 years non parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G. Overend
For the Accused	Mr C. Oldham

HIS HONOUR:

1Daniel Lloyd, you have pleaded guilty to four indictable charges and one related summary offence.  Dealing first with the indictable charges, the offending occurred between July and 15 November 2020.

2Charge 1 is a charge of aggravated burglary.  The maximum penalty for this offence is imprisonment for 25 years.

3Charge 2 is a charge of making a threat to kill.  The maximum penalty for this offence is imprisonment for 10 years.

4Charge 3 is a charge of criminal damage.  The maximum penalty for this offence is imprisonment for 10 years.

5Charge 4 is a charge of persistent contravention of a family violence
intervention order. The maximum penalty for this offence is imprisonment for
five years.

6The related summary charge is that of resisting police when they were arresting you.  The maximum penalty for this offence is imprisonment for six months.

7As you can see from the maximum penalties prescribed by the parliament, it regards offending of this kind seriously.  In passing sentence, I must have regard to the maximum penalties as one factor in arriving at an appropriate sentence.

8You were born in January 1974.  At the time of this offending, you were aged 46 and you are now 48 years of age. Prior to this offending you have no relevant criminal history.

9The circumstances of your offending are summarised in a summary of prosecution opening dated 19 September 2021.  That document was read to the court by the prosecutor, Ms Overend.  Your counsel, Mr Oldham, accepted that the prosecution summary was accurate and forms a proper factual basis upon which I can proceed to pass sentence upon you.  In those circumstances it is not necessary that I here set out in detail all of the facts but do so only in an abbreviated way.

10These sentencing remarks should, however, be read with what is set out in more detail in the summary.

11You and the victim in this offending met as neighbours, each of you occupying units in the same block.  A relationship between the two of you extended over about two years but you did not live together.  The relationship ended and the victim obtained an intervention order against you at the
Dandenong Magistrates’ Court on 19 May 2020.  All the conditions of the intervention order are set out in paragraph 5 of the prosecution summary.  In short, you were not to commit family violence as defined against the victim and you were not to communicate with her in any way and you were not to go near her.

12You breached the intervention order.  Between 31 July 2020 and
20 October 2020 you sent the victim 18 messages on your Facebook account.  Between 25 October 2020 and 15 November 2020 you sent a further
64 messages.  The messages were vile and were highly offensive and abusive of the victim.  They do not bear repetition here but are summarised at
paragraph 12 of the summary. (Charge 4 persistent contravention of a
family violence intervention order.)

13On 15 November 2020 you sent another series of messages to the victim on your Facebook account in which you threatened to kill her.  Those messages are summarised at paragraph 13 of the summary and also do not bear repetition here.  They are threatening and repugnant.  Towards the end of them you threatened to come and smash the victim’s windows. (Charge 2 making a threat to kill.)

14Soon after the victim heard a loud smashing sound.  She then saw you outside her window where you were smashing her window with a hammer.  This was caught on CCTV footage where you can be seen smashing the window with a hammer whilst shouting abuse at the victim.  The CCTV footage and sounds makes for terrifying viewing and listening.  It can only have been a terrifying experience for the victim.  (Charge 3 criminal damage.)

15Having smashed in the living room window to the victim’s unit you then lifted yourself up and entered the victim’s unit through the smashed window.  As you entered you raised the hammer up with the victim believing you were either going to throw it at her or attack her with it.  She was terrified that you were there to kill her. Your intent in entering the victim’s home was to assault her, as you had threatened to do. (Charge 1 Aggravated burglary.)

16The victim fled the unit and ran for help at a nearby bottle shop. Police attended and commenced their investigations soon after.

17Police arrived at your place of residence soon after in order to arrest you.  You told the police they were going to have to do it the hard way.  When you moved towards the police they were forced to use capsicum spray.  You were taken to the ground and handcuffed. (Related summary charge resist arrest.)

18When taken back to the Dandenong police station you were placed in a holding cell due to being alcohol affected.  When interviewed later you told police you had not slept the previous day, having stayed up all night drinking stubbies of beer.  You described the victim with whom you had been in a relationship for
two years as a, 'cunt'.  You admitted breaching the intervention order.  You told police you were generally drunk when you sent the messages on Facebook.  You also said that the victim stopped replying to your text messages about
two months ago and that it was evident at that stage that she no longer wanted to have any sort of relationship with you.

19This is clearly very serious offending in a relationship breakdown or
domestic violence context. You committed this offending out of jealousy and because the victim had broken off your relationship with her.  You may have been drunk at the time you offended, which may explain in part the offending, but your moral culpability for the offending is high. You subjected the victim to repeated and vile abuse and you repeatedly threatened her with violence.  You subjected her to violence.  You entered the sanctity of her home armed with a weapon and for the purpose of assaulting her whilst she was alone.  This is a bad case of confrontational aggravated burglary.

20In order to protect herself in a lawful way the victim obtained a family violence intervention order which was served on you and which you acknowledged you understood.  But that could not protect her from you.  You persistently breached the intervention order. You proceeded to treat her in a way that no woman should have to endure.  The only redeeming feature of the threats to kill, if there be one, is that the threats were made on Facebook messaging and not face to face.

21Clearly the sentencing principles of deterrence (both general and specific), denunciation and especially protection of the public and just punishment have to be fully taken into account in sentencing you.  The sentence needs to send a clear message to others that might behave as you have, that if they do so, they will likely go to prison. I must also take into account all of the matters in mitigation advanced on your behalf, and your prospects of rehabilitation.

22The prosecution filed a Victim Impact Statement from the victim and it was read to the court by the prosecutor.  It is a telling document which chronicles the devastating effect which criminal conduct of this kind can have upon the victim.  The fear and consequences can be long lasting.  Perhaps forever.  The victim already had a complex psychiatric history caused by trauma in her childhood.  This incident triggered her post traumatic stress disorder, which developed into severe exacerbation of disturbing symptoms.  Part of the Victim Impact Statement is a medical report from her treating GP, Dr Hanna.  I have taken all of this fully into account.

23You were arrested, charged and remanded in custody on 16 November 2020.  The matter resolved without a contested committal on 28 April 2021.

24You have pleaded guilty to the charges and that is very much to your credit.  I treat you as having pleaded guilty to the charges at the earliest opportunity.  By pleading guilty you have saved the time and costs of a trial.  Importantly, by pleading guilty and not contesting the charges you have saved the victim of your crimes from having to be called to give evidence and thereby having to relive what you did to her.

25Your pleas of guilty to the charges are especially important in the present environment where this court is faced with a considerable backlog in criminal trials because of the COVID-19 pandemic. By pleading guilty you have not contributed to that backlog and you are entitled to a significant reduction in sentence for having done so.  See R v Worboyes [2021] VSCA 169, recently reinforced by the joint judgement of Priest and T. Forrest JA in
Barnard (a pseudonym) v R [2022] VSCA 42 at [18].

26By pleading guilty to each of the charges, you have accepted responsibility for your offending and you have advanced the administration of justice.  For that you are entitled to, and will receive, a reduction in sentence and this will be reflected in the overall sentence that I will soon impose. Your pleas of guilty also signify remorse for this offending, which I have taken into account.

27You have served 514 days in custody by way of pre-sentence detention.

28I turn to some matters personal to you.

29Mr Oldham, who appeared as counsel on your behalf, filed an amended draft outline of submissions and an additional written outline.  He conceded that your offending was serious in nature, but he submitted, correctly, that you acted alone and not in company.  He also submitted, correctly, the offending occurred during the day and not at night and you did not inflict injury once you had entered the victim's residence.  In my judgement those undisputed facts go little way to reducing the seriousness of what you did.  I think the only reason you did not inflict injury upon the victim was because she managed to flee from the unit.

30Mr Oldham told me this is your first time in custody and you have no other charges pending.  I accept that to be the case.

31You are now 48 years of age.  You have three brothers who all reside interstate.  You were born and raised in Melbourne’s south-east.  Your parents separated when you were aged 13.  Your father was an alcoholic and died in 2011.  You witnessed family violence between your mother and father.  You continue to share a close relationship with your mother.

32You completed a secondary education and commenced a
chef’s apprenticeship.  You worked as a cook at hotels and restaurants. You were keen on football and basketball until around the age of 24 and you maintained a healthy lifestyle.  Thereafter you regularly consumed alcohol and you ceased sport.

33You have had a good, steady employment history.  After ceasing work in hospitality you commenced working in security.  You commenced a certificate in disability support but did not complete it.

34I was told that in your early 30s between 2006 and 2008 you became psychotic and were hospitalised and diagnosed with schizophrenia.  You were once engaged earlier in your life but you are presently single, unmarried, with no children.  You hope to seek work truck driving or being a courier upon release.

35You have been on remand through the pandemic and I acknowledge this has impacted prisoners in many ways, making time in custody more burdensome than it would normally be.  Prisoner movements within the prison have been restricted, as has exercise. Visits have been restricted mostly to online zoom visits and the availability of courses to prisoners has been reduced.  I was told, and accept, that whilst in custody you have completed a drugs and alcohol course as well as seven further courses listed in paragraph 13 of Mr Oldham’s additional outline.  You have also engaged in the Nexus Bridge program which will assist you upon release.

36Mr Oldham submitted your prospects for rehabilitation are good.  You have a limited criminal history, family support and accommodation to go to upon release. I was told, and accept, that you have remained drug and alcohol free whilst in custody and you have been of good behaviour, but you suffer from
mental illness that requires you to maintain your medication.  You know what the consequences might be if you do not.  I think your prospects for rehabilitation are guarded.  I acknowledge this has been your first time in custody, which you have found salutary.  Your prospects are guarded because it depends upon you maintaining your prescribed medication and you staying clear of drugs and alcohol.

37I received into evidence a psychological report from Carla Lechner dated
29 September 2021 (Exhibit 2).  You told her that you had previously been diagnosed with schizophrenia in about 2006 after suffering a mental breakdown
'possibly triggered by drug use'.  You also told her that despite your
mental health problems, you have been well maintained on medication and able to work consistently.  Ms Lechner said in her report that your offending appeared to have occurred during a period of non-compliance with medication.  You also told Ms Lechner that the victim was, 'mentally torturing', by calling you whilst engaged in sexual relations with other men.  As the prosecutor quite properly pointed out, that was just you victim blaming.

38Ms Lechner said this at p3 of her report:

Although not formally assessed in this regard, Mr Lloyd impressed as being of, 'low average', intelligence.  His ability to engage in consequential and reflective thinking is undermined by his mental health problems.  He finds it hard to see the bigger picture on account of some delusional beliefs.  He finds it hard to identify specific triggers to his negative feelings, stating, 'As soon as I get on medication I'm a completely different person'.  He could not elaborate how.

He stated that he feels anxious, 'surrounded by people or the noise of this place, gaol'.  He stated that he feels angry, 'about being locked up when I shouldn't be.  Well, maybe I should have been.  I was pushed to it'.

39As regards drugs and alcohol her report includes the following in her report
at p4:

Mr Lloyd admits to a past history of polysubstance abuse.  He stated he has, 'smoked ice about two to three points at a time', used ecstasy, cocaine, speed and cannabis on a recreational basis, described by him as, 'about
once a week'.  He stated that he did not like cannabis and that he suffered the breakdown after using ecstasy.  Mr Lloyd is currently prescribed the antipsychotic agent, risperidone, and the antidepressant, Pristiq.  He stated that the risperidone, 'works when I take it'.  With respect to alcohol Mr Lloyd stated that his consumption, 'depends on if I'm going to work or not.  A
dozen beers during lockdown, more alcohol, a slab a day keeping me occupied'.

40Ms Lechner's overall opinion includes, inter alia the following at pp5 and 6:

Mr Daniel Lloyd, aged 47 years, is before the court pleading guilty to charges of persistent breach of intervention order, aggravated burglary, make threats to kill, criminal damage, resist police, offences that occurred between
September and November 2020.  Mr Lloyd has a very limited prior history of offending.  He reports being diagnosed with schizophrenia in 2006, his psychosis possibly triggered by drug use.  He has been well maintained on antipsychotic medication and has a steady employment history.  Mr Lloyd appears to have decompensated in the context of multiple factors, including the end of an intimate relationship, a lack of work due to COVID-19, increased alcohol intake and cessation of his prescribed medication, which he complained takes away his, 'manhood'.  It is likely that his allegations at the affected family member was mentally, 'torturing', him by calling lost having sex with other men, are delusional in nature.  He reports that he effectively lost the plot in the setting of this, 'torture'.  Whilst he is now back on his medication and his auditory hallucinations have diminished, he still evidences positive symptoms of psychosis. Mr Lloyd would been from community support that focuses on his treatment needs.

And later:

The consequences of his offending are a matter for the court to determine.  From a purely psychological perspective Mr Lloyd would benefit from ongoing psychiatric supervision and care in the community.  He is finding his time in custody extremely difficult in the context of declining mood and limited access to psychiatric care, with an attendant belief that he is given,
'fake medication'.

41Mr Oldham also relied upon a psychiatric report of Dr Sachin Jindal, who assessed you via video link from prison.  Dr Jindal had available to him all of the relevant papers in the report of Ms Lechner.  His opinion is lengthy but bears setting out here.  His opinion is as follows:

Mr Daniel Lloyd is a 48 year old man whose background is characterised by alcohol dependence in his father, physical and emotional abuse from his father, parental separation in his early teens, starting using alcohol in his
mid-teens, which became a habit over the years, and having psychotic symptoms in 2006.  It is also to be recognised that remains symptom free and with gainful employment for more than 10 years after he became well.  Unfortunately, he had a relapse of psychosis in the prison setting, which has now improved as he sought help for adjusting his medications.  After considering his longitudinal history, in my view, he suffers from schizophrenia.  However, he did not display any symptoms of psychosis at the time of my interview, which was indicative of the beneficial effects of medication.  He would also satisfy criteria for alcohol dependence, currently abstinent in controlled setting.  His description of his treatment is appropriate for his psychiatric condition.

It is difficult to ascertain from the available material whether Mr Lloyd was having a relapse of the schizophrenia at the time of the offending.  His relapse is characterised by auditory hallucinations and persecutory delusions, which were present when he had relapsed in the prison setting at the time of the psychologist's report.  His report to me that his partner was, 'hag sex on the phone and making him believe stupid things', is suggestive, however, we have also to take into account that he was drinking almost a slab of beer daily at the time and that would have also affected his reasoning significantly.  Never-the-less it is also clear that he was finding the relationship stressful for a long time.  He reported a suicidal attempt in 2019 due to the relationship and was seeing a psychologist.  His change in career and his knee injury, along with coronavirus situation put him under considerable stress, which he compounded by increasing his alcohol intake in an attempt to cope.  I believe that these factors need to be taken into consideration in further decisions.  Also he has had a relapse of psychotic symptoms in the prison setting, which has now improved, fortunately, and tries to keep to himself.  I'm of the opinion that imprisonment will weigh more heavily on him than it would on a person in normal health.  He had more than

10 years of mental health stability and employment history until 2019 and reported seeking support in getting back to the workforce after release.  Prolonged incarceration would reduce his motivation and ultimately adversely affect his future rehabilitation and integration in the community.

42There is no evidence that schizophrenia caused or contributed to this offending.  You have suffered from schizophrenia in the past and this has been appropriately treated with medication.  The fact remains, and as you told police, you were drunk at the time you offended, having been on a two day bender without sleep, and you were not taking your medication at the time.  There is no evidence you were provoked in any way by the victim, although you apparently think she goaded you.

43I have concluded that you do suffer from delusions and you require appropriate medication, which you are receiving in prison and your mental state has improved in a prison setting.  I accept Dr Jindal’s opinion that you would find prison more burdensome because of your mental health and I have taken this into account.

44I was told and accept that you have a knee injury which requires surgery which can be done electively after you are released from prison.

45Mr Oldham acknowledged that a sentence of a term of imprisonment was inevitable but he submitted that I should impose a combination sentence of time served in prison with a community corrections order with appropriate therapeutic conditions and conditions to reduce your chances of re-offending.

46The prosecution submitted that this offending is far too serious for such a disposition, especially as this offending was committed in a domestic
violence/ relationship break up context.  The prosecution submitted that the sentencing purposes of deterrence (both general and specific), denunciation and especially protection of the public and just punishment could not be achieved without the fixing of a total effective sentence and the fixing of a
non-parole period.   I accept that submission:

47On Charge 1, aggravated burglary, you are convicted and sentenced to a term of imprisonment of three and a half years;

48On Charge 2, make threat to kill, you are convicted and sentenced to a term of imprisonment of one year;

49On Charge 3, criminal damage, you are convicted and sentenced to a term of imprisonment of six months;

50On Charge 4, persistent contravention of a Family Violence Intervention Order, you are convicted and sentenced to a term of imprisonment of one year;

51On related Summary Charge 8, resist police, you are convicted and sentenced to a term of imprisonment of one month.

52I direct that six months of the sentence imposed on each of Charges 2 and 4
cumulate upon the sentence imposed on Charge 1, making a total effective sentence of four and a half years' imprisonment.

53I direct that you serve a minimum term of three years' imprisonment before being eligible for release on parole.

54For the purposes of s6AAA of the Sentencing Act 1991, had you not pleaded guilty to the charges I would have imposed a total effective sentence of
seven and a half years' imprisonment, and I would have fixed a minimum term
of five years' imprisonment, before which you would have been eligible for release on parole.

55I declare there has been 514 days' pre-sentence detention already served of the sentences past this day and I direct that 514 days be reckoned as having been served, be entered into the records of the court and be deducted administratively.

56Are there any questions arising out of that, Mr Oldham?

57MR OLDHAM:  No questions, Your Honour.

58HIS HONOUR:  Ms Overend?

59MS OVEREND:  Your Honour, there is also a disposal order sought in relation to the hammer.

60HIS HONOUR:  Yes.  Is that opposed, Mr Oldham?

61MR OLDHAM:  No, Your Honour.

62HIS HONOUR:  I will sign that order.

63MS OVEREND:  Thank you, Your Honour.  There is also one other matter, just of a minor nature.  Your Honour referred to, I think, the summary of prosecution opening dated 19 November, but a summary of prosecution opening was filed on 31 March 2022.  Your Honour clearly referred to the 31 March 2022
summary.

64HIS HONOUR:  Yes.

65MS OVEREND:  But I just point out Your Honour gave the wrong date, that was all.

66HIS HONOUR:  Thank you, I will correct that.

67MS OVEREND:  Thank you, Your Honour.

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