Director of Public Prosecutions v Lofthouse

[2015] VCC 1661

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT HORSHAM
CRIMINAL JURISDICTION

CR-15-01299

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEAN LOFTHOUSE

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JUDGE:	JUDGE MURPHY
WHERE HELD:	Horsham
DATE OF HEARING:	18 November 2015
DATE OF SENTENCE:	18 November 2015
CASE MAY BE CITED AS:	DPP v Lofthouse
MEDIUM NEUTRAL CITATION:	[2015] VCC 1661

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Moran	OPP
For the Accused	Ms J. Clark	Victorian Aboriginal Legal Service

HIS HONOUR: 

1Dean Lofthouse, you have pleaded guilty to one count of aggravated burglary; one count of making a threat to inflict serious injury; one count of criminal damage; and an uplifted summary count committing an indictable offence on bail.  The maximum penalties for the offences are set out in the Crown opening, which was read in open Court, and which I incorporate by reference.

2The circumstances of the offences are also set out in the Crown opening, which was read in open Court this morning, and I incorporate that by reference.  In brief summary, this was alcohol-fuelled event that occurred in Horsham, commencing at about 2 am when you attended at the premises at 17 Felstead Avenue, where you intended to confront the complainant in the matter, who allegedly had sold drugs to your 14-year-old son.

3You were intoxicated, angry and agitated, and you began yelling at the complainant and banged on the door.  You were dissuaded from doing anything by the failure of the complainant to respond at that point.

4Two hours later, you and another individual who has not been charged returned to the address.  At that point, you had armed yourself with a short metal pole, and you proceeded to arrive at the door, and then proceeded to strike parts of the house, and also grab and remove an aluminium flyscreen from a window and damaged it, and threw it onto the front lawn.  You also smashed two sections of the aluminium window frame at the rear of the house.

5The complainant got out of bed and called the police, and at that point the police officers heard you yelling at the complainant, "Open the fucking door, I'm going to smash your head in."  And, "You motherfucker, you are fucked, cunt."  The complainant was scared.  Those statements constitute the Charge 2 of making a threat to inflict serious injury.

6You returned to the front door at that point and began banging on the door.  You also opened a switchbox and turned off the power.  You then smashed a frosted glass panel at the front section of the window, adjacent to the door, and put two holes in some chipboard window sections near the door.  All the damage that you did to the house is constituted as the count of criminal damage.

7When the complainant heard the smashing glass window, he looked and saw that you had leaned into the house using your upper body through the broken window adjacent to the door.  He took aim at you with a metal bar, and that dissuaded you, and then you withdraw that upper part of your body or your trunk, and then left the premises.

8The police arrived, and shortly thereafter intercepted you and Wiltshire, the other person involved.  They arrested you and took you to the police station where you placed in the cells to deintoxicate, so that you could be interviewed.  You were interviewed subsequently and effectively made full admissions to the conduct.  In the interview, you made a number of abusive references to the complainant.

9The offence of aggravated burglary, as I said, is constituted by you placing your upper body halfway through the window or into the house, and I  have already indicated what is the offence of threatening to inflict serious injury.  Criminal damage is the damage to the property, which is evident on the photos.

10The day before that, you had been remanded to attend at the Horsham Magistrates' Court on 10 June 2015, on a number of counts of assault and resisting emergency workers, and possessing and using cannabis.  As you were on bail at the time, this is the basis for the uplifted summary count of committing an offence on bail.

11Assessing the seriousness of the offences.  The learned Crown prosecutor in a frank submission, put that the offence of aggravated burglary here was in the lower end of the scale.  In a sense, it is a technical entry; a technical burglary, because you were not able to get your whole body into the house.  At the same time, it must have been a frightening affair for the complainant, because you had inflicted damage on the property using a metal bar, although the metal bar had been discarded by the time you got around to entering the property.

12There was no excuse for the making of the threat to inflict serious injury on him, and it is clear from the record of interview that you were in an agitated and alcoholic state, making various allegations against him.  But this was a case where you attempted to engage in self-help.  You should have taken your allegations of him allegedly selling drugs to your son - you should have taken that the police, rather than going around there in a drunken state and attempted to engage in self-help.

13No victim impact statement has been filed by the complainant, but as I say, it must have been a frightening experience for him at 4 o'clock in the morning to have damage to his house, and you accompanied by another person, yelling and screaming and breaking his windows, and attempting to get into the house.

14And the aggravating feature of the whole event is that, the day before you had had your bail extended on a number of other matters.  So all in all, the offence of aggravated burglary is at the lower end of the scale.  The offence of making a threat to serious injury is a mid-range offence.  The criminal damage is a lower range offence, but it is still a serious matter, in the sense that there is $360 odd worth of damage done to a nice looking property, and the aggravating features of all matters, you were on bail at the time.

15I turn to your prior convictions.  You have admitted some minor traffic offences in Victoria at Portland, and also handling and receiving stolen goods that you were convicted and fined $200 in May 2004, and then another offence in July of 1994 of unlawful possession where you were fined.

16You also admitted a criminal record in New South Wales, South Australia and Western Australia.  The offences in New South Wales are between 2004 and 2012.  The offences between 2004 and 2007 include larceny; driving whilst disqualified; suspected possession of stolen goods; receiving property.  So they are dishonesty offences.  There is also a failure to appear offence, and behaving in an offensive manner on 29 January 2007.  And the most recent one in New South Wales was common assault, on 10 September 2012, and destroying property on the same date, with a bond on the common assault, and $250 fine.  So that is the most recent assault type offence.

17The offences in South Australia involve dishonesty in 2004, estreatment of bail in 2003, and breaking and enter in 1999, and larceny, where you were sentenced to a suspended sentence of eight months' imprisonment.  So that is something like 16 years ago.  And there is also 1995, failing to have a helmet.

18In Western Australia, the offences dated between 2011 and 2008.  They are mainly traffic offences and drink driving offences, and driving whilst unlicensed, the most recent being in 2011.

19So overall, your prior convictions are lower level offending.  There are some offences of violence, one or two, and dishonesty and traffic offences and failing to have a license and driving, and some drink driving offences.  So this is the most serious offence you have been before a court for, and your record, as I say, while it is limited, it is not insignificant, but the recent offending is of a lesser seriousness.

20Your personal circumstances.  Your personal circumstances were outlined by your counsel Ms Clark.  You are aged 40.  You are unemployed.  You live in the area, and have been living here for two years.  You and your partner who was in Court to support you have six children.

21You come from a difficult upbringing, in that you had to leave school at age 15 when your mother suicided, and you were brought up in the Bairnsdale area, the youngest of three children, and your father apparently was in gaol at that time.  You have been with your partner for some 20 years, and in the course of that relationship you have been to three different states.  Four, including Victoria, as is clear from your prior convictions.

22On the plea, it is indicated that you have had a work record, and the most recent work was in a meatworks in Western Australia in quality assurance, but at the moment you have not been working.  You are looking for work, and you are on a job search program.

23Explanation for the offending.  The explanation for your offending put by you in the record of interview and reiterated by your counsel was alcohol.  And it obvious that you have alcohol problems; you have got drink-driving convictions, and you admitted in the record of interview that you drink a lot, and you also have got problems taking cannabis.

24So since the offending, and without any coercion, you have voluntarily engaged with a David Henwood at Grampians Community Health, and you also to address the use of cannabis.  And obviously alcohol is at the seat of that offending, and that needs to be addressed.  I would suspect that if there was a psychological report, it would say that you have been using alcohol to self-medicate to cover your childhood trauma, but there is no point in speculating.

25On the plea, your counsel filed two references, one from a neighbour and another from a person who knows you in Horsham, and both of them indicate that you are a reasonable sort of person, interacting well with your family.

26On the plea, your counsel put that this offending ought be addressed by a sentence that does not involve your imprisonment, and she referred me to the recent decision of Boulton on community corrections orders.  Community corrections orders may be imposed where previously a suspended sentence might be imposed, and where the Court takes the view that your rehabilitation into the community is the most important sentencing consideration.

27I have had you assessed for a community corrections order, and that indicates that you are suitable, and you are a medium risk for reoffending.  It is clear that the offending here involves alcohol.  You have also admitted you have got anxiety.  Obviously you have been dealt with for possession and use of cannabis.  It is obvious, and you admit in the record of interview that you had been using a lot of cannabis.  You need to address that, and you have indicated through your counsel that you hope to do that.  So drug counselling is also required.

28It is also obvious from the record of interview that you have got an anger management problem, particularly under the influence of alcohol, and therefore an anger management program would be of assistance to you, to stop you taking the law into your own hands and getting angry about certain slights in relation to your children, and indeed what is indicated in the assessment by the community corrections office, that would assist you in relations with both your own children and with your partner.

29So you have got some insight into your offending, and I will take that into account.  On the plea, your counsel put that this is an early plea of guilty, and that was not dispute by the prosecutor.  This is recent offending, in that it only took place in May this year.  The matter was resolved at the first committal mention on 29 July, and there has been no need for a committal, and the complainant, as I say, has not been put through that and has not had to come to Court, and for some reason did not file a victim impact statement.

30So all those matters would seem to indicate that this serious offending is, in relation to your recent criminal record, somewhat out of character and indicating that you do need to get a grip with the problem with alcohol.  Your counsel indicated that you have been voluntarily abstinent since July of this year.

31It is important that you address your alcohol problem.  You have got five of your children living at home, and they are looking at the male figure in the house as a role model, and so it is not good for children to be in a position where their role model is engaged in excess use of alcohol.

32The 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 factors, such as the seriousness of the offences; your culpability for them; 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.

33Now in this case, general deterrence will be served by a lengthy community corrections order.  Specific deterrence will also be served by a community corrections order that will seek to mandatorily ask you to address your alcohol and drug problems.  Punishment will also be served by your being required to undertake community work.

34In relation to your prospects of rehabilitation, I regard them as reasonable, but really they require you to address this issue of excess alcohol consumption and get yourself a job.  And if you do that, then I regard the prospects, as I say, as reasonable, and then they will improve through your own conduct.  And the actions you have already taken in engaging with Grampians Community Health indicates you are on the road to doing that.

35So you have indicated you are prepared to consent to a community corrections order.  The sentence I am going to impose is a community corrections order, if you consent, with conviction, of two years with a number of conditions.

36The first of them is that you will be under supervision of the Community Corrections Officer; secondly that you engage in programs for the assessment and treatment of drug use.  Thirdly, that you engage in programs for the assessment and treatment, including testing, of alcohol.

37And the fourth one is offender behaviour programs.  So that is a men's behavioural change program, and I have heard evidence from the woman who conducts that program, the director, in this circuit, and she has got a program there for men like you who have got anger management problems.  And it is a 12 week program, 12 session programs, and she is indicating that it has got a reasonable success rate in this town.  So that is the sort of program you need so you will not reoffend.

38In addition, I am going to require that you undertake 150 hours of community work over the two years period.

39Being on a community corrections order, and I will ask Ms Clark to explain it to you after we have had it prepared, is a good behaviour bond for a two year period.  If you commit an offence carrying a term of imprisonment in the next two years, you will be dealt with for that offence, you commit another offence, because of breach of a community corrections order, and you face the risk of being resentenced for this offending.

40So I can assure you that if you are caught before a court with some serious offending, particularly violent offending or trespass type offending, you are going to be doing time.  Now, you have not served a term of imprisonment yet, and 40 years old, I see you as at a fork in the road in your life.  It is time a man of your age, wakes up to yourself, gets the grog under control, be an example for your children, get a job and do not come back into Court.

41In addition to that the prosecutor have sought a forensic sample from you.  I regard the offending as serious enough to justify a forensic sample.  I am going to make that order, and you have got to report to the police within 28 days to give them that sample, and they can use reasonable force to get it from you.

42In addition to that, the prosecution have sought a compensation order to Horsham Real Estate of $326.  You have got to pay that out of your unemployment benefit.  And a forfeiture order in relation to the pole and broken glass.  So I am making those orders as well.

43I will stand down while the community corrections order is prepared, and I would ask you, Ms Clark, to explain it to your client.  And then I will resume.

44MS CLARK:  As Your Honour pleases.

(Short adjournment.)

45HIS HONOUR:  Mr Lofthouse, you signed the order.  I have signed the order.  As I say, this is the most serious sanction you have been given, and if you commit offending in the next two years, or fail to comply with the Office of Corrections orders like turning up for the community work; turning up for supervision appointments; committing offences; failing to go to the anger management program; failing to go to the counselling with the Grampians Health, that breaches the order, and you will be brought back here, and you will not get any mercy from me, do you understand?  I will make a special trip up from Melbourne to deal with you.

46OFFENDER:  Yep.

47HIS HONOUR:  And in addition that, you have got 28 days to turn up at the police station to give them a saliva sample.  You have got to pay to the local real estate agent $326, and then forfeit the pole.  And you have got two days to turn up to the Horsham Community Corrections Service, and they are just around the corner.  You know where they are.  Anything else, Madam Prosecutor?

48MS MORAN:  No, Your Honour.

49HIS HONOUR:  All right, well I thank you for your assistance, Ms Clark.  Thank you, Ms Moran, for your assistance in this plea and the circuit.  Adjourn all unheard matters until the next circuit, and if the police officer could pass on my thanks to the station manager for the provision of the police during the last four weeks.

50MS MORAN:  Thank you, Your Honour.

51MS CLARK:  As Your Honour pleases.

52HIS HONOUR:  All right, we are going to adjourn sine die.

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