Director of Public Prosecutions v Lovett

[2019] VCC 479

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02370

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEONARD LOVETT

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	5 April 2019
DATE OF SENTENCE:	8 April 2019
CASE MAY BE CITED AS:	DPP v Lovett
MEDIUM NEUTRAL CITATION:	[2019] VCC 479

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Aggravated burglary – reckless cause serious injury – declaration of pre-sentence detention.  

Cases Cited:Younger v The Queen [2017] VSCA 199, DPP v Ty [2009] VSCA 226, R v Broad [1999] VSCA 149, Bugmy v The Queen [2013] HCA 37.

Sentence:Total effective sentence of four years and six months imprisonment with a non-parole period of three years and three months before being eligible for parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S Devlin (Plea) Ms V Worrell (Sentence)	Director of Public Prosecution
For Accused Lovett	Ms J Hughes (Plea) MS B Goding (Sentence)	Papa Hughes Lawyers

HIS HONOUR:

1Leonard Lovett, on 5 April 2019, you pleaded guilty to the following charges on indictment C1811646:  

2Charge 1, aggravated burglary at 8/7 Lawford Street in Doncaster on 5 January 2018.  This charge has a maximum penalty of 25 years' imprisonment. 

3Charge 4, recklessly cause serious injury to Adam Basso.  This offence occurred after you had entered the property in the early hours of 5 January 2018.  This charge has a maximum penalty of  15 years' imprisonment.

4Pursuant to the provisions of s.145 of the Criminal Procedure Act.  You pleaded guilty to two related summary charges:

5Charge 6, is a charge of commit an indictable offence whilst you were on bail.  This charge has a maximum penalty of three months' imprisonment. 

6Charge 8, is a charge of failing to answer bail.  This charge has a maximum penalty of two years' imprisonment.

7You were arrested on the day of the offending and you have been in custody for 455 days to the date of your plea.

Circumstances of your offending

8The victims of your offending lived at 8/7 Lawford Street in Doncaster.  On 5 January 2018, Mr Tonon and yourself met up in Collingwood.  Mr Tonon wanted you to see Mr Brown to resolve a dispute, and he took you with him. 

9Mr Tonon was accompanied by you, and you drove his car to the premises in Doncaster. You parked outside 15 Lawford Street in Doncaster, just up the road from the premises where Mr Brown lived.

10The two of you arrived at approximately 1.50 am.  Mr Tonon placed a steering lock on the car.  You then have gone to the premises together.  Mr Tonon was armed with the canister of Oleoresin Capsicum spray (“OC spray”). 

11You knocked on the locked outside screen door that was external to the locked wooden door at the premises.  Mr Tonon hid behind a brick pillar. Mr Basso was woken by the noise and came to the front door of the premises.  You asked Mr Basso for "James", referring to Mr Brown.  Mr Basso went and got Mr Brown, who came to the door.  Mr Basso went back to his bedroom. 

12As Mr Brown came to the door, your co-accused, Mr Tonon suddenly appeared next to you.  Mr Tonon reached out and grabbed Mr Brown and tried to pull him outside the premises.  Mr Brown resisted and Mr Tonon discharged the OC spray in his face. 

13Mr Brown has then called out to Mr Basso to come and assist him.  At that point, Mr Tonon was still trying to pull Mr Brown outside the premises.  Mr Basso arrived and attempted to close the screen door, but Mr Brown's arm was jammed in the doorway.  They got inside the unit and shut the door. 

14Mr Tonon has then smashed a window and tried to unlock the front door.  You have kicked the front door in and you and Mr Tonon both entered the flat.  That is the basis of the aggravated burglary charge.

15Mr Tonon and Mr Brown then started fighting between themselves.  Whilst that was going on, you commenced assaulting Mr Basso.  You approached Mr Basso and you began fighting.  At some point in the fight, Mr Basso obtained the chair leg and a pair of scissors.  You received a cut and a graze to your shoulder area from the scissors.  In effect, you had been stabbed in the top part of your shoulder by Mr Basso.

16During a break in the struggle, you then obtained a knife from the kitchen. 
You began struggling again.  During that struggle, Mr Basso has been stabbed once in the stomach by you.  The wrestle continued until you were forced out of the front door.  You then have run to Mr Tonon's car.  Mr Basso followed you out the front door with the knife still in his stomach and collapsed on the lawn.  Mr Tonon walked out of the flat and passed Mr Basso, holding the chair leg.

17Mr Basso has pulled the knife from his stomach and crawled, seeking assistance from one of the other flats there.  Mr Brown has called the emergency services.  An ambulance has arrived and treated Mr Basso for life-threatening injuries, and he was then rushed off to the Royal Melbourne Hospital.

18He was operated on and required two segments of his bowel to be resected.  He also received a wound to his left palm and middle finger, which caused tendon and nerve damage to his hand.  This injury required surgery to repair his tendon damage.  That is the charge of recklessly cause serious injury.

19In the confusion of the fight at the premises, Mr Tonon had lost his car keys and your means of escape was lost.  You then ran in a westerly direction down Lawford Street to the Lawford Reserve.  You then disposed of your singlet and tracksuit pants in the park as they had Mr Basso's blood on them.

20You were later arrested at approximately 7 o'clock in the driveway of a house some 400 metres from the premises where the offending took place.  You had no upper clothing on.  You were wearing shorts, socks and runners which appeared to have some bloodstains on them.

21At the time of the offending, you were on bail.  You had been bailed at the Melbourne Magistrates' Court on 6 December 2017 to appear again on
16 January 2018 in relation to a criminal damage charge.  That is related summary charge 8, offending whilst on bail.  In addition to that, you did not appear at the Drug Court hearing on 19 December 2017 - which was failing to appear on bail, which is related summary Charge 6. 

22You exercised your right to make a "No comment" record of interview when you were arrested.

Victim Impact Statement

23A victim impact statement has been filed by Mr Basso.  It is dated 29 March 2019.  He states how the stabbing injury has left him with long-term digestive problems and severe stomach cramps.  He also received injury to his hand which required 20 stitches, and has nerve damage to his middle finger as a result of the injury to his hand.

24As a result of the stomach wound, he required surgery to reset two segments of his bowel.  The long-term effect of the injury has left Mr Basso homeless and without friends.  You did not know him prior to this incident.

25Mr Brown also filed a victim impact statement dated 4 April 2019.  He sets out how he lost his tenancy at the flat as a result of this offending.  He says he is scared and does not trust anyone.  The offending has had a significant impact on both the victims.

Your Personal Circumstances

26At the time of the offending, you were 29 years old.  You are now 30 years old.  You are an Indigenous man whose country is around the city of Warrnambool.  Your mother abandoned you when you were very young.  You were raised by your auntie, Lynette Lovett, and her husband, John Wilson.  You refer to them as your mum and dad.  Your younger brother, Anthony, also resided with your auntie Lynette.

27You were told that Lynette and John were not your biological parents when you were approximately seven years of age.  This left you in a very confused state and a sense of abandonment and not belonging.  You were placed in foster care and moved from family to family. 

28Your primary school education involved at least four separate primary schools that you can remember.  By your high school years, you were back with Lynette and John.  This was a stable time in your life.

29You attended Copperfield College in the inner western suburbs of Melbourne.  You commenced a computer course at Victoria University.  You ceased that course and commenced a course in cabinet-making at the TAFE.  You did not complete that course because you took up the role of carer for your sick father, John Wilson.

30Lynette died when you were 18 years old.  John Wilson died approximately two years later.  Your mother - that is, your biological mother, Denise - also passed away in that period of time.  The death of these three people in such a short space of time took away the stabilising influences in your life and affected your mental wellbeing.

31You have a significant criminal history.  In February 2009 at Sunshine Magistrates' Court, you were convicted of theft of a motor car, affray, and robbery, and placed in juvenile detention for nine months.  That was the beginning of your slide into a criminal history involving charges of dishonesty, violence, and public disorder, breaches of court orders, drug use, and damaging property. All up, you had 18 separate court appearances for your offending.  You have served a number of sentences of imprisonment.

32You have had a battle with alcohol, cannabis and methylamphetamine abuse.  I note that at the time of this offence, you were due at the Drug Court.  You have since served a sentence for those offences, and I will come back to that.

33You have been assessed by Alice Crole, a psychologist.  Her report is dated
28 January 2019, which is Exhibit “L1” on the plea.  She assesses that you have mixed anxiety and depressive disorder.  You have severe alcohol and cannabis use disorder.  Your differential diagnosis is opioid use disorder and ADHD.

34At present, you have a job in the laundry at Barwon Prison where you are now incarcerated.  You have completed a number of courses whilst in prison and on remand for these matters.  You have attended courses on drug rehabilitation, cultural matters to do with your Indigenous background, Healthy Lifestyles, and a course in cleaning operations.  Your plan on release from prison is to get a job as a cleaner for the Aboriginal Health Services in Fitzroy.  You are currently on a methadone program whilst in prison.

Sentencing Considerations

35The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, and denunciation of your actions, and the protection of the community. 
In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it, and your personal circumstances. 

36I am also required to balance the interests of community in denouncing your criminal conduct with the interests in the community in seeking to ensure, as far as possible, that you, as an offender, are rehabilitated and reintegrated into society.

37I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly but not exclusively to the kind of sentences imposed in comparable cases and the statistics for those sentences.

38I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed, they are from one another.  Ultimately, current sentencing practices is but one of the factors I have to take into account in fixing your sentence.

39You have pleaded guilty to these charges.  Your plea of guilty was indicated at an early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.

40Your plea allows for the preservation of court and police resources to deal with other matters, and your plea vindicates the public confidence in the legal process set up to protect the community.

41Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community, and I accept that your plea of guilty to these charges indicates and demonstrates remorse on your behalf.

42In this case, your plea of guilty is significant because neither of your victims are required to give evidence.  The prosecutor tendered the extensive prior criminal history of each of your victims.  A trial which was centred on their evidence would have been problematic. Your plea of guilty in those circumstances is to be balanced against the seriousness of the offending when considering your total effective sentence.  Your plea of guilty is of significant value to the criminal justice system.

43You have been in custody since the day of your arrest for these offences. 
The total days in custody are 458 days, not counting this day.  Ms Hughes submitted on your behalf that pre-sentence detention should be declared for the whole of the period; that is, 458 days.

44Whilst you have been in custody in August 2018, you were sentenced to a term of imprisonment of seven months for other non-related offending.  You have served that full sentence whilst you were on remand for these offences.

45Due to the timing of the two hearings - that is, August 2018 and 5 April 2019, the day of the plea - you have been denied the chance of making submissions for concurrency in respect of that seven-month sentence.  I did not have a copy of the court record for that sentence of seven months. 

46Ms Hughes submitted that the pre-sentence detention had not been declared in respect of the seven-month sentence.  Further, I do not know if the magistrate in August 2018 ordered the seven-month sentence to be served concurrently with other state sentences.

47Ms Hughes relied upon the authority of Younger v The Queen [2017] VSCA 199, and in particular at paragraph 69 and 70, to support her submission.
On that occasion, the Court of Appeal stated as follows:

"As we have said, s.18 of the Act provides that any period of time during which an offender is held in custody ‘in relation to proceedings for the offence’, or ‘proceedings arising from those proceedings including any period pending the determination of an appeal’, must be reckoned as pre-sentence detention unless the court orders otherwise.  Pre-sentence detention is therefore not confined to periods where the offender is in custody only because of the offence for which pre-sentence detention is being calculated.

The entire period the appellant spent in custody — from his arrest for the robbery offence to his resentencing in this Court for the robbery offence — counted as pre-sentence detention notwithstanding the fact that some of it was served concurrently with another sentence.  At the time that the appellant fell to be resentenced that period was 504 days."

48In Younger's case, the Court of Appeal referred to an earlier decision of
DPP v Ty [2009] VSCA 226. At paragraphs 39 and 40, the Court of Appeal stated as follows:

"Fourthly, that conclusion sits comfortably with the enlarged application of s.18(1) resulting from its amendment in 1997, and with authority to the effect that ‘custody’ where used in the subsection includes imprisonment under sentence pending appeal.   As to the former, s.18(1) no longer requires that the person be in custody only in relation to the offence in respect of which PSD is being calculated.  Prior to its amendment in 1997, the sub-section did so provide.  PSD in respect of an offence was limited to a period of time during which the person was held ‘in custody in relation to proceedings for that offence …and for no other reason’.

Thus if a person was held in custody for another reason - for example, if he or she were serving another sentence at the time - the period did not count as PSD. Section 18(1) was amended by the Sentencing and Other Acts (Amendment) Act 1997 by omitting the words ‘and for no other reason’.  The fact that in R v Broad and the cases which have followed it, s.18(1) has been held not to apply where a person is on remand for one offence whilst serving sentence for another does not mean that the omission of the words ‘for no other reason’ did not effect a substantial change in the ambit of s.18(1)."

49The Court of Appeal has not overturned the decision in R v Broad [1999] VSCA 149, in respect of the application of s.18(1) of the Sentencing Act, to circumstances such as these where a term of imprisonment is imposed and served during a period of remand for the current charges.  At paragraph 10 of Broad's case, Mr Justice Bookings stated as follows:

"I have no doubt that it was not intended by the amendment to stand the system of pre-sentence detention on its head by allowing sentenced prisoners to treat the time they spend in custody in serving their sentence not only as the punishment they are undergoing in consequence of their conviction but also as a period in which they are held in custody pending their trial on undisposed of charges, a period which fairness requires be brought to account if they are ultimately sentenced on those charges."

50The result is that the proper declaration for pre-sentence detention in your case is 248 days.  That is the 458 days you have been in custody, less the 210 days you were sentenced in August 2018.  The declaration of 248 days pre-sentence detention is made on a background that you have been continuously in custody for 458 days.

51The totality principle is relevant in your sentencing in two ways.  First, the totality of the seven months already served on other charges when added to the sentence for these charges is one aspect.  Secondly, the totality has application in determining the appropriate cumulation of the sentences in each of the charges in this sentencing process here.

52The objective seriousness of the aggravated burglary charge is informed by the following factors: 

(a), I accept that when you first went to the premises your intention was to confront the victim Mr Brown, either on your own account or at the request of your co-accused, Mr Tonon, to do with drug-related matters;

(b), you kicked in the door of the premises when Mr Brown refused to come outside the flat and talk to the both of you;

(c), you did not have a weapon but Mr Tonon did have the OC spray;

(d), there were two entrants - that is, yourself and Mr Tonon - into the premises;

(e), the offence occurred at 2 o'clock in the morning;

(f), that you did not know Mr Brown and there was no evidence Mr Brown had any cause to be frightened of you or Mr Tonon, and;

(g), the purpose for entering the premises was to effectively frighten Mr Brown off from badmouthing either your extended family, as had been told to you by Mr Tonon, or to back up Mr Tonon in his difficulties with Mr Brown.

53This offending was an opportunistic example of an aggravated burglary, and at the lower end of the range for this type of offending.  Mr Brown was prepared for any unwanted visitors.  He used a weapon displayed in Exhibit “B” to repel both Mr Tonon and yourself from the premises.  The weapon was a chair leg with three-to-four-inch nails protruding from the end of it like a spiked club.

54The offence of recklessly cause serious injury is also a serious offence. In this case, you did not know your victim, Mr Basso.  You did not have a weapon with you upon entering into the premises.  In the course of the fight between yourself and Mr Basso, once you were in the premises, you were stabbed in the back with a pair of scissors held by Mr Basso.  That was Exhibit “C”, a photograph of the injury you received.

55You then armed yourself with a knife from the knife block on the kitchen bench, and in the continuing fight, stabbed Mr Basso once in the abdomen.  It was the one stabbing action.  You could have killed Mr Basso.  The effect of the injuries to Mr Basso have been set out earlier in these reasons.

56This sequence of events reduces the moral culpability for such a serious offence.  I take into account that you were on bail for other offences when this offending occurred, and find it as an aggravating feature of the offending, both in the aggravated burglary and the recklessly cause serious injury.

57You have an extensive criminal history.  Your offending commenced at about the time of the death of your auntie Lynette, and the person who you regard as your mother.  Your biological mother and Lynette's husband also passed away in those times close to your initial contact with the criminal justice system.

58I do not accept that you have endured the deprivation due to your Aboriginal status as set out in Bugmy's case.  Rather, I accept that you have had some setbacks in life, but in your early years, auntie Lynette gave you the stability and a chance to educate to Year 12 level and subsequently go to Victoria University.  The abuse of alcohol, drugs and falling into violent behaviour have sent your prospects in life on a downward spiral.

59You have re-engaged with your Aboriginal culture whilst you were in custody this time.  You have a job in the laundry and have completed courses of a rehabilitative nature.

60I regard your prospects of rehabilitation as fair.  You are only 30 years old. 
You have a chance, with the assistance of the Adult Parole Board, to get back on your feet with employment as a cleaner and support to control your drug and alcohol addictions upon your release.  I note you are still on a methadone program whilst you are in custody.

61The only appropriate sentence for these offences is a term of imprisonment.  The criminality in this offending is best described as unplanned and evolving, escalating violence in response to resistance from your victims.  This does not mean that the victims are to blame for your offending.  It highlights the stupidity behind your offending. 

62Will you stand, please?

63In respect of Charge 1, you are convicted and sentenced to three years' imprisonment.

64In respect of Charge 4, which is the recklessly cause serious injury, you are convicted and sentenced to two-and-a-half years' imprisonment.

65In respect of the related summary charges, Charge 6, which was the offending whilst on bail, you are convicted and sentenced to one month imprisonment.

66In respect of the charge of failing to answer bail, which is Charge 8, you are convicted and sentenced to four months' imprisonment.

67I direct that 18 months of the sentence in Charge 4 be served cumulatively upon the base sentence of three years in the aggravated burglary charge.

68That is a total effective sentence of four years and six months.

69I set a non-parole period of three years and three months before you are eligible for parole.

70I order that, pursuant to s.6AAA, but for your plea of guilty, I would have sentenced you to a sentence of six years' imprisonment with four years non-parole period.

71And I declare the pre-sentence detention as 248 days for the reasons
I previously announced.

72And I sign a disposal order.

73MS GODING:  As the court pleases.

74MS WORRELL:  As the court pleases.

75HIS HONOUR:  Mr Lovett, what I have given you is four-and-a-half years on the top and you have got three years and three months before you are eligible for parole.  You can take a seat.  Is there any other matters?

76MS GODING: Your Honour, just in relation to Mr Lovett's sentence, I refer to s.16(3)(C) of the Sentencing Act:

"Every term of imprisonment imposed on a person for an offence committed while released on bail must, unless otherwise directed by the court, be served cumulatively."

77I just ask, for the sake of completeness ‑ ‑ ‑ 

78HIS HONOUR:  I will direct ‑ ‑ ‑ 

79MS GODING:  ‑ ‑ ‑ that the formal declaration of concurrency be made.

80HIS HONOUR:  Yes, I will direct that - first of all, that sentence is to be served concurrently with all the other sentences.  Part of it is that Mr Lovett - the totality of the time he has currently spent in custody and will spend in custody is to be taken into account.  And that I have treated, in the sentencing and the other matters, his drug addiction and the like as being part of his criminality, in effect.  And because of that, it is also rolled in together.  They are the reasons.

81MS GODING:  As the court pleases.

82HIS HONOUR:  If they want better reasons, I will give them.

83MS GODING:  As the court pleases

84HIS HONOUR:  Thank you.  If you could remove the prisoners?  Thank you.  Thank you, counsel, for your assistance.   

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