Director of Public Prosecutions v Macumber
[2015] VCC 1699
•20 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01312
Indictment No. F10990876
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD JOHN MACUMBER |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 20 November 2015 | |
CASE MAY BE CITED AS: | DPP v Macumber | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1699 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Champion | Office of Public Prosecutions |
| For the Accused | Ms S. Seoud |
HER HONOUR:
1 Richard John Macumber, you have pleaded guilty to one charge of intentionally causing injury (Charge 1), one charge of aggravated burglary (Charge 2) and one charge of common law assault (Charge 3). The maximum penalty for aggravated burglary is 25 years’ imprisonment. The maximum penalty for intentionally causing injury is ten years’ imprisonment. The maximum penalty for common law assault is five years’ imprisonment.
2 The prosecution made application for a disposal order in respect of certain items seized. The making of that order was consented to.
3 The circumstances of your offending are set out in detail in the Prosecution Opening which was amended and then tendered as Exhibit A.
4 In brief, in about 2010 the complainant in this matter began renting an art studio and bungalow in a property in Footscray. For the purposes of these sentencing remarks I will call the complainant Diane. The person who was letting the property then arranged for you to come and join Diane as a housemate about three months after she began living there. In 2014 you and Diane agreed to get another housemate.
5 On the morning of Saturday, 14 March 2015 Diane was lying in bed in her bungalow. At about 9.45 am you knocked on the door and asked to talk to her. She opened the door and you asked if you could borrow some pliers. She had a number of pliers because of her occupation as an artist. Diane went with you to her art studio. She saw some pliers and asked if they were what you wanted. You took them and put them in your backpack. There was a pause and then you removed a dumbbell from your backpack. You then hit Diane on the side of the head with the dumbbell (Charge 1, intentionally causing injury).
6 Diane fell to the floor and was crying and trying to reason with you. You yelled at her and told her to shut up. She was screaming and you kept yelling at her and told her to stop. You then grabbed Diane around the neck and attempted to strangle her using both hands. She was afraid you were trying to kill her. She started screaming for help and asking for someone to call the police. She was struggling and you were trying to stop her. You had been lying on top of her on the ground and then you got up. You were between Diane and the door. She jumped up onto a table and jumped out of a louvre window shoulder first, breaking the louvres on the way through. She landed outside and ran straight to the rear door of the house and straight through the house. You were behind, chasing her.
7 Diane ran out of the front door and into the street screaming. She ran into a neighbour’s house, straight through the flywire door and stopped in the kitchen. The occupant of that house told his mother to call the police and closed the door behind her. You began to bang on the doors and windows. Another neighbour heard you say you were coming in and saw you force open the window of the neighbour’s house and climb through. Diane then saw you inside the house and she ran out the back door. You came out of the living room and into the hallway. Charge 2 of aggravated burglary is put on the basis that you went into the neighbour’s house knowing that Diane was in the house and with the intention of assaulting her.
8 You told the neighbour to get into his room. He refused and ran after Diane towards the back of the house, closing all the doors to try and slow you down. The neighbour’s mother was also in the house. She saw you, and you told her to “stay the fuck away from my wife”. The neighbour told Diane to follow him and jump over the back fence. He jumped over the back fence. Diane threw herself at the fence. As she did this, you came out the back door and grabbed her clothing and held onto her pyjama pants. (Charge 3, common law assault) She was partly over the fence and fell into the laneway.
9 Diane then ran screaming down the laneway into the street. She was absolutely hysterical and terrified and screamed to another neighbour that you were trying to kill her. She ran into that neighbour’s house and told him to ring the police. Another neighbour walked up to intercept you and you turned around and walked back into your house.
10 An ambulance arrived at the house where Diane was. She was too frightened to come out and the ambulance had to back into the driveway so she could be coaxed outside and into the van and be taken to hospital. Diane received a three centimetre laceration to the right side of her head as a result of being struck with the dumbbell, along with accompanying bruising, swelling and tenderness. This was treated with stitches. She also had bruises and abrasions all over her body, as well as a small cut to the right corner of her mouth, tenderness to the right side of her back, neck and shoulders, and pain in her mouth while eating.
11 On 19 March 2015 you presented at a police station. You were arrested. You have spent 246 days in pre-sentence detention.
12 A Victim Impact Statement from Diane was tendered as Exhibit B. She describes the impact on her of your offending, including her loss of neighbourhood community and social life as she no longer feels safe in that house or that neighbourhood. She says that her career and her relationships have suffered as a result of the impact on her of this attack. She says she frequently has flashbacks, nightmares, insomnia and panic attacks. It is clear that Diane continues to suffer considerable anxiety as a result of this attack. She also describes the negative impact on her of the legal process. It is also clear from Diane’s Impact Statement that she has considerable resilience and is doing the very best she can to not be defined by your crimes against her.
13 In sentencing you, I have taken into account your personal circumstances which were outlined by your counsel. You are now 39 years old. Your parents separated when you were five years old. You lived with your mother and her new partner until you were about 14 in metropolitan Melbourne. There was some physical intimidation of you by your step-father. Your mother and her partner moved to Queensland when you were 15 and you went to live with your father. You lived with your father until you were 19. You had some behavioural problems at school and attended four different high schools, finally completing Year 11, which you had repeated.
14 After leaving school you completed a Year 12 pre-tertiary entrance exam and achieved a high tertiary entrance ranking. You began a Degree in Psychology at Swinburne University but dropped out after about six months. You were employed in various forms of employment and for the last several years you have been employed in call centre work with various employers. In 2011 you were diagnosed with depression by your general practitioner and prescribed anti-depressants. You left employment in 2014 at a call centre due to your increase in drug use and ongoing emotional problems.
15 In addition to your work in call centres you have worked at a number of festivals, nightclubs and bars as a DJ.
16 From about the age of 19 you used LSD and then amphetamines. For some time you have used ice, heroin and cocaine and, in the period prior to 2014, you used only on weekends and were able to remain in employment despite your drug use.
17 You have had a number of relatively short-term relationships. In 2013 your then partner became pregnant. She decided to have a termination. You took about six weeks off work to try and deal with your emotional issues about this matter. You started using drugs more regularly and ultimately had to leave your employment. Following that, your drug use escalated to intravenous drug use. You began injecting cocaine in around early 2014. At the time of these offences you were using drugs on a daily basis. You would use ice and cocaine over the weekend but during the week would inject cocaine.
18 You have no prior criminal history.
19 You have told your counsel that on the night in question you smoked ice then went to the radio station and played music as a DJ. You then went to a bar where you drank heavily and took MDMA. Early the next day you bought a gram of cocaine and returned home and over a period of time injected the entirety of that cocaine. You say that you were heavily under the influence of drugs when this incident occurred. You have poor memory of the incident but have not suggested that there was any form of drug induced psychosis. In sentencing submissions, your counsel did not rely on Verdins’ principles.
20 Your counsel relied in mitigation on a number of factors, including:
(a) conditions in custody since your remand;
(b) completion of various programs in custody;
(c) your treatment in custody with an anti-depressant;
(d) your plea of guilty;
(e) your prospects of rehabilitation.
Your counsel also submitted that your offending ought be regarded as out of character in view of your lack of prior criminal history and the content of the references tendered. Your counsel submitted that whilst an immediate term of imprisonment would be warranted, a longer than usual parole period ought be allowed for to facilitate your rehabilitation and reintegration into the community.
21 In my view, this is very serious offending. I am satisfied beyond reasonable doubt that, for reasons that are unknown, you enticed Diane out of her room on a pretext in order to physically assault her. The possession of the dumbbell, together with the request for pliers and the suddenness of the attack, support that conclusion. The dumbbell was located after a neighbour saw you drop it in the street. A photograph of the dumbbell was tendered as part of Exhibit C. I am satisfied beyond reasonable doubt that the two weights on the dumbbell had been pushed up to one end and that the dumbbell had been modified at some time by you. Your counsel did not take issue with that conclusion when I raised it in the context of a submission as to lack of planning. I cannot be satisfied that you made the modification with the intention of assaulting Diane but you did take it modified and concealed when you got her to come out of her bungalow. The assault on Diane was planned to the extent that you were armed and requested the pliers.
22 You attacked Diane without warning. Hitting someone on the head with a weapon like a dumbbell is extremely dangerous and it was only a matter of good luck that Diane did not suffer more serious and long-lasting injuries than she has. It appears that you were under the influence of a large amount of drugs. This added to the dangerousness of the situation. Diane was so terrified that she launched herself through a glass louvre window and tried to flee from you. Diane was in her own home and should have been able to feel safe. You utterly betrayed the trust she had in you as a housemate.
23 You chased after Diane and broke into the neighbour’s house. You still had the dumbbell and were clearly after Diane and intending to assault her. It would have been evident to you that Diane was terrified of you. Whilst your reasons for pursuing Diane and the nature of any grievance you might have felt are unknown, I regard this as a confrontational aggravated burglary and as a serious example of aggravated burglary. This must have been a very frightening experience for the neighbour and his mother.
24 When Diane fled from that house you determinedly pursued her and tried to stop her escaping over the back fence by grabbing her clothing. The physical aspect of this does not constitute a serious assault in itself but grabbing in order to prevent escape and in light of the fear it caused Diane increases the seriousness of this offence. She was able to get over the fence and flee to another neighbour’s house. Given the persistent and bizarre nature of your attack on her and subsequent pursuit of her it is completely understandable that she was terrified that you would continue to go after her once she was in the second neighbour’s property. Fortunately, neighbours were able to come to the assistance of Diane, who would have otherwise been at considerable risk of further harm.
25 The objective seriousness of the offending is such that a sentence of imprisonment is clearly warranted for the purposes of denunciation, just punishment, general deterrence and specific deterrence. There are factors which do operate in mitigation of sentence.
26 You are entitled to a significant discount in sentence as a result of your plea of guilty which has saved the trauma and expense of a trial. I accept that your plea of guilty is also an expression of your genuine remorse. You pleaded guilty at an early stage. According to the references provided, you have acknowledged the offending and expressed your remorse as to its impact to numerous friends and family members.
27 There are a number of very positive references provided from people who have known you for some time. I accept, on the basis of your lack of prior criminal history and the content of those references, that this offending was out of character for you. You have support from your friends and family and will be able to reside with your father and step-mother on release from custody. In respect to your prospects of rehabilitation, it is of concern that you have not been able to give any explanation for your behaviour. If you do not have any insight into your offending or the underlying reasons for your drug issues then it is difficult to conclude that you have strategies in place to deal with those issues and reduce the risk of reoffending. I note that you have completed a program in custody which may have assisted you to commence your rehabilitation in relation to your drug use. I accept that you have reasonably good prospects of rehabilitation but would not assess your prospects of rehabilitation as excellent given your long history of drug use and difficulties in retaining ongoing employment or relationships.
28 Whilst your counsel did not rely on Verdins principles I accept that your current depression makes imprisonment somewhat more difficult for you. I have taken that into account in mitigation.
29 All of these offences were committed within a short period of time and were concerned essentially in the same incident. Some cumulation, in my view, is warranted to demonstrate the seriousness of your offending, the different parts of this incident and the additional trauma to Diane. In establishing the degree of cumulation I have taken into account the principles of totality and proportionality. I have also borne in mind the need to avoid double punishment in respect of the aggravated burglary and common law assault charges.
30 There is nothing in your personal circumstances or prospects of rehabilitation or matters in mitigation which would support the imposition of a shorter non-parole period.
31 On Charge 1 of intentionally causing injury you are convicted and sentenced to imprisonment for one year and six months.
32 On Charge 2 of aggravated burglary you are convicted and sentenced to four years' imprisonment.
33 On Charge 3 of common law assault you are convicted and sentenced to imprisonment for eight months.
34 The sentence on Charge 2 is the base sentence. Ten months of the sentence on Charge 1 and two months of the sentence on Charge 3 are to be served cumulatively on each other and on the sentence on Charge 2. The total effective sentence is five years imprisonment. I fix three years and six months as the period you are required to serve before being eligible for release on parole.
35 I declare that you have served 246 days of this sentence by way of presentence detention. But for your plea of guilty I would have sentenced you to a term of imprisonment of six years and six months with a non-parole period of four years and six months.
36 I have made the order for forfeiture and disposal that have been sought. Thank you.
37 Ms Champion, can you confirm that the 246 days accords with your calculations?
38 MS CHAMPION: Yes, Your Honour.
39 HER HONOUR: Thank you. Otherwise, is there anything that does not add up or is of a technical nature that I have missed?
40 COUNSEL: No, Your Honour.
41 HER HONOUR: Mr Macumber, you have heard my reasons for sentence. I hope you use the time in custody to work further on the issues that are underlying whatever your situation is, so that you never get in this situation again. Thank you.
42 COUNSEL: If Your Honour pleases.
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