Director of Public Prosecutions v Malone (a pseudonym)

[2016] VCC 360

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

AT GEELONG
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN MALONE (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	19 February 2016
CASE MAY BE CITED AS:	DPP v Malone (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 360

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty
For the Offender	Mr A. Zingler

HIS HONOUR: 

1John Malone[1], you can seated for the time being.

[1] John Malone is a pseudonym.

2You pleaded guilty to an indictment charging you with three charges of intentionally causing injury, making a threat to inflict serious injury, making a threat to damage property, criminal damage, persistent contravention of family violence orders, stalking, aggravated burglary and three offences of indecent assault.

3You also admitted a number of related summary offences; offence of aggravated burglary.  Five offences of unlicensed driving, committing an indictable offence whilst on bail, three charges.  Unlawful assault, and wilful damage.

4You have admitted your criminal record showing a number of prior court appearance and convictions.  I note that the two most recent court appearances being on 18 December 2014, and 24 April of 2015, were in respect of matters that occurred prior to the offending conduct, subject of this indictment and the related summary offences.

5The prosecution tendered and relied upon a prosecution opening on the plea, which is Exhibit A.  It is quite a lengthy document, it was read on a previous occasion, I am not going to read it again.  I incorporated its entirety into these reasons for sentence, and it is available for members of the public and the press to have access to it, should they desire to do so.

6It catalogues a series of offences on different days, directed towards your former partner, Ms Walsh,[2] and involves stalking her, persistent contravention of family violence order, and involves aggravated burglary and various assaults upon her. You were also in breach of bail conditions at that particular time.

[2] Linda Walsh is a pseudonym.

7All of the related summary offences involve offences occurring during the same period, and all of those also were committed in circumstances where you knew you were to face court in respect of a number of other matters.

8The stalking and the aggravated burglary and the various assaults that you committed upon Ms Walsh are very serious and the effect that it had upon her and, indeed, upon her mother, is reflected in the victim impact statements which are exhibits B and C on the plea hearing.  I take those into account.

9I was provided by your counsel with an outline of defence submissions, that is Exhibit 1, and on an earlier occasion I ordered a psychological report upon you which was provided by Professor Michael Daffen on behalf of Forensicare. 

10That report provides some useful background information.  I am not going to go through that in any detail, but it provides no excuse for your conduct.  Clearly, your life has been attended significant drug abuse.  It may be that your relationship with Ms Walsh was turbulent, but none of that provides any excuse for your behaviour.  You are well aware of that and made clear on your plea by your counsel that you were ready to accept your sentencing on this matter, and to look to the future and to endeavour to address your substance abuse problems and other issues.

11You have pleaded guilty to these matters and you are to receive credit for that.  The basis upon which you had intended to contest the charges was such that the plea, a negotiated one, was, I think, reflective of admissions you had been prepared to make at an earlier stage and, therefore, I give you full credit for your plea of guilty in this matter.  You are entitled to the full utilitarian benefit of the plea which will save the community a good deal of money and has saved Ms Walsh having to re-live these events and give evidence against you in the trial, and other witnesses the inconvenience of attending.

12I am not going to catalogue your life history.  That is set out in the Forensicare report and that too forms part of the material relied upon at the plea hearing.

13The plea was directed substantially at pointing out that you had served quite substantial terms of imprisonment as a result of your court appearances respectively on 18 December 2014, and 24 April of 2015, and that those matters substantially arose from the same relationship with Ms Walsh and had a court been dealing with all of these matters at once, an overall sentence clearly would have been structured and that I should take those sentences into account, to some extent, in applying what is known as the totality principle, that is, endeavouring to impose a sentence which is just in all the circumstances.

14It is not a particularly easy task for me to perform in the circumstances.  There is no pre-sentence detention in respect of this matter, is there

15Mr O'Doherty?

16MR O'DOHERTY:  No, Your Honour.

17HIS HONOUR:  But having regard to the fact that there is no pre-sentence detention to be taken into account in respect of these matters, I have done my best in structuring the sentences that I intend to impose upon you, in a way which, seems to me, to take into account, in an appropriate way, the totality principle.

18I am required to punish you for these offences and your criminal record is such and your previous behaviour is such that this represents a substantial escalation in your criminal conduct.

19I am required also to denounce conduct of this kind; domestic violence is to be abhorred, and this is a serious case involving serious domestic violence.

20I am required also to impose a punishment which deters you from committing further offences, and has the capacity to deter others from committing offences of this kind.

21It was conceded on behalf of your counsel, or by your counsel, that a substantial custodial sentence was inevitable, as I say, the plea was directed substantially at the application of the totality principle.

22It seems that you have the capacity to work.  You received a substantial sum in compensation for an injury; much of that has been blown away on extravagance and the use of ice.  It is to be hoped that during your period of incarceration you will be able to avail yourself of further programs designed to assist you to overcome your ice and other substance abuse problems.

23The other aspect of sentencing that I need to take into account is the need to promote your rehabilitation to the extent I reasonably can.  Clearly, your prospects of rehabilitation, at this stage, have to be regarded as guarded to poor.  But I am inclined to think that you, in the cold light of day, are now capable of addressing these problems and resuming a productive life on your eventual release.

24Doing the best I can to balance all of those sentencing considerations I am now ready to impose sentence upon you.  So would you please stand.

25Firstly, dealing with the offences on the indictment. 

26On Charge 1, of intentionally causing injury on 18 September 2014, I convict you and sentence you to imprisonment for a period of nine months'.

27On Charge 2, of aggravated burglary, I convict you and sentence you to imprisonment for a period of three years'.

28On Charge 3, of intentionally causing injury, I convict you and sentence you to imprisonment for a period of nine months'.

29On Charge 4, of threatening to inflict serious injury, I convict you and sentence you to imprisonment for a period of 12 months'.

30On Charge 5, of threatening to damage property, I convict you and sentence you to imprisonment for a period of nine months'.

31On Charge 6, of causing criminal damage, I convict you and sentence you to imprisonment for a period of four months'.

32On Charge 7, of intentionally causing injury, on 11 October 2014, I convict you and sentence you to imprisonment for a period of nine months'.

33On Charge 8, of indecent assault on 11 October of 2014, I convict you and sentence you to imprisonment for a period of nine months'.

34On Charge 9, of indecent assault on the same day, I convict you and sentence you to imprisonment for a period of 15 months'.

35On Charge 10, of indecent assault, I convict you and sentence you to imprisonment for a period of 12 months'.

36On Charge 11, of persistent contravention of a family violence intervention order, I convict you and sentence you to imprisonment for a period of 12 months'.

37On Charge 12, of stalking, I convict you and sentence you to imprisonment for a period of 18 months'.

38On the related summary offences, on Charge 6 of aggravated assault, I convict you and sentence you to imprisonment for a period of six months'.

39On Charge 9 of unlicensed driving, I convict you and sentence you to imprisonment for a period of three months'.

40On Charge 10, of committing an indictable offence whilst on bail, I convict you and sentence you to imprisonment for a period of one month.

41On Charge 12, of unlawful assault, I convict you and sentence you to imprisonment for a period of two months'.

42On Charge 14, of committing an indictable offence whilst on bail, I convict you and sentence you and sentence you to imprisonment for a period of one month.

43On Charge 16, of unlicensed driving, I convict you and sentence to imprisonment for a period of three months'.

44On Charge 5, of unlicensed driving, I convict you and sentence you to imprisonment for a period of three months'.

45On Charge 30, of committing an indictable offence whilst on bail, I convict you and sentence you to imprisonment for a period of one month.

46On Charge 31, of causing wilful damage, I convict you and sentence you to imprisonment for a period of one month.

47On Charge 32, of unlicensed driving, I convict you and sentence you to imprisonment for a period of three months'.

48On Charge 35, of unlicensed driving, I convict you and sentence you to imprisonment for a period of three months'.

49Now, turning to orders as to cumulation.  I have endeavoured in passing sentence, to impose sentences not only which reflect the matters of mitigation, including your plea of guilty, but also I have tailored those sentences to take into account, to some extent, the totality principle, having regard to the other sentences that you were sentenced to in December 2014, and April 2015, and I have also taken those matters into account in determining the orders for cumulation, so as, as I say, to endeavour, as best I can, to give proper effect to the totality principle.

50The sentence of three years' imprisonment on Charge 2 on the indictment, is to be regarded as the base sentence, and I order that one month of the sentence on Charge 1, two months' of the sentence on Charge 4, three months' of the sentence on Charge 9, and three months' of the sentence on Charge 12, be served cumulatively upon one another, and upon the sentence of three years' that I impose in relation to Charge 2 on the indictment.

51That means that all of the other sentences are to run concurrently with the sentence of three years' on Charge 2 on the indictment; makes a total effective sentence of three years' and nine months', according to my calculations, and I order that you serve a period of two years' and six months' before you become eligible for parole.

52But for your pleas of guilty, I would have sentenced you to a term of imprisonment of five years' with a non-parole period of three years' and three months'.

53I note that the prosecution did not invite me to have you placed on the Sex Offenders Register and I do not propose to do so.

54Are there any other orders, Mr O'Doherty?

55MR O'DOHERTY:  No, Your Honour.  There will be some orders in relation to his licence to drive.

56HIS HONOUR:  Yes.  Are they mandatory orders, Mr O'Doherty?

57MR O'DOHERTY:  I am not sure that they are mandatory for unlicensed driving.

58HIS HONOUR:  Yes.  Can you just check that for me please?

59MR O'DOHERTY:  Yes, I will.  No, Your Honour.

60HIS HONOUR:  No.  I do not see any utility in making an order in respect to his licence, having regard to the sentences that I have imposed.

61MR O'DOHERTY:  Yes, Your Honour.

62HIS HONOUR:  Yes, thank you.

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