Director of Public Prosecutions v Massey

[2014] VCC 1286

IN THE COUNTY COURT OF VICTORIA

 Revised
Not Restricted

      Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR- 14-00653

DIRECTOR OF PUBLIC PROSECUTIONS

v

BARRY MARTIN MASSEY

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JUDGE:	HIS HONOUR JUDGE HOWARD
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2014
DATE OF SENTENCE:	4 August 2014
CASE MAY BE CITED AS:	DPP v Massey
MEDIUM NEUTRAL CITATION:	[2014] VCC 1286

REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – sentence – pleas of guilty to aggravated burglary and recklessly causing injury – alcohol and drug fuelled attack involving a home invasion – TES 3 ½ years’ imprisonment with a minimum of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Mandie	OPP
For the Offender	Mr S. Kenny	James Dowsley and Associates

HIS HONOUR:

1Barry Martin Massey, you have pleaded guilty to one charge of aggravated burglary, for which the maximum penalty is 25 years' imprisonment; and to two charges of recklessly causing injury, for which the maximum penalty is five years' imprisonment on each charge. 

Circumstances of offending

2The circumstances of your offending are set out in an agreed prosecution opening so a summary will suffice. On 31 July 2013, you were living at a boarding house in Morwell that consisted of eight different units.  You were 48 at the time of the offending and are currently 49. You were, on that afternoon, drinking with a number of occupants of the boarding house including two brothers, Timothy Goodwin, who was 30, and his brother Jason, who was 23.  They lived together in one of the units.

3Apparently you were also with your then partner, Julie Mead.  Things were going along all right during the afternoon until you became affected by alcohol and aggressive towards Timothy Goodwin.  You believed that he had inappropriately looked at your partner.  I gather you said something to this effect, he denied that allegation and sensibly retreated to his unit with his brother and another friend.

4You continued drinking for about two more hours until about 8 pm when you had become seriously intoxicated.  Your counsel has also made clear in his plea on your behalf that you were also affected by methamphetamine or ice, as it is commonly known.

5You went to the victim's unit and demanded that Timothy Goodwin come outside.  You were aggressive and angry, which caused the victims to fear you and, not surprisingly, they refused to open their front door. However,  Jason Goodwin feared that you might break your way into the unit so he unlocked  the front door. You barged in, pushing past him, and confronted Timothy Goodwin who was then sitting on his bed.  You immediately began throwing a number of punches to his head.  Whilst doing this you inadvertently struck a glass bong and that caused a small cut to your left hand. Undeterred by this, you continued to punch Timothy Goodwin as he lay on his bed with his arms protecting his head. As a result, he suffered abrasions to his left forearm and pain and discomfort to his head, and that conduct constitutes charge 2, recklessly causing injury.

6At this point one of the other persons nearby physically dragged you off that victim and out of the unit.  With you gone, Timothy Goodwin seized the opportunity to lock the door to prevent you from re-entering.  You continued to make threats to assault Timothy Goodwin and he ultimately fled from his unit via the back door, leaving his brother alone at that place.

7You demonstrated significant persistence because a short time later you attempted to open the front door whilst continuing to yell for Timothy Goodwin to come outside. Then you went to the rear door, you knocked loudly and called on the occupants to come out. Jason Goodwin opened the door to speak to you and you called on him to come outside, which he did. Once he was outside you started punching him about the head and chest.  Most of those punches were deflected.  That was cruel because he had nothing to do with the matter. Nevertheless, you then kicked him about his legs causing pain and discomfort, and all that conduct constitutes charge 3, recklessly causing injury.

8Jason Goodwin broke free from you and ran back to the unit and locked the back door.  Again undeterred, you kicked open the back door with a degree of force and entered the unit with the intent to further assault Jason Goodwin. Hence, you were a trespasser in the unit and you had entered intending to assault Jason Goodwin knowing that he was there, or at least reckless as to whether he was present. That conduct constitutes charge 1, aggravated burglary.

Police investigation and court process

9Having retreated inside, Jason Goodwin fled out of the unit and ran to the police station to report the matter.  You were arrested later that evening, at about 11.15pm, and in the early hours of the next day you refused to take part in a record of interview.  You were charged and remanded in custody and have been in custody from that time until the present.

10Your committal was held in April this year and at that time you entered early pleas of guilty to the present matters and there was a straight hand-up brief.

11There is now 201 days pre-sentence detention dated from 31 July 2013 until 16 February 2014, when you were then held in custody serving a sentence on other matters which I shall mention shortly.

Victim impact

12I have received a victim impact statement from Jason Goodwin, declared on 19 June 2014.  He made clear that, as a result of your assault upon him, he suffered pain in his ribs and had a very sore jaw and was unable to open his mouth, and that these problems went on for some three days. Most significantly, he was psychologically traumatised by your conduct, so much so that he was not able to live on his own and only felt safe with family members.  He was off work for a period of two months, which is a significant penalty for him to pay as a result of your offending.

13No victim impact statement was provided by Timothy Goodwin. However, there can be no doubt that your conduct was most traumatic and terrifying for each of those victims.  You should feel a great deal of shame and remorse for what you did to them.

Background and personal circumstances

14I will turn now to your background and personal circumstances.  These have been set out in a psychiatric report provided by Dr Lester Walton dated 22 July 2014. They have been expanded upon in a very helpful written outline of submissions which have been provided by your counsel, who made a very professional plea on your behalf.

15You were brought up in the Dandenong, Doveton and Narre Warren area in a working class home until you were about 12 or 13.  You had an older brother who was five years your senior and a younger sister by three years. Your parents were, I gather, both hardworking. But regrettably your father was an extremely violent alcoholic who attacked both yourself and your mother, so much so in her case that at one point she was hospitalised and subsequently placed in a nursing home, where she remained until she died in 2004.

16From the time you were 13 until about 18, you stayed for only a short time with your father and then variously spent time in foster or boys homes, you were homeless on the streets or with your older brother.  You had a very difficult and problematic relationship with your father, which continued.

17You had limited secondary schooling and have only limited literacy skills.  You worked in a number of unskilled jobs but ultimately have been in receipt of a Disability Support Pension since about 2005.

18Sadly, your brother was murdered in 1988, he was at that time a drug dealer and his death was connected with that activity.  You have had no recent contact with your sister.

19You were married in 1991 and kept that relationship until 2010 when it broke up because of your wife's infidelity, which is a matter that caused you to ruminate for some time thereafter. It may well be that there was some connection between your perceived grievance against Timothy Goodwin and the breakdown of your marriage, although it is a rather tenuous one. There are four children of that relationship, now aged 19 to 22.  You do not have any contact with your ex-wife or any of your children.

20At about 17 or 18, you graduated from smoking cannabis and drinking a lot of alcohol to taking amphetamines and heroin, including intravenous use of both those drugs, and, as it was described, they have plagued you over most of your adult life.

21Regrettably, you have a serious criminal history, both in Victoria and also New South Wales and South Australia.  You first got into trouble with the law when you were 17 in 1982 and have many convictions for dishonest conduct, driving offences and using and possessing illicit drugs.  You have received a number of community based orders over the years but seem to have breached many of them and have not been assisted, it would seem, by the assessment and treatment programs which they contained for your alcohol and drug addiction.

22As best as I can work it out, you have been sentenced to imprisonment on 22 occasions and have served quite lengthy terms in custody.  Significantly, there were five occasions where you were convicted of assault, either in New South Wales or South Australia, between 1994 and 2000. Then in May 2001, you were convicted of armed robbery and some other offences in South Australia for which you were sentenced to five years' and nine months' imprisonment with a non-parole period of three and a half years. It was explained that on your release from that sentence, you returned to the Latrobe Valley area because your wife was then living in Sale with the four children.

23However, you continued to get into trouble with the law. Specifically, and most relevantly to the present matters, I note that in September 2011, you were convicted of recklessly causing injury and assault for which you received an aggregate sentence of 84 days' imprisonment. Then in February 2012, you were convicted of aggravated burglary, intentionally causing injury and assault for which you were sentenced to a total effective sentence of one year and three months with a non-parole period of eight months' imprisonment.  It was described by your counsel that you had a dispute with a neighbour over the sale of drugs and some missing property, which led to you entering his house as a trespasser. You were released on that sentence in early 2012. It was explained that you were not well supported on parole, you were not undergoing any programs, no urine screens were being taken and you had intermittent contact with the parole board, although you were assisted with accommodation.

24Having been arrested and in custody on these matters, in February 2014 you were sentenced to nine months' imprisonment on two charges of recklessly causing injury, which were offences committed against your ex-wife in January 2005 and August 2006.  It is not clear why, but there was a significant delay before you were charged in June 2013.  You appealed those sentences in April of this year but they were confirmed.  Accordingly, you are presently serving that fixed sentence of nine months, and I have been told that you are due for release on 16 November this year.

25In his report Dr Walton summed up the situation by saying that there had been, as a result of your personal history, “blighting” of your personality development.  His opinion was that you have a significant genetic loading towards substance abuse and that you were provided with poor modelling by your alcoholic parents. Although there had been a pattern of poly-substance abuse, there had been a sustained period of abstinence from alcohol and drugs leading to the day of offending. But as I have indicated, you were intoxicated by both alcohol and ice.  You are properly described by Dr Walton  as a substance dependant person. You have experienced brief periods of drug-induced psychosis. Dr Walton says what has been prominent is chronic mood disturbance of diagnosable proportions.  He observes  you are a man of dull intelligence and continues:

"Mr Massey can be described as a general socially inadequate individual and he has particular difficulties in the context of intimate relationships.  He would have been more than usually sensitive to an adverse reaction in a context of what he perceived to be inappropriate interest in his partner from another male. Mr Massey's volatility likely is largely temperamental but aggressive urges were significantly disinhibited by his state of intoxication."

26Whilst the expert said you did not have any mental state defence to the charges he continued:

"…his intellectual compromise in combination with his underlying damaged personality and marked psychological immaturity does lead to a chronic inability to exercise appropriate social judgement and thus I would see his psychological problems as making a direct contribution to the offending."

27Dr Walton went on to say that although you had been prescribed the major tranquiliser Seroquel and the antidepressant Avanza, you had voluntarily elected to discontinue these medications in prison because you found that you were being “stood over” by other prisoners, Seroquel currently being a popular drug of abuse in the prison system.  The circumstances of this difficulty are imprecise and have not been clarified in the plea.  Apparently, that happened a few months ago and your counsel explained that this conduct of other prisoners had occurred whilst you were in protection, that situation apparently being related to your brother's criminal associates. It was said that in recent   – unspecified times - you had asked prison authorities to go back onto those drugs but they had refused to allow that to happen.  I find that very surprising.  It is the obligation of prison authorities to care properly for prisoners and if they have been prescribed legitimate medication, as you were, I would have expected them to enable you to go back onto that medication.  No evidence has been provided about that matter on the plea.  That situation is the genesis for Dr Walton saying that you are enduring imprisonment as more onerous than other prisoners.

28Finally, Dr Walton states:

"Fundamentally Mr Massey lacks insight and the intellectual wherewithal to make much use of talking therapy, other than simple practical advice and guidance as might be supplied by a general practitioner.  He is not a candidate for more general rehabilitation."

29In spite of you lacking that insight, the expert was satisfied that you had expressed appropriate remorse for your offending. However he said:

"…mainly because of his intellectual difficulties, it is to be expected that the specific deterrent component of any particular sentence will have less enduring favourable impact upon a person such as Mr Massey. Arguably he is an inappropriate vehicle for the expression of general deterrence because of his multiple mental health issues."

30He states that your prognosis, both in relation to your mental health and recidivism, is “mixed”.  He acknowledges that you have a reasonably well-established criminal history and therefore an elevated risk of recidivism, however it does seem that you would derive some benefit from active psychiatric treatment, which is a favourable aspect. But, he says, ultimately you have suffered from a permanently damaged personality which is irreversible.

Mitigating circumstances

31There are a number of mitigating circumstances relied upon by your counsel, which I accept.  The first is that you are the product of a dislocated and dysfunctional childhood and adolescence, which I have explained.  You lacked both parental and family care and appropriate role models and have suffered from a limited education.

32Your life has been ruined by a significant alcohol and drug addiction and you, of all people, I am sure, understand how that has affected you in your life.  You have, nevertheless, maintained a relationship and kept a family of four together for many years, which is to your credit. 

33You entered early pleas of guilty to these charges which have saved the community time, cost and inconvenience. Hence, those pleas have had a utilitarian benefit and have served the ends of justice. Your pleas are associated with remorse and for those pleas there should be a significant discount in penalty. 

34Your counsel noted that although the offending was serious and was an example of a confrontational Hogarth home invasion, as you were pursuing a grievance by breaking into the unit, it did not involve the use of a weapon, nor were you in company with any other persons. I agree the offending was unsophisticated in the sense that there were no disguises or getaway cars, which are often used in offences of this kind, and there was little or no evidence of any planning other than that you seemed to have stewed on the issue for about two hours before you went to make the attack on the two victims and the unit. Again, whilst injury was caused to each of the victims, they are not serious injuries and they do fall at the lower end of the concept of injury.

35As to Dr Walton's opinions, there has been a Verdins claim made as to ameliorating the concepts of your moral culpability and that of specific (not general) deterrence by reason of your psychological profile. The prosecution accepts that this should weigh in your favour somewhat, and I agree. But I also take account of the fact that essentially your aggression was fuelled by the fact that you were intoxicated by alcohol and methamphetamine. I accept, however, that your psychological profile did make a direct contribution to your offending and that is a factor to be taken into account in your favour. I also accept your counsel's submissions as to ameliorating the principle of specific deterrence.

36Finally, reliance was placed on the fact that your enduring imprisonment would be more onerous on you than other prisoners, as mentioned by Dr Walton, because of the problem of you having decided to stop taking all prescribed medication.  The simple answer to that problem is for you to recommence that medication, and if you have genuinely asked for that to happen and there is no evidence of you abusing those drugs in any way, then you should be permitted to have that medication and that will resolve the problem of the onerous circumstances created by its absence. As I have noted, you are already in protection so it cannot be said that because of your need to go back on that medication, to avoid other prisoners obtaining your Seroquel you would have to be placed in protection. So that is not an aspect that I would take account of in your favour.

37I am guarded as to your prospects of rehabilitation, especially having regard to your lengthy criminal history and your chronic, entrenched drug and alcohol addictions.  The true test in this regard will depend on how well you cope once you are released back into the community.  It is obvious to me, and argued in your favour, that there should be significant parole support implemented to assist you once you are released from prison.

38Finally, I accept the submission that the principle of totality should work in your favour in respect of the sentence that you are presently undergoing.  I am satisfied that had all matters been dealt with at the same time then there would have been some amelioration of sentence for that reason. Although, on the other hand, I have to have regard to the fact that the sentence you are serving is not for offending that occurred at or about the same time as this offending, but obviously it was for offences of violence of the same kind as the two charges of recklessly causing injury. For that reason I do propose to order that some part of the sentence I impose will be served concurrently with your present sentence. 

Other sentencing considerations

39On the other hand, there are other important sentencing considerations. The first is that I must have regard to the maximum sentences, and obviously 25 years' imprisonment for the offence of aggravated burglary is a very significant maximum penalty.

40It is conceded that your case is a Hogarth home invasion type case. The Court of Appeal has very recently, in that case, made clear that there is a disparity between the maximum sentence and current sentencing practice for such cases. However, I have distinguished your offending from some of the more serious examples of Hogarth home invasions. For instance, in Hogarth's case itself there was pre-meditation, the use of a weapon and the offender was acting in company, all features which are absent in your case. Nevertheless, your conduct was terrifying for both the victims and particularly for the second victim Jason, who had run into his house to protect himself from your further assaults, and you broke into his home so that you could further assault him, although you did not actually do that because he ran out of the house before you could do so.

41You did demonstrate, I think, persistent offending. I agree with the prosecution submission that although you acted alone, unarmed and without pre-meditation, you engaged in an alcohol and drug fuelled rage and in an unprovoked way which caused terror to your victims.

42Notwithstanding the application of the Verdins issues which have been raised, and which I accept; there is a need for appropriate punishment; particularly for protection of the community, especially given your very bad criminal history, particularly as to violence and an aggravated burglary in the past.

43On behalf of the community, I strongly denounce your conduct.

Sentence

44Mr Massey, please stand up. On charge 1, aggravated burglary, you will be convicted and sentenced to three years' imprisonment.

45On charge 2, recklessly causing injury to Timothy Goodwin, you are convicted and sentenced to nine months' imprisonment.

46On charge 3, recklessly causing injury to Jason Goodwin, you are convicted and sentenced to nine months' imprisonment.

47The sentence on charge 1 will be the base sentence. I order that three months of each of the sentences on charge 2 and 3 should be served cumulatively on charge 1 and upon each other, given that there are separate offences against each of those two people and offences against two people.

48The total effective sentence is three and a half years' imprisonment.  I order that you serve a period of two years before which you shall not be eligible for release upon parole.

49I declare that the period of 201 days pre-sentence detention be reckoned as already having been served on that sentence and that such declaration be entered in the records of the court. 

50I order that four months of that sentence be served concurrently with the sentence you are presently undergoing.

51But for your pleas of guilty, I would have imposed a total effective sentence of four and a half years' imprisonment with a minimum of three years' imprisonment. 

52Is there any issue with the mechanical aspects of the sentence?  Anything from the Crown side?

53MS MANDIE:  So your Honour, in addition to the sentence being served then its effectively three years and two months with a two year minimum?

54HIS HONOUR:  That's the effect of it.

55MS MANDIE:  Yes, I just wanted to get - clarify.

56HIS HONOUR:  Well the two year minimum is less four months because of the concurrency ‑ ‑ ‑ 

57MS MANDIE:  Right.

58HIS HONOUR:  ‑ ‑ ‑ as well, on both the head sentence and the minimum sentence.

59MS MANDIE:  Right, thank you your Honour.  That was my question.

60HIS HONOUR:  Yes.  Did you have anything Mr Kenny?

61MR KENNY:  No I was wondering the same thing but I understand that Your Honour.

62HIS HONOUR:  Well the effect of the order for concurrency of four months means that four months of the head sentence and four months of the minimum sentence is to be served concurrently at the same time as the current sentence.

63MR KENNY:  Yes, yes.  May it please your Honour.

64HIS HONOUR:  I've signed an order to that effect so a copy can be made for police officers as well as for the parties, thank you.

65MR KENNY:  May it please Your Honour.

66[Discussion with the prosecution regarding another case]

67HIS HONOUR:  Thank you both for the helpful written submissions and your assistance in the course of the plea, thank you.

68MS MANDIE:  Thank you Your Honour.

69HIS HONOUR:  Do you want to speak to your client now before he goes off?

70MR KENNY:  I do Your Honour, yes.

71HIS HONOUR:  Yes, all right.  Gentlemen could you allow counsel a moment to speak with his client before you go?  Thanks.  Ten o'clock tomorrow.

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