Director of Public Prosecutions v McIntosh and Larkin
[2015] VCC 670
•19 May 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-14-01479 McIntosh
CR-14-01593 Larkin
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRENT McINTOSH v JACOB LARKIN |
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| JUDGE: | HER HONOUR JUDGE CANNON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 October 2014 (McIntosh); 2 February, 23 March and 18 May 2015 |
| DATE OF SENTENCE: | 19 May 2015 |
| CASE MAY BE CITED AS: | DPP v McIntosh and Larkin |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 670 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Aggravated burglary – Intentionally cause injury – Criminal damage
McIntosh – Relevant criminal history – History of ADHD – Impulsivity and lack of self-control resulting from symptoms of ADHD – History of drug and alcohol abuse
Larkin – Criminal history – History ADHD – History of poly-substance abuse – History severe depression and anxiety
Legislation Cited: Sentencing Act 1991
Cases Cited:Boulton v R [2014] VSCA 342; Hogarth v R [2012] VSCA 302; Verdins (2007) 16 VR 269
Sentence:McIntosh – Aggregate term of 9 months’ imprisonment combined with Community Corrections Order of 4 years’ duration – Ancillary Order Disposal Order – s.6AAA Sentencing Act 1991
Larkin - Aggregate term of 6 months’ imprisonment combined with Community Corrections Order of 4 years’ duration – s.6AAA Sentencing Act 1991
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Henderson (Plea) Ms N. Kohn (Sentence) | Solicitor for Public Prosecutions |
| For the Offender McIntosh For the Offender Larkin | Mr S. Preece (Plea) Mr S. Casey (Sentence) Mr J. Buxton | Vale Criminal Lawyers VLA |
HIS HONOUR:
1Jacob Ronald Larkin and Trent Nathan McIntosh, each of you have pleaded guilty to one charge each of aggravated burglary, intentionally causing injury and criminal damage. Aggravated burglary has a maximum penalty of
25 years' imprisonment while the other two offences each have a maximum penalty of ten years’ imprisonment. The maximum penalties reflect the seriousness with which these offences are regarded by Parliament.2At the time of the offending, you, Jacob Larkin, were 24 and you are now
25 years old. You, Trent McIntosh, were 28 at the time of the offending and I was told you are now 29. You are brothers-in-law, as your sister, Mr Larkin, married Mr McIntosh.3On 23 May 2014, you both attended a unit in Mt Martha and assaulted a Jason Robert Sheales, who was 33 at that time.
4The background to the offending is that on the evening of 23 May, you,
Mr McIntosh, learned from Mr Larkin that your wife, Katie had slept with
Mr Sheales during a period of separation. After confronting your wife with this information, you, Mr McIntosh, and you, Mr Larkin, agreed to confront
Mr Sheales.5At about 11.15 pm, you, Mr McIntosh, used your estranged wife’s phone to call Mr Sheales to see where he was. He told you he was at home and in bed. You, Mr Larkin, then drove Mr McIntosh from Frankston to Mt Martha where Mr Sheales lived. You, Mr Larkin, knocked on Mr Sheales’ door a few times, but Mr Sheales did not answer. You, Mr McIntosh, then kicked the front door open. You both then went through the premises looking for
Mr Sheales. You found him in his bedroom. He had armed himself with an extendable baton.6You, Mr McIntosh, grabbed Mr Sheales by the throat and you, Mr Larkin, took the extendable baton. Therefore, you, Mr Larkin, deprived Mr Sheales of the ability to defend himself. You, Mr McIntosh, asked Mr Sheales about your estranged wife and punched him in the face approximately ten to 12 times. You, Mr Larkin, punched Mr Sheales twice in the ribs and head-butted him. When the assault moved to the lounge room, you, Mr McIntosh, took a billiard cue and struck Mr Sheales with it to the lower back. You, Mr McIntosh, also struck Mr Sheales with a billiard ball. Mr Sheales lost consciousness during the assault. You, Mr McIntosh, used a billiard cue to damage a flat screen TV and you, Mr Larkin, used a billiard cue to damage a stereo system.
7Upon leaving the premises, you, Mr Larkin, damaged windows on Mr Sheales’ car, using the extendable baton. Both of you then left.
8Shortly after midnight on 24 May 2014, a neighbour telephoned police, after hearing a male screaming and yelling very loudly.
9Police attended and found Mr Sheales. He was taken by ambulance to Frankston hospital for treatment.
10He suffered the following injuries:
·Extensive soft tissue swelling overlying the left side of the face, left frontal and temporal regions and left parietal and occipital regions;
·Significant left peri-orbital soft tissue swelling;
·A trapdoor orbital floor fracture on the left; and
·A left medial orbital wall fracture.
11Mr Sheales was discharged from Frankston Hospital at approximately 7 pm on Monday 26 May 2014.
ARREST & RECORD OF INTERVIEW
12At about 12 pm on Sunday 25 May 2014, both of you attended the Mornington Police Station.
13At 12:46 pm, you, Mr Larkin, participated in a recorded interview, during which you made full and frank admissions to the offences. You said that you contacted police and came to the police station with Mr McIntosh, because you knew that police were looking for you and you knew that you were “in the wrong”.[1] You said that you told Mr McIntosh that Mr Sheales and Katie McIntosh had slept together, that Katie McIntosh confirmed this was true and that Mr McIntosh and she argued.[2] You said that you and Mr McIntosh decided to confront Mr Sheales,[3] but that you said you did not have the intention to hurt him and that matters “escalated”.[4] You said Mr McIntosh kicked Mr Sheales’ door in and you and he entered the house.[5]
[1] ROI – Q&A 13 – 20
[2] ROI – Q&A 66
[3] ROI – Q&A 67, 70
[4] ROI – Q&A 114, 250
[5] ROI – Q&A 83, 96, 106 – 107
14You took an extendable baton from Mr Sheales, whilst Mr McIntosh hit
Mr Sheales three times[6]. Mr Sheales was unconscious and bleeding and so you said that you moved him to his bed and placed him on his side.[7][6] ROI – Q&A 83
[7] ROI – Q&A 84, 88, 130
15You said you told Mr McIntosh to “back up a little”.[8] You thought Mr McIntosh struck Mr Sheales with a pool ball.[9] You said that Mr McIntosh struck
Mr Sheales’ face.[10][8] ROI – Q&A 85
[9] ROI – Q&A 90
[10] ROI – Q&A 91
16You, Mr Larkin, said that you struck Mr Sheales twice in the ribs and
head-butted him.[11] You said that Mr Sheales was acting in self-defence.[12] You said that what you and Mr McIntosh did was “very low” and was “in the heat of the moment” and you regretted it.[13] You said that you brokeMr Sheales’ stereo and smashed the windows on his car with Mr Sheales’ baton.[14][11] ROI – Q&A 93 – 94
[12] ROI – Q&A 117
[13] ROI – Q&A 147 – 149, 227, 256
[14] ROI – Q&A 184 – 187
17You, Mr Larkin, were charged and released on bail.
18At 2.17pm, you, Mr McIntosh, participated in a recorded interview, during which you also made full and frank admissions to the offences. You were both co-operative and remorseful[15] during the interview.
[15]See for example ROI – Q&A 59, 61 to 63, 99 to 103, 119 to 120, 166 to 170, 176 to 177, 180 to 181, 207
19You said that Mr Larkin told you that Mr Sheales had slept with your wife, Katie.[16]
[16]ROI – Q&A 14
20You made a telephone call to see where Mr Sheales was.[17] You said you kicked in the door to the premises.[18] You intended to assault Mr Sheales.[19] You punched Mr Sheales in the face ten to 12 times.[20] You struck Mr Sheales with a billiard cue and billiard ball.[21] You damaged the flat screen television with a billiard cue.[22] You said that you acted in a fit of rage and anger.[23]
[17]ROI – Q&A 20, 48
[18]ROI – Q&A 20, 55, 58, 70
[19]ROI – Q&A 46, 47, 64
[20]ROI – Q&A 83, 84
[21]ROI – Q&A 24, 85, 92, 105, 110
[22]ROI – Q&A 24, 94, 141
[23]ROI – Q&A 20, 22, 23
21You, Mr McIntosh, were charged and released on bail also.
22Mr McIntosh and Mr Larkin, I regard the offending in which you have both engaged as most serious. You took it upon yourselves to attend Mr Sheales' home in the dead of night and having forced your way in, you assaulted him in a most savage fashion. The nature of the injuries which you inflicted are at the higher end of the scale, insofar as causing "injuries" is concerned. You also saw fit to damage a good deal of Mr Sheales’ property. Mr Sheales was entitled to feel safe in his own house, but you violated that sanctity, because of your jealous rage, Mr McIntosh. You both knew that you outnumbered him, and in a cowardly fashion, you set upon him in a most savage fashion.
23I regard your role in the aggravated burglary and intentionally causing injury as a more serious one, Mr McIntosh, than that of Mr Larkin. You,
Mr McIntosh, were a good deal older than Mr Larkin and you had the axe to grind and played a more active role in entering the premises and in the ensuing attack. I understand that the sequence of events is not entirely clear and the Crown were dependent to a large extent on your records of interview in opening this matter. However, it seems somewhat incongruous that you, Mr Larkin, apparently "went on" to damage property of the victim, having told your co-accused to "ease up" on him and having tucked the victim up in bed. However, in his report to the Community Corrections assessing officer,
Mr McIntosh verified that you had told him to "ease up" on the victim, so in all of the circumstances, I accept that you did, which is a matter in your favour.24In each of your cases, your conduct is deserving of a punishment that is just in all of the circumstances, including circumstances personal to you, and your conduct must be appropriately denounced.
25I take into account the impact on the victim who has provided a victim impact statement. Apart from the physical pain which you caused him, your actions have had a dramatically negative impact on his life. He is now constantly on edge, suffers sleeplessness and experiences feelings of depression and anger. He has lost his self-confidence and self-motivation. He has had to move in with his mother to deal with his dreadful feelings of insecurity. Your actions have impacted on his ability to work effectively and he has also incurred a number of financial losses because of your crimes. In this regard,
I have not factored in the reference to a bracelet in the victim impact statement, but I have factored in that amongst other expenses, he has lost wages to a significant extent. It will be a matter for him as to whether he seeks to make a claim against each of you in respect of these losses, as well as pain and suffering. No doubt the Office of Public Prosecutions will advise him of his rights in this respect, if they have not already.Mr McIntosh
26I now turn to you, Mr McIntosh, in terms of the matters that apply to you. You have a relevant criminal history, albeit a rather brief one:
27On 8 September 2005, you were convicted of recklessly causing injury and placed on a 12 month community based order, whereby you were required to perform 150 hours unpaid community work, undergo assessment and treatment for alcohol or drug abuse and assessment and treatment in respect of psychological or psychiatric conditions. You were also required to undergo any program aimed at reducing your risk of re-offending.
28I was told that this matter relates to an assault that you inflicted upon the new boyfriend of a former girlfriend, which is most concerning in view of the offending before me. It is apparent that anything that was done to assist you by virtue of the previous community based order was not sufficient to prevent you from even more violent behaviour some nine years later. However, I also factor in that this prior offence was committed a good while before the offences before me.
29You were also convicted and fined an aggregate of $800 for two charges of unlawful assault, which was dealt with on 9 February 2006. I was told that these matters related to assaulting a bouncer and that you were intoxicated at the time. These offences were committed within the operational period of the community based order, however, the matter was dealt with by way of what was termed as a "discretional breach" and so did not give rise to further court proceedings. There are no subsequent or pending matters.
30I take into account your background:
31In 1995 you were diagnosed with ADHD, amongst other things, and with a good deal of support from your mother, you were seen by a variety of health professionals, including a paediatrician and a psychiatrist. I received documentation which substantiates these matters. It clearly shows the difficulties that you were encountering at an early age.
32A report from Dr Douglas Bristow, dated 18 October 1996, says that you had been under his supervision for treatment of ADHD, in the context of Tourette’s syndrome. He said that you also had oppositional defiant disorder with negativistic, aggressive and difficult behaviour, requiring a tremendous amount of guidance, encouragement and support from parents, teachers and others, including a child psychiatrist, Dr Lee.
33Dr Bristow was of the view that you had a genuine neurological disorder and that your behaviour had regressed over the preceding months to the point that you needed close supervision to ensure your own safety and safety to other pupils, as well as optimising your education. Documentation from around that time indicated that you were injuring or threatening other pupils and that you had attacked a senior staff member at one point. You were also damaging property. In a report from student services, the department of education, you were said to meet the criteria for severe emotional disorder. I am unsure as to whether the author of the report was qualified to make this finding. However, on any view of things, as a child, you were displaying some very concerning behaviours, which were attributed to a variety of diagnoses from various professionals involved in your welfare. I understand from the material tendered in respect of that time in your life, that medication for ADHD had initially been effective, but that this did not remain the case and a good deal of time and care was put into improving your situation. I understand that you were between nine and 11 when these investigations and interventions were implemented.
34Unfortunately, when you went to high school, nothing further was done to address your issues, which was a source of some frustration for your mother, who appears to have been tireless in her support of you. I understand that you were taking medication in respect of your symptoms, but that nothing beyond this was done at secondary school. I have no doubt that these were extraordinarily difficult times for you and for your mother. I understand that you were teased and bullied at school because of your need for medication. You left school when in Year 10 and moved into the workforce. I shall refer to your work history in due course.
35Forensic psychologist, Ian Joblin, assessed you in more recent times. He saw you on 15 September 2014. He said that he was very concerned about your psychological history and noted the various diagnoses that had been made in respect of you when you were a child. He noted that you had a history of severe depression, attendant with strong suicidal thoughts. These symptoms were ongoing. Mr Joblin noted that while you had undergone anger management and drug and alcohol courses, his concern involved your diagnosis of ADHD when you were younger and "the possibility that the symptoms continued", which was evident when he interviewed you and "the offences for which he is before the court."
36Mr Joblin was of the view that your presentation before him "was consistent with a diagnosis of a degree of hyperactivity at least and possibly a bi-polar disorder", particularly given your report of strong suicidal thoughts. Mr Joblin went on to say that you have a high degree of impulsivity, of acting without thinking, often with feelings of regret later on. He said that you had difficulty organising work and had a low threshold of tolerance. He said that you acted to relieve your frustration by impulsive behaviour, rather than thinking things through carefully. Mr Joblin was especially concerned with your impulsivity, which included difficulties with self-control. He said that, from what he had learned from your mother and you, your problems became worse after primary school and that you resorted to cannabis use in order to deal with the symptoms of your diagnosis.
37Mr Joblin went on to say that, had you not learned that your friend had been sleeping with your wife, then you would not have behaved as you did. With all due respect to Mr Joblin, this appears to be stating the obvious. Clearly, this news was the catalyst for your reaction, but in itself, I am not sure that this gets you anywhere in a mitigatory sense.
38However, Mr Joblin was of the view that you had a current diagnosis of hyperactivity or bi-polar disorder. Further, he said that there was a question of whether or not at the time of the offending, you were able to make a rational choice to stop. He said that your prior offending was related to "severe problems with alcohol and again impulsive, aggressive behaviour." He was of the view that your behaviour in respect of the offending before me related to a disorder which had been a factor in your life for many years. He said that you were in need of being relieved of these symptoms and were eager to have this happen.
39I have also considered a neuropsychological report from Dr Loretta Evans, who saw you three months after Mr Joblin, and said that you did not have
bi-polar disorder, and at the time she saw you, you were not presenting with symptoms of major depression. She said that you "produced a neuropsychological profile, characterised by generally average intelligence, with a dominance for perceptually based thinking. Amongst other things, she said that you can be highly impulsive and you were likely to react to environmental triggers without considered thought. She said that you displayed subtle cognitive deficits, reflective of a mild dysexecutive syndrome, that is, inconsistent with frontal lobe support, which can impact on higher order executive functions and memory capacity. She said that your intake of cannabis in the past may have contributed to an already compromised system, negatively impacting on your ability to regulate emotion. However, she remarked that your mood state seemed to have appreciably improved since being seen by Mr Joblin a few months before. She was also of the view that you did not present with symptoms of Tourette’s syndrome.40In her most detailed report and after a thorough assessment of you, Dr Evans gave the following opinion: "With consideration to presentation and results on testing, and a diagnosis of attention deficit disorder as a child, it is considered maturation has, to some extent, mediated many of the cognitive signs and symptoms typically associated with this disorder. However, residual cognitive deficits are present at a subtle level, particularly attentional difficulties and impulsive behaviours, collectively declaring a degree of frontal lobe dysfunction. Furthermore, regular cannabis use is considered to have impacted somewhat on already disrupted emotional regulation systems associated with the limbic lobe and affected the ability to maintain stable mood status under certain circumstances, that is, highly stressful or anxiety provoking situations. Therefore, heightened emotional functioning is also likely to intermittently exacerbate subtle cognitive deficits."
41Dr Evans concluded, "that you demonstrated residual cognitive difficulties, secondary to a genuine neurological disorder, possibly further exacerbated by substance abuse and intermittent changes to mood state." She said that as at the time she saw you, you did not have any symptoms of clinical significance. She said that with the provision of structure and guidelines, as well as behavioural strategies, day to day functioning would not be likely to be appreciably affected. She said that you had intact insight in respect of your offending and the need for appropriate treatment and all things considered, you were in an optimal position to rehabilitate. She was also of the view that incarceration would put you at high risk of escalating psychological distress, because of your concern for your family and the need to provide for them.
42I have also factored in that on the night in question you had been drinking alcohol, but you had consumed a relatively moderate amount, according to you and you accept that you knew what you were doing when you committed the offences before me.
43Mr Preece submitted that in view of your documented proclivity for impulsivity and mood swings, which are rooted in diagnosed disorders suffered by you, I ought allow for a greater than moderate reduction in your moral culpability. He submitted that these symptoms clearly impacted on your ability to make calm and rational decisions, that once your reaction was triggered on the night in question, it was well-nigh impossible for you to change your course.
44I must say that I have been a little troubled by an apparent level of deliberation and calculation, which you apparently conveyed to the assessing officer from Community Corrections. In the end however, I sentence you on the basis of the facts alleged in the prosecution opening, in conjunction with the material from experts, as to your underlying condition and to how that impacted on you on the night in question.
45Having considered all of the evidence on this aspect, I have come to the view that at the relevant time, you were suffering an impairment of mental function, such that it impacted on your ability to make calm and rational choices, because of some ongoing symptoms associated with ADHD. Having said this, it is surprising that you have not come to the attention of the law more often, if you have laboured under these difficulties to a significant degree. Also, you are able to run a painting business and take responsibility for employees, which is somewhat at odds with being an impulsive, disorganised person, as described by Mr Joblin. However, in all of the circumstances, I have come to the view that a less than moderate reduction in your moral culpability is appropriate, as is the reduction in weight that I would otherwise give to punishment and specific and general deterrence. In view of your ongoing symptoms, albeit that you have taken some steps to address these, I must give some weight to the need to protect the community.
46I also allow for the fact that, because of your difficulties in terms of your mental health, that time in gaol would be harder for you than for others who do not have these symptoms, and that imprisonment is likely to cause your mental health and wellbeing to deteriorate. I have also factored in that time in gaol will be harder on you, because it would be your first time there and because of your concern for your family and being unable to provide for them.
47In your favour, you were fully co-operative with the police, voluntarily attending upon them very soon after the offending. You made full and frank admissions and it appears that you inculpated yourself to a degree beyond that which may have otherwise been alleged against you. You pleaded guilty at the earliest possible opportunity. In all of the circumstances, I allow for a most significant discount in the sentence you would otherwise receive, over and above that which would be afforded you for an early plea of guilty. In pleading guilty at the stage that you did, you have saved the witnesses, especially the victim, the time and trouble of giving evidence and you have saved the community the time and expense of contested proceedings. Further, I accept that you have genuine and heartfelt remorse for your actions, which was manifested in you taking responsibility early on and in relation to what you told police at that time.
48In the ten months since the offending, you have done a good deal to address your psychological and behavioural issues, which was evidenced by various pieces of documentation tendered on your behalf at the plea hearing. Having said this, I note in the community corrections order assessment, that you only attended one session with a psychologist, after having been placed on a mental health plan on 26 February this year, because you were suffering symptoms of depression and anxiety. The assessing officer for Community Corrections was of the view that in light of the various concerns as to the state of your mental health at that time, you ought pursue psychological treatment. I was told at the further plea hearing however, that you had gained significant assistance from engaging with Narcotics Anonymous and you were unable to keep on with the particular psychologist in any event, as your wife was also seeing him.
49In terms of your substance abuse history, you had been consuming cannabis since you were 14 years old and by the time you were 17 years old, you imbibed up to one gram per day. You continued in this vein until the birth of your first daughter, but after this you reduced your intake to occasional use. You apparently consumed cannabis to deal with your symptoms, although this may well have exacerbated them. You also abused other drugs, such as amphetamine and ice, but you ceased taking these drugs in your early-20s.
50You have also abused alcohol in the past, and as at the time you saw
Dr Evans, you were drinking three times a week, being a four pack of mixed drinks every few weeks. You had consumed three cans of Jack Daniels on the day before seeing her. You told Mr Joblin that you had not been intoxicated for the past few years, however as he observed, it is clear that alcohol has been an issue for you and has played a role in your past offending. Subsequently I have received material which indicates that you have been abstinent.51I put you on notice, Mr McIntosh, that if you choose to consume alcohol and drugs in the future and then commit offences, then your decision to do so may well be regarded as an aggravating feature, exposing you to a greater penalty than would otherwise be the case. You told Dr Evans that you had last consumed cannabis four weeks before seeing her, which would make it November 2014. You told Mr Joblin on 15 September 2014, that you had not used cannabis for the past two or three months.
52You attended a course through Anglicare in September 2014, but by the time that you were accepted to this from the wait list, you had been abstinent from cannabis use for some months and therefore there was no need for you to complete the course. However, you were advised of the potential future risks and signals to be aware of, and the way in which you could re-engage with the service.
53Since the beginning of April, you have attended Narcotics Anonymous five days a week, and Mr Burton from the program speaks well of you. He said that you have been sober and drug free during the time you have been on the program, which is to your credit. Urine screens tendered on your behalf also attest to this.
54You have also engaged in the Men's Behavioural Change Program, offered by "Lifeworks", gaining a great deal from this, especially in the realm of decision making. I was told at the original plea that you wished to repeat the course, as you found the program so helpful.
55At the original plea hearing, I was told that you are on a mental health plan and that you receive counselling in respect of your general wellbeing, but you intended to engage with another counsellor as well to address issues specifically relating to your offending. At the further plea, I was told that you did not persist with psychological treatment, as I have said, because you were deriving a good deal of benefit from your intensive engagement with Narcotics Anonymous.
56I take into account the report from Mr Kay, Counsellor, dated 22 October 2014, who said that you have been doing very well in responding to his sessions with you, which involve developing ways of responding appropriately to a variety of situations you might face in the future. You have continued on with counselling with him. You have also put in train some steps to explore whether you ought resume medication in respect of ADHD, although you are concerned about doing so, as this may well involve exposing you to addictive drugs. On the whole, you have taken a number of significant steps toward rehabilitation.
57You come from a warm, loving and supportive family, who have attended court in support of you at each of the plea hearings. You are most fortunate to have them, as many who are charged with offences such as these, do not. You have them to look to for support, which is a solid factor in your rehabilitation. Having said this, they were there for you, presumably, when you chose to re-offend on the occasion for which I sentence you. You are now in a better position however to accept their support.
58I have taken into account the character references provided by your parents, who speak so highly of you, but who also recognise the wrongfulness of your offending. You have taken over the family painting business and have quite a talent for this kind of work. Your parents are dependent upon this business which used to be run by your father. The business also employs a number of people. Your father said that you are part-way through a most significant painting contract and if you were to be incarcerated, the contract would be lost and more generally, the business would be at risk of folding, which would also impact on your parents’ financial survival. I do not find that such an impact would be exceptional so as to mitigate your sentence, but I do accept that your concern for such matters would make gaol harder for you than for someone not in this position. I have also taken into account the further material tendered at the further plea in respect of your progress and in support of your character.
59You are still separated from your wife, but you also have her support. You have two children aged four and six. I was told that they adore you and that you are a good father to them and are determined to continue to be so.
60You are keen to continue on the path that you have taken since this offending, to maintain the momentum to address some underlying difficulties impacting you for a considerable part of your life. I was told that the community based order which you previously received, was not sufficiently intensive and any gains made from it had abated over the years.
61I find that you have a fairly solid work history, which is another matter which goes in your favour. In view of your solid work history, your solid family support, your lack of prior convictions in the recent past, and lack of subsequent matters, as well as your full acceptance of responsibility for offending at an early stage, and in view of your remorse and efforts thus far to address your "issues", I find that your prospects of rehabilitation are quite good. I make this finding also on the basis of the fact that you do have a relevant prior matter, although it is somewhat dated, and also having factored in the Community Corrections officer's assessment of risk of re-offending. Much will depend on your ability to effectively deal with your mental health issues into the future, to resist substance abuse, including alcohol, and to resist any impulses to commit criminal offences.
62I place some weight on specific deterrence, but this is reduced to a less than moderate degree, in view of Verdins considerations. Ordinarily, strong weight would attach to general deterrence, in a bid to deter others form behaving as you have, but I reduce this weight in your case to a less than moderate extent, in view of your impairment of mental function.
63I take into account the Community Corrections report, insofar as it relates to your suitability for a community corrections order, and refers to matters which are properly before me, insofar as your criminal history is concerned. I have put to one side other matters referred to in that report which relate to alleged misconduct, which is not the subject of charges and which you deny.
Mr Larkin
64I now turn to you, Mr Larkin. You also have a criminal history and one which has some relevance to the offending before me. On 5 March 2007, you were dealt with in the Children’s Court for burglary, theft and possessing liquor, when under 18 years, and you received a good behaviour bond, without conviction.
65On 18 August 2005, you were dealt with in the Children’s Court for wilfully damaging property, burglary and theft, as well as consuming alcohol when under the age of 18 years, and you received another good behaviour bond.
66I was told that both of the burglaries were committed with intent to steal, and so in this way they differ with the offences before me. They did not involve domestic dwellings and were of a fairly trifling nature than the offending before me. I also factor in that these prior matters are somewhat dated and occurred when you were regarded by the law as a child.
67I take into account your background. You are now 25. You were 24 at the time of the offences.
68Your parents separated when you were six months’ old and you were brought up by your mother. She re-partnered when you were about two. Sadly, your step-father died because of an epilepsy attack in 2005, and your grandmother died the following year. You were very close to each of these people and their deaths hit you hard. You had little contact with your biological father, who died when you were 13 years old.
69You moved around a great deal throughout your childhood because of your step-father’s work. This meant that you attended numerous schools, which was destabilising for you. You exhibited behavioural issues whilst at primary school and you were diagnosed as having ADHD. However, your mother was against you taking medication for this, so that this never happened. You completed Year 8, then commenced TAFE studies, completing Year 8 level, but then you did not finish Year 9. You experienced learning difficulties and difficulties with forming friendships throughout your years at school.
70After leaving school, you undertook a carpentry course through the Brotherhood of St Lawrence. After this, you worked as a builder’s labourer with the uncle of your brother's fiancée until you were 18. You have also worked with your uncle and your brother. You were two weeks into an apprenticeship in interior design when you were involved in a serious car accident, which put an end to this training.
71In 2006, you undertook a Certificate of General Education. You have also assisted your brother in his restaurant for two years and have worked at the Rye Hotel for a time. You have completed other courses and obtained qualifications along the way, which is to your credit. You have shown a preparedness to work and to better your situation in this regard.
72When you were 18, you witnessed the death of a friend, who died in your arms after a motorcycle accident. Subsequently, you were involved in a serious car accident, from which you suffer ongoing back pain. You were also the victim of a savage assault in 2009 and sustained facial injuries.
73When you were 13 or 14, you commenced to drink alcohol and consume marijuana, and you developed significant problems in relation to poly-substance abuse. In September 2011, you sought help from a drug and alcohol service and attended a residential detoxification service for seven days. You also obtained counselling from a psychologist.
74In late 2011, a long term relationship you were in, broke down, which caused you a good deal of distress. Unfortunately, the steps you had taken to deal with your substance abuse problem did not serve to address your difficulties and you continued to abuse alcohol, marijuana and ice.
75In early 2012, you had a drug-induced psychotic episode and exhibited symptoms of depression. You were then placed on a mental health care plan and were referred to a Peninsula drug and alcohol program. You were diagnosed with major depressive depression and anxiety and were prescribed medication for this, which was changed from time to time, as the medications were not effective.
76As the detailed chronology tendered by Mr Buxton shows, you went on to have various crises in your mental health, including a suicide attempt and you also continued to have problems in respect to your drug use. You have sought to deal with these from time to time. Your family has been strongly supportive of you in this regard.
77One of your attempts to deal with your difficulties saw you move to Mildura in mid-2012. You lived with your maternal grandfather and completed a TAFE course in general education. Whilst there, you met a young woman with whom you formed a relationship. You became engaged to be married. Your fiancée became pregnant, but she ended the relationship before your child was born, apparently at the urging of her father. You have not seen your daughter, who was born of this relationship.
78The ending of the relationship had a major effect on you. You returned to substance abuse, including alcohol, and you returned to Rye, where you worked in the field of landscaping and general labouring. This work endured until September 2014, although with a short break because of back pain. You were treated for this and other ailments associated with the motor vehicle accidents in January 2014.
79On 13 February 2014, your GP placed you on a mental health plan for mixed anxiety and depression and you were prescribed an anti-depressant.
80I understand that the day before you committed the aggravated burglary, you consumed methamphetamine and that prior to the offending, you had consumed alcohol.
81Ms Carla Lechner, psychologist, saw you on 12 March this year. She commences her report dated 13 March 2015 with the observation that you have no criminal history, which is wrong. You reported to her that you began smoking marijuana when you were 13 and had continued with this, but at the time of seeing her, you had cut down to one gram a day.
82As at the time of the plea hearing, you continued to smoke marijuana, although at a much reduced rate. You ceased methamphetamine use in September last year. You told her that smoking cannabis was "part of you". You said that you were aiming toward abstinence. You reported to Ms Lechner that you were having about ten beers a week and that your alcohol use had fluctuated over the years.
83I have now received a report from Amy Salmon, a senior alcohol and other drug clinician from Frankston and Mornington Drug and Alcohol Services, who says that you have achieved abstinence from cannabis since 12 April 2015 and have been attending Narcotics Anonymous meetings on a regular basis. This was confirmed by your counsel, Mr Buxton, at the further plea hearing.
84Your mental health has improved and you are now able to manage your experiences of anxiety and depression without illicit substances. You are to be commended on this and it counts in your favour, but it is still very early days.
85Your history of severe depression and anxiety is well documented. In this regard, I have taken into account the psychological reports tendered on your behalf. Ms Lechner reported that you presented with symptoms of long-term and chronic poly substance abuse, with underlying mental health problems, being clinical levels of anxiety and depression, arising from your experiences of trauma and loss. She said that you are struggling with ongoing symptoms of very high levels of anxiety and that you needed ongoing intensive treatment. She said that you were easily overwhelmed by social and emotional factors which, together with your drug use, clouded your judgement and decision making. She said that you were currently exhibiting symptoms of major depression, with a score in the extreme range. Having said this, it must be read subject to the remarks of Ms Salmon, who has seen you more recently.
86Mr Lechner said that your history revealed a long-standing mood disorder and that you had not dealt with a number of traumatic events from your childhood. Like Mr McIntosh, it would appear that you have abused substances in order to self-medicate for underlying mental health conditions over the years.
Ms Lechner said that in relation to the offending, that there is no doubt that your substance intoxication on the night in question was a contributing factor to your offending.87Mr Lohr, your treating psychologist, provided two reports and appears to be largely in agreement with Ms Lechner. You have been receiving weekly treatment from him since October last year. He is also of the view that incarceration would exacerbate your psychological symptoms.
88Mr Buxton submitted on your behalf that the symptoms of these conditions operated on you on the night in question, so as to impact on your ability to make calm and rational decisions and exercise good judgement. He submitted that a more than moderate reduction in your moral culpability ought be allowed for and that a commensurate reduction given to specific and general deterrence was also warranted. I am afraid I do not agree. While
I accept that your impairment of mental function, due to depression and anxiety had some impact on your judgement and decision making, this was not to such a significant level as submitted. I also factor in that you had consumed alcohol on the night in question and had consumed methamphetamine the day before.89In all the circumstances, I make some allowance in your favour insofar as your moral culpability and specific and general deterrence are concerned, as well as the need to punish, but to a less than moderate degree. I factor in that time in gaol would be harder for you than for someone without your mental health issues and that gaol would lead to a deterioration of your mental health.
90As I have previously said, Mr Larkin, you took an active part in the offending, although you did not assault the victim to the extent that Mr McIntosh did and you were not the driving force in the assault. You were also younger and your criminal history is not as relevant as that of Mr McIntosh's.
91After the offending, in September 2014, I was told that you re-engaged with a drug and alcohol service and thereafter you have undertaken drug and alcohol counselling. The counselling has been regular and ongoing and from the time that it commenced, you ceased ice use. You have received ongoing psychological help from Mr Lohr and were placed on a new medication regime in October 2014. Your condition has improved somewhat and you have developed insight and strategies for self-control. However, you are in need of further intervention and perhaps of a residential drug intervention. I was told at the further plea that you are on a waiting list for the latter and were also engaging regularly with Narcotics Anonymous.
92I accept that you are also genuinely remorseful for your part in the offending and that you have expressed appropriate victim empathy. You now live with your mother, who has been very supportive of you and continues to be so. Good family support is a matter which will assist you in your rehabilitation.
I was also told that you wish to return to school, with a view to improving your lot, which is a good initiative.93Also in your favour, you have entered a plea of guilty at an early stage, albeit that the matter had been listed for a contested committal hearing. I allow for a significant discount in the sentence you would otherwise receive, as you have saved the witnesses the time and trauma of giving evidence and you have saved the community the time and expense of contested proceedings. Like Mr McIntosh, your frank record of interview greatly facilitated justice in this matter.
94In all of the circumstances relevant to you, I assess your prospects of rehabilitation as fairly good, but much will depend on you continuing to engage in counselling and to stop abusing drugs or alcohol.
95I will now address both of you. Each of your counsel have relied on the recent decision of Boulton v R [2014] VSCA 342, in submitting that a suitably crafted community corrections order is appropriate in your respective cases. The prosecution submits that in your case, Mr Larkin, this would be within range, but in combination with a gaol term. However, they submit in your case,
Mr McIntosh, that a community corrections order, in combination with a gaol term, would not be within range.96Boulton was a guideline judgement of five members of the Court of Appeal, delivered on 22 December last year, where it was said that the introduction of Community Corrections Orders, which had been introduced in January 2012, had dramatically changed the sentencing landscape. In the course of the lengthy judgment, the court said that "In short, the community corrections order offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender, and of those who are dependent on him or her. On this analysis, if defence counsel submits that a community corrections order would be appropriate, it is no answer for a prosecutor, or a judge to say, ‘How could a community corrections order be appropriate, given that an offence of this seriousness has always received imprisonment?’ As we have endeavoured to explain, that question should mark the beginning, not the end, of the court’s consideration." [115]
97The court went on to say, "As the Attorney-General submitted, the community corrections order is intended to be available in serious cases where an offender may be at risk of receiving an immediate custodial sentence, but the court considers that immediate custody is not necessary to fulfil the statutory purposes of sentencing, given the range of options provided by a community corrections order." In this sense, the Attorney submitted, "The community corrections order has ‘the robustness and flexibility to be imposed in a wide variety of circumstances’. We agree." [116]
98Further, the court said,"The views we have expressed are reinforced by the recent insertion into the Act of s.5(4C)." [117] This provision came into force on 29 September 2014, after the completion of argument in the present proceeding. The new subsection provides as follows: "A court must not impose a sentence that involves the confinement of the offender, unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order, to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached." [117]
99The court also stated, "It follows from what we have said that a community corrections order may be suitable, even in cases of relatively serious offences, which might previously have attracted a medium term of imprisonment, such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide. The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned community corrections order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation." [131]
100However, the court recognised that the imposition of a community corrections order might not be possible in some instances. "There will, of course, be cases where the sentencing court concludes, after engaging in the deliberation now required by s.5(4C), that certain sentencing purposes, typically just punishment, denunciation and or deterrence, cannot be sufficiently served by the making of a community corrections order, even with onerous conditions. Consistently with the principle of parsimony, the court would then impose the shortest term of imprisonment consistent with the achievement of those purposes." [140]
101As against Boulton v R , on 18 December 2012, 11 months after community corrections orders had been introduced by the Parliament, in Hogarth v R [2012] VSCA 302, the Court of Appeal, constituted by their Honours
Maxwell P, Neave AJ, and then Coghlan AJA, made some pronouncements about offences of confrontational aggravated burglaries and current sentencing practice as at that time. Both the President and Neave AJ were members of the Full Bench in Boulton. In essence, the court observed that current sentencing practice, at that time, was too low and out of kilter with Parliament’s intention, indicated by the maximum penalty. The maximum penalty had been increased by the Legislature in 1997 from 15 years to 25 years.102In Hogarth, their Honours said, "We do not consider that current sentencing practice for confrontational aggravated burglary reflects the objective seriousness of this form of offence. The clustering of sentences around a median of two years, shows how far current sentencing practice has departed from the parameters set by the maximum penalty of 25 years." [58]
103The court went on to say, "It cannot have been Parliament’s intention that, with a few isolated exceptions, sentencing for the full range of such offences should be bounded by an upper limit of six, or at most seven years’ imprisonment." As the court said in Director of Public Prosecutions v CPD, 'The discretion which a sentencing judge has in dealing with a particular offender is a vital part of the administration of criminal justice.' But sentencing judges may not disregard the will of Parliament as expressed in the fixing of a maximum penalty." [59]
104The court also went on to say that, " ……current sentencing for this form of aggravated burglary can no longer be treated as a reliable guide, and sentencing judges should no longer regard themselves as constrained by existing practice.” [61]
105I note that in R v Boulton, Hogarth v R was not specifically referred to.
106Accordingly, on the one hand, at a time when community corrections orders were available, the Court of Appeal was of the view that sentences of imprisonment in the realm of two years for confrontational forms of this offence were generally inadequate, but two years later, the Full Bench of the Court of Appeal indicated, in essence, that community corrections orders, with or without a period of imprisonment of up to two years, may suffice in respect of certain instances of aggravated burglary.
107There seems to be a deal of tension between these two positions, although they are not irreconcilable, in view of variable circumstances which can give rise to confrontational aggravated burglaries and the individual circumstances of offenders. In keeping with Boulton and the relevant provisions of the Sentencing Act 1991, I must consider as a starting point, whether a suitably crafted community corrections order on its own, and if not, in combination with a period of imprisonment, would adequately address all relevant sentencing factors. In doing so, I have also kept firmly in mind the sentiments expressed in Hogarth in respect of the seriousness of confrontational aggravated burglaries, but also the sentiments expressed in Boulton v R concerning the desirability of rehabilitation of the offender, which services the interests of the community.
108I have carefully considered your respective roles and situations. In your community corrections order assessment, Mr McIntosh, some of the punitive steps that I was exploring, such as curfew and electronic monitoring, are not recommended. I have put to one side any matter in the assessment report which is not the subject of a conviction and which forms a basis for the assessor’s view in these respects. However, even with all of the explored conditions in place, including those not recommended, I have come to the view that because of the seriousness of your conduct, your criminal history and the weight which attaches to all relevant sentencing considerations, a community corrections order alone will not suffice. But I have also come to the view that a sentence involving a period of imprisonment and a community corrections order will serve to adequately address all relevant sentencing considerations.
109In your case, Mr Larkin, I have come to a similar conclusion for similar reasons, albeit that the sentence which I impose will reflect the differences in your respective roles and individual circumstances. In sentencing you,
Mr Larkin, I have also taken into account the community corrections assessment report, which recommends you as being suitable for a community corrections order, as well as the risk assessment in your case, which I have considered when assessing your prospects of rehabilitation.110In both of your cases, as largely the punitive part of the sentence will be a term of imprisonment, the community corrections order aspect will concentrate more on your supervision and continued rehabilitation. Make no mistake,
Mr McIntosh and Mr Larkin, before Boulton, you would both have faced substantial gaol terms, notwithstanding the matters in mitigation. However, in the light of this guideline judgement, you will be released into the community after a relatively short period of incarceration to resume your rehabilitation in the community.111I have done what I can to keep the gaol terms to a minimum, so that you can continue on with the impressive steps you have taken in respect of rehabilitation thus far. Please be mindful of the fact that if you commit any further offences in the future, especially during the currency of the community corrections orders, then you will face the very real prospect of further gaol terms.
112Mr Larkin, could you please stand up.
113First of all, I should indicate, I convict you in relation to each of the offences.
I intend to impose a community corrections order of four years duration. The terms of the CCO that I propose are as follows: You need to listen carefully to see whether you consent to its terms, because I cannot make the order without your consent.114The mandatory terms that apply to all community corrections orders are:
·You must not commit another offence for which you could be imprisoned during the time that the order is in force;
·You must comply with any obligation or requirement prescribed by
Regulation 17 of the Sentencing Regulations 2011;·You must report to, and receive visits from, the Secretary to the Department of Justice or his or her delegate;
·You must report to the Frankston Community Corrections Centre before 4 pm within two clear working days of your release from imprisonment;
·You must let a Community Corrections officer know within two clear working days of you changing your address or job;
·You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice or his or her delegate;
·You must obey all lawful instructions from and directions of the Secretary to the Department of Justice or his or her delegate.
115The conditions that apply in addition to the mandatory terms listed are:-
Supervision
·You must be under the supervision of a Community Corrections officer for a period of four years from the time of your release from gaol;
Treatment and Rehabilitation
·You must undergo assessment and treatment, including testing for drug and alcohol abuse or dependency, as directed by the Regional Manager;
·You must undergo mental health assessment and treatment including, but not limited to, mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, as directed by the Regional Manager;
·You must undergo programs or courses aimed at addressing factors relating to the offending, as directed by the Regional Manager.
116Do you consent to the terms and conditions of the proposed community corrections order?
117OFFENDER LARKIN: Yes, Your Honour.
118HER HONOUR: I should tell you that if you do not comply with all of the requirements of this community corrections order, then you will face breach proceedings before me. You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, in which case you may well be sentenced to a further period of gaol. I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending, or because of non-compliance with any of the other conditions of the order.
119Do you understand this?
120OFFENDER LARKIN: Yes, Your Honour.
121HER HONOUR: Do you still consent to the order being made?
122OFFENDER LARKIN: Yes, Your Honour.
123HER HONOUR: Therefore in relation to the charges, as part of your sentence which I impose, you are to undergo the community corrections order in the terms and conditions that I have just set out.
124I will now ask your counsel to approach the dock and have you sign the necessary documents.
125I should say, in the course of my sentencing remarks, I made a slip and I will change the sentencing remarks accordingly. You were 24 at the time of the offending, which I think I indicated you were 25, at one point, but I will amend my remarks in that regard.
126In addition to the community corrections order, I impose an aggregate term of imprisonment of six months.
127If not for your pleas of guilty, I would have sentenced you to a total effective sentence of four years, eight months, with a non-parole period of two years and four months.
128Take a seat please.
129Please stand up Mr McIntosh.
130I make a disposal order, which is not opposed by you.
Ancillary orders
131I will first set out the terms of the community corrections order, which I again cannot impose without your consent, so please listen carefully to the terms of the proposed order.
132The order that I propose will again be of a duration of four years and will commence upon your release from gaol.
133The terms of the community corrections order that I propose are as follows. The mandatory terms that apply to all Community Corrections Orders are:
·You must not commit another offence for which you could be imprisoned during the time that the order is in force;
·You must comply with any obligation or requirement prescribed by
Regulation 17 of the Sentencing Regulations 2011;·You must report to, and receive visits from, the Secretary to the Department of Justice or his or her delegate;
·You must report to the Ringwood Community Corrections Centre before 4 pm within two clear working days of your release from gaol.
·You must let a Community Corrections officer know within two clear working days of you changing your address or job;
·You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice or his or her delegate;
·You must obey all lawful instructions from and directions of the Secretary to the Department of Justice or his or her delegate.
Supervision
134The additional conditions that will be imposed are that you must be under the supervision of a Community Corrections officer for a period of four years from the date of release from prison.
Treatment and Rehabilitation
135You must undergo assessment and treatment, including testing for drug and alcohol abuse or dependency, as directed by the Regional Manager;
You must undergo mental health assessment and treatment including, but not limited to, mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, as directed by the Regional Manager;
You must undergo programs or courses aimed at addressing factors relating to the offending, including the Men’s Behavioural Change Program and or an anger management program, as directed by the Regional Manager.
136Do you consent to the terms and conditions of the proposed order?
137OFFENDER McINTOSH: Yes, Your Honour.
138HER HONOUR: I should tell you, if you do not comply with all of the requirements of the order, then you will face breach proceedings before me. You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, in which case you may well be sentenced to a further term of imprisonment. I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending, or because of non-compliance with any of the other conditions of the order.
139Do you still consent to the community corrections order?
140OFFENDER McINTOSH: Yes, Your Honour.
141HER HONOUR: Therefore, in relation to the charges, as part of the sentence I impose, in respect of them, you are sentenced to a community corrections order in the terms and conditions that I have just set out.
142I will have your counsel now approach you in the dock to sign the document.
143Further, in respect of Charges 1, 2 and 3, I impose an aggregate term of imprisonment of nine months.
144If not for your pleas of guilty, I would have imposed a gaol term of five years, with a non-parole period of three years.
145Take a seat for a moment please.
146Is there anything arising out of those sentencing remarks?
147COUNSEL: No, Your Honour.
148HER HONOUR: All right, yes, thank you. Is there anything you wish me to communicate, through my associate, to the authorities?
149MR BUXTON: Yes, just one matter.
150HER HONOUR: Yes.
151MR BUXTON: Your Honour, for Mr Larkin. He is on 150 milligrams of Seroquel daily, that he receives in the morning.
152HER HONOUR: Yes. Yes.
153MR CASEY: There is no custody management issues in relation to
Mr McIntosh.154HER HONOUR: Well I will have communicated, with your blessing, that it is their first time in gaol and so - - -
155MR CASEY: Yes.
156MR BUXTON: Yes.
157HER HONOUR: That the authorities are made aware of that. Yes, thank you, you may remove the prisoners.
158We will now adjourn.
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