Director of Public Prosecutions v McIntyre

[2014] VCC 673

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-01827

DIRECTOR OF PUBLIC PROSECUTIONS

V

STUART BRUCE MCINTYRE

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	16 & 29 April 2014
DATE OF SENTENCE:	7 May 2014
CASE MAY BE CITED AS:	DPP v McIntyre
MEDIUM NEUTRAL CITATION:	[2014] VCC 673

REASONS FOR SENTENCE

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Subject: Criminal Law- sentence         

Catchwords: Aggravated burglary, criminal damage, theft, unlawful assault - plea of guilty at early stage - makeshift weapon used to gain entry to cabin and assault victim – offender aged 41, no previous history of violence –limited criminal history -  long-term depression – drug and alcohol abuse since early teenage years – reasonable work history – family dysfunction – subject to treatment, good prospects for rehabilitation -               

Legislation Cited: Sentencing Act 1991 – Crimes Act 1958

Cases Cited:R v Verdins [2007] VSCA 102 ; DPP v Edwards [2012] VSCA 293

Sentence:      CCO 2 years     

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Burnett	OPP
For the Accused	Ms Z. Broughton	VLA Bendigo

HER HONOUR:

1Stuart Bruce McIntyre, you have pleaded guilty to one charge of criminal damage, one charge of aggravated burglary, one charge of theft and a summary charge of unlawful assault.

2All of these offences occurred on the same occasion, 28 August 2012.  Late that night you were at home with your girlfriend and a friend of hers.  As a result of a telephone call from another of your housemates, Darcy Lea, you left the house and met Lea, who told you he had been harassed and threatened by three males who had gone to the Pioneer Caravan Park in Wedderburn.

3You and Lea also went to the caravan park and lay in wait for the three men.  You armed yourself with a wooden post found at the side of the road and then approached the cabin in which you found the three men seated, drinking alcohol.  A further three men were in bed in the cabin.

4You used the post to smash two of the cabin windows, and one of the victims, Gould, who was seated directly below a window, sprang to his feet to avoid the smashing glass and the post.  In doing so he collided with a wall and was concussed.  The two other men, Thorne and Kirkwood, also tried to get out of the way.

5You smashed the timber door with the post and swung it wildly at Kirkwood, striking him on the forearm.  He is the subject of the charge of unlawful assault.  You continued to swing the post around, damaging the internal wall and doors of the property.  You yelled repeatedly to the victims "This is what you get for having a go at one of my mates".  You then picked up a box of Melbourne Bitter containing assorted alcohol and stated "I'll take the grog".  You then walked home carrying the post and gave the alcohol to your friends.  At some stage you hid the post on a vacant block of land.

6You were arrested for other matters on 31 August, and you denied having committed these offences.  One of the victims had identified you from a photo board and later, the other two identified you when a more recent photograph of you was used in a second photo board.  You were charged on summons in May 2013.

7The damage caused to the cabin was valued at $2,413.29.  Gould was taken to hospital and treated for concussion, and Kirkwood suffered minor soreness to his arm.  The alcohol was valued at $40.00.

8A charge of aggravated burglary involving the invasion of a person's home when they are present is a serious matter.  This was late at night, and although it is apparent that there was some provocative behaviour on the part of the victims, they had gone to their premises and were, as one might put it, minding their own business.

9Your actions in entering the cabin were very aggressive and continued once you gained access.  It is lucky that the occupants were not seriously injured.  As it was, you caused considerable damage in a very short time, with a damage bill of over $2,000.

10A victim impact statement was provided by one of the occupants of the cabin, a man who was in bed at the time, trying to sleep.  Neither of the two men who were the direct victims of your aggression provided victim impact statements.

11You are aged 41, a single man from a family that was stable and intact during your childhood.  Your parents were hard working people who brought up four children and you lived at home until you were 15.  At that age you went to live with your older sister and her family in Perth, which was an attempt by your mother to remove you from an unsatisfactory peer group.  This was not successful, and indeed led to your estrangement from your sister.

12

Your education ended in Year 10 and you commenced, and completed, a baker's apprenticeship.  You worked as a baker for some years, and for

13 years you were in a relationship with a woman who became seriously ill, and it was during her treatment and recovery that she ended the relationship, which affected you badly.  By this time you were working as an interstate truck driver.

13You had commenced using drugs and alcohol at a very early age, and the decline which followed the breakdown in your relationship precipitated problematic substance abuse by you, and you were homeless and without funds, as well as having lost your driving licence.

14You moved to Wedderburn two and a half years ago to live near your brother hoping for some support, but this was not forthcoming.  At the time of the offending you were using ice daily, spending most of your money on it.  You have now ceased using drugs, but for cannabis, and it appears that you continue to do that out of boredom, with no job and unable to apply for the restoration of your driver's licence until November.

15Your further isolation is due to the fact that following the deaths of your parents some years ago, conflict between you and your siblings and each other resulted, and you are no longer in contact with any of them.  Unfortunately you were convicted and fined for the offence of affray involving your brother in 2012.  That is not, of course, a prior conviction.  Otherwise you have a very limited criminal history.

16You pleaded guilty to these charges at an early stage and you are entitled to a discount on your sentence for that plea, as it has avoided the need for a trial and assisted the progress of the case.

17The delay, which occurred before you were charged, is a significant period of time, and the delay since the case was ready last December, was caused by the need for psychological material.  So you have had the matter hanging over your head for a considerable period of time.

18I accept the plea as an indication of remorse, which is an important mitigating factor.  You also expressed that to the psychologist, Dr Terziovski, who assessed you recently.  You told her that you intended no harm to the men, and were remorseful for having smashed and damaged the property.

19Quite apart from your problems with substance abuse, Dr Terziovski identified your long-term condition of depression, for which you are prescribed the drug Effexor.  She formed the opinion that you have trouble dealing with angry feelings, that you tend to act impulsively without thinking of the consequences, and that you tend to be anxious with low self-esteem.

20It appears that you do have some insight into these aspects of your personality and you recognise the need for treatment but you are unsure if you could respond to it.  Dr Terziovski expressed the further opinion that imprisonment would likely cause your mental state to deteriorate, but that the prospect of future employment and a continuing relationship will motivate your recovery and rehabilitation.  She considers your risk of re-offending in a violent fashion is low, because fortunately you have many protective factors, factors in your favour which will likely reduce the risk.  More than that, she considers you would benefit from individual psychological treatment, as well as continuing medication and assistance with obtaining employment so that you can put your skills to good use.

21Turning briefly to those protective factors, they include the relationship you have with Ms Buschmann, who is in court to support you, your fairly extensive work history, the insight into your problems, and the absence of any serious physical or mental health problems.  Your family difficulties, and the presence of depression and other psychological disorders of perhaps a minor nature as identified by Dr Terziovski, are all amenable to treatment or appropriate clinical attention.  This sets the scene for good prospects for rehabilitation.

22The learned prosecutor submitted that your conviction in 1993 for burglary and theft is a relevant prior conviction, but I note that you were only 21 at the time, it was some 20 years ago, and the circumstances were very different.  It did not involve any violence.  I place very little weight upon it as indicating a guarded prospect for rehabilitation and, indeed, it is likely that the issue of long-term substance abuse, rather than a tendency to anti-social behaviour, is what places your chances for rehabilitation at risk.

23Your counsel, Ms Broughton, submitted on the plea that your depressive state at the time of the offending can be said to have played a role in your criminality and that according to the principles in the case of R v Verdins, your criminal culpability would, therefore be reduced.  I am not persuaded that there is a sufficient nexus between the state of your mental health and the offending, but the principles in Verdins do apply in relation to your experience of imprisonment.  You have never been to prison before, which, of itself, should be given some weight.  But, additionally, your experience of prison is likely to be more difficult than it would be for a prisoner who does not suffer, as you do, from long-standing depression of such a degree that it requires medication.  Accordingly, some leniency should be accorded you in regard to the appropriate sentence.

24The learned prosecutor further submitted that only in exceptional cases of offending such as this, can a sentence of imprisonment be avoided, and that a sentence of immediate custody is appropriate.  She referred me to the relevant Sentencing Snapshot dated June 2012, which I understand is the latest available, and which indicates that the most common sentence imposed for this crime is immediate custody.  Notwithstanding that, I am required to consider your particular circumstances as well as the other relevant principles.

25General deterrence is perhaps chief amongst them, because aggravated burglary is a serious crime, and in this case was combined with other offending as well.  Unfortunately this crime is often committed by those who feel entitled to take matters in their own hands and deal with some injustice, wrongly perceived or otherwise, and invade a person's home.  Those people must understand that such behaviour is not to be condoned and will be dealt with severely by the courts.

26In your case, specific deterrence is also warranted.  I have formed the view that both those principles can be met by the imposition of a community corrections order rather than immediate custody.  Deterrence, in your case, will best be achieved by drug and alcohol treatment, which is likely to play a major part in your rehabilitation.

27I was referred to the decision of the Chief Justice in the case of Edwards, where Her Honour described a community corrections order as a significantly less severe sentencing option than prison, but not to be regarded as a soft sentencing option.  Her Honour then outlined the significant burdens which may be placed on the offender by such an order.  I am able to exercise some leniency in this case because of the mitigating factors I have taken into account, but the obligations placed upon you Mr McIntyre, will indeed be onerous.

28Would you stand now please, and I will explain them to you.  As you know, you have been assessed as suitable for a community corrections order, and you have consented to that. I order that that order begin today to last for two years, with conditions that you be under supervision and that you have treatment and rehabilitation for drug and alcohol abuse, and in relation to your mental health.  You must also complete 100 hours of unpaid community work.

29You must comply with all those orders and not offend again during the next two years or you will have breached the order and must appear before me again to be resentenced.  I note the advice of the corrections officer, that there are no current worksites available in Wedderburn, where you live, and at present you do not have a driving licence.  I am informed, though, that if you cannot travel to Bendigo there apparently is home-based work that you can do.  You are a person with skills, as a I said before, which might mean that you can make a very real contribution to the community through this work.

30

Mr McIntyre you must attend the community corrections office at

18-20 St Andrews Avenue, Bendigo

before 4.00 p.m. on 9 May, which is in two days' time.

31If you had pleaded not guilty, I would have sentenced you to a community corrections order for three years with 150 hours of unpaid work.

32The prosecution seeks an order for the retention of the forensic sample you provided, and through your counsel you have consented to that, and I make that order.

33There is also an application for compensation to be paid to the Loddon Shire Council for the damage to the cabin in the sum of $2,413.29.  You have also consented to that, and I make that order.

34Have I omitted anything else Ms Burnett?

35MS BURNETT:  No Your Honour.  Your Honour, I believe it was my mistake on the last occasion, I referred to the order as a retention order.

36HER HONOUR:  Yes you did.

37MS BURNETT:  It's an order for the taking of a sample Your Honour.

38HER HONOUR:  I see, I will explain that again

39MS BURNETT:  My apologies.

40HER HONOUR: I will correct that. Mr McIntyre, the order I am making under s.464ZF of the Crimes Act, means that the police are able to take a forensic sample of saliva from you.  The police do have the power to use reasonable force to obtain that sample, but I trust that will not be necessary.  Anything else Ms Broughton?

41MS BROUGHTON:  No Your Honour.

42HER HONOUR:  The order is here for signature by your client, so I will hand that down and you can have a look at it for him, and he can sign it.  Do you seek a stay for the order for the payment of compensation Ms Broughton?

43MS BROUGHTON:  Yes I would Your Honour.  It is a stay of three months.

44HER HONOUR:  It is normally a stay of one month.  I can extend that if necessary.

45MS BROUGHTON:  Perhaps if it could be extended to six months, if Your Honour is able to do that, in order for him to start work again and make some ‑ ‑ ‑

46HER HONOUR:  Yes, well in view of his circumstances I will make a stay of six months.

47MS BROUGHTON:  Thank you Your Honour.

48HER HONOUR:  Did you hear that Mr McIntrye?  You have got six months to pay that compensation amount to the council?

49MR McINTYRE:  Is that able to be extended after six months?

50HER HONOUR:  You will have to seek some advice about that, I can't tell you at the moment

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