Director of Public Prosecutions v Menzies
[2022] VCC 972
•21 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02099
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CLINTON MENZIES |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2022; 16 June 2022 | |
DATE OF SENTENCE: | 21 June 2022 | |
CASE MAY BE CITED AS: | DPP v Menzies | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 972 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Aggravated burglary; recklessly cause injury
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R vVerdins & Ors (2007) 16 VR 269
Sentence: 6 months’ imprisonment & Community Correction Order (2 years duration, with 175 hours community service, supervision and therapeutic conditions).
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr. J. O'Toole | Office of Public Prosecutions |
| For the Offender | Mr. M Habib | Matthew Mahady Criminal Law |
HER HONOUR:
1Clinton Menzies, you have pleaded guilty on indictment to one charge of aggravated burglary and one charge of causing injury recklessly. The conduct that constitutes both of these charges was committed on 18 September 2020.
2In sentencing you for your crimes, I am required to have regard to the maximum penalties for each of the offences. The maximum penalty for the charge of aggravated burglary is one of 25 years' imprisonment. The maximum penalty for causing injury recklessly is 5 years' imprisonment. These maximums reflect the seriousness with which Parliament regards these offences.
3
In terms of the circumstances of your offending, they were set out in a document entitled 'Summary of Prosecution Opening for Plea' which was dated
10 February 2022. That document represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as forming the factual basis on which I am to sentence.
4I turn now to the circumstances of the offending.
Circumstances of offending
5The victim in this matter is Mr Anthony Power. At the time of the offending, Mr Power was not known to you.
6On 18 September 2020, Mr Power was alone at home watching television. In the weeks prior to this date, Mr Power had experienced a number of incidents at his house where his thongs had been taken from his front door and somebody had been tapping on his windows.
7At approximately 7.30 – 7.45 pm, Mr Power heard a banging noise that he thought sounded like something being thrown on his roof. Sometime before this, he had heard children passing his house on scooters and suspected the two were related.
8Mr Power went out the back of his house with a torch and waited in the dark. He heard the scooters getting closer and observed two boys come through the hedges at the front of the property. Mr Power ran around to the front and observed the boys looking in his lounge room window. Those two boys were your son, Aiden, and his friend, Jimmy.
9
Mr Power grabbed one of the boys and said, 'What the hell are you doing?' The boy began to apologise. The second boy was standing nearby and told
Mr Power, 'Don't hurt him.' Mr Power grabbed the second boy and was holding one in each hand. By this time, the first boy had fallen to the ground. He stood up and ran into the road, and started yelling, 'Help, help'. According to Jimmy, in the course of this incident he was thrown to the ground and punched twice by Mr Power.
10Mr Power let go of the second boy who told him he was going to call the police. The first boy told Mr Power to 'fuck off'. Mr Power went inside the house and did call the police.
11
Shortly after 8.00 pm, Mr Power heard a car out the front of his house and assumed that it was the police. He heard loud knocking on his front door.
Mr Power opened the door and saw you, Mr Menzies, holding a blue-coloured baseball bat.
12Mr Power saw that bat and started walking backward. You followed him into the house but discarded the bat before entering. It is this conduct that forms the basis for charge 1 - aggravated burglary.
13
Mr Power ended up on his couch and curled up to protect himself. You then punched him to the face and head approximately ten times. Mr Power used his arms to cover his head. It is this conduct which forms the basis for
charge 2 - causing injury recklessly.14
Your wife, Kelly Menzies, entered the room and said something to the effect of 'That's enough' to you. You then quickly walked out of the house. Mr Power said to Kelly Menzies 'what's that about?’ and she replied, 'he's only 13 years old, you've given him a fat lip.' Mr Power replied that he didn't hurt him.
Kelly Menzies left, closing the door as she walked from the front door.
15Police arrived a short time later. Due to his injuries, Mr Power was transported by ambulance to the Bendigo Base Hospital.
Injuries
16He sustained multiple facial fractures as follows:
(a) fractures through the floor of the left orbit and lateral wall; and
(b) a nasal plate fracture.
17He also suffered bruising, and cuts to his hands and head.
18Photos were tendered of his injuries both pre and post treatment.
Investigation
19As part of their investigation the police obtained a warrant to monitor and record your mobile telephone during February and March 2021 and your conversations were detailed in the Crown opening. Certainly, at that stage you didn't have an appreciation of your wrongdoing.
20On 26 March 2021 you entered the Echuca police station by appointment, where you were arrested and interviewed. You gave a 'No comment' record of interview, as is your right.
21I turn to victim impact and offence gravity.
Victim Impact and offence gravity
22I accept that the charge of aggravated burglary, an offence complete on entry, lacks a number of aggravating features. You did not use a weapon, you did not cause any damage to gain entry, it was not late in the night, and you were not in the company of others. Nonetheless this is obviously still serious offending.
23Your actions were retributive. You were initially armed with a baseball bat which you left at the front door of Mr Power's residence. On entry, your resort to violence was instant. You took no time to speak with Mr Power, instead assaulting him with your fists and doing so repeatedly.
24Whilst I accept that your actions occurred somewhat spontaneously in emotional circumstance where you believed two boys, including your son, had been assaulted by Mr Power and you lived close by - about a block away - you were simply not entitled to take matters into your own hands. The reasons for your offending do not justify or excuse your conduct. You had other, legal means of redress.
25Your entry to Mr Power’s home was aggressive, and your assault upon him vicious. Mr Power had little, if any, time to defend himself and was vulnerable in that context. The actual injuries you caused were not insignificant.
26You only stopped when your partner called upon you to do so. In addition, your attack occurred in Mr Power’s own home, an environment in which he was entitled to feel safe.
27The objective seriousness of offending coupled with the degree of taking the law into your own hands means that just punishment, denunciation and general deterrence are important sentencing principles in this case.
28A Victim Impact Statement authored by Anthony Power dated 15 February 2022 was tendered by the prosecution at the plea hearing.
29The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.
30Mr Power describes the deep impact that this offending has had on his mental health. He describes feeling anxious, on edge, frustrated and constantly vigilant for any sign of you or a confronting situation. Mr Power reports having visions of the incident that disrupt his sleep.
31He also refers to the physical injuries he suffered and reports that he sometimes struggles to breathe through his nose.
Plea of guilty
32The Sentencing Act obliges me to take into account the stage at which you entered your plea. This matter resolved to a contested plea at committal mention on 29 September 2021 but proceeded without issue being taken with the prosecution opening. The Crown concede that your pleas were entered at an early opportunity, and I accept this.
33There is clear value in saving the victim the need to give evidence, and utilitarian value in saving the community the expense of contested proceedings.
34Your decision to plead guilty in the context of the COVID-19 pandemic has additional utilitarian value as it provides certainty and finality to all parties in circumstances where the court's operations have been significantly disrupted and many trial dates remain as yet unfixed.
35
In the recent decision of Worboyes v The Queen [2021] VSCA 169 at
paragraph 39 the Court of Appeal said that, and I quote:
“…a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time…”
36Based on the materials before me, I accept that you are now remorseful for your actions.
37These factors will be taken into account in your favour.
Delay
38
Delay is also relevant. The incident occurred on 18 September 2020 and due to the need for an extended police investigation you were not charged until
26 March 2021. As referred to earlier the matter resolved on or about
29 September 2021, with a plea hearing listed on 22 November 2021. Your plea was not able to take place on that occasion, nor on the subsequent listing of 17 January 2022.
39
Whilst your plea commenced on 17 February 2022 it was adjourned to
16 June of this year, in order that a psychological assessment of you could be obtained.
40I accept that the period taken from being charged and the matter being finalised today, represents a period of time which meant you had the stress of these proceedings hanging over you. In addition, it has provided a period in which to assess your prospects of rehabilitation. I am told there has been no further offending over that period.
Personal circumstances
41I now turn to your personal circumstances, which have been helpfully set out in written submissions provided by your counsel as well as in a psychological assessment report authored by Gina Cidoni, dated 7 June 2022, which was tendered on your behalf.
42You were born in Geelong in April 1982 and were raised by your parents for your early development years. Your parents remain married and live in Queensland. I am told that you do not have a close relationship with them but you do remain in touch. You report that during your adolescence that your father was an abusive alcoholic.
43You have one brother and one sister. You maintain a relationship with your brother, but not your sister.
44At the age of 15 years, you were kicked out of home due to ongoing issues with your family. You instruct that you spent 6 months living in a boys’ home until you were exited due to your inability to follow curfew times and your already by that stage, heavy substance use.
45You also left school at the age of 15, completing year 9. Your early school years were tainted by negative peer influence. In high school you had significant issues due to acting out and learning difficulties.
46You had started drinking alcohol at 13 years of age. At 14, you commenced using cannabis, and at 15 you commenced using speed.
47You commenced a relationship with your first partner, Amanda, at age 15 and subsequently moved in with her and her mother. At 16, Amanda fell pregnant and suffered a miscarriage. At age 17, she gave birth to your first child. Two years later, Amanda gave birth to your second.
48You report that the birth of your first child was a motivation to address your drug use at that time, however your alcohol abuse issues persisted. You separated from Amanda when you were around the age of 22 years.
49You have mostly maintained sobriety from drugs since your mid 20s until 2020. You did have a relapse when your current partner's mother died in July of that year. Your grief from this event influenced your return to drug and alcohol use and you were still in the throes of this relapse at the time of your offending in September 2020.
50Indeed, you instruct that during this offending, and your prior offending, alcohol played a part. You instruct that in 2020 you were at the height of your alcohol abuse, drinking more than 10 standard drinks a day as a way of coping. Since this offending you have apparently sought to curtail your drinking habits to about 3 standard drinks a day on weekdays.
51You met your current partner, Kelly, in 2003 and commenced a relationship in 2006. Both of you commenced your relationship with two of your own children from previous relationships.
52You have two children from your relationship with Kelly, currently aged 14 and 10. Both children reside at home with you.
53
Your son, Aidan, was born 27 weeks into the pregnancy and spent the first
4 months of his life at the Royal Children's Hospital. You spent as much time as you could with Aidan during this time and this led to you forming an incredibly strong bond.
54You report that your children require the assistance of teacher's aids in school and have high needs at home.
55In recent years, you and Kelly have taken in various family members and friends who have struggled with their home life for periods of time. You instruct that such support is offered and motivated by your own upbringing and the lack of support you had from your family during that time.
56
You have a long history of labour work throughout your life, commencing as a cabinet maker's apprentice at the age of 18. You then operated your own lawn mowing business, and worked on small engines, before working in steel manufacturing for 12 years for Boswell Engineering. You currently work on a full-time basis at the Bendigo Rail Maintenance renovating and upgrading
V-Line carriages, a role that you have held for approximately 16 months.
57You have been an active member of your local community in recent years, being an Auskick coach from 2014 to 2016, and assisting with local flood recovery efforts. You assist with your local football and basketball clubs in cleaning the clubrooms, scorekeeping and transporting children to and from games. You are an active member of your local community.
Mental health
58
As previously mentioned, a psychological assessment report authored by
Gina Cidoni, dated 7 June 2022, was tendered on your plea.
59Ms Cidoni assessed you as having borderline low average cognitive function and diagnosed you with Post-Traumatic Stress Disorder (PTSD), Major Depressive Disorder (MDD) and Substance Use Disorder.
60In her opinion, your symptoms of PTSD and MDD, cause a sense of feeling overwhelmed. You have difficulty modulating your behaviour, variable energy and concentration, an inability to relax, fluctuating moods, restlessness, reduced sleep and appetite, impulsivity, hopelessness, and a loss of self-esteem.
61Ms Cidoni inferred that you developed substance abuse in response to your poor coping and negative exposures. Your use overlies your mental illness, providing escape and relief from underlying unrest.
62Ms Cidoni reported that your offending was committed following high activation where you suffered a triggering effect possibly linked to your own experiences of violence as a child. It was reported that your PTSD symptoms can fluctuate and certain triggers can set you off and bring back strong memories. In these instances you can feel like you are reliving your own experience that likely involve powerlessness and rage, where your judgment becomes impaired and you are unable to control your behaviours. In Ms Cidoni's opinion, these feelings are uncontrollable and have a causal link to your offending. I am satisfied that these findings allow for some moderate reduction of your moral culpability.
63Ms Cidoni found that your PTSD and MDD symptoms would be exacerbated in a prison environment, which would make your experience more onerous. Your counsel calls into your aid principles 1, 2, 3 and 5 of the decision of
R vVerdins & Ors (2007) 16 VR 269. I have already referenced your moral culpability. Whilst less satisfied as to the application of limbs 2 and 3, I do see a basis to apply limb 5; that is, the existence of your condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on you than it would on a person in normal health.64It was recommended by Ms Cidoni that you require psychotherapy and skills training to assist you with controlling specific behaviours and thinking patterns, and to help with your resolve to remain abstinent, and deal with your traumatic experiences and maladjustment. Meaningful occupation in study, training or work would also help reduce your risk of reoffending.
Criminal history
65You do have a prior criminal history which also forms part of your personal circumstances.
66You have a limited criminal history, but it does contain a relevant prior matter.
67Your first court appearance was on 10 July 2001 at the Geelong Magistrates' Court. You were fined without conviction for charges of possess cannabis, handle stolen goods and using cannabis.
68Four years later, on 18 May 2005, you appeared at the Geelong Magistrates' Court for charges of drive whilst suspended, drive whilst disqualified and fail to answer bail. You received a term of 1 month imprisonment which was wholly suspended for a period of six months. You were also fined with conviction.
69Your relevant prior matter was dealt with on 12 September 2013 at the Echuca Magistrates' Court, where you were charged with recklessly cause serious injury. This offence was also apparently alcohol fuelled when you punched a man you believed had made an advance on your partner. You were sentenced to two months' imprisonment in combination with a 10-month Community Corrections Order.
70Whilst not to be punished for your criminal history a second time, it is relevant to the assessment that needs to be undertaken by me as to the weight that should attach to specific deterrence, that is, putting you off further offending, denunciation and protection of the community, all of which do carry importance in your sentencing exercise. It is also relevant to the assessment as to your prospects for rehabilitation.
Prospects for rehabilitation
71In terms of those prospects, until the matters the subject of the indictment, there had been no offending by you since 2013, a period of some seven years. I am also told that there has been nothing since, a period of some 21 months.
72There was obviously some context to your offending which was also timed with the fact that you were using drugs and alcohol. It would appear that there is merit in you seeking some psychological assessment and/or counselling for drug and alcohol use.
73You have apparently obtained a mental health care plan and are continuing to reduce your alcohol intake.
74You are, as I've said, in full-time employment, working on V-Line trains carrying out repairs.
75Your wife, Kelly, works as a cleaner and your two younger children are at home. You are understandably anxious about leaving them to fend for themselves if you are incarcerated. I note that Ms Menzies older children do live in the local area as does her elderly father.
76You, Mr Menzies, are fortunate to be well supported by family. Your partner and daughter both attended your initial plea hearing and your family have all attended your subsequent plea hearings.
77Kelly Menzies has provided a written reference. She speaks of the support you gave her when she was leaving an abusive relationship before your relationship together commenced. She speaks of the strong bond you have with your son, Aidan, due to the health problems he experienced in his very early years. She describes you as a very loving father and that your offending is out of character. She also speaks of your remorse.
78You have written your own letter of apology. Whilst I tend to find such correspondence to be self-serving, I accept that you have had time to think about your actions in September 2020 and that you are regretful for them.
79
References have also been tendered, authored by Christopher and
Amanda Apthorpe, Amber Apthorpe, Jasmin Malham and your niece Lilly. I have read each of these documents. Each of these persons have known you in different capacities but speak of your kindness to others, your generosity, your love for family and to not knowing violence to be part of your character.
80
A reference from your previous employer, Byron De Winne, tells me that he has known you 15 years and that you worked for Bozweld Engineering for about
14 years. You lost your employment in the context of the COVID-19 pandemic and a downturn in the business, reducing work and staff to a minimum. You were a highly respected member of the team and were described as very honest and as putting everything into the task at hand. He speaks of your regret for your actions and Mr De Winne sees a future for you in his business when things improve.
Sentencing submissions
81In written submissions dated 14 February 2022, your counsel conceded that an immediate term of imprisonment properly reflects relevant sentencing considerations. He rightly pointed to the additional consideration that the correctional authorities have had to respond to the COVID-19 pandemic. Any incoming prisoner faces a period in quarantine or isolation. The prison system is still seeing some reduction in access to courses and therapeutic programs and in personal visits. These will be important factors to you given your close bond with your family and that you have had limited exposure to the custodial setting.
82On receipt of the psychological report authored by Ms Cidoni, it is now submitted that the court could properly impose a sentence of imprisonment in combination with a corrections order as opposed to a sentence of imprisonment that includes a non-parole period.
83On receipt of that report, the Crown agree, as do I.
84Accordingly, I've had you assessed as to your suitability for a community corrections order and, given the contents of Ms Cidoni's report, asked that a mental health assessment also be conducted.
85An assessment outcome report dated 16 June 2022 tells me that you are suitable for a community corrections order. You were also described as forthcoming in the assessment and that you appear to show remorse for your actions.
86The Mental Health Advice and Response Service (MHARS) assessment provided recommends that mental health treatment be mandated in any corrections order imposed.
Sentence
87In terms of the basic purposes for which a court may impose a sentence, they include punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.
88I am required to balance the interests of the community in denouncing criminal conduct with the interests the community clearly has in seeking where possible to ensure that offenders are rehabilitated and safely re-integrated into society.
89I have taken into account the relevant sentencing guidelines referred to in s5 of the Sentencing Act. I have taken into account the current sentencing practices for the offences to which you have pleaded guilty, as well as the principles of totality and proportionality.
90I do propose to impose an aggregate sentence, as I am satisfied that the offences are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character. Indeed, these two offences, are very closely linked. Your offences were committed in very close time proximity and motivated by the same context.
91Accordingly, in relation to the two charges on the indictment, you are convicted and sentenced to six months' imprisonment. This is in combination with a community corrections order of two years duration which includes the following conditions:
(a)175 hours of community work;
(b)supervision by the office of corrections;
(c)assessment and treatment for alcohol use and abuse;
(d)assessment and treatment for drug use and abuse;
(e)mental health treatment; and
(f)offence specific programs perhaps, I suggest, anger management.
92Seventy-five hours of treatment will be offset against the community work condition, more treatment, less community work.
93In addition to the conditions that I have imposed there are what we call, standard conditions. The first of those is that you must not commit any other offences during the 24-month period which could be punished by imprisonment. On release you must report within two working days to the nearest community corrections office. You are also required to advise your supervising corrections office of any change of address of where you are living or working, and you must do so within 2 clear working days. It is a term of all community corrections orders, that you must submit to visits as directed and obey all of the instructions and directions of a Corrections officer. You cannot even leave the
State of Victoria without the prior permission of your community corrections office.94In my view, the order presents you with a chance to continue to change your life in a positive fashion, should you choose to take up that opportunity and the supports that should be made available to you. The order can be breached if you do not comply with it in terms of the conditions or reoffend whilst it is in place by an offence punishable by imprisonment. If there is a breach, you will need to re-appear before me for breaking the order. I may have to resentence you on the original charges and to sentence you for a separate offence of contravening the order.
95I can only place you on a corrections order if you agree to being placed on that corrections order and Mr Habib, I'll give you a moment to speak with your client.
96Before I do, that, in terms of s6AAA of the Sentencing Act that is a provision that requires me to state the sentence I would have imposed if you had not pleaded guilty. If not for your pleas of guilty you would have sentenced to
2 years and two months with a minimum of 12 months before being eligible for parole.97HER HONOUR: Thank you. I'll just make sure that you have got a copy
of - - -98MR HABIB: I might just query Your Honour. I note that the assessment and Your Honour's recommendation was for judicial monitoring. Is Your Honour including that in the order?
99HER HONOUR: Well, I usually put judicial monitoring if I see a real need to keep either an eye on an offender, or alternatively an eye on the
Office of Corrections, to make sure services are implemented. I am firmly of a view that Mr Menzies will access services, and that he wants to do so. So, I decline to do that. I can add it in, if you want me to?100MR HABIB: I don't seek that Your Honour, I simply saw it, so I thought I'd raise it.
101HER HONOUR: No, thank you very much. Do you want me to stand down temporarily?
102MR HABIB: Yes, Your Honour please.
103HER HONOUR: I'll just check before I do that, anything I missed from your end Mr O'Toole?
104MR O'TOOLE: No, Your Honour.
105HER HONOUR: Mr Habib.
106MR HABIB: No, Your Honour.
107HER HONOUR: All right.
(Short adjournment.)
108MR HABIB: Thank you, Your Honour.
109HER HONOUR: Thank you, Mr Habib, Mr Menzies been prepared to sign that document?
110MR HABIB: He is, Your Honour, he has signed that document.
111HER HONOUR: All right, thank you very much. I thank you very much for all your assistance in relation to this matter Mr Habib, and of course I also thank you Mr O'Toole. In the nicest possible way Mr Menzies, I don't want to see you again. All right, thank you very much.
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