Director of Public Prosecutions v Minahan

[2012] VCC 514

IN THE COUNTY COURT OF VICTORIA Revised

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-11-00847

THE QUEEN

v

LANCE JESSE MINAHAN

---

JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 April 2012
CASE MAY BE CITED AS:	DPP v Minahan
MEDIUM NEUTRAL CITATION:	[2019] VCC 514

REASONS FOR SENTENCE

---

Catchwords:

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Fitzpatrick
For the Accused	Mr D. Glynn

HER HONOUR:

1        Lance Jesse Minahan, a jury has found you guilty of one charge of recklessly cause injury. 

2       The facts underlying your offending are as follows.  On 2 July 2010, Marcus Cartlidge, the victim in this matter, and his 17‑year‑old girlfriend, Tess Mee, went to an 18th birthday party at the Patterson Lakes Community Centre in Thompson Road, Patterson Lakes, arriving there about 8.30.  The party was being held for a friend of Tess Mee. 

3       You and about fifty other people also attended the party which was by invitation only. 

4       At about 10.30 p.m. Mr Cartlidge and Ms Mee were on the stage area inside the community area talking to the DJ.  Apparently, the DJ was allowing people to play music through his equipment from their iPhones and people were lining up in order to do this.  You were in the area. 

5       An argument started between you and Mr Cartlidge over you touching the DJ equipment, although, on the evidence, it did not seem the DJ was particularly concerned about this. 

6       The evidence was that a scuffle developed between you and Mr Cartlidge, and he pushed you and another person you were with over.  Then Security attended; they knew you, they threw you out and you left. 

7       About an hour later, Mr Cartlidge and his girlfriend decided to leave the premises.  The evidence of Mr Cartlidge was that he had rung a friend and was going to get a lift home.  The evidence of the Security was that he was advised not to go outside because you were known to be in the car park area, but that, nevertheless, Mr Cartlidge said he was going to go out and, according to the evidence of one of the security guards at committal ‑ which was admitted by him in the trial and therefore became evidence ‑ he said, "I don't care".  He headed off and headed towards you. 

8       The evidence of Ms Mee and Mr Cartlidge was somewhat confused at this point.  Ms Mee gave evidence that she was joined by Mr Cartlidge's friend who had arrived to pick him up.  She could not recall his name and indeed neither could Mr Cartlidge recall his name, but said he was definitely there.  It appears you were present at the car park with a number of girls who were calling things out and you called out something to Ms Mee and Mr Cartlidge decided he would go over and tell you that you were not required in the area and to leave.  In any event, he went up to you and you hit him on the side of the head with a bottle which broke, causing a deep laceration on Mr Cartlidge's cheek, and you immediately ran away.  Mr Cartlidge was ultimately taken to hospital by security guards where he received a number of stitches.

9       You were interviewed at the Moorabbin Police Station where you admitted to striking Mr Cartlidge with the bottle, but said you did it in self‑defence, that he was with other people and you believed you were going to be beaten up; and this, in fact, was the defence that you ran at trial. 

10      On the trial you were charged with intentionally causing serious injury and the jury were given the alternatives of recklessly causing serious injury, intentionally causing injury and recklessly causing injury.  Ultimately the jury verdict was, as I said, that you were guilty on the charge of recklessly causing injury. 

11      In the record of interview you said your actions may have gone too far in that on reflection there were other things that you could have done.

12      The wounds to Mr Cartlidge's cheek were sutured and he was discharged later that morning.  He still bears a scar from your assault upon him that night.

13      I now turn to your personal circumstances. 

14      You are 21 years of age and were 18 at the time of this offending.  You have a difficult history.  Your parents separated when you were about one and you came to Melbourne with your mother and older brother to live here, an older sister having died in infancy.  Your parents thereafter, as I said, divorced.  You have had little contact with your father, who is a truck driver, although you have tried to do so over the years.  Unfortunately it appears he simply hasn't followed that up and you effectively have very little by way of a relationship with him. 

15      Until you were 15, you resided with your mother, who moved around the Mornington Peninsula area, living in areas such as Frankston and Somerville.  She went on to form four more relationships, from each of which a child was born, so you have four half‑siblings.  Ultimately she formed a relationship with a man named Mr Perrot, and then decided she wanted to move with her four youngest children to Yarrawonga.  She apparently indicated, according to your counsel, that she did not want you to go.  You thereafter lived a transient live, essentially "couch surfing". You lived with a number of various friends and their families.  Along the way, you began committing offences.  Ultimately, when you were 16, you were apprehended in relation to an offence and police discovered your living situation, which was deemed not to be suitable, and the Department of Human Services was contacted.  You voluntarily became a ward of the state. 

16      Between the ages of 16 and 18, you lived at two community residential units.  It is quite clear from the reports that I received, which I will refer to in more detail later in these sentencing remarks, you at that time had a great deal of anger and sorrow over what you regarded as the abandonment by your mother.

17      You had just completed Year 9 at the time your mother moved to Yarrawonga.  Whilst you were in the residential community units, you completed Year 10 and then attempted Year 11, but left school part‑way through that year. 

18      Originally your mother had left you to live with    Mr Perrot.  Unsurprisingly, this didn't work out and you then moved to the transient life that I have described. 

19      You were released from state care and placed in a rooming house with a rent of about $300 a fortnight, which effectively took up all your Centrelink payments, and you went back to moving among friends.  Ultimately, you moved in permanently with a friend and her parents in 2010. 

20      I have referred to your prior criminal history.  It appears that in early 2010 you received a youth training centre on a charge of recklessly causing injury, which was apparently due to a fight you became involved in with a group at McDonalds.  You were sent to Malmsbury where you completed three months of that sentence and were then released on parole.  It was at this time that you moved in with a family named Schoemann, whose daughter, Luca, you knew. 

21      It appears that you made fairly good progress whilst you were on parole at that time and undergoing conditions which were laid down as part of your parole. 

22      I received a report dated 3 November 2010 from your parole officers, Rita Cassar, a case manager with Southern Youth Justice, and Kim Paynter, a team leader for Southern Youth Justice, which detailed your progress to that time.  It noted that you had been supervised by the Southern Youth Justice unit while subject to a youth parole order between 10 May and 9 August 2010. 

23      Your attendance during your youth supervision to appointments was described as excellent.  You also attended Youth Substance Abuse Services (YSAS) for drug and alcohol counselling, you having a history of alcohol and cannabis use.  You were also referred to the Adolescent Forensic Health Services for anger management counselling, and you continued to attend upon your case manager once your parole had finished on a voluntary basis. 

24      At the same time you completed a six‑month pre‑apprenticeship course in cookery and were employed under the Fifteen program; that is the program founded by renowned chef, Jamie Oliver, and began working at the Fifteen restaurant.  However, after a few months, you realised you did not want to undertake the occupation of chef.

25      You then offended and the progress letter that I received was in relation to that offending.  I will refer now to your criminal record.

26      You first appeared before a court in 2007, that is, the Frankston Children's Court, on charges of theft and unlawful assault where you were placed on an adjournment to be of good behaviour.  You were then placed on probation for charges of recklessly causing injury, assault in company and theft.  In 2008, the Frankston Children's Court dealt with you for possessing a drug of dependence and then on 11 December 2008 you were dealt with a breach of probation order and you were placed on further probation.  That court appearance also involved a charge of theft of a motor vehicle and dishonestly receiving stolen goods.

27      On 8 May 2009 you were placed on a good behaviour bond on charges of intentionally damaging property, unlawful assault, recklessly causing injury and theft from shops. 

28      On 19 November 2009 you were fined for possessing liquor under the age of 18 years. 

29      Then on 10 February 2010 you were placed for six months in a youth training centre on charges of recklessly causing injury, assault by kicking and affray.  This was the offending I referred to relating to a fight at McDonalds. 

30      On 12 April 2010 you were dealt with by the Moorabbin Magistrates' Court for theft from a shop and using indecent language, and were given seven days in a youth training centre, which sentence was to be served concurrently with that you were undergoing.

31      The offending that brought you before the court today occurred whilst you were still in the situation of living with the Schoemanns and ostensibly doing quite well.  However, whilst you lived with the Schoemanns between May 10 and December 2010, that placement eventually broke down and you went back to living in various friends' homes. 

32      So the situation was that by December 2010, you were again homeless and were particularly stressed, I was informed by your counsel, in relation to the matters that were ultimately the subject of the trial before this court. 

33      Originally, you were charged with recklessly causing serious injury and the matter was set down to be heard in the Magistrates' Court stream.  However, it was the opinion of the magistrate that the matter was too serious to be heard summarily, and this was a decision with which the police prosecutor concurred, and so the matter was then listed for trial and a charge of intentionally causing serious injury was added to the indictment.

34      You had been informed that you could well be gaoled if you were found guilty of that new and most serious offence which, of course, can only be heard in an indictable setting. 

35      The removal of the charge from the summary stream to the indictable stream also delayed the matter so that it was about two years before it was finally dealt with. 

36      According to your counsel, as a result of your homeless position and your concern over the charges hanging over your head, you became demotivated, particularly insofar as employment was concerned.  It appears you are personable and likable and have little trouble finding friends and being able on a temporary basis to be housed by either them or their parents. 

37      Ultimately, you began living with a friend and her mother.  You have been there for about nine months and you live in a shed at their home.  It apparently has a room built into it and you informed me during the hearing that you have your own ability to cook, although you do eat with the family, and you sometimes cook a meal for them.  However, you have not been able to obtain work in any meaningful sense. 

38      You did obtain work in September of 2011 as a furniture removalist, but then were charged with two matters, a charge of recklessly causing serious injury, which had occurred in October of 2010.  It apparently developed at a friend's house from a play fight into a serious fight in which your brother was also involved and where the victim was cut with scissors. 

39      Also, on 15 September 2011 you were arrested in relation to an incident that had arisen at a swimming pool where you were removed for behaviour which was considered unacceptable.  Police were called.  There was an argument outside the pool and ultimately you were charged with hindering police, trespass and offensive behaviour.  These matters were all heard before the Frankston Magistrates' Court on 5 December 2011. 

40      In the meantime, you were held on remand at the Metropolitan Remand Centre between 15 September and 5 December 11.  On that latter date, the Frankston Magistrates' Court essentially sentenced you to the time you had been on remand. 

41      I heard from Donna Humphery, an Intensive Youth Justice support worker, with whom you have been in contact ever since being released on parole from the Youth Justice Centre.  Ms Humphery works with the Brosnan Centre of Jesuit Social Services, which is, in the experience of this court, an enormously effective and supportive service and I am very pleased that they are involved with you.  Ms Humphery gave evidence on the plea.  She has been involved with you for about 15 months.  She describes you essentially as somebody who performs pretty well when there is a structure around you, but when you are left to your own devices, it seems you are unable to stay out of trouble.  Central, she said, to your behaviour in the community was your accommodation situation.  She said that if you have stable accommodation, if you have a proper structure, you will abide by the appointments that are set down by those supervising you and are much more able to remain out of trouble. 

42      You do not have a particularly good prior criminal history, if I can put it that way.  You have been in a lot of trouble for a young man your age, and a lot of it has been violence, and it was for this reason that the prosecution submitted that I should deal with you by way of a custodial sentence, even, it was put, by way of a further term of detention in a Youth Justice Centre. 

43      However, at the same time, it seems to me that you are a young man who has been dealing with a difficult home situation.  You have very much been on your own since you were 15.  You are apparently very loyal towards what Ms Humphery described as a negative peer group that you have made in and around the Frankston area whilst you have been on your own and are particularly attached to your older brother, Daniel, who unfortunately is in gaol as a result of the incident that occurred in October 2010 and is facing further charges. 

44      You apparently have over the years used cannabis to a fair extent.  You have on occasion used methylamphetamine, or ice, which is a terribly dangerous drug, although it appears you have not become addicted to either.  What does seem to be a problem for you is alcohol.  I do not say that you are addicted to alcohol, but I commented during the plea that unfortunately the current trend amongst young people seems to be that when they do drink, they drink in order to get drunk, in other words, they binge drink, and certainly it was the opinion of Ms Humphery that you do binge drink. 

45      Alcohol has the effect on nearly everybody that when a person becomes drunk, they are disinhibited.  That is, if something is troubling them under the surface, those negative feelings will rise and a person can act out on them.  I note in the assessment made by Community Corrections today that you spoke to the assessing officer about the fact that whilst you do not believe you are dependent on alcohol, you do acknowledge that alcohol brings out "dark stuff" and can make you more "ticked off" than usual.  In other words, you can become angry.  This is undoubtedly arising from the very difficult family life you have endured for some time and, indeed, in one of the reports that was tendered on the plea, reference was made to the fact that for a long time you were extremely angry with your mother for going off to Yarrawonga and for leaving you. 

46      I want to refer to the report from Ms Humphery, which is dated 23 April 2012.  In it she stated that your placement at the MRC was the first time you had experienced adult gaol and Ms Humphery visited you fortnightly.  She stated, "This time allowed Lance to realise the life path that he is currently taking is not going anywhere and he did not want his future to end up like the older men who are also remanded to MRC.  It is the writer's opinion that this experience was a wake‑up call for Lance.  Of recent times, Lance has begun to draw a connection between his negative peer relationships, his substance use and his life path.  Lance has aspirations to have a career and live independently and he is now aware that his current lifestyle will not allow for this." 

47      She also stated, "Although Lance's offences are violent in nature, the writer would not describe Lance as an instigator of violence or a young man who glorifies violence.  It is the writer's opinion that Lance is more of a follower in terms of peer dynamics and hence why he finds himself in unwise situations.  Impacting this, his lack of stable and appropriate housing has impacted on Lance's ability to move forward." 

48      She said that you have of recent times become very reflective of your past behaviours, have spoken of your plans, for example, to move interstate and start anew, and she concluded that she found you "a compliant, thoughtful and motivated young person.  Unfortunately, due to his family circumstances, Lance has made strong relationships with negative people but he's now beginning to prioritise his future.  The writer will continue to support Lance in securing a stable accommodation and assist him in finding employment." 

49      It is my view that, notwithstanding the fact that you have been in trouble a lot over the years, you have not descended into what the court commonly sees in young people who have had the troubles you have.  That is, you have not become addicted to drugs; you are not a person who has been charged with trafficking in drugs which can arise from a dependency on drugs.  Everyone involved with you should be very thankful that that has not occurred because that is a common path for young people who find themselves on their own at a young age. 

50      I am impressed by the fact that, when you do have structure, you abide by it.  You go to appointments, you engage well with people who are in a position of supervising you, and I think that is extremely important. 

51      Because you are still a young offender and, indeed, were a young offender at the time, it is the law that rehabilitation has a greater role to play than would otherwise be the case.  I did mention to you during the hearing, however, that you are getting older now, Lance, and as time goes on, if you keep offending, because of your prior criminal history, particularly if any future offending involved violence, the chances of you ending up in gaol are pretty high.

52      It does seem to me that the community's best interests lies in your rehabilitation, and it is my view that because of the compliance you have shown in the past, because you have managed to maintain positive relationships with people who can assist you, such as Ms Humphery, that the community is best served by my imposing a disposition which continues a structure and which allows you to attend to the problems that led to your offending in the first place and that will hopefully lead you to a crime‑free future and the sort of future that you obviously want for yourself. 

53      The fact that you were able to complete Year 10 and half of Year 11 shows you have got a few brains.  It means you are a young man who could return to study if he wanted to.  You could probably do Year 12, and that would be a very helpful thing to you in terms of getting a job you would find interesting and that would be stable for you.  You are a young man with a greet deal of promise and it seems to me that, even though you have been hanging around in an area which is notorious for drug use, for crime, for all sorts of difficulties social problems, that whilst you have been involved on a reasonably regular basis in the sort of violent offending that unfortunately goes with the territory you have been walking through the last few years, you have still got a great deal going for you and that the court, both in your best interests and in the community's best interests, should set up a structure that will continue to assist you.

54      I have had you assessed, therefore, for a community corrections order and you have been found suitable.  I do note that you have been assessed as a high risk offender, and so there are going to be an number of conditions attached to the community corrections order should you consent to be placed on it. 

55      I note, of course, that you did not plead guilty, but given the charges that were laid (and I note your counsel's instructions to me that attempts were made to settle the matter before it was placed in the indictable stream) that had this particular charge been held out to you, it may well have been that you would have pleaded guilty to it.  It seems, however, that was not possible and the jury did return verdicts of not guilty on the more serious charges.

56      I am going to place you on a community corrections order with your consent for a period of two years.  I need to outline to you the core conditions that you have to obey if you are going to be placed on a community corrections order.  The first is that for the next two years you must not commit any offence punishable by imprisonment.  As I explained to you previously, if you do offend, you will be brought back before me on breach of the community corrections order and it is likely I will gaol you, particularly if any reoffending involves violence. 

57      The second condition is that you must attend the Frankston Community Corrections Service on Monday, 30 April, that is next Monday, at 3 p.m.  You must advise the Community Corrections office of any change of address or employment within 48 hours of that change.  You may not leave Victoria without the permission of the Community Corrections officer.  You must obey all directions of the Community Corrections officer and you must report to and receive visits from the Community Corrections officer. 

58      I am also going to order that you serve 200 hours of unpaid community work.  I am going to order that you be supervised on the order.  I am also going to order that you undergo assessment and treatment, including testing, for drugs, and assessment and treatment, including testing, for alcohol.  I am also going to order that you undergo mental health assessment and treatment and offending behaviour programmes as directed. 

59      In ordering that you undergo that mental health assessment and treatment, that is not that I am saying that you have a mental illness, Lance.  What I'm saying is you have got, as anybody would have in your situation, what you would call psychological problems.  The psychological problems are what we talked about during the plea, that is a feeling of being abandoned, lacking the sort of structures that you would have had if you had had a more stable family history, and you need to attend to those.  You need to attend to what you call the "dark stuff" inside you and which clearly comes out when you drink too much.  You need to learn how to look after yourself in that respect.  You need to learn how to behave in a more stable way so you can keep yourself out of trouble and there is no reason why you cannot do that given the fact that you have got the good sense to get help from people who are brought into your life to give you that sort of assistance, like Ms Humphery.  Do you understand?  Are you prepared to enter the order? 

60      PRISONER:  Yes.

61      HIS HONOUR:  Thank you.  We will prepare the documentation for you.

62      Whilst that is being prepared, I do need to make some reference to the victim impact statements which were tendered on the plea by the prosecution.  Both Mr Cartilage and Ms Mee spoke of the very great emotional effect this has had upon each of them.  It has very much affected their sense of safety.  Both of them say they are much more reluctant to go out into the community because they are worried about being attacked, and this is precisely the sort of reaction that the court sees from victims who have been the subject of a violent assault.  Mr Cartilage has continues to suffer a scar.  However, I did observe him in court and the scar does not appear to be particularly noticeable.  In fact, he has another scar from an another injury which is much worse, in my view. 

63      Nevertheless, your actions on that night were extremely foolish.  It might have been, and I accept that it was, a momentary reaction to a situation that you perceived, but it was certainly an over‑reaction and a very dangerous way of behaving in the circumstances, and perhaps if you had had less to drink, you might have done some of the things that you spoke of to the police in your record of interview, such as simply leaving the scene.

64      The order will last for two years.  It will end on April 26, 2014.  It says on the order here that you have to go to the Frankston Community Correctional Services within two clear working days, but it appears that an appointment has been made for you to attend there at 3 o'clock on Monday.

65      As I have said, 200 hours of unpaid community work, supervision, assessment and treatment for drug abuse, alcohol abuse, mental health assessment and treatment and programmes and courses aimed at addressing factors relating to your offending as directed.  Do you think you can manage that all right, Mr Minahan? 

66      PRISONER:  Yes.

67      HIS HONOUR:  Good.  I will get you to sign that, please.

68      Stand up, Mr Minahan.  This is probably the last time a court is going to be able to deal with you like this.  You have had a lot of chances from the Children's Court because in the Children's court rehabilitation is the major issue that the court looks at.  Once you come into an adult court, and you are 21 now, then things like general deterrence, punishing you, sending a message out into the community, dealing with you in a much more severe way, they are the main principles those courts operate by.  They start looking more at protection of the community than at your particular circumstances.  Do you understand that? 

69      PRISONER:  Yes.

70      HIS HONOUR:  So the fact of the matter is you have got a lot of prior convictions for violent offences and a court always looks at your prior convictions whenever a person appears before that court, so you are not in a good position insofar as further court appearances are concerned.  Do you understand that? 

71      PRISONER:  Yes.

72      HIS HONOUR:  It's really important for your own sake that you do well on this community corrections order.  It is really important that you have a think about drinking, and I think drinking is really hard because alcohol use is so widespread amongst kids your age, and the way you kids drink now, which is to get drunk, very often leads to offending and violent offending, so you are going to have to be quite strong around your friends.  No one is asking you not to have friends; no one is asking you not to have a social life, but you are going to have to be responsible in that social life.  You are going to have to watch what you drink.  You are going to have to be careful about a big night out.  You can't afford to get drunk because, as Ms Humphery said, you are starting to link up the dots, and it seems to me from the description your counsel gave me and from what Ms Humphery has said, that when you get drunk, as she said, dark stuff comes out and you get into trouble.  A court can have all the sympathy in the world for the difficult background you have had, Mr Minahan, and it's not the worst this court has ever seen, I can tell you that, although I'm sure it had been difficult for you, but you are really getting into dangerous territory insofar as court appearances are concerned and I am worried about that.  I just hope that, with the help of Ms Humphery and the other people that are going to be involved in your life, that you can link up the dots even more and act on them.  Okay? 

73      PRISONER:  Yes.

74      HIS HONOUR:  I wish you well, but I'm warning you that the next two years are going to involve a lot of self discipline on your behalf and a lot of thought by you about the way you go about your life.  It would be really good if you could get a job, something that will settle down.  It would be good if you could have a think about going back and doing study again.  I know it's hard, but very often when you are in your early 20s, you are in a better head space to try to study again and get some sort of qualifications, because I have no doubt you have the ability to really make something of your life and to have an interesting job and an interesting career and a life that does not involve offending. 

75      I will sign the disposal order. 

76      I am also going to order as a condition, which I will I write in, that I want a progress report on Mr Minahan every three months, just so I know how you are going, so I'm going to be keeping an eye on how you go.  There is a report that is going to come in every three months so I know that you are doing what you are supposed to do, and I am interested to see how your future goes.  I order a three‑monthly progress report to Judge Gaynor, so I will be keeping tabs on you, young man. 

77      I thank counsel for their assistance.  It's been very helpful, Mr Glynn, and you, too, Mr Fitzgerald.

78      Lance, that's it.  You can go.  Let this be the first and last time you ever attend at the County Court.

‑‑‑