Director of Public Prosecutions v Mundell

[2018] VCC 1143

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR -18-00620

DIRECTOR OF PUBLIC PROSECUTIONS

v

CALVIN MUNDELL

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	26 July 2018
CASE MAY BE CITED AS:	DPP v Mundell
MEDIUM NEUTRAL CITATION:	[2018] VCC 1143

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Accused	Mr S. Linehan

HIS HONOUR:

1Calvin Ryan Mundell, you have pleaded guilty to one charge of aggravated burglary, one charge of intentionally causing injury, and one charge of recklessly causing injury.  Those crimes carry maximum penalties of 25 years, 10 years, and 5 years respectively.

2You are now 49 years of age.  You pleaded guilty at the earliest opportunity, and made admissions.  I accept that your plea of guilty is accompanied by remorse; as your counsel described it, mortification.  You must also of course, get the utilitarian benefit of that plea of guilty.

3Insofar as prior convictions are concerned, there is nothing of any real significance in this process, and you are a man who has worked all his life. Firstly, pursuant to s.464Z of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, if you refuse to provide such a sample, police may use reasonable force to take it from you.

4A summary of the offending is that you had been in a relationship with one Tammy Bloomfield.  She is aged 42.  You have separated.  On this particular night, you had discussions, to use a neutral term, with her about a loan, and it became heated.  You had a former partner, Erica Vijova, who was to be dealt with in the Magistrates' Court, and I can take that no further.  You have a daughter, together with that woman; that has importance in this sentencing process.

5In any event, at 1.14 am on Thursday morning, 2 November 2017, you, after an earlier altercation with her, contacted Ms Bloomfield by telephone and again, a heated conversation took place.  One Jacquelyn Baker also spoke to you, and you became upset by that conversation.  You then contacted Vijova by telephone, to explain that you were upset, and that you were going around to Jacquelyn Baker's house, where you knew the two of them were.

6At around about 2 am, you and Ms Vijova went to the house in Rudds Road in Korumburra.  You armed yourself with a metal pole, approximately 2 feet long.  As to where that came from, I make no finding.  It is described as being similar to a handle from a trolley jack.  You entered the house through the unlocked front door, and immediately confronted Jacquelyn Baker, who was seated on the couch in the living room, next to Bloomfield.

7You poked Jacquelyn Baker to the face with the metal pole, causing a circular cut to the bridge of her nose and forehead.  That injury immediately began to bleed profusely.  You also struck an internal wall, between the living room and the kitchen with the metal pole, causing a hole in the door.  Vijova then also entered the premises, and punched Bloomfield to the face, but you are not charged with that.

8Insofar as this is concerned, clearly, you went in there armed with what can only have been a weapon.  You were in a heavily intoxicated state, and indeed, there is no attempts to strike her with it.  She was simply poked in the face with it; whether that was a misjudgement because of your intoxication or not, I do not know.  But certainly not the sort of fighting that one often sees in these circumstances, albeit domestic violence, if I can put it that way.

9In any event, a Mr Kenneth Jones who was living there, heard the commotion and came out.  There was a struggle between the two of you, causing a sliding door to derail and fall on the top of his head, causing a deep cut.  I think that probably describes that adequately.  Police and ambulance attended.  They found you at a friend's place, and I am sorry, Ms Vijova was simply fined in the Magistrates' Court.

10You were interviewed and you described basically what had occurred.  You were concerned that you had no real memory of what had taken place.  You said you were alcohol effected - I think that is probably pretty right. My suspicions would be that you do not have a lot of memory of all this, and might be subsequently filling in a few gaps.  Anyway, you were subsequently released on bail.

11You were charged with aggravated burglary. That always has to be regarded as serious, or in most situations, it is regarded as serious.  It calls for the application of general deterrence.  In your situation, because of your response after this, I think that there is no real prospect of you ever doing anything like this again.  It also calls for, in given situations, denunciation and obviously, there must be an appropriate penalty.

12The Crown submission was that a combination sentence was within range and your counsel said that a community corrections order without custody, was within range.  In that situation, I turn to matters personal to you.

13You are now 49 years of age.  You have a very good work history, having worked at Burra Foods Korumburra now for some seven years.  You have worked as a forklift operator and storeman, and have done so in other positions.

14You have had over the years, very significant alcohol issues, and you at the present time, had the sole care and custody of your 17 year old daughter, who suffers from mental health issues, and resides with you.

15Tendered on your behalf, were references from various people, including work and an alcohol counsellor.  After you were charged, you were released on strict bail conditions which included consumption of alcohol prohibition and curfew and there are no matters that have occurred since.

16Similar can be said to this, you are a 49 year old man who has worked all his life, who has no priors of any significance for this purpose.  You have an incident where you were alcohol-affected; that does not justify it, but it puts into a context.  You have reacted within a milieu, and committed what in the usual course of events, is a serious offence.  However, you have I accept, abstained from alcohol since the offending.

17You have continued to work.  The work references speak very highly of you.  I take into account, as many do not seem to do, when you are imposing relatively short custodial sentence, that that sentence will cost you your job.  You live and work in Korumburra.  Your chances of gaining further employment would be very limited indeed, and a gaol sentence for you, would have very long-term significant effects.  You may still lose your job, as your counsel quite frankly pointed out, but I do not want to be - have no intention of being the cause of that. 

18The Gippsland Southern Health have provided a report on your behalf, which in historical context, says that you have suffered with long-term depression and anxiety.  Your local practitioner deals with that.  You have been having regular appointments with a psychologist, a Mr Hughson.  You are able to better cope and manage with the difficulties that you have, and you have been able to show that counsellor, deep remorse for your anti-social behaviours in this situation.

19As I have said, I am satisfied that you have abstained from alcohol since, and are well aware of the dangers of you drinking again.  It is clear to me that this offending was very much out of character, and situational and is unlikely to occur again.

20I have taken into account the victim impact statements of each of the people who were present, and also the other references.  You sent a letter of apology to Ms Baker and to Ms Jones, which was sent through the police, and again, I accept that as a reflection of your remorse.

21In these sort of situations, custody is often the disposition that has been shown, which I read before obviously, the case of Bradshaw which has various comparable cases.  I am also well aware of the principles outlined in the Court of Appeal in the matter of Tom Goonan, where they referred back to the decision of the DPP in Leach, where it was said,

"It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped. That, after all, may be a decision which redounds very much to the benefit of the community".

22As President Maxwell said in R v Tokava,

"The sentencing judge should be astute to investigate whether a
non-custodial disposition is to be preferred, even in a case of a serious offence.  In the long-term, the community's interest will be best served by that course.  This course should seek to provide public understanding of the fact, that apart from interests to the individual, whom it is sought to rehabilitate, an important interest in itself here is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime".

23I have no doubt the community would be best served by you continuing to work, continuing to earn an income, continuing to look after your daughter and being an otherwise, worthwhile member of the community.  Your circumstances involving your daughter do not give rise to exceptional circumstances.  But were I to imprison you, I am sure that your time in prison would be very much effected by your concerns and fears for your daughter's wellbeing.

24I am well aware of the decision of Bolton and the principles outlined in that and the subsequent matters that have followed.  In all the circumstances, I am fully aware of the seriousness of this charge, as a general rule.  I am satisfied that bearing in mind that imprisonment is the sentence of last resort in this state, that a community corrections order is within range.  It will need to be a very significant one, obviously, to acknowledge the seriousness of what did occur.

25I had you assessed, and you have been found to be acceptable, and accordingly, if you agree, you will be  replaced on a community corrections order.  It will be with conviction, which is punishment in itself.  It will be for four years, at the condition of 350 work hours, and the condition regarding treatment for alcohol.

26There will be no order for supervision, and I order that hours put in, in terms of psychological counselling and the like for - which hopefully, will continue in the way that it is for the alcohol problems, as hours against the 350, and I place no limit on that.

27Yes, all right.  That has been done in circumstances where I accept that the risk of you re-offending is very low indeed and your rehabilitation is well underway, and I would not want to interfere with that.  Mr Linehan, if you would not mind going down with ‑ ‑ ‑

28MR LINEHAN:  Yes.  Your Honour, the one thing he says it would be the closest for Wonthaggi, Monday or on the fourth.

29HIS HONOUR:  All right.  Wonthaggi.  Does not Korumburra have one?

30MR LINEHAN:  No.  They have changed the Wonthaggi - it is now the Wonthaggi Justice Centre.

31HIS HONOUR:  All right.  Oxymoron.

32MR LINEHAN:  Well, that is an oxymoron.  But the irony of this place too, which I find pretty disgusting, is directly across from the Justice Centre, is
Dan Murphy's.  So I do not know whose thought process was put into that.

33HIS HONOUR:  Nobody's probably.  All right, Mr Mundell, you have got that.  Do not even be tempted again, all right?  No, all right.  Thank you, we will stand down now.

34MR LINEHAN:  If Your Honour pleases.

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