Director of Public Prosecutions v Neilson

[2013] VCC 1985

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-01124

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARTIN NEILSON

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 November 2013
CASE MAY BE CITED AS:	DPP v Neilson
MEDIUM NEUTRAL CITATION:	[2013] VCC 1985

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:     
Cases Cited:            
Sentence:                 

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C. Parkes	Office of Public Prosecutions
For the Accused	Mr P. Casey

HIS HONOUR:

1       Martin Eli Neilson, you are to be sentenced for one charge of attempted aggravated burglary and one charge of damaging property.  The maximum sentences are 20 years' imprisonment for attempted aggravated burglary and ten years' imprisonment for damaging property.

2       You pleaded guilty before me on 24 September 2013.  When interviewed by police on 28 February 2013 you stated no recollection of your offending.  I accept this to be likely correct.  The evidence is that you were very intoxicated.  The offending was extraordinarily irrational and affected by that intoxication.

3       In June 2013, committal went by hand-up brief, after which you entered a plea of guilty.  The matter was then listed for plea hearing in this court about nine months after the time of the offences. 

4       You receive the benefit of your pleas of guilty and a high level of cooperation in the proceedings.  I accept that you are remorseful.  At your plea hearing, which ran on 24 and 30 September and 17 October, Mr Bessell for the Crown tendered a written Crown opening, photographs of the scene of the offending and the victim impact statements of John and Gayle Dunkley.  Mr Casey for you tendered the letter of Keir Larter of Odyssey House, Victoria, dated 16 September 2013, and the psychological report of Patricia Roberts-Jacobson, dated 27 September 2013.  The circumstances of your offending are described in the tendered Crown opening which is Exhibit A.  My own summary may, therefore, be shorter. 

5       You suffer badly from alcoholism.  On the evening of 6 January 2013, at about 7 pm, you were drunk and entered the property of John and Gayle Dunkley at Tarrawingee.  Mr and Mrs Dunkley are aged in their sixties and both suffer serious health problems.  They live near or on the outskirts of Tarrawingee, a small township close to Wangaratta.  As I stated, you were very drunk.  You damaged parts of the Dunkleys' garden, including the watering system, plants, and garden lights.  You removed your shorts, which were the only clothing you had been wearing.  Mrs Dunkley discovered your presence (you were attempting to remove a flyscreen from a window) when she went outside to water.  She alerted her husband.  They moved inside and rang the police,.

6       Clearly motivated by a misconceived grievance irrationally, related in some way to your wife, you continued to terrorise these people.  Naked, you bashed at the back door with a brick.  Mr Dunkley was pressing against the door at the inside.  You broke through the timber panels of the door.  The Dunkleys, whom you did not know, fled.  You further damaged a window of the house using a concrete garden ornament.  The police arrived soon after. You were compliant and were arrested.  You told police that you were there "to fix up the bloke that lives there as he was shagging his missus".  Your victims neither knew you nor your wife.

7       I have carefully read the two tendered victim impact statements.  These statements reflect the chaos and terror for the Dunkleys of this night, and its ongoing impact.  Both John and Gayle Dunkley feel anxiety, fear and vulnerability not felt before.  Their lives and those of family, for example grandchildren, are affected.  There are major social and lifestyle impacts.  That you were naked has added to their fear and anxiety and continuing effect upon them.  John Dunkley states, I feel in a telling way, "Because of this man's crime we are both under the care of our GP.  We are also seeing a psychologist.  Our GP referred us to the Victims of Crime office and we have been given a case manager to help us.  We didn't need any of this before, we managed well without all these people.  I hate what that man has done to us". I have not been complete.  The victim impact of your offending has been very considerable and must be taken into account in my sentence of you.

8       You are a 42-year old man who was born and raised in the Myrtleford area.  You are the middle child of five.  Your father died in 2007.  You are not close to your brothers and sisters.  It is a law-abiding family; one brother is a serving police officer.  Although not dealt with in the tendered psychological report of Patricia Roberts-Jacobson, Mr Casey told me of sexual abuse you suffered at the hands of a close friend  of your father.  This lasted over a number of years when you were aged 12 to 15.  You often stayed with the man in Melbourne.  This situation also seems to have introduced you to alcohol.  Ultimately you complained.  Child Protection became involved.  The man committed suicide.  I accept that you had great difficulty in coming to terms with this abuse of you and it has badly affected you.

9       You have never married, but there was a long term relationship of some ten years which ended in about 2009. You have kept some contact and your ex-partner attended court at the plea hearing.  There are two children, aged ten and 11 years.

10      After leaving school at Year 11 you worked in timber mills in Myrtleford and then moved to Melbourne, working for some time as a stable hand in the racing industry.  At about 30 you returned to Myrtleford and worked picking tobacco and then in other rural labouring work. 

11      You began drinking when teenage and alcoholism has badly damaged your life over time.  Ms Roberts-Jacobson gives a diagnosis of alcohol use disorder in the severe range.  There has been other psychological problems and in prison you currently take antidepressant medication.  In the time leading to this offending you were living by camping near the Ovens River and in the Everton Caravan Park.  Everton is a short distance from Tarrawingee. 

12      The criminal record document filed with the indictment states 15 court appearances between January 1997 and January 2012.  They are mainly for offences of violence and particularly against property.  There are driving and so-called street offences.  I accept that alcohol has played a major role in these offences.  Mr Casey made the point that you did not offend until aged 26.  Your criminal record is relevant to your sentence.

13      There have been attempts to rehabilitate from alcohol.  This has included a period of time at the Odyssey House Circuit Breaker program in Molyullah, near Benalla, since this offending.  After arrest on 6 January 2013 for these matters before me, you received bail.  In mid February you breached that by committing property damage offences.  You served 14 days' imprisonment.  In early July you were bailed again conditional upon residence and treatment at Molyullah.  You completed the program between then and early September.  There was an expectation that you would enter a long term Odyssey House program in Melbourne.  You chose not to do so.  You had fallen and broken your hip at Molyullah in July and I was told that this injury played a role in your decision not to enter the Melbourne program.  You went to Wangaratta for a time. You lapsed into alcohol use and bail was revoked on 9 September.  You are presently in remand custody.  These plea hearings were adjourned in order that it be attempted to re-engage you with Odyssey House or at least ascertain your eligibility to enter its program.  Ultimately, you were found not suitable; it seems because of a prior conviction for arson in June 2009. 

14      This was serious offending.  Although fuelled by alcohol and irrational to the point of the bizarre, intoxication offers little mitigation in terms of the culpability and criminality of offending.  You are a mature man, sadly seasoned to drink.  Further, this is a case in which the victim impact both at the time and since is an important, perhaps particularly important, consideration.  Vulnerable persons were terrified in their own home and the effect of that has remained with them in a number of ways.

15      In circumstances of offending such as this and given your prior criminal offending, the sentencing purposes of deterrence, both general and specific deterrence, denunciation of what you did and the need for proportionate punishment are relevant.  There must be a sentence of immediately served imprisonment. 

16      There are some factors which should go to moderate the length of that sentence.  They include your plea of guilty and cooperation, your personal history and circumstances, and also your attempts at rehabilitation since the offending.  For example, I find it relevant that you have spent about two months in the intensive residential program at Molyullah.

17      Those attempts to reform from drink ultimately failed, and it would be naive to be optimistic about future rehabilitation.  However, I do not utterly discount that.  To reform is critical to your future prospects for a decent life.   It is to be hoped that parole will give you assistance.  The principle of totality will be applied to your sentence.

18 Stand up, please. I sentence you as follows. On one charge of attempted aggravated burglary you are sentenced to two years' imprisonment. On one charge of damaging property you are sentenced to six month's imprisonment. That is a total effective sentence of two years. I set a minimum term before eligibility for parole of 14 months. I declare under s.18 of the Sentencing Act pre-sentence detention of 190 days.  Had you not pleaded guilty, I would have imposed a sentence of three years with a minimum term of two years.

19      Are there other matters that I need to deal with?

20      MS PARKES: The compensation order, Your Honour, in relation to the damage.

21      HIS HONOUR:  What is that?

22      MS PARKES: It's $1620.46, made to John Dunkley, 194 River Road, Tarrawingee.

23      HIS HONOUR:  All right, I will sign that.  It is not opposed, I take it?

24      MS PARKES:  Thank you, Your Honour.  No, Your Honour.

25      HIS HONOUR:  There is not an application for a forensic sample. I presume that this man is on the databank?

26      MS PARKES:  He is, Your Honour, yes.

27      HIS HONOUR:  I will sign the compensation order now.  Is there anything else  I need to do?

28      MS PARKES:  No, Your Honour.

29      HIS HONOUR:  Thank you for your assistance today and during the course of the proceedings, Mr Casey.

30      MR CASEY:  Thank you, Your Honour.

31      HIS HONOUR:  Mr Neilson can be taken into custody now.

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