Director of Public Prosecutions v Nevill, Daniel John

[2012] VCC 1931

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

AT SHEPPARTON

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL JOHN NEVILL

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Shepparton
DATE OF HEARING:
DATE OF SENTENCE:	20 November 2012
CASE MAY BE CITED AS:	DPP v Nevill, Daniel John
MEDIUM NEUTRAL CITATION:	[2019] VCC 1931

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr K. Auldis

HIS HONOUR:

1       Mr Nevill, you have pleaded guilty to one count of aggravated burglary, two counts of assault and one count of making a threat to kill.  You have heard the learned prosecutor, Mr Moore, tell this court  that the maximum penalty for aggravated burglary is that of 25 yeas' imprisonment.  The maximum sentence that can be imposed for each count of assault is, there are two one on each of the individuals in the house, is five years' imprisonment and the maximum penalty that can be imposed for threat to kill is that of ten years' imprisonment. 

2       Those penalties should indicate to you that these are, indeed, very serious offences.  The people who fix those maximum sentences are Parliamentarians in the Parliament, not policemen or barristers, prosecutors or judges, the people we elect into Parliament fix those terms.

3       For having pleaded guilty I will impose a lesser sentence than I otherwise would have imposed, in other words you receive a discounted sentence for having pleaded guilty.

4       Mr Nevill, it was on or during the evening of Friday, 25 February 2011, that you were at the Terminus Hotel in Station Street, Seymour with a number of friends.  Whilst at the hotel it is alleged that you were glassed by a female who is identified as Adriana Speechley.  This caused a laceration above your left eye that required treatment at the Seymour Hospital.  Mr Nevill, you have chose, as I understand it, not to report this incident to the Victoria Police, you certainly mentioned it when you were being interviewed but, as I understand it, you have not formally reported it.

5       Adriana Speechley is the sister of Dallas Bergowicz and the daughter of Stewart Speechley and Lynne Dacey.  The family residence is at 42 Tallarook Street, Seymour.  Shortly before 3 am on Saturday, 26 February 2011, you were walking from the Seymour Hospital to the Seymour McDonalds with friends when, without explanation, you ran off in the direction of the Speechley-Dacey household.  You then forced open the front gate and front door and entered those premises.  Some of your friends had followed you and they also entered.

6       Stewart Speechley and Lynne Dacey were at home asleep.  They were awoken by a loud bang.  Initially, they thought that the banging was coming from out in the street.  But then they heard voices coming from the lounge room.  Speechley and Dacey then got out of bed and went into the lounge room expecting to find that their son, Dallas Bergowicz, had returned home with friends.  They entered lounge room and were confronted by four unknown males.  Lynne Dacey observed the front door was wide open.  "One of these youths had tape over his left eye and he was yelling out 'Where the fuck is Dallas?  He's dead, we're going to fuckin' kill him.'"  The tape over your left eye, I would say, positively identifies you as that individual. 

7       Stewart Speechley repeatedly told you all to get out of his house, however, you as a group continued to yell and swear.  Speechley told his wife to call the police.  Both Stewart Speechley and Lynne Dacey were fearful for their own safety during this incident.

8       Just so you understand, a lot of people misunderstand assault.  Assault is when persons are put in fear of battery, that's physical assault.  So to be genuinely afraid, means that you have been assaulted.

9       Lynne Dacey went to the bedroom on the instruction of Speechley to call the police and at this point you all left the house.  After you had left the house, both Dacey and Speechley saw that both the front gate and front door had been damaged when entry to the premises had been forced.  The police then subsequently attended at the premises. 

10      Later in the morning of Saturday, 26 February, Speechley was using Facebook when he saw that you had posted a status update on the Facebook profile of Dallas Bergowicz.  Speechley went into this conversation thread and noted that a number of threatening comments had been made by you.  One of the threatening comments was "Hello Dallas, I'm going to punch the absolutely and fuckin' shit out of you."  Another was "I'll find out, you little cunt, and when I do I'll kick you to death".  Stewart Speechley then printed out two Facebook screen captures that were subsequently provided to police.

11      All of that seems to be totally at odds with your known character prior to this event.  I infer that you were a team mate and possibly a friend of Dallas and, as I understand the events, it was his sister that caused this trouble, not him.  But I might not have the whole story.

12      It was not until a week later, that is on 4 March 2011, that the police arrested and interviewed you.  I am surprised at that because they had to know who you were, it was all over Facebook, if they didn't not know your name in fact on the night.

13      Mr Nevill, you stated you were able to recall being at the Terminus Hotel in Seymour on the night of Friday, 25 February - this was when you were speaking to police officers - and that you were glassed by Adriana Speechley.  You stated that you recalled attending at the Seymour Hospital to receive treatment to a cut above your eye.  However, you stated that your next independent memory was waking up on your couch at home at around midday on Saturday, 26 February 2011. 

14      You had no independent memory of anything that occurred between being treated at the hospital, and waking up at home.  You accepted the version of events provided by Speechley and Dacey and stated that it was similar to what you had been told by your friends.  You did not deny involvement in this incident, so you were co-operative to that extent without really knowing what happened. 

15      Further, you stated that you checked your Facebook account during Saturday, 26 February 2011, and you discovered the comments that you had posted to Dallas Bergowicz.  You said that you could not recall posting the messages and that you immediately deleted them.  You did not deny posting the threatening messages.  Again, you were fully co-operative and did not avoid the reality of what had happened. 

16      During the record of interview you co-operated with investigating police officers to the extent that you could.  I say that because you did not have a good memory and you could not respond positively because I accept that you were being truthful in what you could not remember. 

17      I quote from some of the record of interview in this instance, so that you know where I am coming from, the police investigating officers had been asking you if you had family or friends at the Terminus on this night.  The question was "Yeah, any friends or family of yours?"  Your answer was "I - I - I don't know, no."  The policeman then said "OK."  Then you said, "It's - it's like really worrying me 'cause I wanna help but I honestly can't remember and it's been stressing me out all week.  I've, like, been - I've had a headache for four days afterwards."  The policeman then says, "Yep."  You then say, "And I've been sick and I can't - I honestly - people are telling me what's going on and people are feeding me all these different stories and I - I honestly can't give anyone a straight answer of everything that happened."  Question, "Did you - did - because of the way you've been feeling, did you turn your mind to about coming to the police and saying, listen, I think I might have been involved in something on the weekend".  Your response, "I was scared obviously 'cause I can't  - people are saying this is what you've done, you're - you're going to gaol, you're in trouble, you're this, you're that - making threats and everything like that and I'm thinking well I can't really, I'm not going to go in there and say this is - this is what happened.  Well I can't even have a full - give a full story to my family about what happened."

18      I pause there for a moment, you heard your father wrestling with that proposition when he was giving evidence this morning.  When he says 'wrestling', you couldn't tell him what had happened and you know what sort of distress you must have caused him, and I infer your mother, they would not be very pleased with you. 

19      The next question, a really positive question from a policeman, "Yeah."  Answer, "I can only just remember getting glassed in the pub."  Question, "Alright, do you remember who took you to the - or how you got to the hospital?"  Answer, "No."  Question, "No.  Do you remember anybody being at the hospital with you?"  "No."  "Do you remember what you did when you left the hospital?"  Answer, "No."  Question, "Are you able to say how you got from the hospital to the house where this incident occurred?"  Answer, "I can only tell you what other - some people have told me."  Question, "Yeah."  "Apparently we walked."  Just for the record, those questions and answers are seen to be from Questions 38 to 47 inclusive.

20      Then later in the same record of interview at Question 114, "I think it's important though, Daniel, to still maintain some - there are two separate", what has been happening there was the policeman and you were discussing two events, the two events being you being glassed, and the second event, you going to the house and being ultimately charged with aggravated burglary.  So that's what he's talking about   "I think it's important though, Daniel, maintain there are two separate" and that's as far as he got "Yeah, you said", then he says "incidents".  Your answer was "And I agree, like, I didn't - that is just not on.  Breaking into someone's house that is - I would never ever do that if I - that's just not me."  That was your immediate response and again I accept that you're doing your best to be honest.

21      Mr Nevill, I accept that you have little or no recall of much of what happened on this night.  It is a fact that you have been struck to the forehead.  You instruct counsel, Mr Auldis, that you have received a wound to the back of the head, so perhaps you may have been struck yet again.  You have attended at the Seymour Hospital, that is certainly a fact that you received some form of medication.  I also accept the fact that you have ingested alcohol.  I have no evidence of what you, in fact, consumed or, indeed, how much you consumed.  You instruct counsel that you consumed beer.  I have suspicions that you consumed more alcohol than you care to estimate.  I again say I have no evidence touching that aspect of the events, I am only guessing. At best it is my thought, or no more than an inference, that is that you have consumed a lot more alcohol than you are prepared to admit.

22      Mr Nevill, you are now aged 24, you turn 25 in a couple of days' time.  Mr Auldis, in his eloquent plea, points out that you are an industrious young man.  You have excelled in the horse breeding and thoroughbred industry.  You successfully run a very well known agistment farm with breeding horses and the care and management of horses.  You have been recognised by winning awards within this industry.

23      Your father, Mr Nevill, has given evidence on your behalf.  He attests to your industry and hard working ethic.  Your father and mother remain supportive of you.  I infer your sister does too, of course, it seems she has her own problems at present.  When I say problems, I mean health problems.  Your personal life has been in disarray in that your parents separated in 2010, that is always stressful to siblings, and to add to your distress, your mother was recently stricken with breast cancer.

24      At this time your mother was, with your significant input, running Holly Lodge, the thoroughbred stud that I made mention of earlier.  Then, on your mother's illness, the farm was sold and you have now commenced work with Mr Trimboli as a plasterer.

25      I accept your distress at the disintegration of your parents' union and your mother's illness and losing the farm that, no doubt, would be stressful because I am sure you enjoyed that work and you had to give it all up. 

26      All of those things contributed to what I might call the fragility of you at this time when you over imbibed, as I guess.  I again say I have no evidence of that, I am only guessing.  You, and only you, know and you may have forgotten because you may have drunk too much. 

27      Further to your work ethic and commitment to family, you are actively involved in sport, playing football for Avenel.  Mr Muir indicates you put in, in terms of being a good team player, you set good examples to those who need leadership, you are a great player, a great club man and you are important to the Avenel Football Team. 

28      All five references are at one when it is said that you are, and I quote "polite, honest, reliable and a responsible young man with a pleasant attitude".  Those words fell from the Buller family.  All other referees are in accord with that.

29      Mr Nevill, you have let yourself down badly on this night.  I have no doubt that you know of Tom Hafey.  He was frequently quoted as saying, usually every year at finals time, I haven't seen him for a couple of years, he is now an old man, with respect, but he often said this "When the beer goes in the brain goes out".  Tom sticks to a cup of tea, it might be good advice to you.

30      Mr Nevill, you have no prior convictions and there are no matters outstanding.  Until a few moments ago, there were no victim impact statements but now I have one to hand.  I will read it, some of it is admissible, some of it is not but we will sort that out, if necessary, later.

31      Mr Speechley says he felt totally safe in his house, that is no longer so.  It is often said, especially among Englishmen, that your home is your castle.  You are entitled to safety in your own home and that is no doubt the background to why you said "That's not me, I wouldn't do that". 

32      Speechley goes on to say, "I don't remember the last time I had a good night's sleep.  I now sleep with a baseball bat beside my bed.  I know I shouldn't but without it, I would not sleep at all.  Every day I think about what happened and what could have happened.  I get angry at myself for not being able to just forget it and move one.  There are places and social activities that I no longer go to or participate in.  This is due to me trying to avoid those that broke into my home that night.  I just don't want to see or hear them."

33      He then says how he has arguments with his wife about the disposition of their premises and he then further says, because this is a victim impact statement, "I am angry that I don't get to stand in court and look these guys in the eye and tell them how pathetic I think they are."  If he stood in court he would not be saying that to them, Mr Moore would keep him under control.

34      He then talks about the damages to his premises, then you, very properly, immediately said "I'll fix that by paying for it".  Mr Moore's instructor can tell the police that and see where it goes.

35      Mr Nevill, I assure you I have taken into account all that has been said by your counsel, Mr Auldis.  I take into account your plea of guilty and your positive prospect of rehabilitation.  I have already spoken of your co-operation with the investigating policeman.  It is qualified simply because you cannot remember, but you did your best and, I think, honestly did your best to tell them what you could. 

36      Your plea of guilty is an indication of your remorse.  Again, Mr Auldis on your behalf, expresses your remorse to this court.  You must understand aggravated burglary and each of the other offences are serious offences, particularly the aggravated burglary offence.  I say that because of the maximum gaol sentence that can be imposed. 

37      You have heard me discuss with Mr Moore the unusual aspects of this case and I just very briefly mentioned them again.  Despite knowing of your existence and who you were, there was no approach made to you for at least a week and then you receive a summons, which is most unusual for aggravated burglary, near enough to 12 months after the event.  That is all very different.  I assure you the range of disposition that is quoted by Mr Moore on his instructions is, again, most unusual.  Be told, I am not just saying this for the sake of saying it, it is usually an immediate term of imprisonment is demanded by the Director of Public Prosecutions and, in my experience, it is never less than 12 months, that is usually the absolute bottom line.  They are usually talking about five with three and things of that nature for aggravated burglary.  They do not give that in this instance.  The prosecution may well know a lot more about the entire circumstances than I know. 

38      I am also aware, as you are, that serious criminal offences have possibly been committed against you. 

39      I am also very conscious in the disposition I make of the history of your family, that is the "firies" in your family - your grandfather, your father, and it is funny that football gets mentioned.  I got my countries mixed up when I mentioned Heath Scotland.  He's a good footballer, I enjoy watching his football capacity.  I think the oldest living Brownlow medallist is an ex-firie.  If you don't know who he is, ask your father, he will know.  I played football with him, I am giving my age away now.

40      In mitigation, I must also recognise, as I just said, that on first blush - have to be careful here - is that you were potentially a victim of a very serious crime.  Why do I say potentially?  I accept that you were glassed, there is evidence of it.  But until such time as it is properly investigated, the circumstances are not properly known and you have chosen, as is your right, not to pursue it any further.

41      I say potentially, as I say, because it has not been reported formally and the assault has not been investigated by police officers.

42      In relation to two of the offences, you will be convicted and released on a Community Corrections Order and I do not fix - I emphasise, I do not fix any penalty element to that Community Corrections Order.  I will say something about that in a moment.  The only conditions fixed on the Community Corrections Order are that you be subject to supervision pursuant to s.48E (I will explain that;  and secondly, that you attend treatment and rehabilitation for alcohol, if necessary.

43      Let me explain both of those.  Supervision means the person who will be your supervision, if you like, is like a social worker.  If you need to sit down and discuss some issues or you have some problems, here is an independent expert trained in the field who you can sit down and have a chat with.  Sometimes it is not easy to talk about personal matters with those that are friendly and close to you, particularly parents.  That is not being critical, you understand that. 

44      The treatment rehabilitation for alcohol, it is unusual for a sportsman to have those sorts of problem because they are usually disciplined.  So you go through an assessment process.  If it is assessed that you need treatment, then you have to follow it.  If it is assessed that you do not, that is the end of it.  Do you understand that?

45      I do not fix a penalty element, the penalty element is usually community work but with your work program and the type of work you follow living in the country, I understand where you live, I think it is north of Seymour.  If you are working in the city, you are actively involved in sporting pursuits, if you play football during the football season, I would be surprised if you are not involved in some sporting pursuit in the summer. 

46      In relation to each of  Counts 2 and 3, you are convicted and fined $1000.  There is a stay of four months to arrange for payment of those fines. 

47      I have nothing else to say, save and except this, you have an obligation to report to the Office of Corrections within 48 hours.  The Office of Corrections that you have to report to, living in Mangalore, is at Wyndham Street, Shepparton, 307-331 Wyndham Street, I think it is close to the court.  It is my advice to you, I cannot compel you to do it, but go and do it now, get it over and done with so you do not have to make a special trip back.

48      You can leave the dock, take a seat in the court and once you have signed the forms, you are free to leave.

49 There will be an order made under s.464ZF of the Sentencing Act and my very efficient young associate - I meant to say this and I have completely forgotten, I did not write it down.  You must understand that the Community Corrections Order, and this is not a threat, is an alternative to prison.  If you break the law, you will be brought back, and if you are brought back for an aggravated burglary count, you will be going to prison.  Do you understand that?

50      PRISONER:  Yes, Your Honour.

51      HIS HONOUR:  Had it not been for your plea of guilty, I suppose I can revert back to what I said to you earlier.  I am bound to tell you what I would have done had you not pleaded guilty.  It is very hard to look into a crystal ball because of all of the circumstances that occur within what happened in your instance but you heard me saying that Mr Moore, or prosecutors that adopt the same position as he does in all courts of criminal law, rarely stand up and say a Community Corrections Order is available.  It is usually an immediate term of imprisonment and it is usually - the lightest that I can recall - a minimum of 12 months.  I am not threatening you, I am just telling you that is what they do.  So make sure you get it right. 

52      MR MOORE:  Just a couple of matters, Your Honour, by way of clarification, was the order with conviction?

53      HIS HONOUR:  Yes.

54      MR MOORE:  And secondly, what is the duration of the order?

55      HIS HONOUR:  Twelve months.

56      MR MOORE:  Thank you, Your Honour.

57      HIS HONOUR:  You can take a seat in the body of the court and when you have signed the forms, you are free to leave. 

58      PRISONER:  Thank you, Your Honour.

59      HIS HONOUR:  Thank you.

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