Director of Public Prosecutions v Nielson
[2014] VCC 1653
•5 September 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL DIVISION
Case No. CR-14-00916
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAMIEN TROY NIELSON |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 13 August 2014, 3 September 2014 | |
DATE OF SENTENCE: | 5 September 2014 | |
CASE MAY BE CITED AS: | DPP v Nielson | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1653 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of aggravated burglary and two charges of criminal damage – extensive criminal history for offences of violence – early and remorseful pleas of guilty – psychological issues leading to application of principles 5 and 6 in R v Verdins (2007) 16 VR 269 – total effective sentence three years and two months, with non-parole period 20 months – one charge of using a carriage service to menace, $500 fine.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Swadesir | Office of Public Prosecutions |
| For the Accused | Mr D Gibson | Victoria Legal Aid |
HER HONOUR:
1 Damien Troy Nielson, you have pleaded guilty to one charge of aggravated burglary, which carries a maximum penalty of 25 years’ imprisonment, two charges of criminal damage, each of which carry a maximum penalty of 10 years’ imprisonment, and one charge of using a carriage service to menace, which carries a maximum penalty of three years’ imprisonment.
2 The circumstances of your offending are contained in the summary of prosecution opening (Exhibit “A”). Your offending occurred on 29 September 2013. The previous evening, you had attended a barbecue at which your victim, Ms Dean, was present. You had had a relationship with her on and off since February 2013, but the relationship had ended a few weeks prior to your offending. You had not been invited to the barbecue and did not know the host. However, you texted Ms Dean asking if you could attend, and those hosting it had given their approval. Ms Dean was not there as your partner.
3 You left the barbecue sometime after 9pm and sent Ms Dean a text stating, “You don’t even know I’ve gone”. Ms Dean had met your other victim, Mr Lake, at the party and, subsequently, they left together and returned to her home, where he stayed the night. You twice returned to the barbecue, once at around midnight, and, again, at approximately 1am on 29 September, asking where Ms Dean had gone. Upon learning that she had left with Mr Lake, you then attended her home. You picked up an implement which Ms Dean used for splitting wood for her heater. This implement was never found, but it was agreed by both counsel to be appropriately described as having a long handle like an axe, with a large solid metal block on the end which was appropriate for splitting logs, albeit that it did not have a tapered, sharp blade like an axe.
4 You then entered Ms Dean’s house, found your way to the master bedroom, and switched on the light, where Ms Dean and Mr Lake were naked and asleep in bed. They awoke to find you holding the woodsplitter in front of you and screaming. You swore at Ms Dean, calling her a “fucking bitch” and asking, “How dare you”, and told Mr Lake to get out of the house or you would return with your mates. This is the conduct constituting Charge 1, aggravated burglary.
5 You then left the house holding the woodsplitter and used it to damage the car of Ms Dean (Charge 2) and the car of Mr Lake (Charge 3). Photographs show a large dent and 5 centimetre linear gouge on the bonnet of Ms Dean’s vehicle (Exhibit “B”). Photographs also show extensive damage to Mr Lake’s car – a smashed front passenger window with shattered glass scattered throughout the interior, multiple indentations and breaks to the metal frame around that window, a large gouge mark to the front passenger door above the handle, an extensive elongated dent and scrape to the rear passenger door and three significant linear gouges with surrounding indentation on the bonnet (Exhibit “C”).
6 Later on, during the morning and early afternoon of 29 September 2013, you sent menacing text messages to Ms Dean. These threatened that you would “start on (her) mates”, would not be deterred by her having people there, and that her friends, children and dog are now “in it”, and you needed all you needed to know about “him” (Mr Lake). You told Ms Dean to drop the charge and your mother would pay the damage, otherwise there would be no mercy to her friends, kids or pets. You threatened to use the assistance of the Bandidos Motorcycle Club. This is the conduct comprising Charge 3.
7 You were arrested by police on 29 September 2013. You admitted entering the property and damaging both cars, but told police a nonsensical story that you had attended there because you thought that Ms Dean’s ex-partner was bothering her. You also claimed that you were not holding the woodsplitter in a threatening way.
8 You are presently aged 37 years, having been born on 22 June 1977. You come before the court with an extensive criminal history in the adult courts dating back to 31 August 1994. You have been convicted of a host of dishonesty, assault and causing injury/serious injury charges, an aggravated burglary, driving offences, including exceeding the prescribed limit of alcohol, and possession of drugs. You have received multiple different sentences: a term of detention in a Youth Training Centre, fines, three Community Based Orders (which you breached or had varied by having them cancelled), two suspended sentences of imprisonment, an Intensive Correction Order and three immediate sentences of imprisonment.
9 Your most serious prior offending was for one charge of aggravated burglary (offensive weapon) and one charge of intentionally causing serious injury, for which you appeared in the County Court at Geelong on 4 June 2003. You were convicted and sentenced to a total effective sentence of 12 months’ imprisonment with a non-parole period of six months. This offending conduct, which occurred in 2001, involved you and your brother invading the home of another person whom you assaulted, and who, in turn, assaulted you back. You left the premises and then returned with a baseball bat, with which you struck your victim on several occasions, causing him a broken arm and a seven inch scar to his arm, as well as splitting open his head.
10 In a plea on your behalf by Mr Gibson, the court was told that you have a dysfunctional background. You grew up in Geelong but your parents separated when you were apparently about five years old. You then spent time living backwards and forwards between your parents until the age of 11, when you were made a ward of the state, following which you were sent to St Augustine’s Boys’ Home until the age of 15. This was described as a physically rough environment where you were introduced to marijuana and heroin from the age of 14 years. You finished school sometime between the end of Year 8 and lived on the streets after leaving the boys’ home and began offending and appearing in the Children’s Court.
11 You had ongoing drug issues and fathered three children to different mothers. Those children are now aged 15, 17 and 20 years but, in the light of your drug and alcohol abuse, you appear not to have been much of a father to them and, obviously, have spent various periods of time in prison.
12 Your counsel stated that you had a long-term relationship with a person called Alisha from 2002 to 2011. Apparently, you made some effort to rehabilitate yourself from drug issues in or about 2002 and, for a period of time, worked as a labourer and then qualified as a bricklayer in 2003. However, in 2009 you lost your licence for drink-driving and, in or about 2011, you ultimately lost your job and your relationship with Alisha came to an end. You then developed a significant problem abusing “ice” and, in 2012, sought assistance from Barwon Health for drug and alcohol rehabilitation. You instructed your counsel that, in early 2013, you developed drug-induced psychosis and became an involuntary patient of Barwon Mental Health Service for nine days. However, on the second date upon which the plea was heard, it became apparent that this admission had been in September 2012 and was for three days. The discharge summary for this admission (Exhibit “4”) notes an impression of drug-induced agitation and substance withdrawal, with a suggestion of secondary gain from the admission as you had an active court case and no permanent accommodation.
13 Mr Gibson stated that you instructed that you had been diagnosed with Post-Traumatic Stress Disorder and anxiety and were currently medicated in prison with anti-psychotic medication (Stelazine) and also an anti-depressant. You further instructed that, since being remanded in custody in September 2013, you had been in protective custody because you are a police informer and had been enduring onerous conditions of being locked in your cell for 23 hours per day. However, on the second date of the plea hearing, this was found to be untrue. You are not a police informer, but on 24 April 2014 had asked to be placed in protective custody because of some assault in the past involving an outlaw motorcycle club. An affidavit from Brendan Francis Money, Assistant Commissioner of Corrections, tendered by the prosecution (Exhibit “F”) makes it clear that you had been in the mainstream prison population before that date. Since that date, you were transferred to protective custody in compliance with your request. However, Mr Money states that you still have the full 11½ hours out of your cell, the same as mainstream prisoners, and are entitled to access all programs and services. Your protection status simply limits the number of other prisoners with whom you are able to mix.
14 The reason that your plea hearing was adjourned part-heard to a second date was to enable your legal representatives to obtain a psychological assessment of you. A report from Ms Carla Lechner, psychologist, dated 29 August 2014 was tendered as Exhibit “2”.
15 Ms Lechner assessed you as having mental health issues, including poly-substance abuse and symptoms of PTSD relating to a “brawl” with bikies. Although the latter had dissipated over time, you still felt anxious in the prison environment. She found no evidence of disordered thought in form or content or of perceptual abnormality. She considered that you exhibit symptoms consistent with a diagnosis of Borderline Personality Disorder, which include recurrent suicidal behaviour and self-mutilating behaviour. She noted on the Beck Depression Inventory, which is a self-report questionnaire, that you warrant a further diagnosis of clinical depression in the “extreme” range. The symptoms she noted included a number of things, including disturbed sleep and a desire to kill yourself.
16 Ms Lechner considered that your emotional and behavioural difficulties are most likely due to your early family life and later aggravated by drugs and alcohol abuse. She described your adult life as characterised by chaos, effective instability and interpersonal difficulties. She considered that the rejection in your home environment in your formative years had led to high emotional dependency on your part so that you have a strong desire for acceptance and approval with intimate relationships. When this does not occur, you become destabilised. She noted that you had had a long-term relationship with a woman, Alisha, but you claimed you were betrayed in that you found her in bed with another man. You told her that when you found your victim in this case, Ms Dean, in that situation, it stirred up painful memories of your earlier betrayal.
17 Ms Lechner noted that, presently, whilst in custody you are on a regime of medication consisting of Stelazine (a mood stabiliser), Avanza (an anti-depressant), Lexapro (an anxiolytic/antidepressant) and methadone. She considered that you are of average to low intelligence and are easily overwhelmed by social and emotional factors which undermine your judgment and decision making. You do not have a strong peer network. You have recently taken to reading the Bible to try to assist yourself. She expressed that you need ongoing monitoring of your mood, psychological assistance and drug rehabilitation. She thought this treatment was not likely to be forthcoming in prison. She considered you have a moderate risk of violent behaviour and noted that you express shame and remorse for your offending and victim empathy and a willingness to engage in treatment.
18 I have some reservations about accepting much of what Ms Lechner says as it is based on a history which conflicts with extensive progress notes from St Vincent’s Hospital at Port Phillip Prison, which were tendered as Exhibit “5”. These notes cover your period in custody from 25 November 2013 until 3 February 2014. Contrary to Ms Lechner’s assumption, they demonstrate that there has been daily monitoring of your mood state and counselling provided to you. Contrary to your history to Ms Lechner, there are multiple notations that, although feeling anxious and low in mood at times, you did not have suicidal or self-harming thoughts. It was noted on 27 December 2013 (apparently by the psychiatrist, Dr Sena):
“Please note: this man is a heavy illicit drug user inside and outside prison. He continues to seek prescription drugs. Please do not prescribe more drugs.”
A careful reading of Exhibit “5” shows that your lowest moods, and at one stage a panic attack, and complaints of hearing voices have usually come after adverse legal outcomes – such as being refused bail or attending court to find that the charges you were facing were more serious than you thought. Also, your complaints of inability to sleep were monitored closely and it was documented that you were observed to be asleep on most nights.
19 I consider that you are an unreliable historian. However, I do regard Exhibit “5” as demonstrating that you were finding life in prison very difficult and that you had a daily level of anxiety which required reassurance. You were noted to keep a low profile in the unit and not mix with many other prisoners with any regularity, and, at times, you were low and tearful and spent the day in your cell. I accept that you are, as your counsel described “a bit of a mess” and, although it is difficult for me to be satisfied about the precise diagnosis of your current mental state, it is, at least, of a severity for prison authorities to prescribe the medications I have previously mentioned. Accordingly, although, clearly, you are not confined to your cell for 23 hours per day as initially represented to the court, I am satisfied that principles 5 and 6 of R v Verdins[1] have application in your case. I am also satisfied that you are socially isolated – having apparently received only two visits since you were remanded in custody almost one year ago. These were both from your mother (who lives in Tasmania) who was accompanied by your aunt.
[1](2007) 16 VR 269
20 Mr Nielson, your offending is of a gravely serious and terrifying nature. It is a fundamental right of every citizen to feel safe in their bed in the privacy of a bedroom in their own home. For your victims to be awoken to the sight of you holding a woodsplitter, while screaming in an aggressive and agitated fashion, was clearly terrifying. Your unrestrained attack on the cars of your victims show that you were in a state of uncontrolled, frenzied anger, and this clearly endured for many hours thereafter, as evidenced by your bullying, threatening text messages sent to Ms Dean.
21 The Victim Impact Statement of Ms Dean speaks of the very adverse effect upon her psychologically, such that she was unable to work and felt that she had to move from her home in Torquay in order to protect herself and her children. This resulted in disruption to the children’s schooling and friendship groups, as well as those of Ms Dean. She has suffered depression, anxiety and disturbed sleep and requires ongoing psychological therapy. In addition, she incurred substantial expense through having to move house and having to pay the excess to her insurer for the damage to her car.
22 In his Victim Impact Statement, Mr Lake details how he has suffered considerable anxiety and nightmares and, as a police officer, he suffers stress in attending crimes where violence is involved. He, too, had to pay an excess to his insurer in order to have the damage to his car repaired.
23 The psychological and financial impacts described by your victims are foreseeable and understandable consequences of your appalling conduct. In sentencing you, this Court must denounce your disgraceful behaviour, place emphasis on general deterrence, so that others who are minded to act in this wilfully violent way will know that they will be punished, protection of the community, particularly in the light of your history of prior offending involving aggravated burglary and injury to others, and also specific deterrence.
24 There can be no doubt that the only appropriate sentence for the offences of aggravated burglary and criminal damage is one of imprisonment. When sentencing for a crime of aggravated burglary, the court must be informed by the maximum penalty of 25 years’ imprisonment, which reflects the seriousness with which this crime is regarded by Parliament. In the last couple of years, the Court of Appeal has made it clear that when sentencing for this serious offence of invading another’s home, a Court should not be constrained by the previous sentencing practices indicated by the Courts for such an offence.
25 In mitigation, I take into account that you did plead guilty to the charges at an early stage, namely, the date upon which the charges were listed for committal hearing. You did not put your victims through the trauma of cross-examination and I accept that you do have remorse. You express this in a letter to the Court tendered as Exhibit “3”. Mr Gibson stated that you feel badly because Ms Dean had been supportive to you during a difficult period in your life and you have now lost her friendship. You are entitled to a significant discount on the sentences which would otherwise have been imposed had you not pleaded guilty.
26 I also take into account your dysfunctional and unhappy upbringing. Unfortunately, this is the case with many people who come before the courts. Although you had a vulnerability flowing from childhood, it seems that your conduct for which I must sentence you was primarily due to your substance abuse. Thus, although I take into account that you have suffered psychological problems, I do not regard them as having such a nexus with your offending as to attract any of the principles 1 to 4 of Verdins. Indeed, I was not urged to do so by your counsel. However, I accept that a person with your psychological problems is likely to find imprisonment more burdensome than someone who did not have those problems and I think it likely that imprisonment may cause your mental health to deteriorate.
27 I also take into account that, during your time in custody, you have undertaken a number of courses, the certificates for which were tendered as Exhibit “1”. These were a social skills program, a program for understanding emotions, a course on basic emergency life support at Kangan Institute, Certificate 2 in Cleaning Operations at Kangan Institute, a 12 hour program on substance abuse, and a further 12 hour program on relapse prevention strategies. It is to your credit that you have utilised your time in custody to try to improve your insight into your reasons for offending and try to address your substance abuse issues, as well as improve your employability skills. However, I consider that your rehabilitation has a very long way to go. You seem to have some difficulty with conveying the truth about matters, because even your letter to the Court (Exhibit “3”) insists that you are suicidal. This is contrary to the St Vincent’s notes which have been tendered, although for unexplained reasons, no notes were tendered beyond February this year. You also continue to represent that you are in protection for being an informer, which is acknowledged by your counsel to be inaccurate. However, I will take the kindest view possible of such inaccuracies and put them down to your anxious and depressed state, which perhaps skews your perceptions.
28 Certainly, you had inaccurate perceptions of your relationship with your victim, Ms Dean, which you portrayed to Ms Lechner. The relationship had been an on and off one for a period of a few months, and it had been broken off completely by Ms Dean some weeks before your offending, so you were not “betrayed” by her as you represented. Again, it would appear that this is referrable to your psychological state and difficulty dealing with rejection. Unhappily, although you have gained some insight into your offending whilst in prison, it would appear that you have insufficient appreciation of its gravity because, in your letter to the Court, you urge that you be given a Community Correction Order, which, in my view, would be a manifestly inadequate sentence. In any event, you have had multiple opportunities in the past, by being given community based dispositions with conditions for treatment of your substance abuse and psychological conditions, but you have not taken advantage of such opportunities. I am guarded in expressing a view about your prospects of rehabilitation in the light of your past history of offending and lack of compliance with orders. However, it would be wrong of this Court to simply “write you off” as incapable of rehabilitation. It may be that, with a period of enforced abstinence in custody, coupled with a reasonably long parole period, you can make something of your life. If you do not, then you will be the only person to blame. However, in the light of your relative social isolation, I do consider that you will need significant support in settling back into the community.
29 In sentencing you, I accept your counsel’s submission that the aggravated burglary was not the subject of significant pre-planning and that you did not physically harm your victims, although often the psychological injuries can be just as harmful. It is plain that each of your victims, one year after the offences, is still suffering psychological distress.
30 In imposing the sentences which I do, I take into account the principle of totality. There are 249 days of pre-sentence detention to be reckoned as time served. However, in addition to that period, you have actually served a sentence of imprisonment of three months from 2 October 2013 to 21 January 2014. This was for offences of possessing firearms and amphetamines, which were committed in September 2012 prior to your three day psychiatric admission to Barwon Health Service.
31 I am mindful of the need to impose a sentence which reflects the gravity of your offending but, also, to ensure that it is not a crushing one.
32 On Charge 1, aggravated burglary, you are convicted and sentenced to be imprisoned for a period of three years.
33 On Charge 2, criminal damage to Ms Dean’s car, you are convicted and sentenced to be imprisoned for a period of three months.
34 On Charge 3, criminal damage to Mr Lake’s car, you are convicted and sentenced to be imprisoned for a period of six months.
35 On Charge 4, using a carriage service to menace, you are convicted and fined $500.
36 The base sentence is that of three years imposed on Charge 1. I direct that one month of the sentence imposed on Charge 2, and one month of the sentence imposed on Charge 3, be served cumulatively upon the base sentence and upon each other.
37 The total effective sentence is thus three years and two months’ imprisonment.
38 I direct that you serve a period of 20 months’ imprisonment before becoming eligible for parole.
39 I declare a period of 249 days pre-sentence detention to be time reckoned as already served under the sentences imposed this day.
40 Pursuant to s86 of the Sentencing Act 1991, I order that you pay compensation in the sum of $700.00 to Sarah Dean.
41 Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence imposed would have been six years’ imprisonment with a non-parole period of four years.
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