Director of Public Prosecutions v O'Callaghan
[2024] VCC 1312
•23 August 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL JURISDICTION
CR 24-00056
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK O'CALLAGHAN |
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JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Bendigo |
DATE OF HEARING: | 21 August 2024 |
DATE OF SENTENCE: | 23 August 2024 |
CASE MAY BE CITED AS: | DPP v O'Callaghan |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1312 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Intentionally destroy property – make threat to kill – attempted aggravated burglary – first time offending at age 57 years old – alcohol-affected – high degree of remorse from the accused
Legislation Cited: Sentencing Act 1991; s5(4C)
Cases Cited: Boulton v The Queen [2014] VSCA 342
Sentence:Convicted and ordered to 12 months’ Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
For the Accused | Ms K. Temperley | Teak Legal & Consulting |
HIS HONOUR:
1Mark O'Callaghan, on 21 August 2024 at the County Court of Victoria sitting here at Bendigo, you pleaded guilty to the following charges on Indictment No.N12778370:
Charge 1, intentionally destroying property. This charge has a maximum penalty of 10 years' imprisonment.
Charge 2, make threat to kill. This charge has a maximum penalty of 10 years' imprisonment.
Charge 3, attempted aggravated burglary. This charge has a maximum penalty of 20 years' imprisonment.
2You have a minor interstate criminal matter I have been told, that was without a helmet ride a bicycle and you were fined $50.
3You have been on bail since the offending, except you had served three days of pre-sentence detention. You have no prior convictions.
Circumstances of the offending
4At the time of the offence, you were 57 years of age. You lived on Fiddlers Lane, Jackass Flat here in Bendigo. The victim of your offending, Rose Dimasi, who lived next door to you on Fiddlers Lane in Jackass Flat. You had been neighbours for approximately one year at the time of this offending.
5On 26 December 2022, Ms Dimasi was at her home celebrating her birthday with her daughter, Caterina Mercuri and her son-in-law, Mr Birnie, and her two grandchildren. At approximately 8.40 pm on that day, you knocked on her door and asked what she was up to. Ms Dimasi told you that she was celebrating her birthday with her grandchildren and she asked you to leave.
6She has then asked you multiple times to leave the front door area of her home. At approximately 8:50pm, you then re-attended at the front of the address. You were banging on the door and asking to be let in, 'Let me fucking in' was the way it was put. Mr Birnie who was there walked outside the front of the house and spoke to you. He asked you to stop coming over and told you, you were scaring Ms Dimasi and the children in the house. You became angry. Mr Birnie then walked back inside the house and locked the front security door. A short time later, you then re-attended at the house with what was described as 'a woodsman's axe' and you started striking the front door a number of times with the axe.
7After striking the door with the axe, you then smashed a window beside the front door and yelled out to the people inside 'I'm going to fucking kill everyone'. That is the charge of intentionally destroying property and the make the threat to kill charge. You then put your arm through the broken window, which is next to the door, and reached in to attempt to unlock the front door. In doing so, you cut your hand. That is the attempted aggravated burglary. You never entered the house.
8A witness who lived in the next house along in Fiddlers Lane, Jackass Flat,
Mr McMullin, had seen you pacing up and down on the footpath outside Ms Dimasi's house after the incident. You had blood on your hands, and you were still holding the axe. When you saw Mr McMullin standing at the front of his house, you indicated to him, putting your finger up to your lips, to be quiet. Mr McMullin has then walked into his house, locked his own front door and called Triple zero. At approximately 9pm, the police attended and you were arrested and taken to the Bendigo police station and interviewed. You admitted your involvement in the offending.9During the course of the interview, you stated the following:
'Well from memory I've for some reason thought something has happened, so I've grabbed an axe and knocked out a window. As far as I can think, it was totally unjustified. I thought there was something happening inside the house, but probably the state I was in I was probably wrong. I'm thinking I've heard something, then grabbed the axe and knocked the window in. I'm left-handed so I'm' – this was questions about your trying to open the door. 'I'm left-handed so I can't imagine reaching in with my right hand, but if they saw me reaching in, they were inside and saw me, I must have reached in. I can't recall it, but if they saw it, then I believe them and there's blood on the handle so obviously I've reached for the handle. That's how I see it'. The question was 'Why do you think you reached in to get the handle?', you said 'to open the door I'm guessing'.
10In this plea hearing, victim impact statements were read out by Rosa Dimasi which was Exhibit “B”, Caterina Mercuri which was Exhibit “C” and Troy Birnie which was Exhibit “D”. The victim impact statements were read from a remote witness room at the court. I have taken into account the impact of your offending on the people in the house at the time of your offending. I observed the effect that those statements had on you at the time that they were being delivered here in court. Consistent with your answers to the police and your record of interview, you showed shame and remorse for your offending as and when these people were reading out the effect of your offending on them. I accept that your remorse is genuine.
Your personal circumstances
11You were 57 years of age at the time of the offending. You are now 59. Until Boxing Day of 2022, you had lived a law abiding and blameless life with one exception which I have referred to where you were fined the sum of $50 for failing to wear a helmet whilst you were riding a pushbike.
12You are a qualified boilermaker and have been employed for your adult life here in Victoria, Western Australia and the Northern Territory. At the time of this offending, you were employed as a boilermaker at A.R. Ball Rolling Stock Maintenance here in Bendigo. You have numerous character references that refer to you as a friendly, caring and outgoing person who is prepared to help other people at any time.
13You clearly have a drinking problem over the years. You got into the habit of binge drinking at the end of the working week. It was in the course of one of these drinking sessions that you have offended against the people in this case. After your arrest and remand for three days for these offences, you have left your home here in Bendigo and ceased drinking alcohol completely. You have returned to Horsham and now are the carer for your 84 year old mother. I have a reference written by her.
14You have attended the Grampians Community Health for mental health and alcohol and drug programs. You have ceased drinking completely since the time of your offending. At the moment you are not working as a boilermaker. As a result of this offending, your life has been changed significantly as a result of your appreciation of the impact that your offending behaviour has had on the people in the house at the time.
Sentencing considerations
15The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and the protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
16I am also required to take into account sentencing practices in fixing your sentence. That enquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases and the statistics for those sentences. I have considered the statistics and current sentencing practices in respect of these offences, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your own case as indeed they are from one another.
17I am mindful that the provisions of the Sentencing Act 1991, in particular s5(4C), which directs a sentencing court to consider whether a community correction order can achieve the purpose for which this sentence is to be imposed.
18I have also reviewed the case of Boulton in considering if a community correction order would be appropriate in your case and I, have had you assessed for a community correction order. You have been assessed as suitable such an order. That is of course not the end of the matter.
19You have pleaded guilty to these charges and your plea of guilty was indicated at an early stage. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and resolution of the substantive issues raised by your offending.
20Your plea allows for the preservation of the court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect our community. Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates remorse on your part. Your plea of guilty has also spared the occupants of the house from giving evidence at a committal or a trial hearing. In this case, that is particularly important because of the manner of the reading of the victim impact statements and the emotional distress on the deponents indicated how stressful giving evidence and being cross-examined would have been for them if they were required to be witnesses in this prosecution.
21I do not accept that the Worboyes discount as it is known has application in your sentencing process here.
22The objective seriousness of your offending is in my assessment at the lower end of the offending, despite the presence of the features of the offending. The indicators are:
i.the offending occurred at night;
ii.that you were armed with an axe;
iii.that you were a neighbour of Ms Dimasi and always identifiable by her;
iv.that you had been asked to leave the front of the premises, but you returned;
v.that the occupants secured the front door so that you were unable to enter the house;
vi.there were five people in the house including two young children;
vii.that you broke the window next to the door in an attempt to open that door;
viii.your motivation for this behaviour was that you thought you were helping due to some perceived problem within the house;
ix.the police interview and answers clearly suggest that you had some mental health episode brought on by your gross intoxication;
x.you were confused and could not understand why the police were arresting you when they attended at the premises;
xi.you were the only person who was physically injured as a result of your offending.
17.You report that you had been drinking alcohol to an excessive degree prior to the offending. The arresting police accept you were extremely affected by alcohol when they attended the premises and later interviewed you. The fact of your self-induced intoxication does not excuse or mitigate your criminality for these offences but may explain why a man of previously outstanding character would suddenly behaviour in this manner at the age of 57.
18.No doubt you have come to court today expecting to go to prison and even thinking that you should be sent to prison for this offending. However, the principle of just punishment is not about retribution or revenge, but about the weighing up of all the factors relevant to the offending and the circumstances of the offending, in combination with the real impact of the offending against the persons affected and your individual circumstances.
19.You have been assessed as a low risk of general re-offending by the Corrections' assessment for a CCO. You have no relevant prior criminal history and you are entitled to draw on your prior good behaviour over an extended period of 57 years when considering an appropriate sentence.
20.Ordinarily, offences of this nature call for sentences of imprisonment. The principles of specific and general deterrence, just punishment, denunciation of your actions, protection of the community, including your rehabilitation, dictate that in your case a community correction order of 12 months' duration with conviction and the following conditions, is the appropriate sentence in respect of all three charges. The following conditions are that you be assessed and receive treatment for alcohol rehabilitation and that you perform 200 hours of unpaid community work at the direction of Corrections.
21.You are to report to the Horsham Community Corrections Service within
48 hours of this date. If you are prepared to consent to that order, that is the order I propose to make.22.Pursuant to section 6AAA, but for your plea of guilty, I would have sentenced you to 18 months' imprisonment with a 12 month non-parole period. I have signed the disposal order sought by the prosecution and I declare for the sake of completeness that you have served three days' pre-sentence detention.
23.MS TEMPERLEY: Thank you, Your Honour. As the court pleases.
24.MR CORDY: As the court pleases.
25.HIS HONOUR: Thank you. I will just have that document prepared and I would ask you to check it, Ms Temperley, and then get your client to sign it.
26.MS TEMPERLEY: Thank you, Your Honour.
27.HIS HONOUR: Mr O'Callaghan, one of the copies of this order is for you. Your counsel will give it to you. You can put it on the inside door of your wardrobe so that every day you get up for the next 12 months, change your clothes, you will have a reminder of what your obligations are, and if you breach the terms of this community correction order, what happens is you come back here to be dealt with for these charges and you also get dealt with for any breach of the order itself. So it becomes a double barrel sentencing process. Do you understand that?
28.OFFENDER: Yes, Your Honour.
29.HIS HONOUR: Yes. You can step out of there. Mr O'Callaghan, best of luck in the future. You look after your mother.
30.OFFENDER: Thank you, Your Honour.
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