Director of Public Prosecutions v O'Malley
[2022] VCC 1709
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-02684
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHAUN EDWARD O'MALLEY |
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| JUDGE: | HIS HONOUR JUDGE CAHILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 September 2022 |
| DATE OF SENTENCE: | 30 September 2022 |
| CASE MAY BE CITED AS: | DPP v O'Malley |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 1709 |
REASONS FOR SENTENCE
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| Subject: | Common-law assault – damage property – prohibited person possess a firearm |
| Catchwords: | Guilty plea – domestic abuse of partner – remorse – favourable prospects of rehabilitation |
| Legislation Cited: | Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Road Safety Act 1986 (Vic); Confiscation Act 1997 (Vic); Firearms Act 1996 (Vic) |
| Cases Cited: | DPP v Darryl Hood [2017] VCC 1347; DPP v Mark Stewart Schneider [2018] VCC 1278; DPP v Joe Arceri [2020] VCC 1542; DPP v Benjamin Swanson [2020] VCC 2073; Worboyes v The Queen [2021] VSCA 169; Biba v The Queen [2021] VSC 327; Marrah v The Queen [2014] VSCA 119; Pasinis v The Queen [2014] BCA 97; Shau v The Queen [2020] VSCA 252; Carter (a pseudonym) v The Queen [2018] 272 A Crim R 17; R v Biba [2021] VSC 327; DPP v Shaun O’Malley [2019] VCC 2273; Lowe v The Queen (1984) 154 CLR 606; Postiglione (1997) 189 CLR 295 |
| Sentence: | 22 months’ imprisonment and 15-month Community Correction Order |
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Zammitt | Office of Public Prosecutions |
| For the Accused | Mr S. Norton | Stary Norton Halphen |
HIS HONOUR:
1Sean Edward O'Malley, you have pleaded guilty to:
(a) four charges of common law assault;
(b) one charge of intentionally causing injury;
(c) one charge of intentionally damaging property; and
(d) one charge of being a prohibited person in possession of a firearm.
2You have also pleaded guilty to the related summary offences of:
(a) possessing ammunition unlawfully obtained (Summary Charge 9);
(b) possessing a prohibited weapon, a taser, without exemption or approval (Summary Charge 10);
(c) failing to report an accident to police where a person was injured (Summary Charge 26); and
(d) driving in a manner dangerous (Summary Charge 37).
3The circumstances of your offending are set out in the summary of prosecution opening for plea.[1] They are agreed facts.
[1] Exhibit A: Summary of Prosecution Opening for Plea dated 26 April 2022.
4Your offending occurred on:
(a) 1 June 2017 (Charges 1 and 2);
(b) 9 March 2021 (Charge 3);
(c) 27 March 2021 (Charge 4);
(d) 28 March 2021 (Charges 5, 6 and 7 and the summary charges relating to the possession of the ammunition and the taser);
(e) around July to August 2020 (the summary charges of dangerous driving and failing to report an accident to police).
5The victim of your violence was a woman who had been your domestic partner for five years (‘your partner’).
6Around 1 June 2017, when you were arguing with her at home, you swore at her and threw a large music speaker towards her head. It struck her. The blow caused her pain and ringing in her ear (Charge 1 – Common Law Assault).
7She retreated to the bedroom and while she was curled up crying you got on top of her and squeezed her throat with your hands. She begged you to stop and eventually you did. The pressure caused bruising to her face and throat (Charge 2 – Common Law Assault).
8Around July or August 2020, she was in your car with you when you lost control of the car and struck a tree (Summary Charge 37 – Dangerous Driving). Her head hit the windscreen and her leg struck the dashboard. Her head was bleeding, and she had chest and leg pain. She went to the local medical clinic for treatment. You called your parents to assist you to tow the car away. You did not report the accident where your partner was injured to police (Summary Charge 26 – Fail to Report if Person Injured).
9On 9 March 2021, during another argument at your home, you swore at your partner and strangled her (Charge 3 – Common Law Assault). Her daughter witnessed your violence and recorded her mother and you screaming at each other. The recording was played in court.[2] I heard both of you yelling loudly. You sounded aggressive. She sounded frightened (Charge 3 – Common Law Assault).
[2] Exhibit B: Audio Recording.
10On 27 March 2021, in the evening, you went into the bedroom, and you punched her to the chest with a closed fist. When she started crying, you stood over her and screamed at her (Charge 4 – Common Law Assault).
11On 28 March 2021, in the morning, your partner woke you when she went to the toilet. You got angry and punched six to seven holes in the wall (Charge 6 – Criminal Damage).
12You put your hands around your partner's neck, and you strangled her. She kicked out at you to get you off. After she said, 'I can't breathe', and you had responded, 'I don't care.' You let her go. You got angry again when she started to pack her things. You followed her into the lounge room where you choked her again. She lost consciousness. Her daughter saw it and Triple 0.
13When your partner regained consciousness, she ran outside and screamed for help. You grabbed the back of her head and shook it. When she went back inside you kicked her to the buttocks and strangled her again on the couch.
14As a result of your violence, she suffered marks to her throat and neck soreness (Charge 5 – Rolled up Count – Intentionally Cause Injury).
15When police arrived, your partner asked them to leave. When they asked you what happened, you denied any physical violence but admitted to arguing and slamming the door. You said your partner’s illness and her daughter acting out had strained your relationship. After police spoke to you your partner disclosed your violence. Police arrested you and then searched your property.
16Inside the house, they found:
(a) an unloaded .22 calibre rifle in a set of cupboards (Summary Charge 7 – Prohibited Person Possess Firearm);
(b) a box of .22 calibre ammunition on the bedside table in your bedroom (Summary Charge 9 – Unlawful Possession of Ammunition); and
(c) a Taser device, shaped like a golden light, on the bedside table (Summary Charge 10 – Possess Prohibited Weapon).
17When police questioned you, you made some admissions of your wrongdoing. You were charged and remanded in custody.
Criminal record
18You have admitted prior convictions for possessing cannabis and a prohibited weapon, a cattle prod, for which you fined, and driving offences. On 22 June 2016 you were gaoled for three months for driving whilst disqualified.
19Relevantly, you had no history of violence until 19 July 2019 when, in this court, sitting at Bendigo before me, you were convicted of criminal damage and intentionally causing injury and sentenced to a two-year community correction order.
20By virtue of your conviction and release on a community correction order with a supervision condition you were a prohibited person under the Firearms Act 1996 (Vic) when you had possession of the firearm (Charge 7 – Prohibited Person Possess a Firearm).
21Your offending in July or August 2020 (Summary Charges – Dangerous Driving and Failing to Report an Accident) and in March 2021 (Charges 3, 4, 5, 6 and 7) breached the conditions of your community correction order.[3]
[3] You had otherwise completed the conditions of the order and, when you pleaded guilty to the breach, I confirm the order and made no other order.
Victim impact statements
22Victim impact statements of your partner[4] and her daughter[5] were read to the court.
[4] Exhibit C: Victim Impact Statement dated 26 May 2021.
[5] Exhibit D: Victim Impact Statement dated 5 May 2022.
23Your partner made her victim impact statement on 26 May 2021. Then she was seeing a psychologist to help her deal with the trauma of your violence. She was also awaiting specialist opinion for problems with her throat. Because she had to relocate with her daughter to a safe house some distance from her work, she could not continue in her employment as a disability support worker. She was suffering nightmares and feeling anxious and scared. Additionally, she was worried for her daughter who had witnessed some of your crimes.
24Her daughter wrote she was very frustrated and when her mother was living with you. Initially she thought you were a nice guy, but you began them to make them feel bad about themselves and were controlling. She has trust issues now and distances herself from people. She has suffered sleep disturbance and has had thoughts of self-harm. She worries about her mother but says that things have changed for the better since her separation from you.
Personal circumstances
25You were born in March 1989.
26You were aged between 28 and 31 years when you offended. You are now 33.
27You were born and raised in Geelong. You attended local schools until year 10. When you left school, you completed a plastering apprenticeship with your father. You have worked in the building industry ever since.
28Both your parents supported you in court.
29Your mother gave evidence.
30Your father was with her.
31She described you as being in a dark, dark cupboard when you were arrested. I interpret that to mean your mood was very low. She told me when you were first remanded you went into 14-day isolation and quarantine. There have been other lockdowns, one for 14 days, another for 14. Opportunities to visit you have been rare and Zoom calls have been limited. Your parents have tried to keep regular contact with you by phone, however at times, as long as two months has passed without them being able to speak to you at all.
32Despite the hardship, in her opinion, your incarceration has changed you for the better. She said you have improved your diet and benefited from the responsibility of trusted work in the staff kitchen.
33Your parents will have you home to central Victoria to live with them when you are released from prison. Your mother confirmed local builders are willing to
re-employ you. Her husband and her have hung plaster for one builder in order to keep the prospect of work with him open for you.34Your parents’ great love and care for you was self-evident.
35In prison, you have completed the Atlas Remand Program[6] to help you adjust to the prison environment, to progress personally and to set life goals. You have also completed vocational programs in food safety and business operation.[7] And your canteen supervisor[8] wrote by your “great work ethic” you have earned a position in the staff canteen which is the highest position in the prison kitchen. She described you as respectful and responsive to direction.
[6] Exhibit 2: Bundle of Atlas Certificates of Completion.
[7] Exhibit 3: Box Hill Institute Statement of Results.
[8] Exhibit 3: Box Hill Institute Statement of Results.
36I received five references written on your behalf.[9]
[9] Exhibit 4: Character Reference of D Maffescioni dated 8 December 2021; Exhibit 5: Character Reference of Kylie McKiernan dated 11 December 2021; Exhibit 6: Character Reference of Lynette O’Malley dated 13 December 2021; Exhibit 7: Character Reference of Marilyn Campbell dated 12 December 2021; Exhibit 8: Character Reference of Shelley Simpson dated 12 December 2021.
37Your former employer describes you as a good tradesman who is in demand in your local community. He is willing to give you long term work again.
38Your family and friends describe you as an honest and responsible person who worked hard to provide for your partner and her daughter. They see you as a family-oriented person and your offending as out of character. They are confident you will not re-offend and offer strong support to help you.
39Importantly, I received a letter of apology to your partner from you.[10]
[10] Exhibit 9: Letter of Apology undated.
Defence submissions
40Mr Norton who appeared on your behalf in written and oral submissions acknowledged your offending is serious and demands punishment by imprisonment.[11]
[11] Exhibit 1: Defence Submissions dated 14 September 2022.
41While conceding your offending will have been distressing and frightening for your former partner and her daughter, he submitted the physical harm you caused was not at the higher end of the scale.
42He accepted that you offended during the operation of a community corrections order is an aggravating feature of those charges.
43He submitted significant subjective factors militate in favour of a combination sentence which, in his submission, has the advantages of a punitive component of prison and a rehabilitative component of a therapeutic community corrections order.
44In mitigation the penalty he relied on:
(a) Firstly, your early guilty plea for its high utilitarian value, particularly so in the time when the community and the courts are affected by the pandemic's effects;
(b) Secondly, your acceptance of responsibility for your actions, and your remorse evidenced by your guilty plea, your written apology and your positive response to your time in custody;
(c) Thirdly, your good work record; and
(d) Fourthly, your family support.
45He referred me to four sentences of this court as comparators to assist me to identify the appropriate sentence in your case.[12]
[12] DPP v Darryl Hood [2017] VCC 1347; DPP v Mark Stewart Schneider [2018] VCC 1278; DPP v Joe Arceri [2020] VCC 1542; DPP v Benjamin Swanson [2020] VCC 2073.
Prosecution submissions
46Ms Zammit, who appeared on behalf of the prosecution, in written and oral submissions contended your offending was objectively serious.[13]
[13] Exhibit E: Sentencing Submissions dated 19 September 2022.
47She submitted the choking (Charges 2 and 3) as a particularly serious example of the offence of common law assault.
48And she submitted Charge 5, intentionally cause injury, is a serious example of the offence, considering it is a rolled-up count which includes you choking your partner, choking her again until she lost consciousness and kicking her buttocks.
49She submitted your use of a loudspeaker as a weapon in 2017 (Charge 1), the presence of your partner's daughter when you offended on 9 and 28 March 2021 (Charges 3 and 4) and you being subject to a community correction order when you offended in 2020 and 2021 (Charges 3 to 7) are aggravating features of your offending.
50She also submitted your offending has obviously caused harm to your partner and daughter.
51She accepted your early guilty plea, COVID-19 considerations including a Worboyes discount, and your strong family support are mitigating factors.[14]
[14] Worboyes v The Queen [2021] VSCA 169; Biba v The Queen [2021] VSC 327, [39] (per Beale J).
52She submitted a prison term must be imposed and, considering the gravity of your offending and your prior criminal history, a combination is outside sentencing range.
Consideration
53Family violence crimes are very serious.
54Your partner was vulnerable. You breached her trust, and you caused her physical and emotional harm. You had no right to do that.[15]
[15] Marrah v The Queen [2014] VSCA 119, [25].
55That you committed some of these offences in the presence of her daughter and others, while you were subject to a community correction order, are aggravating features of your offending.
56The court must impose punishment that denounces your conduct and adequately addresses general deterrence.[16]
[16] Pasinis v The Queen [2014] BCA 97, [53] and [57]; Shau v The Queen [2020] VSCA 252, [47].
57Only a prison sentence is appropriate in your case.
58While choking your partner, to the point of her losing consciousness, will have been terrifying for her, I accept the level of violence you perpetrated was less extreme than in the worst cases.
59There are mitigating factors in your favour.
60Firstly, you are entitled to a demonstrable sentencing discount for your early guilty plea, which has high utilitarian value because your partner and her daughter have been spared the anxiety of a trial,[17] and additionally it alleviates the current strain on the justice system.[18]
[17] Carter (a pseudonym) v The Queen [2018] 272 A Crim R 170.
[18] Worboyes v The Queen [2021] VSCA 169.
61Your guilty plea in relation to Charges 1 and 2 and the summary charges of dangerous driving and failing to report an accident has additional utilitarian value.
62Secondly, I accept your guilty plea and your expressions of contrition demonstrate you accept responsibility for your actions and are genuinely remorseful.
63Thirdly, prison has been harder for you, as it has been for all prisoners during the pandemic due to reduced prison visits, reduced prison programs and increased isolation with the risks of COVID-19 infection.[19]
[19] R v Biba [2021] VSC 327, [38].
64I must also look to your rehabilitation.
65You have a limited history of violence. Your first conviction for violent offending was in July 2019 following a dispute with your neighbour which had occurred 18 months earlier.[20]
[20] DPP v Shaun O’Malley [2019] VCC 2273.
66You have a good work history and a supportive family.
67You have earned trusted work in prison and productively used your jail time to advance your reformation.
68On your release, you will have a home with your parents, and you will have work with your former employer.
69They are strong protective factors and I consider your prospects of rehabilitation to be favourable.
70I have used the maximum penalty of each of the offences as a yardstick to measure the sentences I should impose.
71I have also considered the comparable cases referred to me by Mr Norton and the prosecutor for guidance to identify and apply the relevant sentencing principles and as a yardstick against which to examine the appropriate sentence in your case.
72In my view, Charge 5, intentionally cause injury which includes three separate assaults, one of which was the most extreme of your acts of violence is the most objectively serious of the charges brought against you.
73Your prohibited possession of a firearm is also serious. I will moderate the sentence I impose on that charge to take into account your explanation, which I accept, that you kept it for recreational purposes and that it was unloaded.
74Because you are to be sentenced for a number of offences, I have had regard to the totality principle to ensure your total sentence is a ‘just and appropriate measure of [your] overall criminality’.[21]
[21] Lowe v The Queen (1984) 154 CLR 606; Postiglione (1997) 189 CLR 295.
75In relation to your 2017 offending, because of its historical nature and your admissions, I accept substantial utilitarian value attaches and I will order the sentences I impose on those charges to be served concurrently with the other sentences.
76To enable me to properly consider the competing sentencing submissions, I have had you assessed for a community correction order.
77The assessing officer reported you fully admitted your wrongdoing, that you were remorseful, and you showed insight into the consequences of your offending. You understand your relationship with your partner is over.
78You were found suitable for a community correction order.
79You were also examined by a mental health nurse. Your mood was good. You told the nurse, when you offended, you were smoking cannabis daily. You acknowledge the cannabis made you feel irritable and contributed to your anger. You have had enforced abstinence in prison, and you said you want to remain sober in the community. You reported no mental health problems. You said you have benefited from anger management and behavioural change programs in prison. In the nurse's opinion, these programs appear to be the most appropriate intervention to assist you not to re-offend. I agree.
80I have decided a combination sentence of imprisonment and community correction order can best address all sentencing purposes, including general deterrence and just punishment and rehabilitation in your case.
81I accept the assessing officer's recommended conditions.
82Mr O'Malley, by the sentence I impose I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
83Considering the circumstances of your offending, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you.
(a) On Charge 1, common law assault, you are sentenced to three months’ imprisonment.
(b) On Charge 2, common law assault, choking, you are sentenced to three months’ imprisonment.
(c) On Charge 3, common law assault, you are sentenced to six months’ imprisonment.
(d) On Charge 4, common law assault, you are sentenced to six months’ imprisonment.
(e) On Charge 5, intentionally cause injury, you are sentenced to 16 months’ imprisonment.
(f) On Charge 6, you are sentenced to two months’ imprisonment.
(g) On Charge 7, you are sentenced to 12 months imprisonment.
84The sentence I have imposed on Charge 5 is your base sentence.
85I direct:
(a) two months of the sentence I have imposed on Charge 3;
(b) two months of the sentence I have imposed on Charge 4; and
(c) two months of the sentence I have imposed on Charge 7
be served cumulatively on your base sentence and each other.
86Your total effective sentence of imprisonment is 22 months.
87Additionally, I order you complete a community correction order which I will make in respect of Charges 3, 4, 5 and 7 when you are released from prison.
88The duration of the order will be 15 months.
89I attach the following special conditions to the order:
(a) Supervision;
(b) Drug treatment and rehabilitation to address your cannabis use; and
(c) Offending behaviour programs, specifically anger management and behaviour change to address your control of anger.
90I declare you have served 551 days of your sentence by way of pre-sentence detention.
91On the charges of driving in a manner dangerous and failing to report to police an accident where someone was injured, you are convicted and fined an aggregate sum of $750.
92On the dangerous driving charge, I order all licences and permits held by you under the Road Safety Act 1986 (Vic) be cancelled and you be disqualified from obtaining any further licence for a period of six months.
93On the charges of unlawful possession of ammunition and possession of a prohibited weapon, the taser, you are convicted and fined an aggregate sum of $750.
94I make orders for forfeiture of the taser under the Confiscation Act 1997 (Vic) and of the firearm and ammunition under Firearms Act 1996 (Vic) with your consent.
95Whilst there is some artificiality to the process, I declare pursuant to s6AAA of the
Sentencing Act 1991 (Vic) but for your guilty plea I would have imposed an aggregate sentence of three years and six months imprisonment and fixed a minimum non parole period of two years and six months imprisonment.
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