Director of Public Prosecutions v O'Malley

[2019] VCC 2273

IN THE COUNTY COURT OF VICTORIA

AT BENDIGO

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-18-02377

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAUN O'MALLEY

---

JUDGE:	Cahill
WHERE HELD:	Bendigo
DATE OF HEARING:	18 July 2019
DATE OF SENTENCE:	19 July 2019
CASE MAY BE CITED AS:	DPP v O'Malley
MEDIUM NEUTRAL CITATION:	[2019] VCC 2273

REASONS FOR SENTENCE
---

Subject:Intentionally cause injury and criminal damage           

Catchwords:              Guilty plea – high utilitarian value – attack upon a neighbour – history of animosity – no history of violent offending – good work record

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:                  2-year Community Correction Order

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr A. Hands	Geelong Lawyers

HIS HONOUR:

1You have pleaded guilty to one count of criminal damage and one count of intentionally causing injury after a jury was empanelled for a trial on those charges and a more serious charge of aggravated burglary.

2The circumstances of your offending are set out in the Amended Summary of Prosecution Opening for Plea.[1]

[1] Exhibit A.

3Gary Colquhoun and you were neighbours at Maryborough. There had been animosity between the two of you since you had moved into the neighbourhood two years earlier.

4On 29 January 2018, around 10:00 PM, Mr Colquhoun was at home when you arrived at your home with your partner and daughter.

5When you got out of your car, the two of you had an argument. Mr Colquhoun described you as the instigator. You told police he had provoked you.

6Regardless of how the argument started, you picked up a brick from Mr Colquhoun’s front yard and threw it through the front window of his house (Criminal Damage).

7You then went to the front door of his house and forced it open. Mr Colquhoun tried to push you back and you then struck him to the left side of his head with a portion of a brick.

8Mr Colquhoun suffered a laceration, over his right ear, which required nine stitches (Intentionally Causing Injury).

9After you attacked him, you left his property and went home.

10According to your partner, you came into the house and told her to call 000 and, while she made the call, police and ambulance arrived in response to a call Mr Colquhoun had made.

11Mr Cordy, who appeared for the prosecution, told me there is no record of a call from your phone to 000. Mr Hands, who appeared for you, tendered a screenshot of your phone, which shows a call from your phone to 000 at 10.11 PM.[2] I accept you told your partner to make the call and she did.

[2] Exhibit 2.

12Mr Cordy submitted you did this so “you could get in first”, that is, to give police the false account, which you eventually gave at interview.

13Mr Hands submitted your motivation was to get assistance for the man you had injured. While either explanation is open, and I am inclined to accept the latter is more likely, I cannot make a finding either way.

14At interview, you did give police a false account when you denied you threw the brick through the window and denied forcing the front door and said you had punched Mr Colquhoun to the chin. Police photographs show the damaged window and door frame and the laceration above his right ear.[3]

[3] Exhibit B.

15Mr Hands submitted Mr Colquhoun first threw the brick at you. You told police he threw a brick at you, so you retaliated and struck him with a clenched fist. I do not accept that explanation.

16Before the trial, the prosecution had alleged you entered Mr Colquhoun’s house, intending to assault him, before you struck him. Mr Cordy, who appeared for the prosecution, told me the prosecution accepted it could not prove beyond reasonable doubt you had gone into Mr Colquhoun’s home.

17Your guilty plea, although late, was entered in response to an indictment which charged the two offences for which you are now to be sentenced.

18As Mr Cordy fairly submitted, it has high utilitarian value, and I note Mr Colquhoun was very relieved he did not have to give evidence. As Mr Cordy said, you are entitled to “significant benefit for that”.

19After your police interview you were charged and held in custody overnight. The next day, a magistrate admitted you to bail on very stringent conditions including that you reside at an Avoca address,[4] which I was told was a caravan park managed by your mother, and that you be in Maryborough only for work, between 8:00 AM and 2:00 PM and 3:00 PM to 6:00 PM Monday to Friday, and only in the company of your father.

[4] Exhibit 4.

20The effect was an enforced separation from your partner and exclusion from Maryborough except for work with your father. I accept these restrictions have amounted to extra curial punishment.

21You have admitted prior convictions for possessing cannabis and a prohibited weapon (Mr Hands told me police found a cattle prod, as well as cannabis, when they searched your home) for which you were fined and driving offences. Most recently, on 22 June 2016, you were jailed for three months for driving whilst disqualified.

22Relevantly, you have no history of violence.

23I turn now to your personal circumstances.

24You are 30 years of age.

25Both your parents, with your partner, supported you in court.

26You 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, and you have worked in the building industry ever since.

27I received five references.[5] People who work with you described you as reliable and hard-working. Troy Walker described as “a good person whose heart is in the right place.”

[5] Exhibit 1.

28I was told, when these proceedings are finalised, your father intends to retire and hand the family plastering business over to you.

29I was also told you intend to marry your partner, to move into a rented home and you hope to have a child together.

30In relation to your offending, I accept, as Mr Hands submitted, it was not premeditated but impulsive. It was nonetheless a serious assault on a middle-aged man, on his property. In a rage, you forced open his front door and attacked him.

31In order to consider all sentencing options, I have had you assessed for a community correction order and you have been found suitable.

32Mr Cordy submitted a combination sentence, that is, a community correction order to follow a term of imprisonment, was the appropriate disposition.

33However, I have decided a community correction order, with punitive conditions, can best address all sentencing purposes, including general deterrence and just punishment, and rehabilitation, in your case.

34Please stand Mr O’Malley.

35On the charges of criminal damage and intentionally causing injury you are convicted and released on a community correction order for a period of 2 years.

36In addition to the core conditions, you will be required to:

(a)   attend for supervision;

(b)   complete offender risk reduction programs; and

(c)   complete 100 hours of unpaid community work.

37I have reduced the number of community work hours I would otherwise have ordered to take into account that you have full-time employment, you have had four knee reconstructions and have care of your 11-year-old stepdaughter when your partner is at work in the evenings.

38I understand, when you were assessed, the conditions and requirements of this order were explained to you. You will be asked to sign an acknowledgement that you do understand them and the consequences of breaching the order and, if you consent to the order being made, I will make it.

39I note the assessing officer has given you an induction appointment at Bendigo today. You must attend it.

40I make the disposal order in the terms of the draft order which the prosecution provided to the court.

41In my view the seriousness of your offending warrants the taking of a forensic sample from you and, pursuant to section 464ZF of the Crimes Act 1958 (Vic), I order you furnish a sample of your saliva by buccal swab. I must inform you if you refuse police may use reasonable force to obtain the sample from you.

42Pursuant to section 6AAA of the Sentencing Act 1991 (Vic), I declare but for your plea of guilty I would have imposed a sentence of 12 months’ imprisonment.