Director of Public Prosecutions v O'Ryan
[2021] VCC 642
•21 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00079
Indictment No. L12468449.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER JAMES O'RYAN |
---
JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 March 2021 | |
DATE OF SENTENCE: | 21 May 2021 | |
CASE MAY BE CITED AS: | DPP v O'Ryan | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 642 | |
REASONS FOR SENTENCE
---
Subject: Criminal Law
Catchwords: Sentence – Aggravated burglary – Common assault – Mid-range of seriousness – Minor assault – Weapon not used in assault - High moral culpability – Deterrence against vigilante justice – Extensive criminal history – Early pleas of guilty – No Verdins principles engaged
Legislation Cited: Sentencing Act 1991 – Bail Act 1977
Cases Cited:Hogarth v The Queen (2012) 37 VR 658 – DPP v Meyers (2014) 44 VR 486 – R v Verdins (2007) 16 VR 269 – R v Kilic (2016) 259 CLR 256 – DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428 – Hatzis v The Queen [2021] VSCA 43
Sentence: Total effective sentence of 2 years’ imprisonment with non-parole period of 16 months
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J W O’Toole | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr J Moore | Tyler Tipping and Woods |
HIS HONOUR:
1 Peter James O’Ryan, you have pleaded guilty to an indictment containing one charge of aggravated burglary (Charge 1) and one charge of common assault (Charge 2).
2 The maximum penalty for aggravated burglary is 25 years’ imprisonment and the maximum penalty for common assault is 5 years’ imprisonment.
The Facts
Background
3 The prosecution filed a summary of prosecution opening upon plea dated 24 March 2021[1] which, your counsel agreed, I can treat as a statement of agreed facts for the purposes of sentencing you.
[1] Exhibit P1.
4 At the time of committing these offences you were aged 42 years and you lived in Traralgon. You are presently 43 years old.
5 The two victims in this matter, Donna Cutting and Bradley O’Brien, also lived in Traralgon at the time the offences occurred. You, Ms Cutting and Mr O’Brien were neighbours who lived in the same block of units.
6 You moved to the property approximately two months before committing the offences. You were not acquainted with either Ms Cutting or Mr O’Brien, but you had yelled out verbal abuse towards Ms Cutting on a few occasions. Ms Cutting did not know why you behaved in this manner towards her.
7 On Friday 16 October 2020, Ms Cutting visited Mr O’Brien at his unit. At 5:30pm, you approached the front door of Mr O’Brien’s unit. You were armed with a hammer.
Charge 1 – Aggravated Burglary
8 You entered Mr O’Brien’s unit through the unlocked front door, intending to assault one of the occupants. Once inside, you held the hammer in one hand above your shoulder in a threatening manner towards Ms Cutting.
Charge 2 – Common Assault
9 You approached Ms Cutting and pushed her in the left shoulder with your hand. Ms Cutting had previously had a shoulder reconstruction and she was very sore after the assault but received no visible injuries. Ms Cutting begged you not to touch her again, while Mr O’Brien screamed at you to leave.
10 You apologised before leaving the house. As you were leaving, Ms Cutting asked why you attacked her, and you replied that you thought she and Mr O’Brien had been in your backyard. CCTV footage shows you were present in the house for 24 seconds.
11 After you left the premises, Mr O’Brien called for police assistance. Both Ms Cutting and Mr O’Brien feared for their lives during this incident.
Arrest and Interview
12 At 6:20pm, Constable Alexandra Armstrong and Constable Matthew Vancam arrived at Mr O’Brien’s home. Ms Cutting was very distressed. Mr O’Brien showed police his CCTV footage, which captured you walking up the front steps of his unit with a hammer in your hand and leaving after the incident.
13 Police searched your unit while you were absent. During the search, police located an object which resembled a home-made taser on a coffee table in the living room. You told police in your record of interview that the item was a laser, used for making a straight line. The prosecution withdrew a charge of possess prohibited weapon without excuse, however both parties consent to me making a forfeiture order in relation to the item. You will not be punished for your possession of this item.
14 On Sunday 18 October 2020, you were arrested at your parents’ home in Tyers. You were taken to the Morwell Police Station where you were interviewed in relation to the offending with the assistance of an independent third person. You admitted that you went to Mr O’Brien’s unit but denied entering the unit or doing anything else when you were there. You told police you had not previously had any issues with the victims but on that day you thought they had done something to you, and your ‘spirit went crazy’.
15 You agreed with police that you had previously been diagnosed with schizophrenia and you had not been taking your medication. You exercised your right not to comment when police put to you specific allegations regarding the assault on Ms Cutting.
Victim Impact
16 A victim impact statement from Mr O’Brien was tendered at the plea.[2] In it he states he was afraid you would kill him. He continues to feel unsafe in his own home, and fears for the safety of his two daughters. Prior to the incident, Mr O’Brien suffered from post-traumatic stress disorder (PTSD). Your offending has made his PTSD worse and caused him to stop working. He was doing a newspaper round.
[2] Exhibit P2.
17 Ms Cutting has not prepared a victim impact statement. Nonetheless, where no victim impact statement has been tendered in respect of a victim of crime a judge is entitled to take into account the likely consequences for any victim of the offending conduct to which they were subjected. Undoubtedly, Ms Cutting would have found your intrusion into Mr O’Brien’s unit and your assault upon her a terrifying experience.
Offence Seriousness
18 Aggravated burglary is a serious criminal offence carrying a maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This indicates the seriousness with which the legislature on behalf of the Victorian community views this offence.
19 I do not accept your counsel’s characterisation of your offending as being ‘a low range example of the offence of aggravated burglary’. The prosecutor submitted, while this is not a ‘serious example’ of aggravated burglary, it is not a low-level example.
20 I consider your offending conduct falls in the lower mid-range of seriousness for offences of this type. Entering Mr O’Brien’s house whilst armed with hammer with the intent to assault a person in the house shows how serious your behaviour on this occasion had become.[3] There was the potential for an escalation of events resulting in very serious offending indeed. Your counsel accepted this was a ‘serious offence’.
[3] See eg DPP v Meyers (2014) 44 VR 486 (‘Meyers’).
21 It is odd that the offence was committed for no apparent reason. According to your counsel, you did not have any ‘history’ with either Mr O’Brien or Ms Cutting.
22 In the Victorian Court of Appeal case of Hogarth v The Queen (‘Hogarth’),[4] a case involving a ‘confrontational aggravated burglary’, the Court said that: ‘Home invasion is a particularly nasty form of criminal conduct’[5] and a particularly ‘egregious form of aggravated burglary’.[6] I accept that in your case I am not sentencing you for a ‘confrontational aggravated burglary’ in the Hogarth sense, although, as I earlier observed, the invasion of Mr O’Brien’s home must have been a terrifying experience for him and Ms Cutting.
[4] (2012) 37 VR 658 (‘Hogarth’).
[5] Hogarth 659 [1] (Maxwell P, Neave JA and Coghlan AJA).
[6] Hogarth 660 [6].
23 In DPP v Meyers[7] (‘Meyers’) the Court of Appeal outlined the ordinarily relevant considerations that apply in determining the assessment of the relative seriousness of the offence. Those matters include the offender’s intent at the point of entry, the mode of entry, whether the offender was carrying a weapon, whether the offender was alone or in company, the time of day at which the burglary took place, what the offender knew or believed about who would be inside, and whether the offender was someone of whom the victim was particularly frightened beforehand.[8]
[7] (2014) 44 VR 486.
[8] Meyers 498 [47]–[49] (Maxwell P, Redlich and Osborne JJA).
24 Your counsel conceded by your plea you intended to commit an assault at the time of entry, although the precise nature of that assault is not known. What transpired was a push to the shoulder. It was also conceded that there was a hammer used as a weapon, although it was brandished and was not used by you to otherwise assault either victim. It was conceded these matters serve to increase the objective gravity of you offending conduct.
25 In mitigation, your counsel submitted, and I accept, a number of circumstances ‘take [your offence] outside of the examples of aggravated burglary in its more serious forms’. These are:
(a) No injuries were caused during the burglary.
(b) While the offending was accompanied by an assault, it was a relatively minor assault involving a push to the shoulder.
(c) While Ms Cutting had a pre-existing problem with her shoulder and this compounded her experience of the offence, there was no way you could have known about this beforehand.
(d) No firearm or knife was used in the course of the offending.
(e) While you had a hammer with you and this was, at one point, raised in the air by you, the weapon was not used to physically assault either of the victims.
(f) No property damage was caused during the offending. You gained entry simply by opening the front door.
(g) The offending was not accompanied by threats to cause harm to the victims.
(h) The victims were not exposed to other serious offending which often accompanies aggravated burglary, for instance a false imprisonment or armed robbery.
(i) You acted alone throughout the offending.
(j) The offending did not occur at night.
(k) The offending was not committed in the context of a family violence dispute.
(l) No children were present in the unit.
(m) No intervention order was in place between you and either victim.
(n) The offending was of relatively short duration, only lasting a matter of seconds. The incident concluded by you voluntarily leaving the property after being challenged by the victims.
(o) Prior to leaving the property you apologised when challenged by the victims.
(p) You had not previously offended against either victim.
(q) While the experience was plainly very frightening for both victims, this is not a case where you were a person of whom they were particularly frightened beforehand.
26 Additionally, your counsel submitted, and I accept:
(a) There is no evidence to suggest you knew how many people would be in the unit at the time you entered. The charge of aggravated burglary is not framed on the basis that a circumstance of aggravation was you entered the premises knowing that a person was present or reckless as to whether or not a person was present at the time of your entry.
(b) Your offending was poorly planned and ill thought out. You committed the offence against a person occupying the same set of units you were living in. You made no effort to conceal your identity; detection was inevitable. The offending has the hallmarks of purposeless and spontaneous conduct.
27 So far as the common assault is concerned, this is a serious enough criminal offence carrying a maximum penalty of five years’ imprisonment.
28 Importantly, I must be careful in fixing the sentence for aggravated burglary to ensure you are not doubly punished for the offence you committed after entry into Mr O’Brien’s unit.[9] As the Court observed in Meyers:
Apart from supporting an inference as to what it was that [you] intended to do, the seriousness of what took place after entry cannot affect the sentence on the aggravated burglary charge.[10]
[9] Meyers 503 [70]–[71]. See also Pearce v The Queen (1998) 194 CLR 610; R v Lacey [2006] VSCA 4 [24] (Vincent JA, Callaway and Chernov JJA agreeing).
[10] Meyers 503 [71].
29 Overall, I consider your moral culpability is high. It appears you committed the offences in retaliation, based on your mistaken belief the victims had earlier entered your backyard, presumably, without your permission.
30 General deterrence, denunciation and just punishment are important sentencing considerations in this case. It is important to deter people taking the law into their own hands because ‘vigilante justice’ is a direct threat to the rule and authority of law.[11]
[11] Taskiran v The Queen [2011] VSCA 358 [22]; R v Downie [2012] VSC 27 [38]; R v Charles [2013] VSC 470 [32]; Frost v The Queen [2020] VSCA 53.
31 Moreover, in light of your appalling prior criminal history, specific deterrence and protection of the community must be given significant weight. I can only adopt a very cautious approach to your prospects of rehabilitation which I assess as being poor.
Personal Circumstances
32 You are now aged 43, being born in Traralgon on 17 February 1978. Your mother, who is aged 65, worked as an industrial cleaner until she injured her back and stopped working at the age of 33. She receives a disability support pension. Your father, who is aged 70, worked as boiler attendant at the Australian Paper, Maryvale Mill, near Morwell until he developed arthritis and stopped working at the age of 37. He receives an old age pension.
33 You get along well with your parents and were living with them on their cattle farm in Tyers until about six years ago, when you were required to move out of the family home because a neighbour obtained an intervention order against you.
34 You retain a strong relationship with your parents and regard your upbringing as a good one. You speak with your parents on a weekly basis whilst in custody. At the plea hearing, and again today, your mother attended court via WebEx to support you.
35 Since leaving your parents’ farm, you have lived alone either in a caravan park, at the Gracedale Lodge in Morwell, or in the block of units where the present offending occurred.
36 You are the middle child in a sibship of three, all boys. Your older brother Glenn is currently working in his own metal fabrication business and living in Glengarry. Your younger brother Paul is currently unemployed and living with your parents, helping them on the cattle farm.
37 You are single and lived alone at the time of the offending. You have a daughter, Taylah O’Ryan-England, who is 22 years old. You were in a relationship with Taylah’s mother, Kristy England from 1997 until 2014. You last saw Taylah about 18 months ago. She is unwell and her mother told you Taylah may be suffering from cancer, but you have not been given any details. You find this very distressing and would like to be able to talk with Taylah, but you do not know how to reach her.
38 A traumatic incident occurred when you were about five years old which you did not want elaborated in open court.
39 While your primary schooling was unproblematic, your secondary schooling was disrupted. You experienced some behavioural problems during your school years and eventually moved from your first school, Traralgon High School, to Traralgon West High School. You decided to leave school when you turned 16 in Year 9 as you wanted to commence employment. You have had limited education since that time.
40 When you were 16, you moved to Mossman in Queensland, where you stayed with your brother Glenn for about nine months before moving back to the Gippsland area, where you have lived since.
41 From the time you left school until you were about 28 years of age, you worked in various manual labouring jobs, including as a welder, plasterer, bricklayer and spray painter.
42 When you were 23 years old, you visited a brothel with your cousin where you were both offered heroin. Tragically, your cousin died from an accidental overdose. Your uncle and other members of the family blamed you for his death. You have experienced intense feelings of guilt and shame ever since which continue to greatly affect you.
43 In approximately 2006, when you were about 28 years old, you sustained compression fractures to your spine when you were involved in a motorcycle accident. Because of back pain you have not worked since this time, aside from very occasional short-term jobs. You continue to experience pain and are currently receiving the disability support pension.
44 In 2008, when you were about 30 years old, you were seriously affected by a profound emotional experience related to the matter referred to above.[12] and later attempted suicide by driving a car at a tree. The complications from this incident compound your inability to work and you have a poor memory.
Prior Criminal History
[12] At para 38.
45 You have an appalling prior criminal history comprising 30 appearances between 10 July 1995 and 8 October 2020. The present offences were committed by you only eight days after you appeared before the Latrobe Valley Magistrates’ Court, where you received 152 day’s imprisonment (being time served) for a raft of offences including make threat to kill, resist emergency worker on duty, possess a controlled weapon without excuse and two charges of commit an indictable offence whilst on bail.
46 Your very extensive prior criminal history consists of numerous dishonesty offences, including five charges of burglary, one charge of attempted burglary, six charges of theft, unlawfully on premises, obtain property by deception and handling stolen goods. Additionally, there are a number of offences against the person, including three charges of recklessly causing serious injury, two charges of recklessly causing injury, one charge of reckless conduct endangering serious injury, two charges of unlawful assault, one charge of make threat to kill and four charges of stalking.
47 The remainder of your prior criminal history includes damaging property offences, drug offences, possession of controlled weapons, street offences, offences against the Bail Act 1977 and a number of offences involving disobedience of court orders, including breaching suspended sentences, contravening community correction orders, contravening personal safety intervention orders, and a very large number of driving offences.
48 Clearly, specific deterrence and protection of the community are highly significant sentencing considerations in your case.
Mitigating Circumstances
49 This matter resolved at the second committal mention on 19 January 2021. You pleaded guilty at the earliest forensically reasonable opportunity. I accept your pleas have utilitarian benefit and have saved the victims the trauma of giving evidence in court. Your pleas also indicate an acceptance by you of responsibility for your offending conduct and a willingness to facilitate the course of justice
50 On the material before me, I find your pleas of guilty demonstrate true contrition and remorse for your offending conduct. You apologised to the victims before leaving Mr O’Brien’s unit. I accept this was genuine.
51 Your counsel accepted no Verdins principles[13] are engaged in your case.
[13] R v Verdins (2007) 16 VR 269.
52 I accept you will experience a greater level custodial hardship as a result of COVID-19 restrictions. COVID-19 is relevant to sentence because:
(a) An offender is a higher risk of contracting COVID–19 if they are incarcerated (presuming an outbreak in custody).[14]
[14] The Queen v Madex [2020] VSC 145 [52] (Incerti J).
(b) The inherent utilitarian value of a guilty plea is greater during the pandemic.[15]
(c) The pandemic is causing additional stress and concern for those incarcerated and their families, as it is for every member of the community.[16]
(d) The pandemic can impact on visits, work and educational opportunities depending on the number of cases of COVID-19 in the community at any given time.
[15] DPP v Bourke [2020] VSC 130 [32] (Jane Dixon J).
[16] Brown (aka Davis) v The Queen [2020] VSCA 60 [48] (Priest and Weinberg JJA).
53 While I accept you have found the 215 days you have spent on remand very isolating and difficult, there is no evidence before me to indicate you will suffer any particular additional custodial hardship over and above that of the average prisoner as a result of COVID–19.
Application of Sentencing Principles
54 I have had regard to current sentencing practices in relation to the offences of aggravated burglary and common assault as informed by the decisions of the High Court of Australia in R v Kilic[17] and DPP (Vic) v Dalgliesh (a Pseudonym).[18] I have had particular regard to the recent decision of the Victorian Court of Appeal in Hatzis v The Queen (‘Hatzis’),[19] which your counsel relied upon, and to the cases he referred me to.[20]
[17] (2016) 259 CLR 256, 266–8 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[18] (2017) 262 CLR 428 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
[19] [2021] VSCA 43.
[20] I was referred to Suckling (Shortis) v The Queen [2013] VSCA 278 (Neave JA, Coghlan JA agreeing); DPP v Bowden [2017] VCC 133 (Judge Dyer); DPP v Callander [2018] VCC 698 (Judge Smallwood); DPP v Novak [2016] VCC 919 (Judge Cohen).
55 It is always difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute the offences of aggravated burglary and common assault and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.
56 I accept your offending conduct was less serious than was the case in Hogarth, Meyers and Hatzis.
57 The basic purposes for which a court may impose a sentence are just punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, the impact on any victim and your personal circumstances.
58 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
59 After balancing all relevant sentencing considerations in your case, I consider sentences of imprisonment with a non-parole period are appropriate to achieve the purposes for which these sentences are imposed.[21]
[21] Ibid s 5(4).
Mr O’Ryan.
On Charge 1 (aggravated burglary) you are convicted and sentenced to two years’ imprisonment.
On Charge 2 (common assault) you are convicted and sentenced to one month’s imprisonment.
Seven days of the sentence on Charge 2 is to be served cumulatively on the sentence on Charge 1 making a total effective sentence of imprisonment for two years and seven days. I order you serve a period of 16 months before being eligible for parole.
I declare pre‑sentence detention in your case is 215 days not including this day and I direct that declaration be noted in the records of the Court.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty I would have convicted you and sentenced 3 years and one month’s imprisonment with a non-parole period of 26 months.
— — —
0
21
0