Director of Public Prosecutions v O'Shea

[2021] VCC 998

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01489

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMIE O’SHEA

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2021
DATE OF SENTENCE:	2 September 2021
CASE MAY BE CITED AS:	DPP v O’Shea
MEDIUM NEUTRAL CITATION:	[2021] VCC 998

REASONS FOR SENTENCE

‑‑‑

Subject:  CRIMINAL LAW

Catchwords:  Plea of guilty - one charge causing injury recklessly – one charge common law assault – one charge make threat to kill – one charge criminal damage  (intent damage/destroy)- related summary charges of committed indictable offence whilst on bail and resisting emergency worker on duty – circumstances of COVID-19 pandemic.

Legislation Cited:  Crimes Act 1958; Sentencing Act 1991

Cases Cited:Akot v The Queen [2020] VSCA 55; Loftus v the Queen [2019] VSCA 24; R v Verdins (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169 Guden v The Queen [2010] VSCA 196, Konamala v The Queen [2016] VSCA 48

Sentence:Total effective sentence of 10 months imprisonment with a 12 month adjourned undertaking.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. P. Triandos	Office of Public Prosecutions
For the Offender	Ms. A. Burnnard	James Dowsley & Associates

Introduction

1On 30 June 2020 Jamie O’Shea injured his partner’s mother by punching her in the face.  He also made a threat to kill her and before leaving he also assaulted another woman at the house and threw a coffee cup, which had been outside, at the window.  Mr O’Shea was charged and on 10 November 2020 was committed to stand trial in the County Court.  An Indictment and Summary of Prosecution Opening were filed and a Defence Response followed. 

2In the context of the COVID-19 pandemic, cases of this nature were not being allocated administrative holding dates until 2022.  The case was referred to the emergency case management process.  A case conference was heard on 10 May 2021. 

3Soon after that, the matter resolved to a plea and soon after that Mr O’Shea was arraigned on the indictable charges.  A plea was conducted on 27 August 2021.

Plea of guilty and maximum penalties

4Jamie O’Shea, you have pleaded guilty to one charge of recklessly causing injury, the maximum penalty for which is five years’ imprisonment; one charge of common law assault, the maximum penalty for which is five years’ imprisonment; one charge of making a threat to kill, with a maximum penalty of 10 years’ imprisonment; and one charge of criminal damage, which has a maximum penalty of 10 years’ imprisonment.

5You have also pleaded guilty to the related summary offences of committing an indictable offence whilst on bail, which has a maximum penalty of 30 penalty units or three months imprisonment; and to one charge of resisting an emergency worker on duty, which has a maximum penalty of 60 penalty units or six months imprisonment.

Circumstances of the offending

6The circumstances of your offending were set out in the Prosecution Opening, dated 5 August 2021.  That document was tendered on the Plea and became Exhibit A. It is attached to, and forms part of, these reasons.  I will not repeat it all here but will summarise some of the facts giving rise to your offending. 

7At the time of your offending you were living at an address in Boronia.  You were in a relationship with Alicia Timms, who lived with her mother Cheryl Timms in a house in Bayswater.

8For a time, you stayed with Alicia at her mother’s house.  Tessa Normington, a friend of Ms Cheryl Timms, also stayed at the house. 

9After a time, Cheryl Timms had told you and Alicia to leave the house.

10On 30 June 2020 at around 6.30 pm Alicia went to the house to collect her things.  She and her mother argued.  Alicia Timms left with her belongings and went across the road to a friend’s house. 

11At around 6.50 pm Cheryl Timms went to the front door when she heard a loud banging noise.  The door was locked.  She saw your foot on the window, beside the front door and a footmark on the glass.  You were yelling, “You are a dog, you are scum.  How dare you call me a junkie, you low life rat”; you subsequently entered the house. 

12Once inside the house you argued with Cheryl Timms and punched her once to the left side of her head, causing her pain and numbness to the left side of her face.  This constitutes Charge 1: recklessly causing injury.

13Cheryl’s friend, Ms Normington, intervened, pushing you towards the front door.  Ms Normington hit you; you then punched her to the left side of her face.  This constitutes Charge 2: common law assault.

14Alicia Timms then came back over from across the road and screamed at her mother.  Her mother and Ms Normington went back inside the house and locked the front door. 

15You went to the front door and yelled, “You are dead.  I will put you in the boot of a car”.  Cheryl Timms was scared that you would do this to her.  This constitutes Charge 3: make threat to kill.

16Cheryl Timms called 000. 

17While Cheryl and Ms Normington were in the loungeroom they heard a loud bang coming from the lounge room window, next to the front door.  They saw glass and a green coffee cup on the floor. The cup was Cheryl’s and had been outside.  Cheryl looked out the front door and saw a white Toyota driving away.  This constitutes Charge 4: criminal damage.

Related summary offences

18At the time of your commission of these offences you were on bail for a charge of theft.  This gives rise to summary Charge 6: committing an indictable offence while on bail. 

Arrest and interview

19On 2 July 2020 Police went to your house.  You were found crouching behind a chair.  You refused to comply when the arresting officers asked you repeatedly to come out and show your hands.  You struggled with Police when they took hold of you.  This gives rise to the summary charge of resisting an emergency worker on duty.  You were eventually handcuffed and taken to Croydon Police Station for interview. 

20In that interview you essentially denied the offending. 

Prior Criminal History

21Your prior criminal history commences in 2007 and discloses convictions that are relevant to the calculation of this sentence.  I counted eight previous court events where you were dealt with variously for recklessly causing injury, intentionally damaging property, unlawful assault, resisting police, and making a threat to kill, amongst other charges.  You have been variously sentenced to community based orders, fines and periods of imprisonment of up to approximately three months duration.  You also have a long history of contravening community-based orders. 

22I will have regard to this history in considering the range of sentencing options in this case. 

Nature and gravity of the offending: Culpability and Degree of Responsibility

23I will now address the nature and gravity of your offending, your culpability and your degree of responsibility.  I am obliged to articulate where your offending fits into a range of similar offending.

24Originally, you were charged with far more serious offences.  The charges now before this court could have, technically at least, been dealt with in the Magistrates’ Court.

25The offending, I accept, was spontaneous, chaotic and appears to be driven by your anger.  There are some particularly unattractive features of your offending; one is that you are in the victim’s home when you assault her, she is the mother of your then partner, senior to you.  Your victims are both women, and you allow yourself to take out your rage on them by hitting them in the face.  This is a deeply troubling aspect of your conduct.  I accept that Ms Normington struck you first, and add that into the equation when assessing the gravity of what you did.  Whether or not this attracts the ‘family violence’ label formally, this is an assault upon a woman in her home, and to another woman present, and you, for whatever reason, apparently authorised yourself to do this.

26I take into account that the injury alleged in Charge 1 was pain and numbness to the face and this, though not unimportant, is on the lower scale of injury for the purposes of my assessment. 

27Your offending was unrestrained and aggressive, however, I do not consider it to rise to the most egregious form on the scale of similar offences. 

Personal circumstances

28I now turn to your personal circumstances. 

29You are now 36 years old.  You committed these offences when you were 35.

30You were born in Birmingham, United Kingdom, and were raised by your mother and stepfather in Jersey.  You were the eldest of four boys.

31You believed your stepfather to be your biological father until the age of 11.

32You were frightened of your stepfather because of his controlling behaviour and you describe him as being ‘heavy-handed’. 

33When you were 14 your mother and stepfather separated and you moved with your mother to live with your grandparents. 

34Your mother re-partnered with an Australian man and you moved to Australia at the age of 16 to settle in Bayswater. This was a difficult transition. 

35You moved out to live with friends at age 18. 

36You experienced difficulties with your behaviour and attention while at school.  You were diagnosed with Irlen Syndrome, a perceptual disorder resulting in difficulty processing visual information.  You felt that you were not assisted by the coloured glasses you were given to treat this condition.  You excelled in athletics but ultimately left school to commence an apprenticeship in carpentry;  you did not complete this.  You took work as a forklift operator before obtaining a qualification as a glazier.  You were dismissed from this work from two separate work places as a result of your illicit substance use.

37You have been unemployed since 2017. 

38You used cannabis since your adolescence and speed from the age of 18.  You started using ice occasionally and more regularly in your late twenties. 

39You have had three significant romantic relationships.  In the second of these you were both using substances around the time your partner fell pregnant.  This pregnancy ended with the stillbirth of a child at around 22 weeks gestation.  This happened at home and you were with your partner.  More recently you were partners with Alicia Timms and it is uncertain whether this relationship will continue.

40Prior to your offending you were using cannabis. You were taking double the dose that you had been prescribed of Clonazepam as a substitute for your epilepsy medication. 

41You were released from custody in late January 2020, relapsed into substance use and misused your prescription medication. 

Impact on victims

42I must have regard to the impacts on the victims of your offending. 

43The Victim Impact Statement of Cheryl Timms, dated 17 June 2021, was read aloud at the Plea hearing.  In that statement, she speaks about the fear she has felt since you assaulted her and that she has suffered, as a result of moving house and her dislocation from family and friends in particular. 

44Ms Tessa Normington did not file a Victim Impact Statement but I conclude, safely I think, that the assault would have been most unpleasant from her perspective too.

Matters in Mitigation

Plea of guilty

45Turning now to matters in mitigation.  You entered a plea of guilty to these charges and by doing so saved the community, but most particularly, the witnesses from the costs, both human and financial, of conducting a trial. 

46While your Plea was not entered at the very earliest stage, the Indictment to which you pleaded guilty is significantly different to what which was originally filed in this court.  To that degree I accept that you pleaded guilty to these charges soon after you were able to. In addition, I must impose a sentence in the context of this pandemic, where the benefit to you is palpable.  The justice system is currently under enormous strain and you have taken one more trial out of a very long list.  The benefit to the administration of justice that this bestows will be recognised, and recognised in a substantial way, in the sentence that I will impose.[1]  Were it not for these circumstances, which have severely affected the administration of justice in Victoria, your sentence would have been higher.

[1]Worboyes v The Queen [2021] VSCA 169.

Psychological Material

47Your counsel relied on a report authored by a forensic psychologist, Laura Fleming, dated 11 July 2021, which became Exhibit 2 on the Plea.

48Ms Fleming concludes that you have a post-traumatic stress disorder and stimulant and opioid use disorders, the latter both in early remission in your currently controlled environment. 

49Ms Fleming notes you exhibit symptoms of post-traumatic stress disorder in relation to the stillbirth of your son and describe intrusion symptoms (such as memories and flashbacks), negative alterations to mood and cognition and marked alterations in arousal and reactivity. Ms Fleming also notes the use of avoidance strategies, including poly-substance use. 

50Ms Fleming notes that the dynamic factors that contributed to your offending might be susceptible to change: your substance misuse, unemployment, inadequate social support and the need for mental health treatment.

51Ms Fleming’s opinion includes the following: 

·you present with a history of trauma, adversity and maladjustment;

·your approach to dealing with your difficulties has, in the main, been through illicit substance use;

·you have failed to develop healthy coping adult life skills and appear to externalise blame;

·you have self-medicated with methamphetamine, thus heightening your risk of engaging in impulsive and reckless behaviour in the past and impairing your capacity for good insight, decision-making and judgment.

52Ms Fleming’s opinion is that as a result of your disorders, imprisonment would likely weigh more heavily upon you than on a person without your conditions.[2]  This opinion gave rise to a submission that I should moderate your sentence on the basis of your post-traumatic stress disorder and I do so. 

[2]Paragraph [79] of Report of Laura Fleming.

Prospects of deportation

53I have also had regard to submissions in relation to your prospects of deportation. You are a citizen of the United Kingdom, and, pursuant to s510(3A)(6) and (7)(c) of the Migration Act 1958, you will be subject to a mandatory cancellation of your visa if sentenced to a period of imprisonment of 12 months or more.  Such cancellation is subject to a review process, so it is not possible to say with any certainty that you will be deported.  Moreover, even if sentenced to less than 12 months, and against the background of your prior criminal history, you may still be the subject of the visa cancellation process and its conclusion, which may or may not be by way of deportation back to the United Kingdom.

54In the course of your plea I was referred to the cases of Guden v The Queen [2010] VSCA 196 and Konamala v The Queen [2016] VSCA 48. It is clear that I must not speculate about the likelihood of your deportation. What I do know is that you are a non-citizen and this makes you liable to mandatory immigration detention and removal.

55You may lose the opportunity to remain in Australia.  The burden of imprisonment is more onerous due to the prospect of deportation.  I take these matters into account.  I note that the country to which you would be deported is not unlike some other countries which Australian visa holders are faced returning to, in a state of war or generalised violence and unrest, but to the United Kingdom. Against that, you came to this country at 16.  Your family in the main live here in Australia though you seem to have limited contact with them.  Your stepfather, with whom you still have a relationship, lives in the United Kingdom. 

56At the Plea hearing you gave sworn evidence about how heavily the prospect of your deportation weighs upon you.  You experience sleeplessness and anxiety.  You have seen other prisoners receive correspondence in custody from the government department responsible for the cancellation process.  You fear you will be next. 

57I take into account the additional stresses that this adds to your current circumstances.  I am obliged, however, to impose a sentence I conclude is right in all the circumstances, having due regard to each of the matters in mitigation, but still reflecting the nature and gravity of the offending.  Migration consequences will not replace or stand as proxy for the imposition of an appropriate sentence and I am referring there to the case of Akot v The Queen [2020] VSCA 55[3] and also to Loftus v the Queen [2019] VSCA 24.[4] 

[3]per Kyrou and Nniall JJA at [39].

[4]at [81].

General deterrence, specific deterrence, just punishment and community protection

58I must impose a sentence that punishes you for what you did and that denounces your offending. 

59Your violence was committed against a female in her home.  General deterrence is important here.  Further, your history suggests that there is a role for specific deterrence in this sentence, as you have been sentenced for similar offending in the past.  I must sentence in a way that gives due regard to the protection of the community, which in your case is in relation to the protection of the people in your future life, with whom you may encounter disagreements or disharmony.

Totality, Concurrency and Cumulation

60You were remanded on this matter on 2 July 2020 and have since spent a total of 431 days in custody.  You have been sentenced to other offending during this period with the effect that you now have 366 days of pre-sentence detention to be reckoned on this sentence. 

61During this period of incarceration you were sentenced in the Magistrates’ Court on charges of theft, possessing a prohibited weapon, unlawful assault and other offences.  You were sentenced to 60 days imprisonment on those matters.  They are not prior convictions for this sentence but having regard to the principle of totality I have taken that proceeding into account more broadly.  The practical consequence of the other sentence is that you now have 366 days of pre-sentence detention that can be calculated on this sentence. 

Prospects of rehabilitation

62I will have regard also to your prospects of rehabilitation.

63You are now 36 years old and have a longstanding substance abuse problem.  You will need to address this to stay out of gaol: it is as simple and as difficult as that.  Some of the statements to the psychologist suggest that you may still be susceptible to directing blame towards others for your current predicament.

64This however is the longest period of time you have ever spent in custody. You have maintained abstinence during this time. You have completed a 12 hour drug and alcohol course while in custody. You have some history of skilled work as a glazier, and a desire, at least, to take this work up again in future.  You do have some of the building blocks for a life lived outside custody. You have engaged with the ‘ReStart’ Program while in custody (I refer to the letter of Peter McAlpine, which became Exhibit 3 on the Plea) and that program would give you assistance with accommodation and support upon release.  With regard to your history there are some causes to think your prospects of rehabilitation are poor, but I do not make that conclusion.  Perhaps I am optimistic, but I maintain, some, I think reasonable, assessment that with the right support and enough determination on your part, you could prosper in the community. 

65I had you assessed for a Community Corrections Order in the time I was considering what sentence to impose on you. Although you were found suitable, I will not be imposing a Corrections order, having had the chance to reflect on the various sentences in your case. While I think you will need support on your release from custody, I do not take the view that this disposition is called for in addition to a sentence of imprisonment. 

COVID-19 Pandemic

66As I deliver this sentence, Victorians are subject to a further lockdown. The anxieties and uncertainty of the time persist. It is clear that for some time prisoners in Victoria have suffered the anxiety of not knowing if, or when, the virus will enter the prison system. This has now happened in NSW.  Access to visits and programs in Victoria have been significantly curtailed.  You have served your sentence in that more severe and more uncertain climate, and I take that into account.

Regard to current sentencing practices

67I have had regard to current sentencing practises, no case is particularly like yours.  No one has your particular matters in mitigation, but I sentenced you in the general landscape of sentences for similar offending. 

Disposition

68On Charge 1: recklessly causing injury, you are convicted and sentenced to six months imprisonment. 

69On Charge 2: common assault, you are convicted and sentenced to five months imprisonment. 

70On Charge 3: making a threat to kill, you are convicted and sentenced to four months imprisonment. 

71I will come back to Charge 4 in a moment. 

72On Summary Charge 6: committing an indictable offence while on bail, you are convicted and sentenced to one month imprisonment.

73On Summary Charge 12: resisting an emergency worker on duty, you are convicted and sentenced to one month imprisonment. 

74On Charge 4, you are with conviction released on an adjourned undertaking, that undertaking commences today, and is adjourned to 2 September 2022. I will return in a moment to the conditions of that undertaking. 

75These are the directions for cumulation on the sentences of imprisonment. I direct that three months on the sentence imposed on Charge 2, and one month of the sentence imposed on Charge 3 be served cumulatively upon each other, and upon the sentence imposed on Charge 1.  This results in a total effective sentence of 10 months imprisonment.

Pre-sentence detention

76I further declare that the period that you have been in custody in respect of these offences, namely 366 days, will be reckoned as a period of imprisonment already served under this sentence, which is to be deducted administratively.

77I note, but do not formally declare, the  number of days which I reckoned earlier as approximately 57 days, it may be slightly more, of additional time in custody awaiting this sentence. 

Adjourned Undertaking – Charge 4

78I return now to the conditions of the adjourned undertaking on Charge 4.

79On Charge 4: criminal damage, you are convicted, and I adjourn this part of the proceeding for 12 months on the giving of an undertaking to comply with the following conditions: 

·One, that you are of good behaviour during the period of adjournment;

·Two, that you attend before the court when called upon to do so, and in particular that you attend upon the court on 4 November 2021 at 9.30 am; 

·Three, that you participate in the ‘ReStart’ Program delivered by the ACSO, as set out in the letter of Peter McAlpine dated 27 August 2021;

·Four, that you comply with all the lawful directions of Peter McAlpine or other staff members of the ‘ReStart’ Program.

·Five, that on 4 November 2021, you provide to the court written evidence of your consistent engagement with that program;

·Six, that you attend upon the court on future dates, if called upon to do so. 

s6AAA reduction

80Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, but been found guilty after trial, I would have sentenced you to a total of 15 months imprisonment. 

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