Director of Public Prosecutions v O'Toole

[2018] VCC 1158

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT WANGARATTA
CRIMINAL JURISDICTION

CR 17-02006

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMIE O'TOOLE

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Wangaratta
DATE OF HEARING:	3 July 2018
DATE OF SENTENCE:	27 July 2018
CASE MAY BE CITED AS:	DPP v O'Toole
MEDIUM NEUTRAL CITATION:	[2018] VCC 1158

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords:	Sentence – aggravated burglary (offensive weapon) – intentionally cause serious injury – armed robbery – make threat to kill – false imprisonment (common law) – theft of a motor vehicle – serious violent offender – undertaking to assist
Legislation Cited:	Crimes Act 1958; Sentencing Act 1991
Cases Cited:	DPP v Bowden [2016] VSCA 283; Hogarth v The Queen [2002] 37 VR 658; DPP vMeyers [2012] 44 VR 486; R v Duncan [1998] 3 VR 208.
Sentence:	Convicted and sentenced to a total effective sentence of 13 years’ imprisonment with a minimum term to be served before being eligible for parole of eight and a half years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Grant	Solicitor for the Office of Public Prosecutions
For the Accused	Mr J. Anderson	Stary Norton Halphen

HIS HONOUR:

1In this matter Mr O'Toole pleaded guilty to the six charges on indictment H11196280, and the Court was asked to take into account under s.145 of the Criminal Procedure Act a breach of the Bail Act.

2Mr O'Toole was born on 9 February 1973.  He is aged 45, and was 44 at the time of this offending.  Mr Grant appeared on behalf of the DPP, Mr Goodfellow on behalf of Mr O'Toole at the plea, Mr Anderson appears today.

3The plea is to a series of most serious charges. The first is a charge of aggravated burglary pursuant to s.77 of the Crimes Act, the maximum penalty prescribed for that charge is 25 years.

4The second charge is one of intentionally cause serious injury for which s.16 of the Crimes Act prescribes a maximum penalty of 20 years. The third charge is one of armed robbery for which pursuant to s.75A of the Crimes Act a maximum penalty of 25 years applies.

5Insofar as Charge 2 is concerned, that is a defined serious violent offence, so that when one comes to sentence in regard to Charge 4, which is the charge involving threats to kill, which is an offence against s.20 of the Crimes Act, the sentencing provisions in regard to serious violent offenders come into play, although it should be noted there was no submission from the prosecution that there should be a disproportionate sentence passed, in the interests of protection of the community.

6The maximum penalty for that offence is one of ten years. The fifth charge is the common law offence of false imprisonment, which pursuant to s.320 of the Crimes Act the maximum penalty prescribed for such offence is one of ten years.

7The final offence on the indictment is one of theft which pursuant to s.74 of the Crimes Act the maximum penalty imposed is one of ten years. Insofar as the commit indictable offence while on bail, being a breach of s.30(b) of the Bail Act, the relevant maximum penalty which can be imposed is one of three months.

8As to the crimes themselves they were set out for me comprehensively in the opening by the learned prosecutor in a very detailed manner.  Of course since the time of the plea I presided over the trial of the co-accused, who was found by the jury to be not guilty of all charges.

9However, elucidated in that trial was a broader exposition of the facts of which I had been advised, and indeed Mr O'Toole gave evidence in that trial.

10The background to these crimes is a personal dispute between Mr Limbrick and Mr O'Toole.  It was a dispute that emanated out of the period when Mr O'Toole stayed with Mr Limbrick.  They purchased a car from a friend of Mr Limbrick's.  Mr O'Toole fixed the car up and left with the car.

11Thereafter there was a criminal issue and indeed a civil trial.  There was, to say the least, bad blood felt by Mr O’Toole about those matters.  It has to be remarked that to have a dispute over such a minor amount as the catalyst for such serious criminality, just does not balance or make sense.

12It probably gives some credence to the suggestion made by Mr O'Toole in his statement that his intent was at all times to go and get the car and that was it. The problem with that statement is that it just does not match with the circumstances of two men entering premises at 2.30AM at night. But at any rate whatever was the motivation it was not sufficient to put Mr O'Toole's liberty to the risk that it has been put. 

13Suffice to say at 2.30AM at Mr Limbrick's premises both Mr O'Toole and his companion arrived, Mr Bowling.

14Mr O'Toole has pleaded guilty to aggravated burglary in both aspects, that is with an intent to assault a person, and at the time entering being armed and knowing that a person was present.  Mr Limbrick was asleep, as was a guest of his.

15I will not worry about the matters insofar as Mr Walden is concerned.  There were demands from Mr Limbrick insofar as money and the goods that
Mr O'Toole maintained had been taken by Mr Limbrick.  There was immediate assaults committed by Mr O'Toole on Mr Limbrick, he was dragged out from his bedroom into the kitchen.

16It is somewhat unclear when and why he was ultimately beaten as badly as he was.  However, in both Mr O'Toole's statement, Exhibit 2, and his evidence given before this Court, it becomes clear that whatever the assaults were leading up to the time that he found his wallet and some photographs of his child, to use his words, "Thereafter he lost it".

17As he said in sworn evidence, he then used an iron bar to beat Mr Limbrick mercilessly.  To give him his due in his evidence he apologised to the jury in that trial for the manner in which he had hit Mr Limbrick.

18Thereafter there were various threats made and of course thereafter
Mr Limbrick was tied up and bound and left in that condition.  The tendered exhibits, in particular Photo Book 1, show the manner in which
Mr Limbrick was tied and left, it can only be remarked that fortuitously his friend rang the police, albeit under threat, that the police arrived. Had they not arrived it may well be, Mr O'Toole, that you would be in another court facing a murder charge.  Thankfully they did arrive and he was saved.  The final charge relates to the theft of Mr Limbrick's Ford Ranger and as I have indicated also there was a bail matter as well.

19Insofar as the suffering to Mr Limbrick, as I have said this morning, tendered was Photo Book 1.  Not only is it graphic in its depiction of the manner in which Mr Limbrick was left, but also graphic of the ransacking that took place at the premises and particularly graphic of the assaults that were perpetrated upon Mr Limbrick, because they show the bruising throughout his body and on his head.

20Again to give Mr O'Toole his due, in sworn evidence he was quite upfront about the degree of the beating he gave Mr Limbrick, and as he described it he lost it and gave him a terrible beating with an iron bar.

21The injuries are detailed by the learned prosecutor in paragraphs 31 to 32 of the opening.  I requested during the plea that Exhibits C and D be tendered, which are the Royal Melbourne Hospital reports, and reference in those reports to the local hospital.

22During the trial a report from a forensic physician, Dr Jo Ann Parkin, from the Forensic Clinical Medicine Department, was tendered. She in fact works as a clinical forensic medicine physician with the Victorian Institute of Forensic Medicine.

23The summary in the prosecution opening indicates the injuries were initially considered life threatening, including an uncontrolled bleed to the brain.  That meant that Mr Limbrick was moved from the Goulbourn Valley to the Royal Melbourne Hospital by way of an emergency airlift, and subsequently returned to the Goulbourn Valley Hospital for rehabilitation.

24Mr Limbrick subsequently returned to the Royal Melbourne Hospital for back surgery.  However, it is accepted that such cannot be sheeted home to the standard that is required, as a consequence of these crimes.  As has been noted in the summary, Mr Limbrick was 73 at the time.

25As is evident in this Court his rehabilitation took a long time.  He is still not fully rehabilitated in the sense he cannot walk or balance properly and needs a wheelchair, albeit I must say remarkably he still has a good humour, as he displayed in his evidence.  So despite all that he has been through his grit has shown through.

26The forensic physician analysed all of the material that I said was earlier tendered and noted the traumatic brain injury that Mr Limbrick suffered.  There were three areas of subdural haematoma.  There was a subarachnoid haemorrhage of the brain.  As a result of those injuries it was necessary to take him to the Royal Melbourne Hospital. Fortuitously all of those brain injuries were conservatively managed.  There was no need for surgery.  However, he suffered from the injuries a post-traumatic amnesia which remained for a considerable period and continues to impact upon his memory, by way of insight and abstract thinking.

27As the doctor said, those matters in particular will likely affect his ability to return home and live independently, as has proved to be the position.  Insofar as the other areas of the body it is noted that he had bruising and swelling to the head and scalp.  There were abrasions and bruises as documented in the notes on all four limbs, on his back, buttocks, face and neck.

28Such are consistent with being beaten in the manner that I have described, making forceful contact with objects and being dragged along a surface.  They were on multiple sites and multiple planes of the body indicating multiple contacts, such being in the physician's opinion highly suggestive of infliction, which clearly is accepted by Mr O'Toole.

29On discharge Mr Limbrick's mobility was a considerable issue to which I have already referred.  He continues hopefully, given his grit and fortitude, to continue to try to make the best of his life. It is a pleasure to see the hard work that is going into it, and I know you are getting a lot of assistance from your family and your carers.

30The impact of these injuries, if it was not obvious, is described as being medically serious and having an impact upon his morbidity.  Clearly the term "serious injury" in this case is somewhat of an understatement.  As I say, the photos themselves give testament to what I have described.

31The victim impact statement of Mr Limbrick was read out by his carer.  It was detailed and I accept it totally.  Perhaps an understanding of the impacts on his life is best obtained from the victim impact statement read out by his daughter.

32She says this:

"I think this disgusting crime on a 73 year old man, father and grandfather, it was horrific and it has taken away his independence and health.  Seeing him in this state and knowing what happened to him is very traumatic and something I would not wish on my worst enemy.  I feel very angry that this is now how he has to live the rest of his life.  He has lost his home, his finances and his ability to enjoy his life".

33She goes on to say:

"I am devastated that my father will no longer have the opportunity to live a free and happy life".

34Insofar as the prior offences of Mr O'Toole are concerned they are summarised in the prosecution's submissions on sentence and were tendered to the Court.  While he has not had a sustained violent history, he still has had a significant history.

35He was in November 2016 sentenced to a community correction order for
12 months for offences which included unlawful assault and threatening to inflict serious injury.  These offences in fact breach that order.  On 30 April 2004 he was sentenced to a period of 18 months' imprisonment with a non-parole period of nine months for charges of aggravated burglary, stealing, burglary and motor vehicle theft.

36On 19 March 1998 he was sentenced to be imprisoned for 15 months for burglary and stealing.  On 5 March 1998 he had a further month for burglary and stealing.  In July 1996, admittedly, some considerable period ago, three months for breaching a three month suspended sentence relevant to burglary and stealing, and in June 1996 four months' imprisonment for burglary and stealing.

37As I say, but for the serious offence of aggravated burglary for which he got the large sentence, most of his crimes have been involved in dishonesty and burglary.  However, there have been some prior assaults, but the point needs to be made, nothing to this degree.

38The prosecution summary as to sentence was tendered as Exhibit 2 and referred to well-known cases in these circumstances, in particular insofar as aggravated burglary is concerned, DPP v Bowden [2016] VSCA 283, [20] and [24], and of course the oft reported Hogarth [2002] 37 VR 658, and Meyers [2012] 44 VR 486. In particular the reference therein by the Court at [47] to the analysis of the factors relevant to considerations of offences of this type.

39The prosecutor in submission analysed the various factors and referred the Court to the operation of the Serious Violent Offender Provisions, referred to matters of mitigation of which I will come to, and also mentioned the obligation under s.89(4) of the Sentencing Act, insofar as the theft of the car to either suspend or cancel Mr O'Toole's licence.

40Mr Prosecutor, is there a minimum period in that instance?

41MR GRANT:  Three months, Your Honour.

42HIS HONOUR:  Three months?

43MR GRANT:  Yes.

44HIS HONOUR:  The final submission which was put to the Court was that even taking account of the discount factors that are appropriate in this matter a condign sentence of punishment was warranted.  The agreed pre-sentence,
Mr Prosecutor, at the time of the plea was 427.  What is the figure now?

45MR GRANT:  451, not including today, Your Honour.

46HIS HONOUR:  Yes.  So the pre-sentence detention is agreed at 451 days, not including today.  Insofar as the disposal orders and forfeitures order sought by the prosecution I have signed those today. 

47As to the plea conducted by Mr Goodfellow the written submission, Exhibit 1, and of course as part of that was also tendered the statement of Mr O'Toole, that statement being the statement of which he made the undertaking insofar as giving evidence in the trial, and that statement was dated 20 March 2018.

48Insofar as the plea was concerned Mr Goodfellow was at pains to concede and indicate to the Court that there was no issue that the Court was dealing with most serious conduct and offending.  It was conceded on behalf of Mr O'Toole that the physical impact of the injuries, the post-traumatic amnesia and the psychological impacts suffered by Mr Limbrick thereafter were not disputed and accepted.

49The plea spoke of the context.  I have already mentioned the context of this offending.  It is totally disproportionate to what the issue was about.  I was reminded that for some reason, and I am still not quite certain why, having found his property and having, as Mr Goodfellow put to the Court, felt some expression or some feeling of failure insofar as his daughter when he saw these photographs. To use Mr Goodfellow's words his criminality escalated and he used Mr O'Toole's words which he said in the trial, "He lost it". 

50The personal circumstances set out at [7] through to [13] were put to me.  It is clear that Mr O'Toole has had a tough upbringing.  That is why I say, even though he has a number of prior theft matters, it has to be accepted that I have seen much worse prior histories for a man of 45, albeit the one major prior for aggravated burglary.

51Mr O’Toole has been a hard worker throughout his life, essentially doing labouring and seasonal work.  The particular matter of course relied upon was his cooperation.  He provided the undertaking to give evidence against Mr Bowling, and indeed did give that evidence.

52That undertaking and that evidence was classified, and I agree with the classification, as being very important to the prosecution.  As I said, Mr O'Toole took the opportunity in open court at the time to express his sorrow for the injuries that he inflicted upon Mr Limbrick.

53There is of course a most important aspect of encouraging criminals to give evidence against their fellow perpetrators.  The important principles relate to trying to solve crimes and having people convicted of crimes.  That is why the undertaking in this case was valuable, and that is why upon legal principle Mr O'Toole is entitled to a considerable discount in regard to the sentence that would otherwise be given to him, and I do in fact give him that discount.

54I take into account the principles set out as detailed in Duncan [1998] 3 VR 208, and as I say, I assessed the cooperation as valuable. I was present when the completion of the undertaking was made, and indeed Mr O'Toole came before the court and gave sworn evidence against his fellow accused.

55Mr Goodfellow also stressed the guilty plea, the utilitarian benefit of that plea in these particular circumstances given Mr Limbrick's condition, and stressed that the plea itself can be seen as evidence of remorse.  I do accept from what I have heard from the evidence of Mr O'Toole in the Bowling trial that such remorse is genuine.

56Indeed it would seem to me Mr O'Toole is still somewhat mystified as to how he lost it so badly.  As I say, the undertaking was honoured.  You are therefore entitled to, as was submitted by Mr Goodfellow, the appropriate discount for that, and a discount for your plea of guilty.

57Insofar as the issues of cumulation, and the requirements of Parliament as to a sentence for a second serious violent offender offence to be cumulated in total, the submission of Mr Goodfellow was that the overwhelming principle of totality would see that that could not occur, despite doing as best one can to honour the intent of Parliament.

58There was no dispute from Mr Goodfellow that obviously the principles of general deterrence are particularly important in cases such as this, as of course is punishment and most importantly, denunciation of these crimes, given the impact they have had on a member of our community.

59It was put that the issue of specific deterrence should not raise its head so strongly.  However, it seems to me, given Mr O’Toole’s background, that specific deterrence obviously is an important matter.

60The point was made, which I have already made, by Mr Goodfellow that the police arrived and by good work saved Mr Limbrick given the condition in which he was left.  It was put to the Court that I should, given that this will be a significant sentence, take the view that I should be positive about Mr O'Toole's rehabilitation.

61I think I replied at the time it would have to be guarded in all of the circumstances, but having heard Mr O'Toole give evidence one would hope that he won't place himself in that position again.

62In response to the plea the learned prosecutor accepted that the undertaking was of importance and as such Mr O'Toole was entitled to an appropriate and full discount, that he was also entitled to the appropriate discount for his plea of guilty.  However, despite all of the subjective factors and factors relevant to

Mr O'Toole it was the submission of the prosecutor, given the very serious combination of offences that occurred in this matter, that a condign sentence was required, despite the balancing of the discounts involved.

63As I said at the time I agreed with that, and still agree with that.  As I said, the plea involved the written submission and the oral submissions and in addition of these statements the statement and undertaking made by Mr O'Toole.

64The sentencing therefore, Mr O'Toole, has been a somewhat difficult matter because it has been necessary for this Court to take into account all of the factors put forward in your favour, in particular the discounts that you are entitled to for your plea of guilty and for the assistance that you have given.

65However, of course those matters must be balanced against the need for, given the serious objective criminality in this matter, a condign sentence.  That condign sentence of course must be tempered by the appropriate discounts necessary to be made in your favour, because of the factors that I have rehearsed.

66If you would stand up please?  Mr O'Toole, for the first count of aggravated burglary you will be sentenced to a period of imprisonment of eight years.  On the second count of intentionally cause serious injury a sentence of ten years.  That is a serious violent offence.

67For the third offence of armed robbery a sentence of five years.  For the fourth offence of threats to kill a sentence of one year.  For the false imprisonment of Mr Limbrick a sentence of four years and for the theft charge a sentence of one year.

68For the summary matter, that is the breach of bail by the commission of an indictable offence, a sentence of imprisonment of one month.  Using the sentence of ten years in regard to the intentionally cause serious injury as the head sentence, I order that two years of the sentence for aggravated burglary and one year of the sentence for false imprisonment, that is respectively Counts 1 and 5, be cumulated, making a total aggregate sentence passed upon you, Mr O'Toole, of 13 years.

69I order that the period that you must serve before being eligible for parole is a period of eight and a half years. Pursuant to s.18 of the Sentencing Act I note that you have now served 451 days on remand. That period is to be deemed service of this sentence and a record of such declaration is to be recorded in the records of this court.

70I should say in regard to the sentence as to Charge 4 that I have not cumulated any of that sentence. I do that despite s.6(2) of the Sentencing Act. I do that despite the expressed will of the Parliament that such a sentence should be fully cumulated upon other sentences. Given the serious nature of these crimes and the manner in which I have cumulated the three most serious sentences, I find, that the fundamental principle of totality would be offended if I cumulated any more periods of imprisonment, albeit such is the will of Parliament.

71Mr O'Toole, Parliament also requires me to tell you what penalty you would have got had you not pleaded guilty.  In the circumstances of your case to only try and analyse one factor is not easy.  However, doing as best I can, the period of imprisonment that you would have got had you not pleaded guilty would be a period of 17 years with a minimum period to serve of 11.

72Hence Parliament instructs me to tell you that you therefore see that instead of getting 17 years and 11 by pleading guilty you get a sentence of 13 years with a minimum of eight and a half to serve.  I order that the car licence of Mr O'Toole be suspended for a period of three months.

73I have signed all of the relevant orders.  Any other matters, gentlemen, that I need to attend to? Mr Prosecutor?

74MR GRANT:  No, Your Honour, no, Sir.

75HIS HONOUR:  Mr Anderson?

76MR ANDERSON:  No, Your Honour.

77HIS HONOUR:  Mr O'Toole, good luck.  Mr Limbrick, good luck to you.  Keep up the good work.  I will stand down while we get ready for the next matter.  I will just wait until the prisoner is taken away.

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