Director of Public Prosecutions v Oddy

[2015] VCC 504

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01375

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN ODDY

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JUDGE:	HIS HONOUR JUDGE PUNSHON
WHERE HELD:	Melbourne
DATE OF HEARING:	21 April 2015
DATE OF SENTENCE:	27 April 2015
CASE MAY BE CITED AS:	DPP v Oddy
MEDIUM NEUTRAL CITATION:	[2015] VCC 504

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. H. Bate	OPP Victoria
For the Accused	Mr. A. Sim	Michael J. Gleeson & Associates

HIS HONOUR: 

1Benjamin Troy Oddy, you have pleaded guilty to one charge of aggravated burglary and one charge of intentionally causing injury. 

2Ms Bate, who appeared for the prosecution opened the circumstances of the offending by reading from a written "summary of prosecution opening" which was tendered.

3In short, on 7 March 2014 you attended at premises of the primary victim, a 60 year old man, and attacked him by punching him to the head three or times with both fists.  He was sitting at the table in the garage that had been set up with a kitchen and dining area.  You entered through a large tilt door after telling the victim you were looking for a friend and just before he offered you coffee you struck him.  You were wearing a knuckle-duster.  He suffered two cuts to the head requiring about 30 stitches.

4On 21 February 2014, you followed the primary victim's girlfriend from her workplace so that you could identify where she and the primary victim lived.

5You were interviewed by police and made substantial admissions.  You said your motivation was disapproval of the relationship between the primary victim and his girlfriend because of an age disparity of about 30 years.  You said you wanted to get it across to the victim that what he was doing was wrong.  You denied that you had acted on behalf of any other person. 

6You told Mr Cummins, who prepared a psychological report, that you had spoken to some members of your local community about the possibility of "someone" assaulting the victim but you took responsibility for the decision.

7As noted in discussion, I am unable to draw any comfortable conclusions about what motivated your actions.  I suspect others with a closer interest in ending the relationship were involved but would not act on this suspicion.

8It was common ground on the plea that the aggravated was a low level example of this offence and that your crime of intentionally causing injury was a relatively serious example of this crime. 

9Victim impact statement were tendered. The victims believed that someone had arranged for you to commit the offending and understandably are anxious to see this person, or persons, brought to justice.  However even putting this particular concern to one side your conduct would have produced significant anxiety for both victims as well as the obvious physical injury to the primary victim.

10Mr Sim appeared for you.  He tendered a written "accused's outline of submissions" and expanded on these matters in oral submissions. 

11You pleaded guilty in February this year after a contested committal in August last year and after an application for a sentence indication in November last year.  Although your pleas of guilty could not be described as early pleas, you are clearly entitled to benefit from your pleas of guilty. 

12It was conceded on your behalf, that general and specific deterrence, denunciation and community protection "loom large" and that the sentence must reflect just punishment. 

13As I noted earlier, you made substantial admissions when interviewed, but also maintained that the victim grabbed for a metal/iron bar before you assaulted him.  I do not accept that this happened.  

14You have no criminal history and no matters pending.  Your counsel said this is the first time you have come to the attention of the police. 

15Your family history was set out by Mr Cummins in his report and your counsel repeated some of the pertinent matters. 

16You will turn 38 in May.  Your parents separated when you were about 16.  Your father was physically abusive.  You remain close to your mother, however neither she nor your partner attended court to support you.  You insisted on their absence because you are shamed by your conduct and did not want to subject them to additional stress. 

17You left school at 16, and have been in constant employment since then. 

18You do not use drugs, do not gamble and use alcohol sparingly. 

19Your oldest brother died in a motor cycle accident when aged 28, in about 2000.  You have had great difficulty coming to terms with this. 

20In addition to the stress produced by this, you have been under considerable stress because of the ill-health of your partner of 15 years. 

21A body of material confirming your partner's ill-health was tendered.  In October 2014, she underwent a kidney transplant.  She also suffers heart problems and severe sleep apnoea, in the context of heart failure.  Heart transplant has been considered, however she does not currently meet the requirements for this.  Her capacity for physical activity is significantly restricted.  Her prognosis is described in one report as good, and in other as guarded, given her underlying cardiac problems.  Much reliance is placed on your to care for her and for your two children, aged 15 and 9. 

22I accept the submission that family hardship is exceptional and is therefore relevant to sentencing.  I accept that were you to be imprisoned, you would be under very considerable stress, being unable to care for your family and vulnerable partner in particular.

23Mr Cummins diagnosed you as suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood which was triggered by your partner's life threatening health problems.  Your offending conduct, and the risk of the imprisonment have exacerbated this condition. 

24Mr Cummins thought your condition would deteriorate in prison.  You require mental health treatment.  Mr Cummins thought you had learned your "lesson" and the risk of you re-offending was low.

25Your counsel argued that the third, fourth and six limbs of the Verdin's principles were engaged, although he placed particular emphasis on the sixth principle (serious risk of imprisonment having a significant, adverse effect on your mental health.)  Although your underlying condition needs to be kept in mind when considering general and specific deterrence, it is of limited significance in relation to these matters. 

26I accept that you regret what you did and embarrassed, ashamed and remorseful.  I think you are unlikely to re-offend. 

27Supporting testimonials from your partner and employer were tendered.  You are a valued and trusted employee.  Your employer confirmed your remorse.  Your conduct is very much out of character.  Your counsel said your conduct was inexplicable.  It certainly has not been satisfactorily explained. 

28Mr Sim placed great emphasis on the new "sentencing landscape" identified in Boulton's case.  The Court of Appeal has made it clear that sentencing judges like me, must carefully consider whether release on a Community Corrections Order can meet the sentencing objectives, including both punitive and rehabilitative objectives, even for relatively serious offending as yours is, which might have previously attracted a medium term of imprisonment. 

29The prosecution submitted that the particular circumstances of your case may mean that it is one of those rare cases where it is open to the court to impose a Community Corrections Order for offending that is clearly serious. 

30I had you assessed in terms of your suitability for Community Corrections Order and you were assessed as suitable. 

31I am troubled by the vicious nature of your attack.  The fact that it was planned and the fact that you went armed with a knuckle-duster.  No satisfactory explanation for your offending has been provided.  My sympathy is with the victims.  However, the factors relied upon in mitigation, particularly your excellent past character, the unlikelihood that you will re-offend, the dependency of your family upon you, particularly give the parlous ill-health of your partner, your employment record and the regard in which you are held generally, your psychological condition and the need for mental health treatment, together with the powerful guidance provided by the Court of Appeal in Boulton's case, just tip the scales in your favour and I am prepared to give you the chance of avoiding imprisonment.  However, if you do not respect the opportunity, you will almost certainly be imprisoned. 

32You will be convicted on both charges and releases on a Community Corrections Order for 18 months.  In addition to the standard terms, you will be subject to the following conditions:

33That you be under supervision; s.48E.

34That you inform 150 hours of unpaid community work; s.48C.

35That you be assessed for, and receive mental health treatment; s.48D (3) (e.)

36That you undergo offender behaviour programs as recommended, s.48D (3) (f).

37I will make the order for the taking of the forensic sample to which you consented.  My reasons will appear in the order.  A police officer may use reasonable force to obtain the sample. 

38What is the appropriate police station for the sample to be taken from.  Can counsel help me?

39MR SIM: Yes, Your Honour, I apologise.  It would be Pakenham, Your Honou.  It's a 24 hour station, as I understand.

40HIS HONOUR:  Which one?

41MR SIM:  Pakenham.

42HIS HONOUR:  Just give me a second. 

43MR SIM:  I'd be surprised if it's not, Your Honour. 

44HIS HONOUR:  Yes, Pakenham, 780 Princes Highway. I will insert that into the order.  You can get out of the dock, Mr Oddy, and sit behind your counsel.   The orders, the insertion of the police station is a bit squeezy in the orders.  I just got it in, I think, so I will hand them down to you.  You need to prepare that.  Looks all right to me.  Will counsel will just check the document for me please.  An appointment has been scheduled for Mr Oddy to attend at the Corrections at four o'clock tomorrow and I presume he knows about that.  Mr Bastianon pointed out to me that the final number on the indictment is wrong.  That will need to be amended.  Mr  Bastianon will change it on the 464 and if I can get you to change it on the indictment please, Ms Bow.

45ASSOCIATE:  Yes, Your Honour.

46HIS HONOUR:  I think the number 5 has just been repeated.

47MR SIM:  Mr Oddy has signed the Community Corrections Order Your Honour. 

48HIS HONOUR:  Is that the lot?  Thank you both very much.

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