Director of Public Prosecutions v Osbourne
[2023] VCC 202
•20 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01830
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEAN OSBORNE |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 May 2022 (sentence indication hearing), 17 August 2022 (arraignment), 16 February 2023 (plea) | |
DATE OF SENTENCE: | 20 February 2023 | |
CASE MAY BE CITED AS: | DPP v Osbourne | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 202 | |
REASONS FOR SENTENCE
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Subject: False imprisonment
Catchwords: Guilty plea – offender detained domestic partner in his car and assaulted her – both drug affected – mid-level offending – history of domestic violence offending – history of drug addiction – need for intensive therapy – completed “The Cottage” residential rehabilitation program while on bail – supportive family – offer of employment
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Family Violence Protection Act 2008 (Vic); Road Safety Act 1986 (Vic).
Cases Cited:Worboyes v The Queen [2021] VSCA 169.
Sentence: 548 days’ imprisonment and two-year community correction order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | D Manova | L Zubreckyj |
| For the Accused | L Barker | R Jakobson |
HIS HONOUR:
1Dean Osborne, you have pleaded guilty to the following offences:
(a) threat to inflict serious injury (Charge 1);[1]
(b) false imprisonment (common law) (Charge 2);
(c) persistent contravention of a family violence order (Charge 3);[2]
(d) common law assault (Charge 4);
(e) theft of a motor vehicle (Charge 5);[3] and
(f) theft (Charge 6).[4]
[1] Crimes Act 1958 (Vic) s 21.
[2] Family Violence Protection Act 2008 (Vic) s 125A.
[3] Crimes Act 1958 (Vic), s 74(1); Sentencing Act 1991 (Vic) s 89.
[4] Crimes Act 1958 (Vic), s 74(1).
2Charges 1 and 4 are rolled up charges.
3You also have pleaded guilty to the following related summary offences, namely:
(a) contravene family violence interim intervention order (Summary Charge 14);[5]
(b) driving while under the influence of drugs – two charges (Summary Charges 22 and 23);[6] and
(c) dangerous driving (Summary Charge 24).[7]
[5]Family Violence Protection Act 2008 (Vic) s 123(2).
[6]Road Safety Act 1986 (Vic) s 49(1)(a).
[7] Ibid s 64(1).
Circumstances of Offending
4The circumstances of your offending are set out in the Summary of Prosecution Opening dated 12 May 2022.[8] They are agreed facts.
[8] Exhibit A: Summary of Prosecution Opening for Sentence Indication Hearing dated 12 May 2022.
5In late 2020 you were in a relationship with AS.
6On 19 December 2020 police served you with an interim family violence order (“FVIO”) prohibiting any contact with her.
7Despite the order, AS and you met regularly and exchanged text messages. And you used drugs together.
8On 25 January 2021 AS reported a breach of the FVIO to police. While she was at the Glen Waverley police station you sent her a text message to call you.
9Your many text messages to her and being with her, between 19 January 2021 and 26 January 2021, constituted the persistent contravention of the FVIO (Charge 3).[9]
[9]Family Violence Protection Act 2008 (Vic) s 125A.
10On 9 February 2021, during the afternoon, AS and you used drugs together in your van at Rowville. She fell asleep. Sometime later she woke, in the moving van, to you yelling, “Give me the gear… do you think you can play God with the gear?”
11You were driving erratically. You demanded she put an ice pipe in your mouth. In fear, she complied.
12You stopped the van somewhere in Rowville and took her phone. When she refused to give you the pass code you threatened to burn her face with a jet lighter (Charge 4 – threat to inflict serious injury).
13When she got out of the van and screamed for help you grabbed her and punched her to her head and face, yelling “I am going to kill you… It will be a murder suicide” (part of Charge 1 – common law assault).
14You drove to a friend’s home where AS sent a text message to her father and ex-husband to the effect that if she dies, she hasn’t killed herself. She took more drugs and passed out. When she came to, you offered to take her to a petrol station. In the car, when she attempted to get out, you pleaded with her to get back in and, when she did, you drove her towards her home.
15On Police Road, at Mulgrave, you pulled out a kitchen knife and held it to her face while you were driving. You threatened, “You have two minutes to get your stuff out of the car if you don’t love me” (part of Charge 4 – common law assault).
16While you were driving, despite her requests, you refused to let her out of the car and detained her against her will. (Charge 2 – false imprisonment).
17You stopped the van on Affleck Road where she got out and you threw her belongings onto a driveway and drove off, leaving her behind. She called her father who picked her up. He took her to the police station where she made a report.
18Driving the van, while, and after, you had consumed drugs, constitutes the summary charge of driving under the influence of drug (Summary Charge 23).[10]
[10]Road Safety Act 1986 (Vic) s 49(1)(a).
19At the police station she was crying. Her face was swollen and she had blood on her top. While police were talking to her you called her a number of times.
20The threats you made to her and your assaults upon her, on 9 February 2021 contravened the FVIO (Summary Charge 14 – contravention of FVIO).[11]
[11]Family Violence Protection Act 2008 (Vic) s 123(2).
21On 16 February 2021, at 9:34 AM, police located your van outside an apartment at Royal Avenue Springvale. Occupants told them you had slept there overnight but had left. Police began searching for you. Neighbours reported a person matching your description jumping fences into backyards.
22At 10:47 AM, at Regent Avenue Springvale, you stole a two-tonne white truck while the owner was in the loading area of his premises (Charge 10 – theft of a motor vehicle).[12] He had left the keys in the ignition. He saw you drive off erratically.
[12]Crimes Act 1958 (Vic) s 74(1); Sentencing Act 1991 (Vic) s 89.
23A GPS was fitted in the truck. Police tracked it to Endeavour Hills where, after a foot chase, they arrested you and found you under the influence of drugs.
24You had removed the dash cam from the truck (Charge 11 – theft).[13]
[13]Crimes Act 1958 (Vic) s 74(1).
25You were under the influence of drugs when you drove the truck (Summary Charge 24 – drive in a manner dangerous and Summary Charge 23 – drive while under the influence of drugs).[14]
[14]Road Safety Act 1986 (Vic) ss 64(1) and 49(1)(a).
Arrest and interview
26Police took you to Lysterfield police station where they interviewed you.
27You said you knew there was an intervention order in place. You said AS was saying she wanted to see you and you told you would, only if the intervention order was removed. You said you believed she had done that.
28You admitted you had been driving the van on the February 2021. You said you snuck AS into your parents’ home because she had nowhere to go. You said the van belonged to your father.
29You denied assaulting her.
30In relation to the truck, you said you panicked when you saw police and stole the truck to get away.
31You were charged with a large number of offences and remanded in custody.
Sentence Indication Hearing and Arraignment
32After a sentence indication hearing, you pleaded guilty to the charges now before the Court.
Criminal History
33You have admitted a criminal record.
34In 2012, you were placed in a community correction order for intentionally cause injury and affray. In 2015, after you had breached the community correction order you were sentenced to 4 months imprisonment wholly suspended.
35On 23 February 2017, in the Ringwood Magistrates Court, you were fined $750 for trafficking methyl amphetamine.
36You also have a history of family violence offending.
37On 20 July 2018, on an appeal to this Court, for offending in relation to a former partner, on charges of make threat to kill, contravention of an FVIO and persistent contravention of an FVIO, you were sentenced to 2 months imprisonment with an 18-month community correction order.
38On 6 June 2019, at Ringwood Magistrates Court, for further family violence offending against the same partner, on charges of criminal damage, unlawful assault, make threat to kill and theft you were sentenced to 18 months imprisonment with a non-parole period of nine months.
39On 12 November 2019, on appeal to this Court, for domestic violence offending, against AS, and weapons offences, which breached your 2018 community correction order, you were sentenced to nine months imprisonment for the breach and breach offending. The sentencing judge ordered five months of your sentence be served cumulatively on your 2019 sentence and fixed a new non-parole period of 12 months.
Personal Circumstances
40You were born in August 1992 at Melbourne. You were 28 years old when you offended. You are now 30.
41You have a younger sister.
42Your mother is a kindergarten teacher. Your father was a shop fitter but, in 2002,[15] in a motor cycle accident, he suffered injuries which left him quadriplegic.
[15] Exhibit 4: Letter of Mark Osbourne (father) dated 6 May 2022.
43You described a happy childhood until your father’s accident. Afterwards, you had to take on some of his role in the household and you had to help look after him.
44You went to Lysterfield Primary School, Caulfield Grammar and then Upwey Secondary College, until year 12, when you left school to commence a mechanical apprenticeship. You qualified as a motorcycle mechanic.
45At 18, friends introduced you to methylamphetamine. You are soon became addicted to ice.
46In 2012 and 2015, you were before the courts for violent offending. By 2017, you were using and trafficking methylamphetamine and unable to hold down regular work.
47In the latter half of 2020, you were released from prison after you had served a sentence[16]. Without parole supervision, you soon relapsed into substance abuse. I was told, by chance, you met AS at a drug house and the two of you started living together again.
[16] Exhibit 2: Letter from Maria Hutchinson (from The Cottage) dated 26 March 2021.
48Within six months you reoffended violently against her again.
49Your relationship with her was chaotic.
50During the time the FVIO prohibited contact between the two of you, she wrote you an affectionate letter.[17] In it, she expressed a strong desire to be with you.[18]
[17] Exhibit 11: Letter of partner AS dated 3 February 2021.
[18] She declined to make a victim impact statement.
51It is clear from other parts of her letter that you had mutual drug problems.
52Your parents,[19] your sister,[20] an aunt[21] and two uncles[22] wrote impressive references for you.
[19] Exhibit 4: Letter of Mark Osbourne (father) dated 6 May 2022; Exhibit 6: Letter of Fiona Osbourne (mother) dated 26 April 2022.
[20] Exhibit 5: Letter of Samantha Osbourne (sister) dated 6 May 2022.
[21] Exhibit 10: Letter from Julie Chan (aunt) dated 22 April 2022; Exhibit 13: Letter from Deborah Crist (aunt) dated 21 April 2022.
[22] Exhibit 8: Letter from Richard Crist (uncle) dated 21 April 2022; Exhibit 9: Letter from Geoff Chan (uncle) dated 24 April 2022.
53Your parents raised you to be moral, respectful and kind.[23] You were helpful at home, especially with the care your father needed. For a long time, you were able to hide your drug addiction from them. Both your parents are deeply saddened by your criminal behaviour.[24] While you were in prison, they kept daily contact with you, by phone calls, video links and, when they were available, visits.
[23] Exhibit 4: Letter of Mark Osbourne (father) dated 6 May 2022.
[24] Exhibit 6: Letter of Fiona Osbourne (mother) dated 26 April 2022.
54They keep faith with you. They believe you have matured in prison and are confident, with their continued support and the offer of full-time work, you will build a successful future.[25]
[25] Ibid.
55Your younger sister looked up to you, until you got involved in drugs. When you were first imprisoned, she didn’t want to have anything to do with you. Working with disadvantaged youth has softened her stance. According to her, during your remand in 2022, in family phone calls, you do appear to have matured.[26]
[26] Exhibit 5: Letter from Samantha Osbourne dated 4 May 2022.
56Your absence has taken a “heavy toll” on your father,[27] who is wheelchair-bound, physically and emotionally.[28]
[27] Exhibit 10: Letter from Julie Chan (aunt) dated 22 April 2022.
[28] Exhibit 6: Letter of Fiona Osbourne (mother) dated 26 April 2022.
57You seem to have also hidden your substance abuse from your aunts[29] and uncles,[30] who know you as a kind and respectful family member who has been great help to your parents, particularly your father, and who has a strong work ethic.
[29] Exhibit 10: Letter from Julie Chan (aunt) dated 22 April 2022; Exhibit 13: Letter of Deborah Crist (aunt) dated 21 April 2022.
[30] Exhibit 8: Letter from Richard Crist (uncle) dated 21 April 2022; Exhibit 9: Letter from Geoff Chan (uncle) dated 24 April 2022.
58You have an offer of work at a custom car shop. In a conversation with the owner, you have shown a willingness to move on in your life and re-establish yourself. [31]
[31] Exhibit 7: Letter of Marco Style (prospective employer) dated 26 April 2022.
Defence Submissions
59Mr Barker, in comprehensive written[32] and oral submissions, acknowledged your offending is very serious.
[32] Exhibit 1: Defence submissions for sentence indication dated 9 May 2022.
60He told me you were driving a car, with AS, on 9 February 2021, because AS telephoned to say you she had been exited from a drug rehabilitation facility and would self-harm if you did not immediately collect her. You took your father’s car to collect her, intending to take her to hospital. Instead, you used drugs together.
61He sought to characterise your theft of the truck and dangerous driving under the influence of drugs (Summary Charges 21–24) as a cry for help, in circumstances where you knew police were looking for you.
62He submitted the charge of persistent breach of the FVIO is low range for offending of the type, considering AS encouraged contact with you to pursue a relationship she wanted.
63In mitigation of penalty he relied on:
(a) your guilty plea, for its utilitarian value, and evidence of remorse; and
(b) the additional hardship for all prisoners during the public-health pandemic.
64He submitted, considering your motivation to beat your drug addiction, and not reoffend, and your network of family and employer support, sentencing objectives would be best met by a combination sentence of imprisonment and a community correction order.
Prosecution Submissions
65Ms Manova submitted, considering:
(a) your current offending was an escalation in seriousness from your previous family violence offending;
(b) your driving was extremely dangerous; and
(c) you stole the truck to flee from police when you become aware they were closing in on you,
a combination sentence incorporating a prison term equivalent to your presentence detention, then, approximately 15 months, was insufficient to address the seriousness of your offending.
“The Cottage”
66While I accept the force of her submissions, I concluded, after deferring sentence for three months, the community would be best protected by a composite sentence which included a punitive prison term and a therapeutic community correction order, tailored to address the root cause of your offending; provided you could demonstrate a willingness to beat you drug addiction.
67To give you the chance to show your motivation, on 17 August 2022 I bailed you to reside at “The Cottage” to undertake its residential rehabilitation program and told you, in the event you completed the program, I would impose a combination sentence which did not see you return to prison.
68You successfully completed the program on 8 December 2022. ‘The Cottage’ Manager, Aaron Gilhooley wrote:
“It has been a surprising and inspirational journey to witness Dean responding and involving himself in all aspects of the program and the wider community. Dean has shown a firm commitment to his recovery from substance abuse and to taking every opportunity to adhere to feedback given around turning his life around”.[33]
[33] Exhibit 16: Letter of Aaron Gilhooley dated 14 February 2023.
Consideration
69You have pleaded guilty to serious crimes.
70General deterrence and denunciation are important sentencing factors. In your case, specific deterrence is also a key consideration.
71There are also mitigating factors which must moderate your penalty.
72You are entitled to a substantial sentencing benefit for your guilty plea. It has spared AS the worry and anxiety of the trial.
73And, it has additional utilitarian value during the public-health pandemic, because it alleviates the current strain on the justice system.[34]
[34] Worboyes v The Queen [2021] VSCA 169, [35] and [39].
74It is also evidence of your remorse.
75You have a strong family and employment network which is a protective factor for your rehabilitation.
76Overall, despite the seriousness of your offending, I am satisfied a composite sentence of prison and a community corrections order can achieve all sentencing purposes in your case.
77You have made significant rehabilitative progress which could be undone if you are re-incarcerated.
78I have had you assessed for a community correction order and you have been found suitable.
79I accept the assessing officer’s recommendations for special conditions which include behaviour programs to address family violence and driving issues.
80Because your crimes arose out of a short sequence of events I will impose an aggregate sentence for them.
81By the sentence I impose, I must denounce your conduct, punish you, and deter you and others, from committing crimes of the same or a similar kind. I must also look to your rehabilitation.
82Considering the circumstances of your offending, your personal circumstances
and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charges of:
(a) threat to inflict serious injury (Charge 1);[35]
[35] Crimes Act 1958 (Vic) s 21.
(b) false imprisonment (common-law) (Charge 2);
(c) persistent contravention of a family violence order (Charge 3);[36]
(d) common law assault (Charge 4);
(e) theft of a motor vehicle (Charge 5);[37]
(f) theft (Charge 6);[38]
and the related summary offences, namely:
(g) contravene family violence interim intervention order (Summary Charge);[39]
(h) driving while under the influence of drugs – two charges (Summary Charges 22 and 23);[40] and
(i) dangerous driving (Summary Charge 24),[41]
you are convicted and sentenced to 548 days imprisonment in combination with a community correction order. The duration of the order will be two years.
[36] Family Violence Protection Act 2008 (Vic) s 125A.
[37] Crimes Act 1958 (Vic) s 74; Sentencing Act 2001 (Vic) s 89.
[38] Crimes Act 1958 (Vic) s 74.
[39]Family Violence Protection Act 2008 (Vic) s 123.
[40]Road Safety Act 1986 (Vic) s 49(1)(a).
[41]Road Safety Act 1986 (Vic) s 64(1).
83The core conditions of a community correction order are:
(a) you must not commit any offence that is punishable by imprisonment during the term of your order. If you do, you will be liable to imprisonment for contravention of the order and resentencing for the current offences;
(b) you must report to the community corrections service stated on your order within two working days of today;
(c) you are required to advise your community corrections supervisor of any change of address where you are living or working and you must do so within two clear working days;
(d) you must submit to visits as directed and by all of the instructions and directions of a community corrections officer; and
(e) you cannot leave the state of Victoria without their prior permission.
84I will also impose special conditions to your order, namely:
(a) Supervision;
(b) Drug and alcohol treatment; and
(c) Offender behaviour programs to address men’s behaviour and driving issues.
85I declare you have already served the prison component of your sentence, namely 548 days, by way of presentence detention.
86While there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to three years and nine months’ imprisonment and fixed a minimum non-parole period of two years and three months.
87On the charge of theft of motor car all driver’s licences and permits held by you are cancelled and you are disqualified from attaining any further licence or permit for twelve months.
88On the two charges of driving under the influence of a drug I make the same cancellation order and disqualify you from obtaining any further licence or permit for the statutory minimum period of four years.
89On the charge of driving in a manner dangerous I make the same cancellation order and disqualify you from obtaining any further license or permit for the statutory minimum period of twelve months.
90The disqualification periods that I have imposed are to commence on 17 August 2022.
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