Director of Public Prosecutions v Parry

[2022] VCC 1119

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01616

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEAN PARRY

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Horsham and Melbourne
DATE OF HEARING:	21 March 2022 and 22 March 2022
DATE OF SENTENCE:	20 June 2022
CASE MAY BE CITED AS:	DPP v Parry
MEDIUM NEUTRAL CITATION:	[2022] VCC 1119

REASONS FOR SENTENCE

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Legislation Cited:

Cases Cited:

Sentence:18-month Community Corrections Order with supervision, treatment and assessment for drugs, mental health treatment, Justice Plan, programs to address offending behaviour, 150 hours of unpaid community work – 70 hours of treatment and rehabilitation to be deducted from outstanding community work hours.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Buckland	Ms Danusha Rachagan
For the Accused	Mr  R. Barton	Mr Richard Jakobson

HIS HONOUR:

1Dean Parry, you have pleaded guilty to one charge of burglary and one charge of common law assault.

2The facts of your offending are set out in Exhibit A, the summary of prosecution opening for plea.  I was informed by your counsel that I could treat that document as an agreed statement of facts.  I incorporate it into these reasons for sentence and I sentence you on the basis of the facts set out there.

3Very briefly stated, on 13 June 2019, you got into a dispute with a neighbour in Baker Street, Darley.  After you were verbally abused by your victim’s partner,  you walked to his front door, forced it open, walked into the house, you punched your male victim in the mouth knocking him to the floor and then left the premises.

4Police were called.  You were interviewed the following day and although you admitted punching your victim, you denied entering the house.

5Your victim and his partner made joint victim impact statements, Exhibit B.  They feel unsafe, have had trouble sleeping and feel distresses, lonely and isolated.  They were unable to afford moving from the neighbourhood.  I take the contents of the victim impact statement into account in sentencing you.

6You have admitted a prior criminal history.  In 2010, you were fined without conviction for impersonating a policeman.  In 2012, you were released on a community corrections order for the offences of obtaining property by deception, attempting to obtain property by deception, theft, fraudulent use of number plates, traffic offences and breach of family violence intervention order.  You breached that community corrections order and were re-sentenced to three months’ imprisonment suspended for 12 months.  The breaching offences included traffic offences, handling stolen goods and theft of motor vehicles, possession of a prohibited weapon.  You were released on another two-year community corrections order.

7On 7 June 2013, you were sentenced to an effective term of imprisonment of three years and four months with a non-parole period of two years and two months for offences of armed robbery, robbery and theft.  I was the sentencing judge in that case.  Your offending involved robbing a man of his mobile phone, stealing a motor vehicle, and carrying out an armed robbery of a service station in Taylors Lakes.  You were armed with a metal pole.

8You were 21 years of age when you were sentenced.  Whilst in custody, you were dealt with for offences which pre-dated your sentence on 7 June 2013.  Those offences included breaching the community corrections order previously referred to, breaching an intervention order, stalking, possession of a prohibited weapon, burglary, theft and fraud offences.  Terms of imprisonment were imposed concurrent with the sentence I imposed.

9Save for one matter, you have not offended since before 7 June 2013 until this offence.

10On 6 November 2018, you made a false report to a police station in relation to the alleged theft of your motor vehicle.  On 11 February 2020, you received a community corrections order in respect of that offence.

11Your counsel tendered an extremely helpful psychological report, Exhibit 1, by Luke Armstrong.  It is unusual to receive such a useful report.  It sets out your personal history comprehensively.  You had a most difficult and disrupted childhood.  Your falling into repetitive criminal offending was the effective result of your disadvantaged young life.

12You spent four years on remand or in custody as a result of the sentence I imposed in 2013.  During the time in custody, you engaged in reformative courses including welding, drug and alcohol and anger management.  You ceased using illicit drugs, you met your partner upon your release in 2016 and you have had a settled life since.  You have two young children and two others from your partner’s previous relationship.

13You moved from the Darley address to premises in Bacchus Marsh.  You have, apart from the matter I have referred, no subsequent offending.  By moving, you have taken yourself away from the neighbours who, as I indicated previously, could not themselves move from that address.  There was an intervention order in place between you and them.  But I am told that that has expired and there have been no breaches of that order.

14You have been gainfully employed since your release from custody.  You worked for a year as a forklift driver before working for your victim installing installation for 18 months.  You have now started your own insulation installation business and your wife is training to be a nurse as she works in aged care at Gisborne.

15Mr Armstrong, in his report, referred to your deprived and impoverished background and stated at p5, 'Mr Parry’s history of personal disturbance are consistent with:  (1), a borderline personality disorder, specifically marked identity disturbance characterised by persistent unstable self-image or sense of self.  Mr Parry presents with core distorted belief of himself as unwanted and a failure; (2), impulsivity in at least two areas that are potentially self-damaging, e.g. substance abuse and a history of reckless driving; (3), inappropriate intensive anger or difficulty controlling anger, frequent displays of temper, constant anger, a history of recurrent physical fights; (4), transient stress-related paranoid ideation.  Your client presents with a history of being destabilised by perceived sleights of others; and (5), affective instability due to marked reactivity of mood, chronic feelings of agitation and/or irritability'.  It is well accepted in the research that individuals with extremely low IQ can present with difficulties in regulating emotion and/or engaging in age-appropriate behaviour.

16After administrating the Wechsler Adult Intelligence Scale, Mr Armstrong reported: 'Your client’s general cognitive ability is within the extremely low range of intellectual functioning.  His overall thinking and reasoning abilities exceed those of only approximately 2 per cent of individuals of his age.  Mr Parry’s verbal and non-verbal reasoning abilities are in the borderline range'.

17Under the heading 'Intellectual summary' he reported: 'His general cognitive ability, as estimated by the test, is in the extremely low range.  Your client’s verbal comprehension and perception reasoning abilities are both in the borderline range.  Mr Parry’s ability to sustain attention, concentration and exert mental control is in the extreme low range.  Deems ability in processing simple or routine visual material without errors is in the low average range when compared to his peers'.

18At p8, Mr Armstrong noted: 'Your client is a very complex case.  I would suggest that there are multiple causative factors that explain his offending.  Among these factors would be summarised in the following way:  (a), clinical diagnosis summary.  Mr Parry was born into an impoverished familial environment defined by substance abuse, domestic violence and emotional deprivation.  There were corrective relationships with his grandparents.  However, Mr Parry experienced the loss of his grandfather at a mentally sensitive age.  Specifically, this loss consolidated a long history of developmental abandonment.  In my view, your client developed a disturbed personality within this context.  In fact, a borderline personality disorder'.

19Under the heading 'Substance abuse summary:  Mr Parry has a history of probable undiagnosed drug addiction.  However, maintains he desisted from recreational use at the end of 2020.  It is likely that his substance abuse pattern is in sustained remission and Mr Parry is motivated to remain drug-free.  Mr Parry presents with extremely low intellectual functioning consistent with mild intellectual disability.  Mr Parry is acutely aware the implications of his assaultive behaviour now before the court.  Your client recognises that he has a significant problem with anger.  He has attended counselling for his anger a short period after the assault.  Mr Parry has agreed to participate in intensive psychological treatment beginning immediately.  It is my view that Mr Parry presents as a good prospect for engaging in rehabilitation.  Despite limitations to his cognitive function, your client sits within a window of opportunity.  He wants help and accepts that he cannot progress without it.  There is insight that he cannot continue to resolve problems with violence.  As indicate above, Mr Parry is at the crossroads in his formation, a process that began well before the offending now before the court.  Mr Parry made the most of his incarceration and engaged in vocational and self-improvement courses.  However, there is evidence that Mr Parry has made attempts to turn his life around since release and has done so without intensive support considering the complex nature of his presenting mental disorders.  In my view, that with the structure of an intensive community intervention defined above, this man has a reasonable to high chance of complete reformation without further offending'.

20Your underlying cognitive deficits, in my view, make you an unsuitable vehicle to express general deterrence.  The need for the Court to reflect principles of general deterrence is thus moderated.

21I also take into account your pleas of guilty.  Although your pleas were not entered at an early stage, they had utilitarian value.  That value is increased because of the effect COVID-19 has had upon the justice system.

22You appeared to have matured significantly whilst in custody.  You have insight into your anger issues and are now in a stable relationship and in stable employment.  Overall, I regard your prospects of rehabilitation as good.

23The prosecutor submitted that the Court should impose a term of imprisonment perhaps combined with a community corrections order.  I have carefully considered this submission.  But for the unusual factors about you, to which I have referred, I would have no problem accepting those submissions.  To properly punish you and promote your rehabilitation, I have had you assessed for a properly constructed community corrections order.  You were found suitable for such a disposition, your intellectual disability was certified under the Disability Act on 1 April of this year, see Exhibit D, a justice plan and a disability overview report were provided to the Court, see Exhibits E and F.

24This is the first time, it seems to me, that a court has had access to your extensive history and combined with your intellectually disability having been identified and the appropriate recommendations having been made to address your issues.  In my view, returning you to custody would undo the progress you have made.  I have considered carefully the judgment of the Court of Appeal in R v Bolton and how a community corrections order can properly meet all sentencing considerations.  I propose to release you on a community corrections order.  There will be punitive and rehabilitative components to the attached conditions.

25On the charge of burglary and on the charge of common assault, you are sentenced to a community corrections order for a period of 18 months.  The condition of that order will be that you will be under supervision, you will undergo treatment and assessment for drugs, you will undergo a mental health treatment, you will participate under the justice plan, you will participate in offending behaviour programs, and you will perform 150 hours of unpaid community work.  I order pursuant to s48CA that 70 hours of the successfully completed treatment and rehabilitation hours be deducted from the outstanding community work hours.

26Do you consent to such an order, Mr Parry?

27OFFENDER:  Yes, I do.

28HIS HONOUR:  You must report to Ballarat Corrections before 4 o’clock on Wednesday.  Is it by attendance or by telephone?

29ASSOCIATE:  I am not sure, Your Honour.  But there will be a number he can call.

30HIS HONOUR:  Mr Barton, would you ring for your client and see whether he has to attend or whether it is a telephone assessment?  I am not sure which one it is.

31MR BARTON:  Yes, I can.  Yes.

32HIS HONOUR:  According to the report – I will get the number.

33MR BARTON:  Ballarat Corrections, I contacted them.  They were managing the CCO that is before the Sunshine Court.

34HIS HONOUR:  Yes, and that is where he has got to go now.  Here it is.  If you look at the bottom of the report, he is to report to Ballarat Community Corrections Service, 22 Camp Street, Ballarat.  The telephone number is given there, and he is to talk to someone perhaps called Tessa Barbery.  So the details are in that report which you have a copy of.

35MR BARTON:  Thank you.

36HIS HONOUR:  Mr Parry, you need to understand that if you fail to comply with this order, or you re-offend in the next 18 months, you will be brought back to me to be re-sentenced for this offending and you should be in no doubt that I would be following the submissions of the prosecutor if you were returned to me.  Do you understand that?

37OFFENDER:  Yes, Your Honour.

38HIS HONOUR: This is your chance to turn your life around and I think you have already started to do that. I can indicate, pursuant to s6AAA of the Sentencing Act, that but for your pleas of guilty you would have been sentenced to a term of imprisonment of 18 months with a non-parole period of 12 months.  Are there any other orders I need to make, Mr Buckland?

39MR BUCKLAND:  No, I do not think there are any further, Your Honour.  Thank you.

40HIS HONOUR:  All right.  The order will be sent to Corrections at Ballarat.  Your client will have to sign it and it will be returned to the Court, Mr Barton.

41MR BARTON:  Yes, Your Honour.  I am at Ballarat about to go into court room four before Dawes J.  If her associate is able to print it out, I can have Mr Parry sign it before we go to lunch.

42HIS HONOUR:  All right.  My associate says she will send it to Dawes J’s associate pronto.

43MR BARTON:  Yes, and then what can happen is I could ask Dawes J’s associate to kindly return the signed copy to Your Honour.

44HIS HONOUR:  Thank you.  Understand, Mr Parry, I have had great regard to the submissions of the prosecutor.  But because of the particular factors, I am giving you a chance to stay out of custody.  You do not want to go back; do you?

45OFFENDER:  No.

46HIS HONOUR:  And do not do stupid things like try and make false reports of motor car thefts either.

47OFFENDER:  Yes.

48HIS HONOUR:  Because that would breach your order.  All right.  I will terminate the link.  Thank you.

49MR BARTON:  The Court pleases.

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