Director of Public Prosecutions v Priest
[2013] VCC 783
•17 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01463
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GARRY PRIEST |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 17 April 2013 | |
CASE MAY BE CITED AS: | DPP v Priest | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 783 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Nankin | Office of Public Prosecutions |
| For the Accused | Ms D. Dempsey |
HER HONOUR:
1 On 19 May last year you, Garry Priest, went to a barbecue at your neighbour's home. Also present was his housemate, James Fountain. Mr Fountain's former partner lived across the road with her children and new partner. There were tensions between Mr Fountain, his former partner and her new partner. He and, it would appear, you and your neighbour, Mr Alampi, believed that they were using and possibly dealing in drugs. You were all unhappy about this and felt that their behaviour had changed the happy sense of community in the street where all of you lived.
2
You left Mr Alampi's house but returned shortly after. When you returned
Mr Alampi was agitated and told you that he had been told the occupants of the house across the road were coming to bash you. You agreed to go with Mr Alampi to the house across the road with him. You said to the police that you had "had enough of the junkies in the street" and "enough of their bullshit".
3 When you arrived at the house the children were there, and they told you that their mother and her partner were not home. You and Mr Alampi asked if any adults were home and the older child said there were. The two of you told her to go and get them. She went inside and eventually you and Mr Alampi went inside also. There the two of you confronted the two adult male occupants of the house, a Mr Storer and a Mr Taylor. It is that that constitutes the charge of aggravated burglary to which you have pleaded guilty. For you it was put, as it was for Mr Alampi, who I sentenced last week, that the aggravated burglary is put not on the basis that you went into the house with an intent to physically assault the occupants, but that you went in intending to confront and intimidate them.
4 You and Mr Alampi had an angry exchange with Mr Storer and Mr Taylor. Mr Storer left the house and Mr Taylor approached you with his arms raised. You gripped him by the shirt and headbutted him to the nose. You believed, and it would appear with good reason, that he had his arms raised because he was intending to assault you. Nonetheless, your behaviour was unwarranted and it is that that gives rise to the charge of intentionally cause injury.
5 You were arrested and interviewed the following day. You made admissions about your behaviour and the surrounding circumstances consistently with the summary that I have just recounted. You explained to the police in some detail the concerns you had about the drug-related activities in the house and the futile attempts that you had made to enlist the assistance of the police and the Department of Human Services because of the children in the household over a considerable period.
6 You were charged when interviewed and committed three months after on a straight hand-up brief. Within four months following discussions between your legal advisors and the prosecution, a sentencing indication hearing was held before me in December of last year, and upon my indicating that on the materials before me I did not consider your particular circumstances justified imposing a custodial sentence, you entered please of guilty to these two charges that I am dealing with today.
7 Although this can be properly be regarded as a low end of the scale aggravated burglary and a low end of the scale charge of intentionally causing injury, nonetheless, as I said to Mr Alampi so I say to you, these are serious offences. The aggravated burglary is a vigilante offence. You took it upon yourself to remonstrate with the people in the neighbour's house. You did so when there were children present. Notwithstanding the obvious provocations that you had been confronted with and the difficulties you had had in obtaining the assistance of police and the Department of Human Services, there are real problems with people attempting to take the law into their own hands. They cannot always rely on reasonable responses from those they confront and when you are angry and upset and perhaps impaired by alcohol you may not act with the calm and reason that police who are trained to intervene and diffuse angry situations are trained to do. So it is clear that denunciation and deterrence must play a role in sentencing you.
8
You are a 50 year old man with a significant criminal history, but it is old. Between 1978 and 1994 you appeared before courts on 20 occasions for a wide range of offences; dishonesty, property offences, driving offences, drug offences, firearms offences and offences of violence. You were sentenced to terms of youth detention and adult imprisonment. It is clear that up to the age of 30 you were leading a destructive life. However, for the last 20 years you have not come before a court. You have married, settled, you have children for whom you are responsible, a partner who you obviously care for, and you list a stable, happy, law-abiding life. You also have responsibility for your
27 year old child from your former relationship, and it speaks well of you, your partner and your young children that that child still lives with you.
9 So despite what may be an unpromising young adulthood, you have shown just how much a person can rehabilitate himself, put a criminal past behind him and turn into a person who can lead a stable, happy and responsible life. This offending therefore can properly be described as out of character for the adult you turned out to be. And that is borne out by the large bundle of testimonials that were tendered to me from friends, neighbours and employers.
10 I accept that you were acutely concerned about the behaviour of your neighbours and that, given your past history and the role that substance abuse had played in it and played in the lives of those you were associating with in the past that you had real concerns about its impact on your neighbourhood, on the children in your household and on the children in the neighbourhood.
11 Although it is the sign of a responsible citizen, as you have turned into, to be concerned about that, taking matters into your own hands is not something that we can condone or that you can see as a proper or responsible way to deal with these matters. But I accept that the judgment that you have clearly exercised and shown over the last 20 years in keeping out of trouble was to some extent impaired by the alcohol that you had consumed on that day and also by the fact that at the time you had been suffering from depression anxiety, something which you had already recognised and had already sought treatment for.
12 I consider therefore that your judgment was to some extent impaired and that lessens your moral culpability. Well before the commission of this offence in July 2011 you had recognised that you needed help and since then you have been receiving treatment for depression and anxiety, having sought assistance from a general practitioner and been referred to a psychologist under the GP Better Mental Health Program.
13 Your treating psychologist, Dr Vladis Petroulis, provided a comprehensive report at the time of the sentence indication hearing and an updated report for the plea which confirmed that you had continued to engage with counselling, that your attendance rate and compliance had been very good, that your mental condition has now improved significantly, and your levels of depression and frustration have reduced. That is particularly significant because on top of the pressures that had led to you seeking assistance in the first place, clearly the pressure of being charged and the fear of facing imprisonment, having regard to your past, was something that had weighed on you and it is very much to your credit that you acted as you did in continuing to engage with a psychologist and finding more effective means of dealing with the pressure than turning to alcohol, other substances or to just watching your life unravel. It is very much to your credit that you had the mental strength and the commitment to continue on that course.
14 You are entitled also in sentencing to the benefit of your early plea of guilty. You made admissions from the time that you were interviewed and did not seek to hide or minimise your behaviour. Although your plea was not formally entered until after the sentence indication hearing, it was clear that you and your legal advisers had been actively involved in discussing with the prosecution resolution of the charges to ones that were appropriate for you to plead guilty to and a proper way of dealing with getting an indication about the appropriate outcome. I consider therefore that you are entitled to the benefit of an early guilty plea. Your continued progress, indeed your improved progress, since the sentence indication hearing indicates again that you are somebody who has the strength of mind and the commitment to follow through when you see that you need help.
15 I sentenced your co-offender, Mr Alampi, to a fine. Although the sentencing between the two of you must be proportionate, it cannot be exactly the same because he had no criminal history, or no real criminal history, and you had a significant one. He also had only the charge of aggravated burglary, whereas you have the charge of intentionally cause injury as well. In my view, the needs of punishment, denunciation and general deterrence, which must be reflected in the sentence, can be properly reflected by the recording of a conviction and placing you on a community corrections order. I propose to place you, if you consent to this, on a community corrections order for a period of nine months, and on conditions that you perform 50 hours of unpaid community work. That is the punitive aspect of it, but you have clearly got much to offer to corrections and you may well stand in a significant supervisory and role model role for other young offenders.
16 I also propose to impose a number of conditions which have a more rehabilitative focus and they are alcohol assessment and treatment, psychological assessment and treatment and also recommending offending behaviour programs, in particular an anger management course. So far as the alcohol assessment and treatment and the psychological assessment and treatment, it is my expectation that Corrections will simply direct you to continue your counselling with Dr Petroulis in order for those conditions to be fulfilled.
17 Therefore I make the following order: you are convicted of the charges of aggravated burglary and intentionally cause injury and are placed on a Community Corrections Order for a period of nine months commencing today and ending on 16 January 2014. You must attend at the Dandenong community Correctional Services office at 46-50 Walker Street, Dandenong within two clear working days after the commencement of this order and an appointment has already been made for you and I recommend that you keep that appointment.
18 There are mandatory terms that apply to all Community Corrections Orders and they are these; that you must not commit another offence for which you could be imprisoned during the time the order is in force. You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011. That means, in effect, you must not impaired by drugs or alcohol when you attend for any appointments that are required under the Community Corrections Order and you must submit to alcohol testing if required. You must report to and receive visits from the Secretary or delegate. You must report to the Community Corrections Centre within two clear working days of the order starting. You must let a Community Corrections Officer know within two clear working days if you change your address or job. You must not leave Victoria without first getting permission to do so from the Secretary or delegate and you must obey all lawful instructions from and directions of the Secretary or delegate.
19 In addition to the mandatory terms, I impose the following conditions; that you perform 50 hours of unpaid community work over that period of nine months; that you undergo assessment and treatment, including testing, at a residential facility for withdrawal from or rehabilitation for alcohol or drug abuse or dependency as directed by the regional manager; you must undergo mental assessment and treatment, including, but not limited to, mental health, psychological, neuro psychological and psychiatric in a hospital or residential facility as directed by the regional manager and you must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager.
20 I just want to make it clear that those conditions in respect of drug and alcohol and psychological and other counselling and support are to do as directed by the regional manager, that it is not a mandatory requirement from me that you submit to testing or that you have to go into a residential facility. What it means is, if, after you have been assessed, Corrections considers you need additional help that can only be provided in a residential facility, they have got the power to give that direction, but I do not want you to go away thinking that this means you must go into a residential treatment program. Providing you continue as you have been going, Mr Priest, you will be going home and staying at home.
21 I cannot make this order unless you consent to it being made and I am going to have it handed down now and ask Ms Dempsey to make sure you understand it and then for you to sign it signifying your consent.
22 (Order signed and acknowledged.)
23 I now have your signature on the Community Corrections Order, noting that you understand the effect of the conditions and the conditions of the Order and you consent to it being made and I too have signed it. Once a copy of that has been made and provided to you, Mr Priest, you will be free to go. I have also been asked to make an order for the retention of the forensic sample that was provided by you and I propose to make that order. In my view the number of your previous convictions, together with the fact that the order is not opposed, justify the making of the order. I am confident that this will be the last time that you come before this court and come before me. I must warn you though that if you breach the order that you can be brought back before this court and, if so, you will be dealt with for the breach and also, if you breach it by committing another offence that you stand to be resentenced for these offences that I have just sentenced you for; do you understand that.
24 PRISONER: I do, thank you.
25 HER HONOUR: As I say, I have great confidence, Mr Priest - - -
26 PRISONER: I won't be back.
27 HER HONOUR: - - - I will not see you again, and I hope that you continue to make the progress you have with Dr Petroulis and that you continue to enjoy your life in the court in a more peaceful way that had been the case in that sad little part of the past. Thank you.
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