Director of Public Prosecutions v Railton

[2020] VCC 114

r

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

AT LATROBE VALLEY

CRIMINAL DIVISION

Case No.  19-02002

DIRECTOR OF PUBLIC PROSECUTION

v

ROBERT RAILTON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	17 February 2020
DATE OF SENTENCE:	18 February 2020
CASE MAY BE CITED AS:	DPP v Railton
MEDIUM NEUTRAL CITATION:	[2020] VCC 114

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. MacDougall	Office of Public Prosecutions
For the Accused	Ms E. Clark	James Dowsley & Associates

HIS HONOUR:

1.Robert Railton, you have pleaded guilty to one charge of aggravated burglary and two uplifted summary charges, one of disobeying an intervention order and one of assault.  The charge of aggravated burglary is by far the most serious and carries a maximum penalty of 25 years' imprisonment.

2.You are now 42 years of age.  You do have prior convictions, including one for assault, which goes back now some 20 or so years and is of little consequence in these proceedings.  You do have other prior findings of guilt of at least, for matters involving your father and I'll come back to that shortly. Those prior findings of guilt have occurred subsequent to your endeavouring to seek therapy for what occurred to you when you were a child.  You have pleaded guilty at the earliest reasonable opportunity.  You made very significant admissions to the police.  I accept that you have appropriate remorse and you have expressed it to a number of people.  I also accept that this is a situation where there is a significant utilitarian benefit of that plea of guilty and it's saved, if that be the correct expression, the victim from having to give evidence.  I take all those matters very much into account on your behalf.

3.A summary of the offending is that on 19 April 2018, an intervention order was made against you in the Korumburra Magistrates' Court, insofar as attending at the premises of your father, was concerned.  On 5 July 2019 at about 3.15 pm, you attended your father's home address, that is the summary matter of contravene family violence order.  You and he had a conversation through the locked front security door, that you discussed how you were never happy with his way he'd fathered you and discussed life and everything that he had done wrong.  It's said in the Crown opening, that you became aggressive during the conversation and your father believed that that's because he didn't react or argue with you.  You've had matters to say about that, which I'll come to shortly.

4.After approximately 20 minutes your father said you had to go, closed the front door. Knowing the back door was unlocked he went straight to that door to lock it.  As he opened the laundry door, you were visible standing in the hallway.  You grabbed him by the front of his polo shirt using your left hand and pushed him through the laundry.  You grabbed him by the scruff of the shirt, it appears that the skin on his lip broke at that point in time, but that may have been caused for other reasons as has been pointed out to him.  You pushed him backwards towards the wall and his back caused a dent in the plaster.  He fell to the ground on his back.  You stood over him, still holding him by the shirt.  With a clenched fist you threatened to punch him.  You were punching down and pulling your fist back before striking him, while you did this, he was – you were apparently, according to the Crown summary, ranting loudly and he
was – felt threatened.

5.Your version of events is that you were telling him that you wanted him to know what it felt like, when you were a little boy.  Your father claims that he believed that you were going to strike him every time you made the motion.  There was a suggestion of a threat to kill.  But he says he can't remember the words that were used and then information about that you had a gun in your car and I'll come back to that again in a moment.

6.You got up, stormed out of the house and slammed the door when you left.  Your father then attended the Wonthaggi Police Station, provided a statement and you were ultimately charged.  Insofar as that offending's concerned, I agree with the submissions of your counsel, that is at the lower, or lowest end of the confrontational aggravated burglaries.  We're all aware of the authorities relating to that offence, Hogarth, et cetera, but we're also all aware of the other line of authority, stemming from Boulton and the cases in relation to that.

7.Firstly, in this situation, you attended by yourself, you did not have a weapon, it was in the middle of the day.  I accept that your attendance at the premises was on a whim.  You, as I understand it, were going to help your mother shift and I suspect that's had an effect on the way you were thinking and again I'll come back to that in a moment.  There was obviously a 20 minute or so discussion between you and your father at the door and I suspect that your version of how that took place is probably more likely than his.  But in any event, you, after the door was closed, then, I accept made a spontaneous decision to go around the back.  The intention here was to assault.  You had no weapon with you.  It is quite clear to me that the intention was to assault in the physical sense by grabbing him and most importantly by instilling fear and intimidation.

8.It is clear that at no stage did you punch him, at no stage did you deliver a blow of any sort towards him.  I accept that you were doing this because of what
had – in your mind, what had happened to you when you were a child and that is the extent of it.  The assault itself could easily, in my view, have been dealt with in the Magistrates' Court.  But in any event, as I say, I think in the overall set of circumstances here adding on the reasons that I will be going through in a moment and the history of the relationship with him, I think it is that the – does fall to the lower or lowest end of such offending.

9.For aggravated burglary a custodial sentence is a common occurrence but certainly no means mandatory.  There is a victim impact statement, that's been provided by your father which is very brief and simply says that it is sad, he lives in fear of you.  There is no mention there as to why that is or how all that came about, but I do take it into account.  The offending has to be regarded as serious, as almost all aggravated burglaries are.  The principles of general and specific deterrence have to be applied but I think in your situation, on the material I have now read, I would be very surprised if you ever do this again.  In fact, you hadn't been near him for quite some period of time and I think this assault and aggravated burglary was situational.

10.Denunciation is a difficult concept in situations such as this, when one is aware of the background and there has to be an appropriate punishment because of the nature of the offending.  The Crown submission was that custodial sentence was merited, as I have indicated at the time, I had no intention of doing that.  I then look to your personal circumstances that, very helpful material, very helpful submissions if I may say so, have been provided by your counsel.

11.The background to all this is that you are now 42 years of age, you live with your partner and your three children, who are aged 13, 10 and eight years.  You have been with her for 17 years and it is clear that what happened to you as a child has caused difficulties ultimately in that relationship.  There is a very powerful letter of support from her which has been tendered before me and which I have read a couple of times.  She genuinely believes that you are on the right path.  While she disapproves of what you did, she supports you, she supports you as a father and she is very clear that you have been a very community minded person for a long time.

12.The situation is, I accept on the material before me, that your father, the victim in this matter, was an emotionally and physically abusive man.  You witnessed family violence against your mother in the home and I accept that you were subject to abuse throughout your childhood.  Indeed, your older brother committed suicide in 1996 and you make reference to that in your record of interview with the police as having been brought about by the actions of your father.  This isn't the Family Court, so one is not in a situation of having to make minute or semantic findings about all these things, but the fact of the matter is that you, from an early age, were treated badly by your father.  You then were able to get to the age of around about, on my calculation, 37 or 38, with suppressing all these things.

13.At that point in time, around 2014, and thereafter, you began to receive counselling and you underwent therapy in relation to the abuse you had suffered as a child.  It is from then on that the actual offending against your father in a legal sense, commenced.  It is not uncommon in these circumstances that people who have crushed down or kept contained, that sort of anger and resentment that comes from that sort of treatment, when going into therapy find it much more difficult to restrain themselves.  I accept that that is the overall situation insofar as you are concerned and it is that counselling for the childhood traumas and seeking your antis or closure for the way of expressing it, from your father's treatment of you, has brought all this about.

14.The material provided on your behalf is in my view, powerful material indeed.  There is a reference from Forensic Psychologist, Mr Bath, who says that Verdins does not apply here.  He points out that you have expressed appropriate remorse. He points out that you derived benefit from counselling, that you can identify feelings and discuss strategies.  He says, you appear to have residual anger management issues, but your progress is noteworthy.  He also says that you continue to require treatment.

15.There is a further report from a Dr Rehman, a Clinical Psychologist who has been seeing you since around about 2014.  Apparently, that relationship is unable to continue because the doctor is no longer working in a clinical situation, but I accept that you are in the process of trying to find other means of dealing with the psychological difficulties.  The report, in laudably brief terms, goes into the fact that you have psychological symptoms with depression and anxiety and points out that even back then in 2014, you were insightful, motivated and committed to work and your family.  It goes through the relationship.  It goes to points out the support that you have from your partner.  It goes on to say,

'Initial sessions highlighted the impact of developmental trauma, as
Mr Railton grew up with a disengaged father, who used to frequently ridicule him publicly and engage in dismissive behaviour resulting in feelings of hurt and rejection in Mr Railton.  It also became obvious that Mr Railton's father was disengaged from home and non-supportive towards his wife.  And that
Mr Railton's as an adolescent, used to try to ask his father to be more supportive towards his mother.'

16.He goes on then to describe the suicide and that your parents separated soon after that.  Points out that through 2014-2015 you continued to attend therapy, 'Being insightful, engaged, to resolve your emotions from your past.'  That commenced again in 2017, she said – sorry, said, 'He is attending weekly to fortnightly showing strong capacity to reflect and make meaning.  Demonstrates keenness to learn through regular attendance and deep reflections on his therapeutic work.  About the impact of developmental trauma, in order to help his recovery.  He is aware of the need and usefulness of early intervention for young people adolescence and wants to utilise his increased understanding of developmental trauma through his work on himself, to be sensitive to the need to helping any young person in his class or team.  Through initiating appropriate help, via engaging parents to other mental health services as required.  He has commenced treatment with a psychiatrist for medical management and is accepting of the need for him to engage in medical and psycho-therapeutic treatment.'

17.It then goes on to say that you are very remorseful about what you did, that in fact it is out of character, that you are disappointed in your own behaviour and that you are determined to turn your life around.  It then goes on to say,

'Mr Railton's always shown deep sensitive care and responsibility towards
keeping young people and children safe as a teacher and coach.  Through verbal accounts about his work-related examples in the context of therapy.  Obtaining a Working With Children Check – and this is going back some period of time, will enable him to continue to contribute to the development of young people through using his passion for teaching and coaching football.'

18.Your history is that you, despite all these difficulties in your childhood, were able to complete secondary education. You have completed a Bachelor of Applied Science, and a Diploma of Education.  You have been in a relationship for some 17 years, albeit having its difficulties.  You have been employed for years as a teacher and in 2014, commenced employment at the Mount Eliza Secondary College.  You had a period of time off from that, but you subsequently have been re-engaged or are now working again at that school.  And I have a reference before me from Angela Pollard who is the principal of that school.  That report speaks highly of you.  It says, you have undertaken numerous roles in – and this is before me, classroom teaching duties and health and physical education and science.  You have led the school's sports program.  You have organised camps and excursions.  You have successfully worked in a strongly based team environment and you participated effectively in the professional learning required at the college.

19.She goes on to point out that you were dedicated and generous with your time, in order to meet the needs of your students.  You started experiencing difficulties in the workplace, in 2018 and some time was taken off.  It is clear from that that you are a very good teacher and a very good sports coach and that your principal of the school that you are currently at, supports it.  One of the difficulties of this offending is that the result of a conviction may well be that it could affect your Working With Children capacity.  It is clear from the other material regarding your history you have been with various sports teams, with coaching.  Playing football to a relatively at least elite level.  That you have been a continuing contributor to your community and a mentor for youth.  I suspect that is probably largely because of what happened to you as a child and you are obviously protective of young people and endeavour to assist them. As your counsel correctly pointed out, this is not someone who has just decided to go and do an hour's community work, pre-sentence this has been a lifetime dedication for you, from the time that you were relatively young.

20.I have read the other reports that have been tendered and again they are – from
Mr Wheeler and Mr Flack and Housewaith and they are all reports which speak very highly of you.  I do not think I need to go into too much detail than that.  The fact of the matter is, that after you were charged with this offending, you spent two days in custody and I am sure that that would have been a salutory lesson for you.

21.I accept the prospects of your rehabilitation should be excellent.  You do have a secure environment, you have the potential of your own children and you have a stable and fulfilling work.  All those matters go very much in your favour.  The risk of you re-offending is again, in these circumstances, I think, can safely be said to be very low.  These are situations which I indicated before, often end up in a gaol sentence, but this is a set of circumstances where you are, in my view entitled to call into aid that you have been a relatively model citizen, apart from these matters with your father and you have contributed greatly to your society or community.  To incarcerate you would put your teaching at risk, it may put you out of employment.  It would put your Working With Children at risk which means all the coaching, all the assistance you have given students would all be put at risk.  Those matters, I think, far outweigh the need to put you in gaol
for – if there is one, which I do not think there is, some short period of time.

22.These are always difficult sets of circumstances and this situation arises occasionally.  It is also from a judge's point of view, a difficult prospect to be incarcerating, the – sorry incarcerating the perpetrator of such offending, when the victim may well be guilty of equally bad conduct but never charged or never even interviewed.  It seems to me that it would be punishing the person who had suffered in the initial – in the outset and validating the earlier conduct of the victim.  You, yourself in your record of interview, which was very frank and very open, point out a number of these matters.  When you spoke to police you said that you were glad that the police were in the family violence part, because you think that is where all this came from.  You accepted that you went to the house foolishly.  You pointed out your intentions were to leave, you then describe how you went around to the back door and opened the door and the altercation took place.  You said that you said to him, 'Mate, I just wanted you to know what it was like as a kid.'

23.As I have already indicated, this was designed to intimidate, rather than to cause any real physical damage.  It was a situation where had you wanted to seriously hurt this man, you could have easily done so.  You did not do that and you then walked away. You have accepted that you had breached the intervention order and you accepted that it amounted to an assault.  You pointed out and I accept this, that I have got – you did say that you had a gun in the car, that you said, that you made that comment, so that your father understood, that you were that close at times to shooting yourself in the head.  You said that you hoped the victim,

'Hasn't had a heart attack, because it is a pretty extreme event and it is not my intention.  My intention is simply, as misguided as it was on this occasion, for him to know what it felt like, to accept some responsibility when you are vulnerable.  And people in – and people go, "He's a silly old man", while I was a five year old kid.  I want to feel the fear or tremor when an authoritative figure abuses you, either physically or psychologically.'

24.That, what you did to achieve those purposes, cannot be condoned, but it is very understandable.  As I said, it is a reason in circumstances where you have obviously kept this, to a large extent, crushed down, for the balance of your life and it is welled over if that be the appropriate expression once therapy started.  I do not believe it is necessary at all, but even if it was necessary, this is a situation where I would not hesitate to exercise mercy in the way that judges are entitled to.  I make it clear that is not what I am doing, but I would if I had to.

25.In those circumstances I am satisfied, bearing in mind the principles outlined in Boulton and other authorities, that a community corrections order with significant work hours, very significant work hours, is the appropriate disposition.  I think that satisfies general deterrence and it also satisfies pacific deterrence.  It makes it clear that this offending was not trivial.  Accordingly if you agree, the CCO will be for three years.  It will be with conviction which is a punishment in itself and as your prior court appearances were without conviction and to signify that aggravated burglary is a serious offence, but it will be the maximum amount of hours that I can apply without having you assessed.  I am not having you assessed because I realised you have good insight into all this, you are doing what you can to improve your position and I see no reason why a community corrections order needs to add to all that.  You are doing the best you can, but you do have to be punished. 

26.Accordingly there will be a period of 300 hours to be completed within that three years.  Make it clear that upon the completion of that 300 hours, the community corrections order obviously ceases.

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27.MRS CLARK:  As Your Honour pleases.

28.MS MacDOUGALL:  Your Honour s.6AAA (indistinct words).

29.HIS HONOUR:  Do we have to do one of them?  Well I think in this particular situation, had this been a trial, the outcome and the circumstances that came out of that trial, would have been anybody's guess.  In those circumstances, I am prepared to say, that I would have implied – given a community corrections order but it would have been with – had you been convicted by a jury, but it would have been significantly more work hours.  I don't think I can be any more precise than that.

30.MS MacDOUGALL:  If it please the court.

31.MR CLARK:  As Your Honour pleases.

32.HIS HONOUR:  Sorry and I'll put all three charges on the CCO, I can do that, all right?

33.MS CLARK:  Yes, Your Honour.

34.HIS HONOUR:  All right, if you stand up for me for just a second Mr Railton.  (Indistinct words) I understand how all this came about.  You know you can't do it and this isn't a lecture.  You are too old to be giving lectures too, but you have got to understand that if something goes wrong with your CCO, or you went back there, or deck him again, I would be left with no choice.

35.OFFENDER:  Yes Your Honour.

36.HIS HONOUR:  All right.  Not only what happened, but I would have to re-sentence you.  I think if that happened I just would not have any choice.

37.OFFENDER:  Yes Your Honour.

38.HIS HONOUR:  All right?  Thanks for that.  Yes.

39.MS MacDOUGALL:  Your Honour may I briefly raise a matter concerning the matter of Humphries.

40.MS CLARK:  May I be excused, Your Honour.

41.HIS HONOUR:  Thanks.  Yes, you come out that door.

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