Director of Public Prosecutions v Ryan
[2012] VCC 834
•13 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT BENDIGO
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAYDEN RYAN JACK HOWARTH |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 10 July 2012 | |
DATE OF SENTENCE: | 13 July 2012 | |
CASE MAY BE CITED AS: | DPP v Ryan & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 834 | |
REASONS FOR SENTENCE
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Catchwords: aggravated burglary, recklessly cause injury; common assault; criminal damage. Charges arising out of one incident; accused perceived victims had assaulted friend and chased them into house; broke down front door; victim punched to head by Howarth, threatened by Ryan; young offenders; Ryan no prior convictions, Howarth one similar prior conviction; both apprentices with good work histories; solid family support; no drug problems; possible alcohol problem in case of Ryan; CCO for two charges; 3 months imp wholly suspended for assault charges.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Jones | |
| For the Accused | Ms J. Gleeson Mr A. McLennan |
HER HONOUR:
1 Jack Dylan Howarth and Jayden Luke Ryan have each pleaded guilty to a charge of aggravated burglary and a charge of criminal damage.
2 Mr Howarth has also pleaded guilty to a charge of recklessly causing injury, and Mr Ryan has pleaded guilty to a charge of common assault.
3 All the charges arose out of one incident in the early hours of 22 January 2012. An altercation had occurred outside a nightclub in Bendigo during which a young pregnant woman, Emily Kulpinski, known to both the accused, had been assaulted, reportedly, by one of the victims in this matter, Jamie Collins. This information reached the two accused, who were not friends, but were only linked by having a mutual friend in Ms Kulpinski.
4 Collins, together with Sam Adamson and Charnesha Ennis, left the scene, and on their way to their home in Bridge Street they were intercepted by the accused, who had taken up Ms Kulpinski's cause. During this interception, Ms Ennis was knocked to the ground. Collins and Adamson entered the house in Bridge Street and locked the door, with Ms Ennis left outside in the garden. This is Charge 1, aggravated burglary.
5 The accused broke down the front door of the house, knowing that Collins and Adamson were inside. The physical act was performed by Ryan, and Howarth was charged as having acted in concert. Another of their group smashed a front window. A young woman, aged 19, was watching television in the house and was frightened by what was occurring. Collins was chased to the bathroom where he locked himself in and the two accused forced their way in. The charge of criminal damage relates to both the front door and the bathroom door.
6 Howarth punched Collins to the head several times, causing bruising and swelling. Either Howarth or Ryan was heard to ask "Where's the other faggot?" It is these circumstances that give rise to the charge of recklessly causing injury, to which Mr Howarth has pleaded guilty.
7 Whilst in the bathroom, Ryan threatened Collins with a set of scales, and then left. The police attended after the accused had left, and the two were contacted by the police ten days later and interviewed the same day. Both made admissions and were cooperative with the police. They both pleaded guilty to these charges at the earliest possible time.
8 There are a number of similarities as between the two accused. Both are young, Mr Howarth is 21, and Mr Ryan is 22. Both have embarked upon apprenticeships. Neither has ever had anything to do with drugs, and only Mr Ryan has had some problems with excessive use of alcohol. Both have solid family support. Mr Ryan has no prior convictions, but lost his driving licence as a result of a penalty notice for exceeding the prescribed concentration of alcohol. He has completed a drink driver education course, and at the time of the plea hearing was about to apply to have his licence restored to him.
9 Mr Howarth has a prior conviction for recklessly causing injury to a woman who had assaulted his brothers in the past, which had resulted in an intervention order being obtained against her. In rather unusual circumstances the woman came uninvited to a family 21st birthday party, where she threatened to kill Mr Howarth's mother, and ran at Mr Howarth. Mr Howarth then punched her once, for which he was later convicted and fined. The woman was also charged in relation to the incident.
10 I have outlined these similarities because the sentences in this case warrant some degree of parity. That is, each of you, Mr Howarth and Mr Ryan, should be sentenced in relatively similar ways. There is some difference in degrees of criminality in that you, Mr Howarth, carried out the more serious assault, while you, Mr Ryan, physically broke down the doors. The other difference is that you, Mr Howarth, have a prior conviction for an offence of the same classification, recklessly causing injury. They are of course very serious charges, and aggravated burglary, the breaking into a house where people were present, is, as it was put by the prosecutor, unfortunately a prevalent crime, one which can place people in great fear, and often ends in injury, as it did in this case.
11 Ms Ennis and Mr Collins have both provided Victim Impact Statements. Ms Ennis described her fear at the time, and her bruised and swollen arm from being knocked down while you were chasing her group. Her sleep was affected, and she remained very anxious. Mr Collins also described his fear, his feeling of being unsafe in his own house, and long-term anxiety, as well as great disruption to his life. He was concussed by the assault on him, and suffered a jarred neck and bruises and cuts.
12 I accept what I have been told, that both of you, with hindsight, understand the enormity of what you did, that you had no right to be involved, and that you regret your actions. The invasion of someone's home, with damage done to the house, and putting people in fear and injuring them, as occurred here, usually calls for a severe sentence, a sentence of imprisonment that firmly denounces such criminal behaviour, and deters others from acting similarly. There are a number of mitigating factors, which mean more lenient sentences can be imposed in this case. I have already mentioned some of those factors, your cooperation and your early plea of guilty, your family support, and your work as apprentices, and your remorse.
13 A plea of guilty entered early assists in the progress of the case through the criminal justice system, and the avoidance of a trial means the witnesses do not have to give evidence. This case has reached its conclusion very rapidly, owing to your cooperation. You are each entitled to a significant discount on your sentence for those reasons, and I also accept your pleas as indications of remorse. You have both expressed your remorse in other ways as well, to the police, and to the psychologists you have attended. I shall turn now to address each of you separately.
14 First, Mr Howarth, your mother and your girlfriend both gave evidence that violence is out of character for you, that usually you are a gentle person and that you are very sorry for what happened. You are one of a large and very close family, but your relationship with your natural father has unfortunately been unsatisfactory.
15 Your parents separated when you were aged two, and for many years you had no contact with your father, with only sporadic contact over the past few years. He served a gaol term for assault before you were born, and having committed these offences, you have realised that you do not wish to follow in those footsteps.
16 Your mother repartnered after the separation, and she and your stepfather and other family members were all in court to support you.
17 You have almost completed an apprenticeship, as I mentioned earlier, but the company you were working with closed down before you were able to finish it. Since then you have been offered other opportunities to do so, but you have desisted until these matters were finalised, in case the sentence imposed upon you prevented you from committing yourself to its completion. You have been doing other work until recently, and in the immediate past you have been helping out at home, but you do intend to complete your apprenticeship.
18 You have never used illicit drugs, and have taken care to avoid them because of the difficulties experienced by one of your siblings in the past. You seldom drink alcohol, and rarely to excess as you did on the night in question. This is relatively unusual for a young man charged with a serious offence, and it suggests that the immaturity one might expect in a young man, combined with unaccustomed intoxication has caused you to act so thoughtlessly.
19 Ms Matthews, the psychologist who assessed you recently, identified your behaviour as adolescent in nature, characterised by succumbing to peer group pressure when under the influence of alcohol. She said you were aware that your family is angry with you for it, and that you now have some insight into the dangers of alcohol and the social problems that face young people in the Bendigo area, and that you are anxious to avoid them in future.
20 A number of people speak very highly of you in the letters they have written to the court. One of them, Mr Berthisel, who has known you well all your life, states that he has no clear understanding as to why such a decent young man could be facing such a serious charge.
21 As a young man, your rehabilitation is an important priority, and even though generally speaking, its importance declines relative to the seriousness of offending, in your case it is in the interests of the protection of the community that you are assisted in dealing with these issues while you are at liberty and not in prison. I shall return to those matters shortly.
22 I now turn to address you, Mr Ryan, and the particular factors that will affect my sentencing of you. You have had an unremarkable upbringing as one of three children, except that tragically your father died of a brain tumour when you were 17, after a long illness. Like Mr Howarth you were also close to your family and have their full support. Since leaving school you have always been employed, and commenced a mature age apprenticeship at the beginning of this year. Your supervisor came to court to vouch for you, and a letter from your employer confirms your success so far. You have no problem with drugs, but you had been drinking very heavily on the night in question, about 18 standard glasses of beer by your own admission, and alcohol has brought about the loss of your licence and the ending of a previous relationship. It seems you now recognise the dangers of binge drinking. Your girlfriend of the past 18 months is now 13 weeks pregnant, and you are hoping to set up a home together soon. You have been working six days a week and saving to cover those costs. You are still a youthful offender at age 22, and so your prospects of rehabilitation are important.
23 It appears that under the influence of alcohol, you reacted similarly to Mr Howarth in perceiving the need to protect Ms Kulpinski by seeking retribution, and that afterwards you understood how wrong you were, and that you should not have allowed yourself to be led by others into criminal behaviour. You have not been drinking since then, according to what you told Dr Kennedy, the psychologist who assessed you recently. He reported that your risk of re-offending is low, but he recommended a course of counselling sessions to deal with substance abuse.
24 Your participation in the offending was at a lower level of seriousness compared with that of Mr Howarth, but you were both engaged in the same pursuit of redressing the assault that you had been told about. You were both responsible for chasing the victims towards their home, breaking into the house, and frightening the occupants. Mr Howarth punched Mr Collins several times, and you were then responsible for the assault by threatening him with the scales. Other matters can be weighed in the balance. For example, Mr Howarth has a prior conviction, and you do not, but you have a demonstrated problem with alcohol abuse and he does not. Each of those matters brings to bear some weight upon the prospects for rehabilitation, and notionally at least contributes to a small risk of re-offending. For all those reasons there is a strong argument for a similar sentence overall, one that punishes you, and specifically addresses your rehabilitation.
25 You have both been assessed as suitable for a community corrections order, which I shall impose, and which will apply to Charge 1 and to Charge 4. This sentence has the advantage of imposing a punishment by way of performing community work, and providing help with the other issues that you are facing. It will assist with your rehabilitation by allowing you to remain employed, which is a very important goal for any young person, particularly one who has been in trouble.
26 As to Charges 2 and 3, the charges of causing injury recklessly, and common assault, I sentence you each to three months' imprisonment, which will be wholly suspended for six months. I must advise you that if you were to commit an offence during that time which is capable of being punished by imprisonment, you will have breached the suspended sentence and you must return to court to be resentenced. You would then have to serve that time, unless you could show exceptional circumstances as to why you should not, and that is very difficult to do.
27 In each case, the community corrections order will begin today and will last for two years. Convictions for each of Charges 1 and 4, aggravated burglary and criminal damage, will be recorded. You will each perform 200 hours of unpaid community work over 12 months, and you will be subject to supervision. Mr Ryan, you must undertake treatment and rehabilitation for alcohol abuse, and psychological counselling as directed. Mr Howarth, you must undertake a program to address violent behaviour as demonstrated by these charges. You must both report to the Bendigo Community Corrections Office in St Andrews Avenue by four o'clock on Tuesday 17 July.
28 The prosecution seeks orders for forensic samples of saliva to be obtained, and through your counsel you do not oppose that. I must advise you that the police have the power to use reasonable force to obtain the sample, but I trust that will not be necessary.
29 The prosecution also seeks a compensation order in the sum of $695, payable to Michael Tyndall. That is an order against each of you, and it may be that contribution can be negotiated by your legal representatives.
30 If you had pleaded not guilty to these charges, I would have sentenced each of you to a total effective sentence of two years and six months imprisonment, with a non-parole period of 18 months.
31 Mr Jones, is there anything I've omitted?
32 MR JONES: Not that I can think of, Your Honour.
33 HER HONOUR: There was no presentence detention, was there?
34 MR JONES: No.
35 HER HONOUR: Ms Gleeson, anything - - -
36 MS GLEESON: No.
37 HER HONOUR: All right.
38 MR McCLENNAN: Nothing from me, Your Honour.
39 HER HONOUR: I have the community corrections order here to be signed by both your clients. Would you like to look at that first? I'll have my associate deliver it to you.
40 Just before the court rises, can I thank everyone at the Bar table for your assistance during this short circuit.
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