Director of Public Prosecutions v Salmon

[2024] VCC 1904

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-23-00164

DIRECTOR OF PUBLIC PROSECUTIONS

v

CASEY SALMON

---

JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	31 October 2024
DATE OF SENTENCE:	26 November 2024
CASE MAY BE CITED AS:	DPP v Salmon
MEDIUM NEUTRAL CITATION:	[2024] VCC 1904

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Causing injury intentionally – Aggravated burglary – Intentionally damaging property – Relevant criminal history – Offending in company – Delay – Bugmy – Positive prospects of rehabilitation – Parity.

Legislation Cited:      Crimes Act 1958 ss 18, 77, 197; Sentencing Act 1991 ss 6AAA, 44.

Cases Cited:DPP v Barnes [2015] VSCA 293; Arthars v The Queen (2013) 39 VR 613; Sabbatucci v The Queen [2021] VSCA 340; DPP v Franklin [2023] VCC 2248.

Sentence:                  Imprisonment for a period of 4 months with a Community Correction Order for a period of 18 months.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A Moore	Office of Public Prosecutions
For the Accused	Mr A Pyne	Barwon South West Lawyers

HIS HONOUR:

Introduction

1Casey Salmon, you have pleaded guilty to:

(a) one rolled up charge of causing injury intentionally, contrary to s 18 of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 10 years imprisonment;

(b) one charge of aggravated burglary contrary to s 77 of the Crimes Act, which carries a maximum penalty of  25 years imprisonment; and

(c) one rolled up charge of intentionally damage property contrary to s 197 of the Crimes Act which carries a maximum penalty of 10 years imprisonment.

2You have also admitted your Criminal Record.

Circumstances of the offending

3A prosecution opening was tendered on the plea and may be summarised as follows:

4The co-offender in this matter is Scott Franklin. Mr Franklin previously pleaded guilty following a sentence indication hearing to identical charges plus an additional charge of making a threat to kill. Mr Franklin was sentenced on 29 November 2023 to period of imprisonment for 6 months together with a Community Correction Order with conditions for a period of 18 months.

5The victims in this matter are Anthony Vecchio and Dallas O’Keefe. The victims lived at Mr O’Keefe’s family home at an address in Magpie.

6You resided in a bungalow at the address between February 2021 and March 2022. The bungalow was a separate residence, behind the family home.

Events leading up to the offending

7Mr Vecchio had been residing at the Magpie property with Mr O’Keefe since February 2022. They were in the process of moving out of the property.

8Your co-offender and Mr O’Keefe had been friends for several years.

9Your co-offender had started a romantic relationship with you and was aware you were residing in a tent. He had arranged with Mr O’Keefe that you would reside in the bungalow to get you off the streets in return for rent of $200 a fortnight. This was an informal agreement.

10On 10 March 2022, Mr O’Keefe informed you and Mr Vecchio that you were no longer able to reside at the property because it was his mother’s, and his mother was terminally ill and the house needed to be rented out to pay for his mother’s nursing home.

11On 23 March 2022, Mr O’Keefe was at the supermarket in Ballarat when he observed you and your co-offender inside the store. Mr O’Keefe left the store and texted your co-offender informing him that you needed to collect your items that were still at the property. The text message read as follows:

Hey mate I have a surprise for you when I see you could have got you at Safeway and doused you in milk I have a big fat plug that the plumber fished out three inches long of meat fat cos you dickheads $147 it cost to fuking fix it, for less than one hours work crazy I'm going!! I packed her shit up. but should just torch it dirty dimwit I could smell her in the supermarket that's what made me look up and see her running to the stink mobile cask in hand you smell the same now full on stink mix not skits mix, cheers youll get cancer not tubbing [sic].

Offending

12At approximately 12:45am on 24 March 2022, Mr O’Keefe and Mr Vecchio were at home when they heard a noise at the door. Mr O’Keefe opened the front door where he observed you and your co-offender standing at the door. Mr O’Keefe let you in before realising that you were armed with a kitchen knife and your co-offender was armed with a standard claw hammer.

13Mr O’Keefe followed you into the kitchen where an argument ensued. You punched Mr O’Keefe in the nose (uncharged) before you and your co-offender turned your attention to Mr Vecchio. Mr O’Keefe ran out the door and called ‘000’. Mr O’Keefe can be heard on the phone recording to say ‘it’s just a chick who was staying here’.

14Whilst Mr O’Keefe was contacting the police, your co-offender approached Mr Vecchio who began walking down the hallway to avoid both of you.  In the hallway, you struck Mr Vecchio with the knife to the left hand, cutting him (Rolled-up Charge 1). 

15Mr Vecchio barricaded himself in his bedroom. You and your co-offender attacked the bedroom door in an attempt to break in. The door became ajar and your co-offender put his arm through the gap into the room and struck Mr Vecchio to the lower leg area with the hammer approximately 20 times. Mr Vecchio suffered injuries to his lower leg area (Rolled up Charge 1).

16Mr Vecchio called ‘000’ whilst this was occurring. Whilst on the phone to police, your co-offender is heard to say ‘Fuckin’ kill you’ and Mr Vecchio responds ‘What are ya gunna kill me for?’.

17You managed to get through the crack in the door, entered the room (Charge 2) and stabbed Mr Vecchio to the left arm causing a deep laceration (Rolled-up Charge 1). Whilst attempting to gain entry you and your co-offender caused damage to the door to Mr Vecchio’s bedroom (Rolled-up charge 3).

18Mr Vecchio was still on the phone to ‘000’ at this time. You are heard on the recording to say ‘What were you doing in my room…what were you doing in..in my .. bloody room’.

19After you and your co-offender had left, Mr Vecchio again called ‘000’. When asked who had attacked him, Mr Vecchio is heard to say on the recording ‘Casey Selmen (Sic)’.

20Mr O’Keefe yelled out that the police were coming and you and your co-offender left the house. When leaving the property, your co-offender used the hammer to smash the front windscreen of Mr O’Keefe’s vehicle (rolled-up Charge 3). You and your co-offender got into his vehicle and drove off. 

21Police attending the scene observed your co-offender in his motor vehicle, a white utility, registration ‘PEN713’ driving away from the scene at a fast rate of speed. The vehicle is registered to your co-offender and was located in his possession on 29 March 2022.

22Mr Vecchio was taken to the Ballarat Health Services for treatment.

Investigation

23Police arrived at the property at approximately 12:45am and found broken plates in the kitchen, damage to Mr Vecchio’s bedroom door and Mr Vecchio injured.

24A statement was taken from Mr O’Keefe by First Constable Brittain at the scene.

25On 24 March 2022 at 12:55pm, police observed you on the corner of Albert Street and Dana Street in Ballarat. Police arrested you and seized a silver jacket you were wearing.

26Police found a wallet in your possession which contained cards in the name of your co-offender.

27Following your arrest, you were interviewed with an independent third-party present and denied the allegations, saying you have not been at the property for over two weeks.

28You said you were a chronic alcoholic and that you probably don’t remember everything.

29You also told police that you believed Mr Vecchio or Mr O’Keefe had been in your room touching your things which you found ‘weird and creepy’.

30Your shorts were seized and subjected to DNA testing which found that the blood on your shorts was your own.

31Blood samples were also taken from outside the front right shoulder region and outside rear mid-chest region of the silver jacket. These samples were found to be 100 billion times more likely to have been from your co-offender than from another person.

32An Interim Personal Safety Intervention order was obtained for Mr Vecchio and served on you and your co-offender.

33On 24 March 2022, crime scene officer Adam Donnan processed the scene and noted ‘damage to the outside bedroom door’ of the third bedroom, being ‘splintered around the door handle and a hole just above the handle’.

34Office Donnan also found cuts to the doona and overlay and blood on one of the beds. Photographs were taken and blood was swabbed.

35When Mr Vecchio presented at the hospital, he was found to have:

(a)   an open wound in the left forearm with the inability to extent the left wrist and fingers;

(b)   pins and needles sensation in his left hand;

(c)   pain in the face (nose and upper jaw) with mild dry blood in the left nostril together with a headache; and

(d)   pain and swelling in the legs and foot, multiple circle bruises to the legs and pain and tenderness in the lower abdomen.

36The diagnosis was:

(a)   left forearm laceration with extension tendon damage;

(b)   multiple soft tissue musculoskeletal injuries to face and legs; and

(c)   injuries consistent with the history provided.

37Mr Vecchio was transferred to Barwon Health for plastic surgery.  

Nature and gravity of offending

38In this instance the aggravated burglary is established on the basis of you entering the bedroom after the victim had sought refuge in that room. The entry into the bedroom occurred in the course of the assault on the victim, after you had already struck him with the knife to his left hand. Once you managed to enter the room, you continued your attack on the victim, stabbing him to the arm after your co-offender had struck him to the leg a number of times with a hammer. Charge 1 is a rolled up charge encompassing your two stabs and the hammer strike from your co-offender. The damage caused to the door is part of a rolled up charge which included damage to the bedroom door and the victim’s car as you left the premises.

39I acknowledge that there is somewhat of an anomaly in that the maximum penalty for aggravated burglary is 25 years whereas the injury charge, committed after entry, is 10 years but arguably objectively more serious in the circumstances. This type of anomaly was recognised by Croucher AJA in DPP v Barnes[1] where His Honour said:

[I]t is hard to imagine an aggravated burglary ever properly attracting a sentence anywhere near its maximum penalty, or heavier than the order of sentence likely to be imposed for the more serious instances of offences to the person that might be committed after entry, if only because it would seem wrong to punish such burglarious behaviour, which does not cause physical harm, as heavily as the criminal behaviour that does cause very serious physical and/or psychological harm, such as rape, intentionally causing serious injury and the like. In my view, it is important to recognize this anomaly when having regard to the very high maximum penalty the legislature has fixed for aggravated burglary.[2]

[1] [2015] VSCA 293.

[2] Ibid, [46].

40These distinctions of course are meaningless to the victims involved in such offences. In this instance, having initially being invited into the victim’s house, your conduct together with your co-offender, would have been a frightening experience for the two victims.

41Turning specifically to the rolled up charge of intentionally causing injury, it is in my view in all the circumstances, a reasonably serious example of the offence.

Personal circumstances

42You are currently 38 years old, you were 36 at the time of the offending.  

43You were born in Heidelberg as the only child to your biological parents and have endured a profoundly disadvantaged and challenging upbringing. After birth you were admitted to neo-natal intensive care following drug induced withdrawal from heroin. You were removed from your mother’s care when you were eight months old and have no contact with her. Your mother died from a heroin overdose when you were 12. You have had limited contact with your birth father who you understand to be a sex offender.

44Following removal from your biological mother you were adopted by your mother to whom you also had a difficult relationship with. You report your adoptive mother was emotionally and physically abusive and neglectful. You submit you struggled to connect with her but felt a better connection with your adopted father.

45You were evicted from your adoptive home at age 11 and your schooling was highly disrupted as a result. You report you hated school and were frequently suspended for being disruptive. You were expelled from school by age 14 by which time you had drifted into crime and were homeless for extended periods. You were sleeping in a friend’s garage and had begun selling drugs.

46You met your first serious partner when you were 16 years old and you lived together in Ministry of Housing accommodation for seven years. This partner was nine years older than you and frequently perpetrated family violence towards you. The breakdown of this relationship left you homeless and living in a tent.

47At age 25 you entered a new relationship with your partner Daniel. Your adoptive father bought a house for you both which you lived in together. When you were 26 you had your daughter. Daniel died from leukaemia in 2015 and your daughter was removed from your care when she was three months old. She currently lives with her grandparents, and you have not seen her for approximately three years.  

48You lost the house you shared with your partner and were living in a tent in Ballarat. You were homeless for two years.

49A psychological report of Fiona Best dated 17 August 2023 was tendered on the plea and provides a comprehensive personal and psychological history. Ms Best is of the opinion that your psychological symptomatology aligns with a diagnosis of borderline personality disorder and alcohol use disorder. Further, she reports that your childhood trauma history has resulted in a maladaptive developmental trajectory, detailing that your patterns of unstable interpersonal relationships, impulsivity, constant anger and recurrent suicidal thoughts suggest borderline personality traits. You have a long history of suicidal ideation and depression and have had three admissions to acute psychiatric inpatient units.

50Turning to your substance and alcohol abuse, you report you started drinking alcohol when you were 11 years old which developed into a pattern of problematic alcohol intake. You have attended an alcohol detox program three times at which you report periods of abstinence. You began using methamphetamine at age 16 or 17 and report using cannabis for most of your adult life. You last used heroin in 2022. Ms Best is of the opinion that your impaired mental functioning as a result of substance use means that your judgement and rational thinking was likely to have been impaired at the time of the offending.

51As admitted by you, you were under the influence of drugs and alcohol at time of the offending, using both on a daily basis.

52It was submitted that you are now in a more stable situation as you have obtained accommodation and have not reoffended whilst on bail for this incident.

Sentencing considerations

53Mr Pyne who appeared on your behalf highlighted a number of matters to be taken into account in mitigation.

54First is your plea of guilty. Your plea cannot be considered to be an early plea. A committal hearing was conducted, the matter has proceeded through a sentence indication hearing and was ultimately listed for trial before me, resolving at the time of trial. Nonetheless, your plea has saved court time and expense and has thereby facilitated the course of justice.

55As a result of the various procedural listings, this matter has accumulated some delay which was relied on as a matter in mitigation. Delay caused by the exercise of an accused’s right to contest a criminal charge is not regarded as the fault of the accused.[3] I take into account the delay as it has meant that the matter has remained as a further source of anxiety for you. Further, it appears that in the period before the matter resolved, you have begun the process of rehabilitation by not committing further offences and having obtained some stability, most particularly by obtaining stable accommodation.

[3] Arthars v The Queen (2013) 39 VR 613, [27].

56Your childhood depravation and disadvantage is a matter of some weight. You were born to a drug addicted mother and were taken into care as a baby. You suffered abuse from your adopted mother and were evicted from your adopted home at age 11, and you have led a transient life since with long periods of homelessness. You have suffered from family violence, you have had your own child removed from your care and you have struggled with substance abuse for most of your life. It was submitted that in the circumstances your childhood depravation enlivens Bugmy principles. I accept that the impact of your early experiences is a matter that can be given weight in the sentencing discretion, noting what the Court of Appeal said in Sabbatucci v The Queen[4]:

[A]n offender’s disadvantaged background will always be relevant to the sentencing task. Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.

[4] [2021] VSCA 340 at [6]

57Turning to your prospects of rehabilitation. It was conceded that you will require sustained support in order to address your long term drug and alcohol addiction as well as your complex phycological profile. You have a relevant but not extensive criminal history, however you have not reoffended whilst on bail for this matter. While it seems you have in recent months found a degree of stability, your rehabilitation depends upon you maintaining that stability by actively engaging in services that will be offered to you as part of the sentence I impose. If you do engage then in my view your prospects may be assessed positively.

58Turning to other sentencing considerations. Deterrence, both general and specific are relevant matters, together with denunciation of your conduct. This incident represents serious offending. This was an assault in company using weapons and occurring in the victim’s own home at night, where he was entitled to feel safe.

59It was submitted in the circumstances that a community correction order alone is able to meet the relevant sentencing considerations. Mr Moore who appeared on behalf of the Director of Public Prosecutions, while acknowledging the need for you to receive significant supports, submitted that a term of imprisonment is required given the serious nature of the offending.

60Finally, in relation to parity, I note that your co-offender was sentenced in this court for his involvement in the offending.[5] He pleaded guilty to the same charges in addition to a charge of threat to kill. He was sentenced to 6 months imprisonment together with a community correction order for a period of 18 months. It was submitted that you are able to rely on significant matters in mitigation that were unavailable to your co-offender, most particularly your reliance on Bugmy  principles.

[5] DPP v Franklin [2023] VCC 2248.

61While matters personal to you do carry substantial weight in the sentencing calculus, the seriousness of the offending and the need to give sufficient weight to other sentencing principles such as general deterrence, in my view requires the imposition of a period of imprisonment together with a community correction order. 

Sentence

62Ms Salmon, would you please stand.

63Casey Salmon, on Charge 1, intentionally causing injury and Charge 2, aggravated burglary, you are convicted and sentence to an aggregate term of imprisonment of 4 months as the prison component of a combination sentence pursuant to s 44 of the Sentencing Act 1991.

64Upon your release, on Charges 1, 2 and 3 (criminal damage), you will be placed on a community correction order for a period of 18 months. While all community corrections orders are punitive in nature, the focus of the order is therapeutic in order to assist you to continue your rehabilitation in the community. You will be subject to treatment and rehabilitation in relation to drugs, alcohol and your mental health. You will also be subject to supervision.

65Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty, I would have sentenced you to a period of 2 years imprisonment with a non parole period of 14 months.