Director of Public Prosecutions v Shea
[2018] VCC 598
•15 March 2018
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-01620
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DYLAN JONATHAN SHEA |
‑‑‑
JUDGE: | HIS HONOUR JUDGE HICKS | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | Thursday 15 March 2018 | |
CASE MAY BE CITED AS: | DPP v Shea | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 598 | |
REASONS FOR SENTENCE
‑‑‑
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
‑‑‑
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | A. Moran | OPP |
| For the Accused | J. Pruden | VLA |
HIS HONOUR:
1 Dylan Jonathan Shea you have pleaded guilty to one charge of criminal damage, one charge of aggravated burglary, and one charge of making threat to kill.
2 The maximum penalty for criminal damage is 10 years' imprisonment; for aggravated burglary, 25 years' imprisonment; and for make a threat to kill, 10 years' imprisonment.
3 You are 39 years of age and have no prior convictions.
4 The circumstances surrounding these offences are set out in the Crown opening, being Exhibit 1, and I shall not repeat those here.
5 On Tuesday, 23 May 2017, at approximately 7.45 pm, Michael Cole, your employer, and his fiancée, Laura Burnside, were at their home. Also present at the premises were Ms Burnside's nine-year-old son, Sam, and his nine-year-old friend, Declan. They were playing in the lounge room area.
6 You attended at that time at their premises in possession of two kitchen knives and a wooden baton.
7 Charge 1 - Criminal damage
8 When you arrived at the premises, you smashed the rear window of your employer's car, which was parked in the driveway. You also threw your wooden baton through the front window of the house. Later, you slashed a fly wire screen door and also made marks on the veranda with your knife.
9 Charge 1 is a rolled-up count involving criminal damage to your employer's car, a window of his house, the fly wire screen door, and the veranda.
10 Well-known sentencing principles relating to rolled-up charges apply to Charge 1.
11 Charge 2 – Aggravated burglary
12 Your employer, upon hearing the smashing of glass, ran to the kitchen area. He looked outside and recognised you. At the time, he noticed you were holding a large orange-handled knife in your right hand above your shoulder, yelling out, "Michael Cole, come outside. I'm going to cut your fucken face off."
13 Cole immediately locked the front door and told his fiancée to ring "000" and to get the kids to safety. This Ms Burnside did, by placing the two children in a closet.
14 You then threatened that you would kick the front door in. You continued to threaten your employer that you would cut his face off, and then kicked the front door in and entered the premises, carrying knives, one which was 35 centimetres in length, and the other 30 centimetres in length, above your head in a threatening manner.
15 Charge 3 - Making threat to kill
16 Your employer managed to get hold of a poker from the fire area to protect himself. For several minutes, you moved towards your employer and threatened to cut his face off, and threatened to kill him and his family.
17 Your employer was yelling at you, asking you, "What are you doing?" You then stopped and pointed the knives down at the ground, and you told your employer that he had rung you and threatened you in relation to a WorkCover claim.
18 Your employer tried to reassure you that he made no such call to you.
19 At this stage, you stopped and then walked backwards towards the door in order to leave the premises. On the way out, though, you slashed at the wire screen door, and also started stabbing the veranda.
20 You left both knives on the veranda and walked towards the garden bed, asking your employer to come outside and sort it out like men.
21 You told your employer that he had rung you, and that was why you had attended the house, saying there was a court case in coming days over a WorkCover claim.
22 Your employer told you that he would not come outside, and continued saying to you he did not know what you were talking about, that it was a matter between you and WorkCover.
23 You then moved back away from the house to the fence line and said to your employer, if it was not him who had called, then he did not have to come outside. You also told your employer that you would pay for all damages.
24 Police later attended and arrested you without incident, and seized two knives and a wooden baton. Your employer later made a statement to police, where he stated that you had worked for him for approximately six years and had been on WorkCover for approximately two years. He told police his company had paid the relevant entitlements, and therefore the matter was in the hands of WorkCover. Your employer stated that WorkCover had rung him about four months prior to this incident, stating that you were challenging the WorkCover claim, and did he wish to be involved in such claim, to which your employer declined to do so.
25 You were interviewed by police on 23 May 2017, and made full and frank admissions as to what you had done. You told police that you received a phone call from a person you thought was your employer in relation to the WorkCover claim, and that, "That person threatened him on the phone, and as a result, he attended his employer's premises to sort things out."
26 I state to you that I have taken the following matters into account in your favour in mitigation of sentence.
(1) Your early pleas of guilty. In my opinion, you are entitled to a significant discount by way of mitigation of sentence due to your early pleas of guilty, including their utilitarian benefit.
(2) Remorse. In my opinion, not only by your actions immediately after the event, but also by your full and frank admissions to police and your pleas of guilty, I am satisfied that you have shown genuine remorse for your actions.
(3) No prior convictions. You are currently 39 years of age and you have no prior convictions. I note the Crown did not allege any prior convictions against you, but you admitted to your psychologist that you had two driving offences for being over the prescribed blood alcohol limit. Such prior offences have some but limited relevance, due to your consumption of alcohol at the time of these offences.
(4) Your personal circumstances. Your personal circumstances are largely set out in the report of Mr Jeffrey Cummins dated 22 February 2018, and I shall not repeat such facts here.
The background to this incident was referred to by Mr Cummins.
Mr Cummins noted, in a letter written by your general practitioner dated 26 April 2016, that you had injured your left elbow and shoulder at work on 14 June 2013, and that an ultrasound of your elbow in 2013 revealed a muscular tear. In September 2014, your elbow condition deteriorated. You stopped work, and an MRI scan revealed tissue damage to your elbow that required surgery. You continued to suffer pain, and thereafter received worker's compensation payments for a period of time. Your general practitioner was of the opinion that the injury to your shoulder and elbow were caused by your work.
Mr Cummins also noted a psychological report of Dr Trethowan, dated 23 March 2016, where a diagnosis of anxiety by your treating general practitioner was made of you, and you were prescribed antidepressants.
Mr Cummins was of the view that you have been intermittently suffering from depression leading up to this incident.
Your counsel submitted, and which I accept, that you had a long history of work, up until the time of your accident. As a result of your injury, you were unable to work, and your life started to unravel.
You have led a fairly lonely life. You have had only one previous relationship. At the time leading up to these events, you had lived alone with your dog. You had depleted most, if not all, of your savings.
For a period, you mistakenly believed that because you had about $3,000 left, that you could not receive the dole.
Your WorkCover claim became an important part of your future financial prospects.
You were of the view that your own doctor and the insurance company were wrong about certain aspects of your WorkCover claim, and set in process legal action to challenge that.
At the time of these events your WorkCover claim had not been heard.
You presented to Mr Cummins as depressed and intense. You told Mr Cummins, "I must have lost the plot," that you were under a lot of stress, and you were not happy with your life.
Though you told police that you received a phone call from someone who you believed was your employer, you told Mr Cummins, that you said that to the police out of embarrassment, because at the time, you were hearing voices in your head. You told Mr Cummins, "These voices were putting me down and telling me that [my employer] was out to destroy me." I will return to this aspect shortly.
As to your family background, your parents separated in your early teens, and thereafter you were raised by your mother and had minimal contact with your father. Your mother died of a brain tumour at the age of 49. You now have some limited contact with your father. You attended primary school in Corio and at Corio North High School, where you failed Year 9. You then attended Queenscliff High School for four weeks of Year 10, but left in March of that year, at the age of 15. You obtained a butcher's apprenticeship, which you successfully completed, and worked as a butcher through to the age of 30, after which you worked as a carpenter, a builder, and sometimes in project management.
As to your current financial circumstances, you have about $4,000 in debt on your credit cards, and you are approximately five weeks behind in your rent, being approximately $2,000. You have little or no money.
You are pursuing your WorkCover compensation claim with Maurice Blackburn. You have been recently assessed by a psychiatrist, who advised you that you have apparently been inadequately treated in terms of your mental health problems relating to the injury to your left elbow and shoulder.
(5) Verdins principles.
The Crown accept principles 5 and 6 of Verdins case apply to you, but submitted that due to your alcohol intake at the time of the incident and its contribution to your reasoning process at the time of the incident, that I should give limited weight to the application of principles in Verdins case, in particular the lessening of your moral culpability.
Mr Cummins was of the opinion that at the time of your offending you were acutely depressed, and quite probably responding to mood congruent auditory hallucinations reflective of your state of acute depression.
Mr Cummins was of the opinion that your perception, judgment and reasoning ability were impaired by virtue of you hearing voices in your head at the time of the offending on 23 May 2017.
Mr Cummins' report was not challenged by the Crown, nor were the facts that he relied upon to make his findings challenged by the Crown.
Whilst it is ultimately a matter for myself, in the circumstances before me, where Mr Cummins' opinion has not been challenged, and even though you told police that it was your employer who rang you, I accept, in the circumstances before me, that it is likely you did hear voices.
On the basis of what you told Mr Cummins, that you heard voices, Mr Cummins' unchallenged opinion is that it is likely that you were responding to auditory hallucinations.
As I stated, neither the facts that support Mr Cummins' opinion nor indeed the opinion of Mr Cummins were challenged.
In fact, the Crown accepted Mr Cummins' opinion in relation to the principles by submitting that the weight to be given to his opinion should be modified in relation to the question of moral culpability, due to Mr Cummins accepting that alcohol had its part to play in your actions. That is, the Crown accepted Mr Cummins' opinion, but stated the weight given to such opinion should be modified, due to your consumption of alcohol at the relevant time.
Though Mr Cummins was of the opinion that your perception, judgement and reasoning was impaired by you hearing voices, Mr Cummins also opined that your offending was partly motivated by your state of intoxication at the time.
In my opinion, the submission by the Crown concerning your alcohol intake has some force, particularly in regards to the first principle in Verdins case, in lowering your moral culpability.
Mr Cummins opined that currently you are still suffering from a work trauma related adjustment disorder and mixed anxiety and depressed mood, in relation to which you experience negative ruminative thinking, concentration difficulties and sleeping difficulties.
Mr Cummins assessed your risk of committing further offences of violence as low.
(6)Prospects of rehabilitation. In my opinion, your prospects of rehabilitation are very good. Though you have two prior convictions for exceed the prescribed alcohol limit, you are nevertheless, in my opinion, at low risk of reoffending. You have no history of criminal violence or criminal activity in your previous 39 years. You have been employed for most of your life, up to you suffering your workplace accident. You are now currently employed by your brother. There was a considerable number of family members in court to support you, and I note the same this morning at the time of sentence. Overall, I am of the opinion that you have very good prospects of rehabilitation.
27 Against these matters in mitigation, however, is that you committed serious crimes. Aggravated burglary itself carries a maximum penalty of 25 years' imprisonment. Charge 1, criminal damage, is a rolled-up charge, and the well‑known sentencing principles relating to rolled up charges apply to it.
28 Principles of denunciation and general deterrence clearly have application to this sentencing exercise.
29 Confrontational home invasions are crimes where general deterrence must have a real part to play in the sentencing exercise.
30 Considering your lack of relevant prior convictions, I am of the view that specific deterrence and protection of the community have only limited force.
31 I have read the Victim Impact Statements in this matter. They speak eloquently and powerfully of the trauma that your actions caused persons inside the house and to the mother of Declan.
32 These are just some of the statements made by your victims, and the terrible consequences that you have caused them. The consequences are still reverberating throughout their lives, due to your actions.
33 One child victim stated he had slept on the couch for months with the light on, and not in his room, that he is nervous around strangers, and has lost his confidence.
34 One victim stated the slightest noise has her jumping, that she struggles to walk outside at night, that she has relived dreams of you coming back with a knife and standing over her. She cannot stand to be alone. She suffers migraines and is depressed.
35 Your victims inside that house were of the opinion you were going to kill them, and they thought their time was up. Most now have trouble sleeping.
36 The mother of one of your young victims described how her son cannot sleep, and how he thought he would be killed and not see his mother again, that her child's personality has changed. As a mother, she speaks powerfully of the helplessness she feels, and that their lives are changed forever due to your actions.
37 Considering your age and lack of prior convictions, I had you assessed as to your suitability for a Community Corrections Order. I now have that report today, and it states that you are suitable. Both counsel have that report.
38 This is a difficult sentencing exercise. Your counsel has conceded this is a serious matter that does qualify as a confrontational aggravated burglary in which you were carrying two large knives. I accept that you threatened to kill people and caused criminal damage. However, this was an isolated event by a person nearly 40 years of age. At the relevant period of time, I accept that you were depressed and had lived several years with frustrations relating to your WorkCover action.
39 Yet, on the other hand, you committed serious crimes which have caused incredible trauma to your victims, and continue to cause them problems.
40 No comparable cases were put before me.
41 Nevertheless, I perused aggravated burglary sentences. I found few cases that match your circumstances and the circumstances of this case. I could not find a comparative range. Of course, current sentencing practices are in any event just one factor amongst many to consider in a sentencing exercise.
42 Your counsel submitted you should not go to prison. That this is principally due to you being nearly 40 years of age without any prior convictions and a person with very good prospects of rehabilitation.
43 Regrettably, I disagree. I am mindful of the provision of s.5(4C) of the Sentencing Act 1991, but this is a case that, in my opinion, despite your lack of prior convictions and very good prospects of rehabilitation, requires in all the circumstances that you serve a custodial sentence.
44 This was a serious confrontational aggravated burglary committed by you. You took with you two large knives at night. Even as you approached the house, you smashed the window of the employer's car. You then used a baton you have been carrying to smash through the front window. You then kicked the door in. Two children inside those premises, fearing for their lives, were put into a closet. They could hear your threats. You made threats to kill. Though you did no physically harm to your victims, you put them through a most terrifying ordeal.
45 I am satisfied beyond reasonable doubt that you terrified them, that they thought they would be killed. As I said, your actions continue to reverberate throughout their lives.
46 Again, I state this has been a difficult sentencing exercise.
47 It is rare to have a person before me, having committed a crime of this serious nature, and being nearly 40 years of age, without prior convictions, who desisted at the scene, put the knives down and said he would pay for damages, who has shown genuine remorse for his actions, made full admissions to police, and who shows very good prospects of rehabilitation, but you have committed a very serious number of crimes indeed.
48 As I stated to you, in the circumstances of this case, it is my opinion that an immediate custodial sentence is required.
49 You will be convicted and sentenced as follows –
50 On Charge 1, you will be convicted and sentenced to two months' imprisonment.
51 On Charge 2, you will be convicted and sentenced to two years imprisonment.
52 On Charge 3, you will be convicted and sentenced to nine months' imprisonment.
53 I direct that three months' imprisonment on Charge 3 be served cumulatively on Charge 2. Otherwise, all such sentences are to be served concurrently, making a total effective sentence of two years and three months' imprisonment.
54 Concerning your prospects of rehabilitation in particular, I direct that you serve 15 months' imprisonment before eligible for parole.
55 There is no pre-sentence detention to be declared.
56 Pursuant to the provisions of s.6AAA of the Sentencing Act 1991, the sentence you would have received but for your pleas of guilty would have been a sentence of three years' imprisonment, to be served with a non-parole period of two years in prison.
57 I order that you provide a forensic sample, and I advise you that reasonable force may be used against you if you so refuse. Are there any matters, counsel?
MS LONG: Your Honour, a disposal order.
HIS HONOUR: I make the ancillary disposal order. Thanks.
MS LONG: Pardon me, Your Honour -
HIS HONOUR: Sorry. Any other matters?
MS LONG: The only other matter was a compensation order.
HIS HONOUR: No, that was not agreed to, and that's why Ms Moran for the Crown at the time did not proceed with it.
- - -
0
0
0