Director of Public Prosecutions v Stewart
[2019] VCC 616
•3 May 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR 17-02016
Indictment No. H11516076.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL STEWART |
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| JUDGE: | HER HONOUR JUDGE CONDON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 April 2019 |
| DATE OF SENTENCE: | 3 May 2019 |
| CASE MAY BE CITED AS: | DPP v Stewart |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 616 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – aggravated burglary - plea of guilty
Sentence: Total effective sentence of three years and ten months’ imprisonment
with a non-parole period of two years and four months.
Section 6AAA declaration: five years’ imprisonment with a non-parole
period of three years---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D Hannan | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr S Kenny | Victoria Legal Aid |
HER HONOUR:
1Daniel John Stewart, you have pleaded guilty before me to one charge of aggravated burglary, one charge of causing injury intentionally and one charge of theft. You were 47 years of age at the time of these offences. You are now 49.
2Exhibit A on the plea in mitigation was the prosecution opening on the plea. I incorporate that document as part of my reasons for sentence. However, I will briefly summarise the offending that has brought you before the court.
3At the time of these offences, you were living at the Gatwick Hotel in St Kilda. On 26 May 2017, your co-offender, Bradley William Karoll, was also a resident of the Gatwick. The victim in this matter, Theophane Batanaras, who was 69 years of age at the time of the offending, was known to Mr Karoll but not to you.
4On the day in question, your co-offender, Bradley Karoll, had approached one of the residents of the Gatwick Hotel, a woman by the name of Sharon Colley. Mr Karoll and Ms Colley had a discussion regarding the victim, Mr Batanaras. You were not present at the time of that discussion nor were you aware of the subject matter of that discussion.
5When Mr Karoll and Ms Colley were leaving the Gatwick, they ran into you. You knew them as acquaintances from the drug milieu in or around St Kilda. Not long afterwards, the three of you got into a car and drove to the victim's flat at 150 Inkerman Street, St Kilda.
6Upon arrival at the victim's home, Colley identified only herself and, as a result, the victim allowed her entry into the building. However, Colley went upstairs to the apartment in company with you and Mr Karoll. This activity relates to Charge 1, being a charge of aggravated burglary.
7Upon entering into the apartment, a confrontation ensued between Mr Karoll and the victim. Mr Karoll went into the kitchen and confronted him. He said, 'Do you know who I am?' and the victim said, 'Yeah, Mickey Blue Eyes'. Mr Karoll told the victim to sit at the table. Mr Batinaras went to shake your hand and you told him also to sit down.
8Your co-offender, Mr Karoll, then proceeded to perpetrate a vicious assault upon the victim. He used a broken leg off a table to hit him. He hit Mr Batinaras all over his body including on his face, head, ribs, chest, arms and legs. Apparently in the course of that assault, you told the victim, 'sit there cunt'. This constitutes Charge 2, being intentionally cause injury.
9After the assault took place, you started wiping the blood off the table leg. Earlier during the incident, your co-offender had said to Mr Batanaras, 'we're here to take your place. This is our place now'. Apparently, he also said to the victim that you were not leaving until you got the keys. The victim then gave him the key and the security pass to the property at Inkerman Street. This activity relates to Charge 3, being a charge of theft.
10The victim then ran to St Kilda police station and reported the incident. He told police that he thought he was going to die while being assaulted. Police also observed that he appeared to be quite fearful of your co-offender, Mr Karoll.
11He was transported to the Alfred Hospital and suffered a number of injuries which are particularised at paragraph 17 of Exhibit A. It was the opinion of Dr Angela Williams that in a man of the victim's age, his chest injuries may have serious ongoing side effects, being pain, difficulty breathing and development of chest infections or pneumonia.
12In the morning of 27 May 2017, you were located in Fitzroy Street, St Kilda. You were arrested and taken to the St Kilda Road Police Station where you participated in a taped record of interview.
13In the course of that interview, you admitted that you were with Ms Colley and your co-accused, Bradley Karoll, at the Gatwick Hotel on the night in question and that you had entered the building at Inkerman Street after the victim had let Ms Colley in. You described a scenario in which your co-accused, Karoll, had begun fighting with the victim and you stated that Karoll had asked the victim for the keys to the apartment and the victim had given them to Karoll. You were released on that day without charge.
14Some days later on 31 May 2017 in relation to other allegations, you were arrested. A second record of interview in relation to this matter was conducted. In the course of that record of interview, you again admitted your presence at the victim's apartment at Inkerman Street with Colley and Karoll; however, you denied that you specifically told the victim to sit down and that you wiped blood off the table leg used by Mr Karoll to assault Mr Batanaras.
15You were remanded into custody on that day and have remained so ever since.
16On 9 March 2018, I sentenced your co-offender, Bradley Karoll, in relation to this matter. Not only was he dealt with for the charges for which you fall to be sentenced but also a number of other summary matters.
17In respect of these matters, being aggravated burglary, intentionally cause injury and theft, I sentenced your co-accused, Mr Karoll, to an aggregate term of imprisonment of four years and six months. Overall, he was sentenced to a period of imprisonment of four years and seven months with a non-parole period of three years.
18Insofar as the application of the principle of parity is concerned, the following matters were submitted to me on your behalf by Mr Kenny of counsel:
·The role played by your co-offender, Mr Karoll, was that of the principal.
·The role played by you was that of an aider and abettor.
·This distinct categorisation as to each of the roles, serves to reduce your moral culpability for this offending.
·Mr Karoll has a significant history for violent offending.
·You, as a man of 49 on the other hand, have a relevant but far more limited criminal history and no convictions for violent offending.
Given each of these matters, it was contended that in your case a lesser sentence could be imposed without giving rise to a justifiable sense of grievance on Mr Karoll's behalf.
19In response, the prosecution did not argue against the proposition that the roles played by each of you in this offending were distinct and different. In other words, it was accepted by the prosecution that your role was a peripheral one, thus warranting a reduction in your moral culpability.
20Insofar as the objective gravity of the offending is concerned, the prosecution relied upon the fact that the aggravated burglary was committed in company and that the assault on the victim was a protracted one. While conceding these matters, the defence rightly pointed to the fact that you bore no ill will towards the victim; that it was your co-accused, Karoll, who physically inflicted the injuries; and that you had very little, if not nothing, to gain from your involvement in this offending.
21Your offending has had a profound impact on the victim, Mr Batanaras. Tendered on the plea was a Victim Impact Statement from him. In the course of that statement, he indicates that he has been diagnosed by medical professionals with forms of post-traumatic stress disorder. He says that he genuinely struggles to cope every day and rarely experiences a good day. He struggles to sleep because he sees images and flashbacks from the incident.
22As a consequence of the physical injuries that were perpetrated upon him, he is still in immense pain. Furthermore, he has had to have three teeth removed as a result of his injuries. He also described how, as a vulnerable pensioner, the incident has affected his perception of his personal safety. It led to him deciding to leave Melbourne, which caused him to lose his Ministry of Housing accommodation and states that he now pays double the rent in his new residence.
23Before me you admitted your prior criminal history. For the sentencing exercise today, there are a number of relevant matters.
24In particular, at the Melbourne Magistrates' Court on 13 December 2011, you were convicted of burglary and theft and placed on a Community Based Order for a period of 12 months. You successfully completed that order and it was not until five years later that you re-entered the criminal justice system.
25On 25 July 2016, you appeared at the Melbourne Magistrates' Court for a number of offences which included seven charges of burglary, four charges of theft and one charge of aggravated burglary. You were sentenced to a total period of imprisonment of 67 days.
26Furthermore, on 8 May 2017, you appeared at the Melbourne Magistrates' Court in respect of a number of offences including theft, burglary and attempted burglary. On that day, you received an aggregate term of imprisonment of three months (which was effectively time served) and also ordered to undertake a
12-month Community Correction Order (CCO).27Within a couple of weeks of release from gaol, you were involved in the commission of this serious offending. As was highlighted by the prosecution, the fact that you were undergoing a CCO at the time of this offending is a factor in aggravation.
28Furthermore, the fact that you do have a number of criminal convictions for similar offending, largely being burglary and theft, illuminates the sentencing principle of specific deterrence in your case.
29On 29 October 2018, you appeared at the Melbourne Magistrates' Court and pleaded guilty to a raft of dishonesty matters. On that day, you received a sentence of imprisonment of two months with 516 days declared as pre-sentence detention.
30On today's date, you successfully appealed before me against that sentence. The nature of that appeal was largely due to some confusion as to why the pre-sentence detention had not been preserved for this matter.
31This offending occurred against the background of your long-term ice addiction. As already observed, you had only been recently released from gaol. You told Jeffrey Cummins that you realise that you “shouldn’t have accompanied Mickey and Sharon”. You said, “I thought I was accompanying Mickey for the purpose of using some more drugs, probably ice. He’d already given me a hit of ice that day”. You also pointed out to Jeffrey Cummins that the victim was unknown to you and you expressed regret regarding your role in this offending saying, “what happened was all wrong”.
32I also regard the plea of guilty as evidence of remorse in your case. Apparently, on 6 October 2017 at the committal mention, a plea of guilty was indicated in relation to what is now Charges 1 and 2 on the Plea Indictment. In that sense, I regard this as an early plea.
33In June 2018, you changed solicitors. I was told on the plea in mitigation there was some question mark regarding the initial plea as had been indicated in the Magistrates' Court. In light of that, a trial date was fixed for 19 November 2018. However, on 16 November 2018 prior to the trial commencing, an agreement was reached in which it was indicated that you would plead guilty to the three charges now before me
34In all of the circumstances, I find your pleas of guilty consistent with an acceptance of responsibility for your offending and with a desire to facilitate the administration of justice. I note in this regard that while the matter was set down for trial late last year, the victim has never been required to give evidence nor be cross-examined.
35I have already referred to your longstanding drug addiction. You also have a lengthy psychiatric history. Exhibit 3 on the plea was a psychiatric report from Dr Fiona Best, consultant forensic psychiatrist. She describes you as having a 28-year history of paranoid schizophrenia. You have been a patient of the Alfred Mental Health Service for the last three or four years and a patient of other Area Mental Health Services prior to this. You told her that you have had at least 15 admissions to in-patient psychiatric units, either voluntarily or under the Mental Health Act2014 as an involuntary patient, both as an in-patient and in the community on a community treatment order
36You are currently being held at the St Paul’s Unit at Port Phillip Prison. You have been there for the last three months. You are currently in receipt of 85 milligrams of methadone daily and also receive a daily dose of Clopixol. This is an antipsychotic medication which is injected every fortnight.
37I note here that the purpose of Dr Best's report was to establish your fitness to plea. In February of last year, Dr Best described you as not being in a psychotic state and being able to engage with the assessment process. As already observed, she describes you as having a 27-year history of schizophrenia and multiple episodes in partial remission.
38She states that you were initially diagnosed in your late teens. She also observed your long history of illicit substance use involving ice, heroin and cannabis. In her opinion, your recovery has been hampered by illicit substance use, itinerancy and homelessness and poor compliance with your medication regime. Ultimately, she was of the view that you were fit to plead under the Crimes (Mental Impairment and Unfitness To Be Tried) Act 1997 (Vic).
39Dr Best did, however, observe that by dint of your impaired mental functioning as a consequence of your schizophrenia, a sentence may “weigh more heavily upon you” than on an individual without those difficulties and has the potential to have an adverse effect on your mental health.
40This aspect of her report was discussed in the plea in mitigation with your counsel. It was made very clear to me that despite your lengthy psychiatric history, there was no reliance upon any of the limbs of Verdins[1] in your case.
[1]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
41Quite properly, Mr Kenny made this concession in light of the narrative provided to Jeffrey Cummins in which it was clear that your mental state has been stabilised by dint of your time in custody. Indeed, you have described yourself as feeling very settled in the St Paul’s Unit and told Jeffrey Cummins, “St Paul’s – I like it here. It’s a wonderful place. They look after you here”.
42While disavowing any reliance on Verdins, your counsel seeks to understandably rely upon your extensive psychiatric history as a relevant matter in the sentencing equation.
43Assessment as to your prospects of rehabilitation is in your case, is a particularly difficult exercise. Your diagnosis of paranoid schizophrenia combined with your long-term drug addiction, are extremely complex issues. As expressed by Jeffrey Cummins, your diagnosis of paranoid schizophrenia ‘could represent an ongoing vulnerability for [you]’. While it is clear that you were drug affected at the time of this offending, what is less clear is whether you were taking your antipsychotic medication at the time
44Your counsel realistically submitted that your successful prospects of rehabilitation were dependent upon stable accommodation, compliance with your medication and abstinence from drug use. Your life seems to have descended into a downwards spiral in terms of offending from 2016 onwards. Your counsel told me that that downward trajectory was precipitated by an escalation of drug use combined with an absence of stable accommodation. These questions are all matters of relativity given your history. Ultimately, he conceded that your prospects for rehabilitation are somewhat guarded, an assessment that in my view is a realistic and accurate one.
45On a positive note, you are currently a voluntary participant of the Restart Program run by the Australian Community Support Organisation (ACSO) which assists prisoners with reintegration into the community upon release.
46Hopefully upon your eventual release they will be able to assist you in obtaining stable accommodation and support you in your engagement with mental health services.
47I turn now to your personal circumstances.
48As already observed, you are 49 years age. You are the middle child in a sibship of three. You have an older sister and a younger brother. You told Carla Ferrari, consultant psychologist, that your childhood was a happy one. I note that while you described your childhood to her as a happy one, there also appears, to me at least, to be aspects of serious dysfunction as revealed in your narrative to Jeffrey Cummins regarding your childhood.
49Apparently, your father was a drug dealer. You were introduced to alcohol by him as early as six or seven years of age and claim that as a young boy, you would pick up your father's joint butts and smoke them. You hailed from a close family unit until your father died when you were 15 years of age from a heart attack. You told Ms Ferrari that the family fell apart consequent upon that. Apparently, you are still close to your mother and she lives in the family home in East Bentleigh. You have no contact with your siblings. You have not spoken to your mother since your remand into custody on 31 May 2017 and you do not know whether she is aware of your current predicament
50As for your education, you were educated at your local catholic school. You completed Year 12 at Huntingdale Technical School and then obtained employment whereby you worked for three or four years as a brewer at Carlton Breweries. However, since your diagnosis of paranoid schizophrenia, you have been on a Centrelink Disability Support Pension.
51During your teens, you started to smoke cannabis regularly and then graduated to using amphetamines and methamphetamine. As a consequence, your mental health deteriorated and as I have already observed a number of times, you were diagnosed with paranoid schizophrenia at a fairly young age. You believe that that diagnosis occurred when you were hospitalised in a psychiatric ward for the first time at about the age of 20.
52You are single and have no children. You have never had a stable address of your own. Up until the age of about 40, you lived mostly with your mother in East Bentleigh. Since then, you have lived in boarding houses in the inner-east suburbs.
53The basis purposes for which a court may impose a sentence are punishment; deterrence, both specific and general; rehabilitation; denunciation; and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim, if any.
54Could you please stand, Mr Stewart?
55In relation to Charge 1, being a charge of aggravated burglary, I convict and sentence you to a period of imprisonment of three (3) years and ten (10) months.
56In relation to Charge 2, being a charge of intentionally cause injury, I convict and sentence you to a period of imprisonment of two (2) years.
57In relation to Charge 3, being a charge of theft, I convict you and impose a sentence of imprisonment upon you of twelve (12) months.
58That makes for a total effective sentence of three (3) years and ten (10) months' imprisonment.
59I declare a period of two (2) years and four (4) months before you become eligible for parole.
60Pursuant to s18(4) of the Sentencing Act 1991 (Vic), I declare a period of 642 days as pre-sentence detention and order that such declaration be noted in the records of the court.
61Pursuant to s 6AAA of the Sentencing Act, were it not for your pleas of guilty, I would have imposed a sentence of five (5) years with a non-parole period of three (3) years.
62You may be seated, Mr Stewart.
63Were there any - I do not believe there were any other orders in this matter for ‑ ‑ ‑
64MR HANNAN: No, Your Honour.
65HER HONOUR: All right. Yes. Unless there is anything else, we will adjourn.
66MR KENNY: Not for me. May it please the court.
67HER HONOUR: All right. Well, thank you very much to you, Mr Kenny, in particular for your assistance for Mr Stewart's matter.
68MR KENNY: Absolutely, Your Honour.
69HER HONOUR: Yes. We will adjourn sine die.
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