Director of Public Prosecutions v Street

[2019] VCC 1446

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-00627

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW STREET

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August 2019
DATE OF SENTENCE:	3 September 2019
CASE MAY BE CITED AS:	DPP v STREET
MEDIUM NEUTRAL CITATION:	[2019] VCC 1446

REASONS FOR SENTENCE

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Subject: home invasion and intentionally cause injury

Catchwords: guilty plea – low to mid range offending – remorse – moral culpability reduced by deprived background and intellectual impairment – good prospects of rehabilitation 

Legislation Cited:

Cases Cited: Bugmy v The Queen (2013) 249 CLR 571, Hogarth v R (2013) 37 VR 658, DPP v Meyers (2014) 44 VR 486, and Masland v The Queen [2018] VSCA 90

Sentence: total effective sentence 3 years and 3 months imprisonment with a minimum non-parole of 2 years and 3 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon	Office of Public Prosecutions
For the Offender	Ms C. Hollingworth	Leanne Warren & Associates

HIS HONOUR:

1Matthew Street, you have pleaded guilty to one charge of home invasion and two charges of intentionally causing injury.  You have also pleaded guilty to a summary charge of unlawful assault.  At the end of June 2018, your then girlfriend, Carly Gates and you met another couple, Corry Bandile and
Steven Andrews.

2On 11 July 2018, the four of you caught a bus from Traralgon to Moe to buy some cannabis.  You became upset when Bandile and Andrews were arguing loudly.  You asked Bandile to stop carrying on and called him a poofter and a faggot.  At Moe, you found some cannabis and you all went to a park and smoked it.  You became agitated when Bandile suggested Gates was pregnant to Andrews.  You told Bandile to fuck off and you chased him.  He ran off and caught a train home to Traralgon.  Andrews, Gates and you caught the bus back to Traralgon.  You were going on about Bandile's comment.  Andrews asked you to leave it alone and you said you would.  During the evening, Gates exchanged text messages with Bandile.  In one of them she wrote 'Matt', referring to you, 'Is not happy with the way you are speaking to me'.  Later, around 8 pm, you went to the flat Andrews and Bandile shared.  You knocked on the door and angrily told Bandile you wanted to talk to him.

3When Bandile opened the door, you told him you were going to punch his head in.  You went inside and punched him twice to the left side of his jaw and twice to the right side of his jaw.  This conduct constitutes the summary offence of unlawful assault.  Bandile ran outside and yelled for help.  Neighbours came out and told you to leave Bandile alone and you left.

4After the assault, Andrews and Gates returned to the flat.  Gates started attacking Bandile.  Andrews split them apart and pushed Gates out of the front door.  She suffered an injury to her mouth during the altercation.  She phoned you and told you she had been bashed.  Neighbours called the police to Andrews' and Bandile's flat.  Police were there when you arrived.  You told them you were going to punch Andrews and Bandile's heads in and said to the police, 'Please arrest me now'.

5When you were advised not to do that, you said you would sort it out yourself and when an ambulance arrived, you went with Gates to the Latrobe Regional Hospital, where she was assessed for her injuries.  Into the night and early next morning, you exchanged text messages with Andrews and Bandile.  You threatened to return to hurt them because your girlfriend had been bashed.  Later on the morning of 12 July 2018, Gates was discharged and you left the hospital with her.  During the afternoon, you sent Andrews more threatening messages.  Around 7 pm, you went to their flat with an unknown co-offender and forced entry by kicking down the front door.  When you entered, Andrews was standing in the hallway.  You were holding a metal golf club.  He ran to his bedroom and you followed with the co-offender and that conduct constitutes the charge of home invasion.

6The two of you assaulted Andrews and Bandile who was also in the bedroom.  Andrews dropped to the floor.  He felt someone kicking and punching him and hitting him with the golf club to his right thigh and left knee.  He suffered a hematoma, swelling and bruising to his right thigh, a swollen left knee and a hematoma to his right buttock.  That conduct constitutes the charge of intentionally cause injury to Andrews.

7Bandile tried jumping towards the golf club and wrestled with you.  He received several hits to his neck, knees and back before getting the golf club.  When he fought back, you, with the co-offender, fled, leaving the golf club behind.  Bandile suffered soreness and bruising to his neck, swelling and bruising to his right knee and a wound to his left leg.  That conduct constitutes the charge of intentionally cause injury to Bandile.

8Police were called.  They found the golf club outside the flat.  Subsequent DNA testing produced a match between a profile taken from the golf club and your DNA profile. Ambulances took Andrews and Bandile to hospital for assessment.  At his request, Mr Bandile's victim impact statement, Exhibit C, was read to the court.  Mr Andrews' victim impact statement, Exhibit B, at his election was not.  I have read both victim impact statements myself.  While the hospital records suggest their physical injuries were not serious, Mr Andrews did not want to go to hospital and did not require treatment and Mr Bandile, after being given a painkiller, refused assessment.  When he said he just wanted to go home, was given a prescription for further painkillers and discharged.

9It is plain from their statements that both men have been significantly harmed psychologically by your invasion of their home.  At the time you offended, you were subject to a community corrections order made at the Latrobe Valley Magistrates' Court on 5 September 2017.  On 13 July, the day after you invaded Andrews' and Bandile's home, you went to the Traralgon police station in relation to that community corrections order.  While you were making your enquiry, police arrested you in relation to this offending.

10When police interviewed you, you said Gates had met Andrews and Bandile about two weeks earlier.  You described one as black head Steven, that is Andrews.  And the other as blonde, Corry, that is Bandile.  You said they were constantly asking Gates for drugs and on 11 July, they wanted to score some dope.  You said on the bus ride the two of them were arguing and were annoying you.  You said one was on ice and the other said he needed mood stabilisers.  At Traralgon, after an argument, you chased the blonde man Bandile off.  You said Andrews went with Gates, and you back to your place, where you smoked bongs.  Andrews decided to go home to get some clothes and then return to stay with you because he was scared of Bandile.

11You said Gates went with him and when she had not returned after a time, you phoned her.  You said she was hysterical and said she had been punched.  You went to Bandile's and Andrews' flat.  You told police you had punched a man and when the police officer told you to go to the hospital with Gates, you did.  When you were asked about your movements on the Wednesday and Thursday, that is 11 and 12 July, you said you were at home and probably asleep with Gates.  You denied assaulting anyone.

12You were remanded in custody where you have remained since.  This offending breached the conditions of your community corrections order and you were required to serve four months imprisonment as punishment.  You pleaded guilty on the day of the committal hearing before any witnesses were called.  You have admitted a criminal record.  You have a history of sustained and persistent commission of summary offences for predominantly driving, drug and dishonesty offending from 2003 until 2017, with a gap between 2005 and 2010.  You have relevant convictions for summary violent offending for which you have served short terms of imprisonment.  On 4 March 2010 at Wangaratta Magistrates' Court, you were convicted of contravening a family violence intervention order and with driving offending, you were sentenced to four months imprisonment, to be served by way of an intensive corrections order.

13Your counsel, Ms Hollingworth, told me the IVO breach arose out of a verbal argument with your then partner.  On 30 August 2011, at Latrobe Valley Magistrates' Court, you were convicted of threatening to inflict serious injury and contravening a stalking intervention order and sentenced to fourteen days imprisonment.  Ms Hollingworth told me you had threatened your then girlfriend's ex-boyfriend who was harassing her and on 22 March 2016, at Latrobe Valley Magistrates' Court, you were convicted of unlawful assault and with dishonesty and driving offending, you were sentenced to an aggregate term of 90 days imprisonment.  Ms Hollingworth told me you had sent threatening text messages to a man over a debt and when you got into a fight with him, you punched him.

14I turn now to your personal circumstances, which was set out in the defence outline of submissions, Exhibit 1 and the neuropsychological report of Jane Lofthouse dated 27 May 2019, Exhibit 2.  You were born at Warrigal on 26 January 1976 and are now aged 43 years.  You are one of six children.  Your father was a violent alcoholic, who physically abused your mother, sometimes in front of you and your siblings.  You struggled at school and attended remedial classes.

15When you were 11, your father suddenly gave up alcohol and stopped the violence.  Over the next three years, you developed a good relationship with him, but he died when you were 14.  Your mother did not cope with his death and abused alcohol herself.  You found her at home in the bathtub, bloodied from slashing her wrists.  After that, she curbed her drinking and got better.  You left home during Year 9 and went to live with your oldest sister Sue, who with one of your nieces, supported you in court.  You got labouring and other low skilled work, but started using drugs and your employment became sporadic.

16Ms Lofthouse considered there are several traumatic incidents which may have caused you an acquired brain injury.  When you were seven you were hit by a car, lost consciousness and woke up in hospital.  You had lacerations to the back of your head and grazes to your face.  In your late teens, when you crashed a car, you lost consciousness again and suffered a head wound which was treated at hospital.   In your early twenties, when you were a passenger in a car involved in a high speed motor vehicle accident, you lost consciousness, but did not suffer any serious physical injuries.  In your early adolescence, when you accidentally overdosed on heroin, you lost consciousness for a period.  You did not receive any medical treatment for this episode.  You were also involved in two significant assaults in your early twenties when you were knocked out on one occasion and then another fight, had your nose broken.

17Prior to your incarceration in July, you had been a cannabis user for nearly thirty years.  You started using methamphetamine about five to six years ago when you moved to the Latrobe Valley.  In the context of cannabis and ice abuse, you attacked Mr Andrews and Mr Bandile.  Psychological testing showed you fall into the average low range of intelligence and verbal comprehension.  Your reading and arithmetic were both below average and your information processing speed was within the extremely low range.  You told Ms Lofthouse you had suffered from depression and anxiety, as a result of your father's violence and then his death, since your adolescence.  In Ms Lofthouse's opinion, you demonstrated mild intellectual impairment, which may be attributable to you having an acquired brain injury and also your abuse of drugs.  She wrote, 'When you use drugs, you are likely to act impulsively and make poorly considered responses as you did on 11 and 12 July last year'. 

18Ms Lofthouse was asked to consider whether any of the six Verdins principles are engaged in your case.  She considered each of them and in her opinion, they are not.  Nevertheless, in my view, the Bugmy principles are applicable in your case, such that your upbringing in an alcoholic and violent home mitigates your sentence because your moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.  I shall give full weight to your disadvantaged background.

19Ms Hollingworth told me you are the father of four children and a grandfather of two.  You entered into a relationship with a woman named Danielle in the mid-90s.  You were with her for eight years and you have two children with her, Bianca who is around 24 years old and Aaron who is around 21.  Sadly, one year to the day before Aaron's birth, Danielle gave birth to a stillborn child.  I was told your daughter Bianca wanted to support you at court, but could not because of work and study commitments.  She has said that the death of your second child had effected you profoundly.

20In 2004, after your relationship with Danielle broke down, you moved to Wangaratta.  There you met Pamela and have two children with her,  Nicole aged 11 and Brad aged nine.  Your time with her was quite stable, as the five year gap between 2005 and 2010, in your criminal record shows.  You maintain a very good relationship with Pamela and she intends on your release from prison, that you will live with her father at his Wangaratta home, which is near to hers.

21You met Carly Gates in the Latrobe Valley and were with her for four years.  She introduced you to Andrews and Bandile.  Your relationship with her was fraught by your mutual drug use and ended when you were incarcerated.  You have been detained at Hopkins Correctional Centre since your arrest.  There, you are working as a welder and have nearly completed a welding and engineering course.  You enjoy the work and hope to obtain employment in that field when you have completed your prison term.

22Ms Hollingworth told me you have had no management issues in gaol.  She also told me you are on a waiting list to undertake drug and alcohol and anger management programs when you are sentenced.  In prison, you are prescribed methadone for your drug addiction, Avanza for your depression and, as needed Panadol for swelling of your legs which you believe is DVT related.  Distance has prevented family members from visiting you, but have regular phone contact with them.  I have read your letter of apology to Mr Andrews and
Mr Bandile, Exhibit 3.  I accept it is sincere.  In mitigation of penalty,
Ms Hollingworth relied on the following factors.  Your plea of guilty, your remorse, your lack of a significant history of violence, your good prospects of rehabilitation, your abusive upbringing and your intellectual impairment.  I take all these factors into account to moderate the sentence I would otherwise have imposed.

23Ms Guesdon, who appeared for the prosecution acknowledged your plea of guilty was made at a relatively early stage, albeit shortly after DNA testing implicated you in the commission of the home invasion and intentionally cause injury charges, and your apology shows some remorse, though qualified by your denial of any involvement to police and reluctance to identify your co-offender.  She submitted, while you have a limited record for violent offending, your prospects of rehabilitation must be guarded, taking into account your failure to comply with previous intensive corrections and community corrections orders and your reoffending, despite serving previous terms of imprisonment.  She accepted your moral culpability is reduced by your deprived background and intellectual impairment.

24She also submitted your offending was objectively serious taking into account your uncontrolled anger motivated you to avenge the injury to your girlfriend.  There was some planning to your vengeance.  You brought the co-offender for back up and you armed yourself with a weapon and you had assaulted Bandile the day before and made further threats to both Andrews and him, before you went back to the flat.  As well, she submitted, it is an aggravating feature that you were subject to a community corrections order at the time of your offending.

25I accept the force of her submissions and have also taken them into account to determine just punishment in your case.  Both counsel accepted only a term of imprisonment is appropriate.  In summary, your offending is objectively serious.  Although taking into account your misguided motive, albeit a totally unjustified attempt to avenge your girlfriend's injury, and the relatively less serious violence of your offending, I find it falls into the mid to lower end range of home invasion offences.  Although there is some differences between the two offences, home invasion has similarities to aggravated burglary and I have had regard to Court of Appeal guidance in cases including Hogarth (2013) 37 VR 658. Meyers (2014) 44 VR 486 and more recently, Masland [2018] VSCA 90.

26General deterrence and just punishment are important sentencing considerations.  I must also consider your rehabilitation.  In that regard, I must take into account that you have not taken advantage of a number of opportunities to rehabilitate yourself in the community and your previous sentences of imprisonment, have been insufficient to deter you from reoffending.  These are all matters relevant, not only to your rehabilitation, but also to specific deterrence and protection of the community.  Nevertheless, you have shown, when your life was stable as it was for a number of years when you lived in Wangaratta, you can lead a law abiding life and I have some cautious optimism that you can do so again, when you return to Wangaratta after you have served the sentence I will impose. 

27Because you are to be sentenced to terms of imprisonment for a number of offences which occurred on different days, I must have regard to the principle of totality.  It requires for me to ensure that the total effective sentence is just and appropriate having regard to the totality of your criminal behaviour.  I have made orders for cumulation and concurrency to structure a sentence which ensures all sentencing objectives will be sufficiently achieved.

28By the sentence I impose, I must denounce your conduct.  I must punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation.  Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedence, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows.  Please stand Mr Street.

29On Charge 1, home invasion, you are convicted and sentenced to two years and nine months imprisonment. 

30On Charge 2, intentionally cause injury to Steven Andrews, you are convicted and sentenced to six months imprisonment and I order that two months of that sentence be served cumulatively on the sentence I have imposed on Charge 1. 

31On Charge 3, intentionally cause injury to Corry Bandile, you are convicted and sentenced to eight months imprisonment and I order that three months of that sentence be served cumulatively on the sentences I have imposed on Charges 1 and 2.  And on the charge of unlawful assault of Corry Bandile, you are convicted and sentenced to two months imprisonment and I order that one month of that sentence, be served cumulatively on the other three sentences I have imposed.

32Mr Street, your total effective sentence is three years and three months imprisonment. And I declare that you must serve two years and three months of that sentence before being eligible for parole. I declare you have already served 295 days of your sentence by way of pre-sentence detention. Under s.6AAA of the Sentencing Act, I declare, but for your plea of guilty, I would have imposed a total effective sentence of four years and three months imprisonment, with a minimum non-parole period of three years and three months.  You may have a seat. 

33By consent, I make an order under s.78(1) of the Confiscation Act for the disposal of the golf club and also by consent, under s.86 of the Sentencing Act, I order you pay compensation of $308.02 to Wilson Property at Traralgon. 

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