Director of Public Prosecutions v Twomey
[2014] VCC 284
•13 March 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-02018
CR-13-02019
CR-13-02022
CR-13-02024
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LIAM CONNOR TWOMEY |
| DYLAN GEORGE |
| MILO ROBINSON ABEYRATNE |
| and |
| JULIAN WILLIAMS |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 March 2014 | |
DATE OF SENTENCE: | 13 March 2014 | |
CASE MAY BE CITED AS: | DPP v Twomey; George; Abeyratne & Williams | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 284 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – aggravated burglary (person present) – burglary – criminal damage – possess controlled weapon
Legislation Cited: Sentencing Act 1991; Crimes Act 1958
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Churchill | Solicitor for Office of Public Prosecution |
| For the Accused Abeyratne For the Accused George For the Accused Twomey For the Accused Williams | Mr B Johnston Mr I Hayden Mr J McQuillan Ms N Kaddeche | Balmer & Associates Jack Dalziel Greg Thomas M Turnbull |
HIS HONOUR:
1 Milo Abeyratne, Dylan George, Liam Twomey and Julian Williams, you have each pleaded guilty to one charge of aggravated burglary, the maximum penalty for which is 25 years’ imprisonment, and one charge of intentionally cause injury, the maximum penalty for which is 10 years’ imprisonment.
2 Further, Liam Twomey, you have pleaded guilty to one charge of burglary and one charge of criminal damage, the maximum penalty for each being 10 years’ imprisonment.
3 Further, Julian Williams, you have pleaded guilty to one summary charge of possessing a controlled weapon, being a knife, the maximum penalty for which is 120 penalty units or one year’s imprisonment.
Circumstances of offending
4 The facts are described in Exhibit A, the Prosecution Opening, which I adopt.
5 At approximately 4.30am on 18 February 2013, all four of you barged into a home occupied by three persons, whom you knew. You were all drunk at the time and your presence related to a dispute concerning one of the victim’s former girlfriends.
6 Despite being asked to leave, you passed through the house to the bedroom door of the victim which you, Mr Williams, attempted to open by kicking. The door was eventually opened and you entered the bedroom, swearing and calling abuse to the occupant. You again, Mr Williams, kicked a desk. You, Mr Twomey, and you, Mr George, punched the victim to the face on a number of occasions, while the others present prevented other occupants of the house from entering the bedroom. While the actual physical assaults were carried out by Twomey and George, the others were involved as part of a joint criminal enterprise. You all then ran from the house.
7 You left the victim with cuts, bruises and swelling to the facial area. He suffered pain and headaches afterwards, although provided no victim impact statement and apparently did not require medical treatment.
8 Some four days later, on 22 February 2013, you, Mr Twomey, again entered the home by smashing the front door, entered the victim’s bedroom and caused considerable damage, in particular to his computer equipment.
9 On 20 September 2013, you, Mr Williams, were arrested and, when searched, were carrying a folding knife.
10 You were all charged, and together entered pleas at the commencement of a contested committal hearing on 22 October 2013. It is accepted that your pleas were made at an early time in the proceedings.
Prior offending
11 You, Mr Twomey, have a prior conviction for theft and assault in the Children’s Court in July 2011, when you were seventeen. You were released on a good behaviour bond. You, Mr Williams, have a prior conviction for robbery and recklessly cause injury in the Children’s Court in April 2011, you were then seventeen, and placed on probation.
12 While relevant, these prior convictions are not significant as a sentencing consideration, given your age and that the dispositions were made in the Children’s Court.
Factors personal – Milo Abeyratne
13 You were just nineteen at the time of offending. You were educated at Wesley College to Year 11. According to a reference from Mr Colasurdo, your head of house, you were an honest and energetic student, and showed no signs of aggression towards others at the school. You participated in a range of sports. You were diagnosed as suffering Attention Deficit Hyperactivity Disorder and prescribed medication. You then went to Swinburne and attempted VCE. You commenced an apprenticeship and then worked in hospitality. You also worked installing kitchens. You commenced working with MGA Plumbing in February 2013, and after a break as a result of an injury, have recently returned to that company. According to a reference from Mr Mark Alexander, you are polite, respectful and hardworking, and have never been aggressive in the workplace. He hopes you will continue working in that company.
14 Various other testimonials and references filed on your behalf describe you as coming from a close and supportive family, who were present in Court at the plea hearing. You have been referred to as a talented sportsman and that the offending was out of character. You are said to be remorseful for your actions.
15 According to a report of Mr Michael Bilyk, psychologist, you have a longstanding pattern of cannabis use, and presented with moderate depression and anxiety.
16 In December 2013, you commenced work with YSAS, a youth support unit, and engaged in a program designed to reduce your cannabis use. You committed to remaining abstinent from cannabis use and consulted your general practitioner in that regard, as a result of which a mental healthcare plan was put in place.
17 Mr Stephen Riordan, a court advice officer with the Youth Justice Unit of the Department of Human Services, said that in addition to your use of cannabis, you used Xanax, valium, ecstasy and sometimes speed. You undertook detoxification at YSAS in February 2014 and have been drug free from that time. Initially, Mr Riordan said you were somewhat blasé about your offending, but over time came to understand its seriousness, and the role played by alcohol and drugs. Mr Riordan concluded that your offending was out of character and at the time you were somewhat naïve and unsophisticated. He suggested ongoing psychological counselling and continued drug abstinence.
Matters personal – Dylan George
18 You are now nineteen years of age and were eighteen at the time of offending. You left school partway through Year 12. You attended university to undertake a pre-apprenticeship in carpentry and you are now working as a refrigeration mechanic apprentice in your father’s firm. Your schooling was disrupted because of behavioural difficulties. You were also supported in Court by various members of your family. There were further difficulties in your home environment and, more recently, you have left home.
19 You commenced smoking cannabis on a regular basis and using ecstasy intermittently. You drank heavily on weekends. According to a report from Dr Kaveh Monshat, psychiatrist, you are suffering a Major Depressive Disorder likely to be linked to your significant cannabis habit. This has left you with low mood, depression and anxiety.
20 Of significance is the fact that you have been and remain an exceptionally talented hockey player. You have been involved state representative teams from an early age. According to a reference from Mr Lachlan Anderson, a senior figure in state hockey, you have performed at an elite level, including competing at the Under 18 National Hockey Championships in 2012, and receiving the Best Under 21 Player award. Both Mr Anderson and Mr Murray Robinson, a further referee, said not only were you gifted, but you had a strong sense of leadership, were punctual and had a competitive passion. For reasons which are not clear, you did not continue with hockey in 2013, and as a result, lost the regimen of that sport and slipped further into drug and alcohol abuse. I was informed by your counsel that you have resumed training for the current season with the Essendon Hockey Club, and hope to build back up to performing at an elite level. It is important for your future rehabilitation that you maintain your involvement in this sport, and pursue it to the best of your abilities. It will open up doors for you, not only in the sporting area, but in life skills and leadership areas as well.
21 I was informed by your counsel that you have significantly reduced your use of cannabis and alcohol. It goes without saying that if you are to perform at an elite sporting level and become a contributing member of society, you refrain completely from use of cannabis, and significantly restrict your alcohol intake.
Matters personal – Liam Twomey
22 You are now twenty years of age and were nineteen at the time of offending. You come from a close and supportive family and I was impressed by the evidence given in Court by your father.
23 You were diagnosed with cancer at age seven, which led to the amputation of a leg. You now use a prosthetic limb. Although the cancer is in remission, you have suffered considerably as a result, both in terms of your capacity to enjoy normal sporting and recreational activities, and body image difficulties which followed.
24 You were educated to Year 12 at Caulfield Grammar. As a result of the difficulties with your cancer, you saw a psychologist, Jason Hine, over a considerable period. His report refers to you developing a dependency on a range of substances including alcohol, cannabis, ecstasy, Xanax and ice, and that these drugs have significantly influenced your behaviour and are related to your offending. According to your father, prior to your offending you were wasting away and had lost significant weight. You were living away from the family home without supervision. He described you as “looking like a junkie”. You, like the others, were significantly affected by alcohol at the time of the offending. You were also using Xanax to the point where you have no recollection of the events of 18 and 22 February 2013. According to a report from your general practitioner, Dr Lois Parr, your involvement in the offending arose out of a desire to be “one of the mob”.
25 To your credit, in March 2013 you, of your own volition, became involved in the Tandana adolescent rehabilitation program. You were an inpatient for an initial eight-week period, in the course of which you received counselling and treatment in relation to drug and alcohol abuse and remained drug free. However, after your release, you relapsed into drug use because, according to your case manager, Ms Mel Thomson, you still had some unresolved issues concerning your relationship with your parents, and the amputation of your leg. You re-enrolled for a further twelve-week program, and according to Ms Thomson, you attended all the programmed activities and sessions and made a significant effort to deal with your drug and alcohol addiction. Your commitment to the program was said to be outstanding, and you became a mentor figure for others also engaged. You have improved your physical health, you attend a gym regularly, have put on weight and are now much more committed to your family. You remain in contact with Ms Thomson. You remain free of drugs and have obtained employment in a clothing warehouse. Initially, the employment was part-time, but you have been promoted to full-time work and it is said that you enjoy the work and feel a sense of achievement in being promoted within the company.
Matters personal – Julian Williams
26 You are now twenty years of age and were nineteen at the time of the original offending.
27 Unlike your co-offenders, you come from a fractured home where both your parents suffer a heroin addiction and were unable to look after you, your siblings and part siblings. Essentially, you were raised by your grandparents, with assistance from your older sister, Kye. Your extended family was close, and also involved in your upbringing. Your grandmother was the driving force and a stable influence upon your life. Her death some years ago significantly affected you.
28 In April 2013, your older brother, Josh, suffered a severe stroke and has been left in a semi-vegetative state. You have been involved in your brother’s care, in fact sleeping overnight in the place where he was undergoing rehabilitation.
29 Of more recent times, you have been living in unstable accommodation with your father, until his incarceration. In the future, there is the prospect of you living with your aunt, Stacey Daddo, in Queensland, or your sister, Kye. She is returning to Australia from Manila to reside permanently from August of this year. Until that time, it is proposed that you live with your grandfather.
30 After leaving school, you commenced a certificate in civil construction, but did not complete that course. You have undertaken labouring work, and were unemployed for a period. You have in the past been involved in bouts of binge drinking, and taking a significant quantity of cannabis on a daily basis.
31 Aside from the earlier episode of offending, you have a subsequent matter, heard in the Magistrates’ Court in October 2013, relating to possession of a box cutter and of the drug Xanax. You were fined without conviction. According to your counsel, the box cutter was part of work equipment.
Sentencing considerations
32 The purposes for which a court may impose a sentence are:
· Punishment – to an extent and in a manner which is just in all the circumstances;
· Deterrence, both specific and general;
· Rehabilitation;
· Denunciation and/or protection of the community.
33 In sentencing all of you, I must have regard to a range of matters, such as the seriousness of the offending, your respective culpability for it and your personal circumstances. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
34 You have all pleaded guilty and are entitled to have that fact taken into account in your favour. I accept your pleas of guilty evidence remorse. You have saved the community the cost of a trial and spared witnesses the ordeal of giving evidence.
35 While in your cases, Mr Twomey and Mr Williams, although you have a prior criminal history, those matters are of limited relevance given your convictions were recorded in the Children’s Court, and you were young at the time.
36 You are all “young offenders”, as defined by the Sentencing Act. Therefore, rehabilitation is an important sentencing factor and of more significance than general deterrence.
37 In varying ways, your offending is all related to consumption of alcohol and illicit drugs.
38 Mr Twomey, your involvement in the offending was more significant than the others, in that you were one of the persons who assaulted the victims on 18 February 2013 and then saw fit to return to the premises some days later and cause further damage. This, however, needs to be balanced against the fact that you, of your own volition, took significant steps through Tandana House to arrest your drug addiction. I was impressed by the evidence of your father and of Ms Mel Thompson, your program manager, that you understand now the seriousness of your offending, and as to the steps you have taken to become drug free.
39 There are three important aspects of your presentation, as a result of which I have concluded that your prospects for rehabilitation are strong:
· Firstly, you have successfully completed the Tandana House Treatment Program and are now drug free.
· Secondly, you have a close and supportive family, and although there have been difficulties in the past, they are prepared to provide you with accommodation and assistance.
· Thirdly, you have full-time employment and have been promoted within the company for which you work. Employment provides not only wages to fund daily living expenses, but also satisfaction and respect from the community.
40 Milo Abeyratne, I also assess your prospects of rehabilitation as strong. You have employment with MGA Plumbing, which it is important that you maintain; alternatively, undertake further studies or complete an apprenticeship. You have also taken significant steps to reduce your drug use, and have the support of Mr Stephen Riordan, a respected Youth Justice worker. You also come from a close and supportive family.
41 Dylan George, you have been blessed with sporting gifts and it is indeed disappointing to see them being wasted on a diet of alcohol and illicit drugs. Nonetheless, you have commenced playing hockey again this season and that is important for your rehabilitation. Although you were one of the principals involved in punching the victim, I accept that you have taken steps to reduce the prospect of re-offending, including cutting down on your drinking and abstaining completely from cannabis use. I assess your prospects of rehabilitation as strong.
42 Jason Williams, although you have come from a fractured family, you still have the support of your sister and aunt. They are prepared to ensure that you have safe accommodation and assist with placing your life back on the rails. I also assess your prospects of rehabilitation as strong.
43 The sentencing principle of parity requires consideration. Although your involvement in the offending was not entirely equal, and you, Mr Twomey, returned to cause further damage several days later, and you, Mr Williams, were found in possession of a dangerous knife, however, generally I regard the seriousness of your offending as not particularly different. I regard the principal offence, being the home invasion on 18 February 2013, as the most significant, and generally assess your participation in that invasion at a similar level.
44 Generally home invasions of this nature, particularly those involving violence, call for an immediate term of imprisonment. However, given your youth and your prospects of rehabilitation which I assess as good, in my view, the sentencing issues which the law prescribes can be adequately met by the imposition of a community-corrections order. To that end, I have received reports from the Community Corrections officers which have assessed you all as suitable for a Community-Corrections Order.
Sentence to be imposed
45 Bearing in mind all the matters to which I have referred, I impose the following sentence:
46 In respect of Charge 1, aggravated burglary, and Charge 2, intentionally cause injury, you Milo Abeyratne, you Julian Williams and Dylan George will each be convicted and serve a Community-Corrections Order for a period of two (2) years.
47 On those same charges and Charge 3, burglary, and Charge 4, criminal damage, you, Liam Twomey, will be convicted and serve a Community-Corrections Order for a period of two (2) years.
48 I am satisfied that all of these charges form part of a series of offences of a similar character pursuant to s40(1) of the Sentencing Act 1991.
49 On the additional Summary Charge of possessing a controlled weapon, you, Julian Williams, will be convicted and discharged.
50 The Order will be subject to the General Conditions prescribed by s45 of the Sentencing Act 1991 that during the course of the order:
(1) You must not commit any offence punishable by imprisonment.
(2) You must comply with any obligations prescribed by the Regulations.
(3) You must report to a delegate of Corrections Victoria during the period of the Order.
(4) You must report to the Community Corrections office on the dates specified in the Order.
(5) You must not leave Victoria without the permission of an appropriate officer.
(6) You must comply with any direction of an appropriate officer.
51 In addition, all of the Community-Corrections Orders will be subject to the following additional conditions:
(1) That you each undertake 200 hours of unpaid community work over the next two years, as directed by an appropriate officer (s48C).
(2) That you each undertake assessment and treatment for alcohol and drug abuse or dependency (s48D).
(3) That you remain under the supervision of an appropriate officer (s48E).
(4) That you undertaken Offending Behaviours Programs as directed (s48D).
(5) That you must not contact nor associate with any of the victims of your offending, namely Thomas Hutchinson, James Hutchinson and Sonny Moko.
(6) In your cases, Mr George and Mr Twomey, you will be required to undertake a mental health assessment and treatment as directed by an appropriate officer (s48D).
Ancillary Orders
52 I shall make the Compensation Order against you, Mr Twomey, in the amount of $174.00. I expect that amount to be paid forthwith.
53 I shall further make the Retention Order pursuant to s464ZFB of the Crimes Act 1958. I am satisfied that such an order is justified given the seriousness of the circumstances of the offending, that the making of the order is justified and that it is not opposed.
54 HIS HONOUR: Yes, thank you, have a seat. Anything further? My associate will provide you with the orders. Come forward, gentlemen, to the Bar table, your counsel will take you through the orders and have you sign them. Let me give you one final piece of advice while the paperwork is being prepared. You have been given a second chance in respect of offending which is very serious. If any of you relapse back into drug abuse, then there is every prospect you will fall into further criminal offending. If you are stupid enough to do anything like this again, then you can forget any sympathy from court. There is every prospect you will end up in gaol and I can tell you for young men like you that will be a very unfortunate experience. Do you understand all of that? Yes. If you wait, copies of those orders will be provided. Anything further?
55 MS NAPIER: No, thank you, Your Honour.
56 MR HAYDEN: No.
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