Director of Public Prosecutions v Tykvart

[2021] VCC 1072

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01692

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID TYKVART

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	13 April 2021
DATE OF SENTENCE:	3 August 2021
CASE MAY BE CITED AS:	DPP v Tykvart
MEDIUM NEUTRAL CITATION:	[2021] VCC 1072

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:  Hogarth v The Queen 37 VR 658; DPP v Meyers [2014] VSCA 314

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Hurley	Office of Public Prosecutions
For the Accused	Mr T. Sullivan	Martin Irwin & Richards Lawyers Pty Ltd

HIS HONOUR:

1David Tykvart, you have pleaded guilty to one charge of aggravated burglary, for which the maximum penalty is 25 years' imprisonment, one charge of damaging property, for which the maximum penalty is 10 years' imprisonment, and one charge of causing injury intentionally, for which the maximum penalty is 10 years' imprisonment.

2You were 55 years old at the time of the offending and living in Red Cliffs, Victoria.  You and the victim, Graeme Pearce, were acquaintances and had known each other for approximately three years prior to the offending.  You had assisted the victim with a number of renovation jobs around his house.  
Mr Pearce was 77 years old at the time of the offences.

Circumstances of Offending

3The circumstances of your offending were set out in the prosecution opening, which was tendered as an exhibit on the plea.  I will summarise the facts in this matter.

4On Saturday 9 November 2019, at 3.30 pm, you were at Mr Pearce's place at Jacaranda Street, Red Cliffs, completing some work on the property.  You were drunk, so he told you you had finished for the day and should leave.

5At approximately 5.12 pm he contacted you by phone and told you not to attend his address when intoxicated.  Soon after you began sending him text messages; he did not reply.  At approximately 6.34 pm you sent a message which said, 'Call me or I'm coming over and you won't like it'.  He continued to ignore your messages.

6At approximately 8 pm Mr Pearce was watching television in his living room at the back of the house.  You arrived, walking up the driveway to the backyard.  You picked up a brick at the end of the driveway and threw it through the living room window, shattering the glass.  You threw the brick so hard it hit the wall on the opposite side of the room, damaging the wall.  Mr Pearce then heard your footsteps at the back door.  You screamed at him from outside, 'I'll fix you up old man'.  You opened the back door, which was unlocked at the time, and marched inside towards the victim, who was sitting on his couch.  You again screamed, 'I'll fix you up old man'.  He stood up as you moved towards him.  He noticed you had a can in your hand.

7You pushed him and he fell onto his back on the ground.  He landed on the smashed glass from the broken window, causing cuts and abrasions.  You then raised your leg and stomped on his chest three to four times.  You were wearing work boots.  You stepped back, allowing him to sit up for a moment.  You then pushed him back to the ground and stomped on his head, striking his left ear, causing it to bleed. You continued to scream at him during the assault.  You left soon after via the back door.

8Mr Pearce contacted his daughter, Tania, who called police at 8.20 pm.  At
8.34 pm police arrived at his address.  Mr Pearce identified you as the offender.  He provided a statement and photographs of his injuries were taken.

9The damage caused to his house included a broken timber frame window, to the value of $200 to repair, and a hole in the wall of the living room which cost $353.10 to repair.

10On Saturday 16 November 2019 the victim attended his general practitioner and received treatment for his injuries.  His injuries were superficial tenderness to the anterior chest, a superficial graze to the right elbow and tenderness to the front of the left ear.

11On Sunday 17 November 2019 you handed yourself into the Mildura Police Station, aware that police wanted to speak to you.  You were arrested and interviewed in relation to the matter.  Concerning the offences you said:

'I don't know why I was so upset…there was half a brick as I stepped onto his deck and I picked it up and threw it through his window to get his attention.  I could see he wasn't in the way of my brick.  My goodness, I didn't want to hit him.

'I proceeded to go in the back door and he was yelling at me and I just grabbed Graeme and threw him to the ground by the scruff of his shirt and stomped on him a few times and then left the premises, and I don't know why I've done this.  Graeme's done nothing but be a terrific man, a beautiful man.  He has been like a father figure to me and I'm very, very sorry for what's happened.  It's bloody terrible.

'I haven't meant to hurt Graeme – I love him like a father, I truly do.  I don't know what's happened.  I think I've had a reaction between this alcohol and the medication that I'm currently on.  I think I got angry and directed a lot of my anger at Graeme.

'Absolutely I'm totally guilty, I own up to what I done.  Graeme has done nothing wrong; he has done nothing wrong'.

12When asked about what time you started drinking that day and how much you drank, you said that you had started drinking at about 9 am and drank until 4 to 5 pm.  You said you were drinking Ouzo and coke cans - 4 per cent six packs - and you drank three to four of these packs.

13An intervention order prohibiting you from having contact with Mr Pearce was taken out as a result of this offending.  You breached that order in May 2020 and pleaded guilty to offences arising from those breaches in June.  You were placed on a Community Correction Order after a short period in custody.  You have further breaches pending, but these further breaches have not been resolved and I have therefore disregarded these pending matters.

Victim Impact

14Mr Pearce provided a victim impact statement in which he says that his life has changed since this incident.  Previously he was never worried about locking his doors, or people coming into his home, and he was a social person.  As a result of this incident, he purchased a security system and built a side gate to increase his sense of safety in his own home.  After the incident he felt unsafe at home.  He says he has become a fearful person and has always been on the lookout for you; worried you would approach him. 

15He has felt safer in recent times since you have been in custody.  The court process has been a constant reminder to him of what happened that evening.  He wants his normal life back.

16By your actions you have compromised Mr Pearce's ability to feel safe in his own home and out in the community, and this has affected the quality of his life.  The impact on him is a matter to be given significant weight in sentencing for these offences.

Gravity

17Aggravated burglary is a serious criminal offence as reflected by the maximum penalty of 25 years' imprisonment.  In the case of Hogarth v The Queen 37 VR 658 the Court of Appeal described home invasion as a 'particularly nasty form of criminal conduct'.

18In the case of DPP v Meyers [2014] VSCA 314[1] the Court of Appeal said:

'Determining the sentence to be imposed for any offence of aggravated burglary will in large part depend on a careful assessment of the (relative) seriousness of the offence.  In our view, the following considerations will ordinarily be relevant to such an assessment:

·   The offender's intent at the point of entry (whether to steal or commit assault or cause damage);

·   The mode of entry (e.g. by forcing a door or breaking a window);

·   Whether the offender was carrying a weapon;

·   Whether the offender was alone or in company;

·   The time of day at which the burglary took place;

·   What the offender knew or believed about who would be inside and/or about where the person would be; and

·   Whether the offender was someone of whom the victim was particularly frightened'.

[1]DPP v Meyers [2014] VSCA 314 at [47], [48]

19This was an aggravated burglary of a private residence of an older person occurring at about 8 pm.  There was some pre-meditation in that you sent
Mr Pearce text messages warning him you intended to return to the residence.  You were alone, rather than being part of a group, and you did not have a weapon.

20The throwing of the brick through his window as a prelude to your entry into the premises must have been extremely frightening for Mr Pearce, who was alone and vulnerable inside.  The breaking of the window is really part of the circumstances of your incursion into the house but I must be careful to avoid double punishment, given that that act is also the subject of the criminal damage charge.  Your screaming out of threats also adds to the gravity of this aggravated burglary.

21The assault you committed immediately after you entered, whilst a separate offence, informs your intent at the time of entry, which, in my opinion, was to commit a serious assault on a 77-year-old man who had earlier told you he did not want you at his residence.

22You knew when you entered that Mr Pearce was inside alone.  The assault you committed was serious because it involved stomping on the victim, including to his head, after you had forced him to the ground.  You could easily have caused more serious injuries than you did.  The physical injuries that you did inflict were comparatively minor.  The reason for your offending was that you took offence at being told to leave because you were drunk, which you were.

23I accept the prosecution's submission that this was a serious example of an aggravated burglary and that the intentional injury was also serious even though, luckily, the physical injuries were not.  General deterrence and denunciation are important sentencing principles for offending such as this.

Personal Circumstances

24Two reports were tendered on your behalf: one from psychologist
Mr Jeffrey Cummins and a neuropsychological report from
Dr Loretta Evans.  These reports set out your background and your situation at the time of the offending.

25You were born and raised in Sydney.  You have five siblings.  You attended primary and secondary schools in Parramatta until the end of Year 10, after which you went to Granville TAFE for a pre-apprenticeship in carpentry.  You then had work with AVJennings.  You describe yourself as having always been a carpenter; however, you have not worked for a number of years due to health issues of 'asthma and memory', according to what you said to Dr Evans.  You described yourself as having been damaged by society.  I do accept that for many years you did work as a carpenter and that you were working for the victim on a casual basis, performing carpentry work at his house at the time this offending took place.

26You have had several relationships and you have five children to four different women.  You do not have any contact with any of your children.  Your youngest child is now approximately six years old.  She was the child of a relationship you formed with a woman in Mildura.  That relationship broke down in 2017.  Emotionally, you then went into a downward spiral when that relationship ended, and your use of alcohol and cannabis accelerated.

27You had come to live in Mildura approximately seven to eight years before the offences in this case after moving from Taree in New South Wales.

28At the time of this offending you were living in Red Cliffs and then, when you were on bail, you lived with Ms Jan Perkins in Mildura.  Ms Perkins has provided an affidavit supporting you.  She says she met you at church in Red Cliffs a few years ago.  She describes your generosity to her.  She also captures some of the dysfunctional characteristics of your personality.  She says you have a good heart and that if you could control your drinking your positive qualities would be more conspicuous.

29You have had problems with alcohol and cannabis since your teenage years.  You have completed detoxification programs for alcohol and have participated in drug counselling.

30You have a not insignificant prior criminal history, seemingly related to your problems with drugs and alcohol, but your last prior conviction was back in 2013 for drink driving.  You have prior convictions for stalking in 2007 and 2012 and for assault in 1999 and 2007, and several prior convictions for contravening domestic violence orders.  You have other driving offences including an additional drink driving offence and drug offences relating to cannabis possession.  All of your prior convictions are from New South Wales.  You had no trouble with police from when you moved to Mildura until these offences, other than some driving matters which were pending at the time you committed these offences.

31This offending is clearly your most serious transgression of the law.  On my reading of the prior convictions, you have only previously served one short period of imprisonment, which was a long time ago now.  At the age of 57 you now face your first substantial period of imprisonment.

32Your prior convictions have some significance in the sentencing process, as you are a person with a record for violence, however you have not offended for some time and you have no prior convictions for an offence involving an actual assault since 2007, although your prior stalking conviction in 2013 is relevant.  In my opinion, your prior convictions do not substantially elevate the need for specific deterrence or assume primary importance in the assessment of your prospects of rehabilitation.

Reports

33The reports tendered on your behalf establish a likely narcissistic personality disorder and a possible borderline personality disorder.  Additionally, it is clear you have had ongoing problems with substance abuse.  The reports indicate that you are a person who is relatively isolated in the community and who has had difficulty in sustaining interpersonal relationships.  Mr Sullivan made this point in his submissions, describing you as estranged from most people in your life.

34Dr Evans described you as having 'firmly entrenched maladaptive personality features' and said that these characteristics likely 'become significantly more pronounced with alcohol intoxication'.  Your counsel, Mr Sullivan, described this diagnosis as a powerful explanatory force for your offending.

35Mr Sullivan did not submit that your mental state issues, as set out in the two reports, enliven Verdins principles.  Dr Evans said that you have a history of emotional dysregulation and aggressive reactions suggesting impaired anger management.  She said that you have an entrenched pattern of maladaptive responses to situations of distress or agitation; this suggests a propensity to act based on emotion rather than rational thought.  She did say, however, that you have the necessary cognitive skill set to learn more adaptive coping mechanisms.  Dr Evans said your mild cognitive inefficiencies are not causal or contributing to your presentation.

36As to your prospects of rehabilitation, Dr Evans said that you have the cognitive ability to benefit from formalised intervention and that abstinence from alcohol and cannabis will reduce the likelihood of recidivism considerably.  Failing this, she is of the view that you pose a moderate risk of recidivism.

Prospects of Rehabilitation

37I accept the opinion of Dr Evans regarding your prospects of rehabilitation.  If you can accept assistance designed to address your substance abuse issues, I think you are unlikely to re-offend.

38This is your first substantial sentence of imprisonment and I accept it will weigh heavily on you.  I accept this time in prison will have a substantial deterrent effect on you.  Notwithstanding your personality issues and your substance abuse problems you have not been in trouble since you moved to Mildura until this offending, which is a period of seven years.  In my opinion you have reasonably positive prospects of rehabilitation if you can address your substance abuse issues but whether you can do this is difficult to predict at your age.

Guilty Plea

39You made unusually full and frank admissions in your record of interview and you demonstrated remorse for your conduct.  The matter was ultimately booked in for a contested committal but resolved without any witnesses being
cross-examined.

40I give you credit for the utilitarian value of your plea, which has spared the witnesses - particularly the victim - the ordeal of giving evidence and saved the court the time and resources involved in a trial.  The utilitarian value of your plea is heightened in the current circumstances, where the court faces a very substantial backlog of trials resulting from the suspension of jury trials during the pandemic.  This increased utilitarian value of a guilty plea was recognised by the Court of Appeal in the recent decision of Worboyes [2021] VSCA 169, where the court said:

'Given the unhappy state of the courts' lists the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead.  Such encouragement must come from an actual and palpable amelioration of sentence'.

41I also accept your guilty plea does indicate remorse and a willingness to facilitate the course of justice.

Remorse

42The prosecution submitted that your remorse is qualified by the further offending in relation to Mr Pearce, to which you pleaded guilty.

43Further, in assessing your remorse Dr Evans said:

'Whilst he states he regrets his conduct and cites remorse it is my opinion Mr Tykvart's declarations appear more likely to be derived from an egocentric position as opposed to a genuine appreciation about the welfare/experience of others, acceptance of his actions or understanding of their impact and seriousness'.

44The prosecution also refers to the psychological report of Mr Cummins, where he says that you continue to take issue with the aggravated burglary.  As I have no understanding of what Mr Cummins is referring to when he says this, and given this is accompanied by emphatic declarations of remorse, I do not find that these passages in his report militate against a finding that you are remorseful.  There is no doubt you displayed remorse in your interview, but that seems to have been a fluctuating emotion and the depth of your remorse is complicated by your dysfunctional personality issues.

45Taking all matters into account I am satisfied you do have a level of remorse for what you did, as expressed in the interview, and I am satisfied you were sincere in what you said at that time, however I am not satisfied you have genuine insight into the gravity of the offences you committed or a true understanding of the impact of your offences on Mr Pearce.  This may well be a result of your personality characteristics.

COVID-19

46In sentencing you I have had regard to the restrictive conditions that have prevailed in the prison in response to the pandemic.  You have been in custody for these matters since November of last year.  Visits and programs have been suspended.  It can be expected that at some level restrictions are likely to remain for some time into the future.  These matters are relevant to the increased burden of your imprisonment.

Sentencing Principles

47I have already referred to the significance of general deterrence and denunciation for offences of aggravated burglary.  Such offending is all too prevalent.  Specific deterrence, just punishment and community protection are also relevant, however I must not lose sight of your rehabilitation and reintegration into the community at the end of your sentence.

48In fixing the non-parole period in this matter I have had regard to the fact that you have not been in trouble since 2013 and that this will be your first long sentence of imprisonment and the first with a parole period.  Given these matters, and my finding about your prospects of rehabilitation, I have allowed for an extended period of supervision on parole.

Concurrency and Cumulation

49The offences in this case arise from a single course of conduct.  The various offences overlap.  There is a need to avoid double punishment.

50The criminal damage was, in my opinion, part of the aggravated burglary, given how closely related it was to your entry into the residence.  The assault you committed inside the premises is relevant to the assessment of the aggravated burglary because it informs your intent at the time of entry.

51Because of the overlapping nature of these offences, substantial concurrency between the sentences for each charge is necessary.  The totality principle, which requires that I must ensure that the overall sentence is just and proportionate, also dictates that significant concurrency between the various charges is required.  Mr Tykvart, I now turn to the sentences in these matters.  Just bear with me for a moment.

Sentence

52In relation to Charge 1, of aggravated burglary, you are convicted and sentenced to three years and two months' imprisonment.

53In relation to Charge 2, of criminal damage, you are convicted and sentenced to six months' imprisonment.

54In relation to Charge 3, of intentionally causing injury, you are convicted and sentenced to 15 months' imprisonment.

55Six months of the sentence on Charge 3 is cumulative on the sentence for Charge 1, which is the base sentence.  That makes a total effective sentence of three years and eight months.

56I fix a non-parole period in this matter of 26 months.  Can I just check the
pre-sentence detention?  I've got 248 days.

57MR HURLEY:  I have that as well, Your Honour.

58MR SULLIVAN:  Yes, Your Honour.

59HIS HONOUR: Pursuant to s18 of the Sentencing Act I declare that 248 days is to be declared as already served and deducted from the sentence that I have imposed.

60Pursuant to s6AAA of the Sentencing Act I indicate that but for your plea of guilty I would have imposed a sentence of five years and four months' imprisonment with a minimum of three years and 10 months.

61I make the compensation orders sought in favour of Mr Pearce in the sum of $553.10 for the damage to his premises.  There were no other ancillary orders, were there?

62MR HURLEY:  No, Your Honour.

63HIS HONOUR:  All right.  Mr Sullivan, you got all that?

64MR SULLIVAN:  Yes, Your Honour.

65HIS HONOUR:  All right.  Those are the orders that I'll make and I now adjourn.

66MR SULLIVAN:  As it pleases, Your Honour.

67MR HURLEY:  As the court pleases.

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