Director of Public Prosecutions v Williamson

[2022] VCC 1562

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-02458

DIRECTOR OF PUBLIC PROSECUTIONS

v

LACHLAN WILLIAMSON

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2022
DATE OF SENTENCE:	14 September 2022
CASE MAY BE CITED AS:	DPP v Williamson
MEDIUM NEUTRAL CITATION:	[2022] VCC 1562

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Confrontational aggravated burglary – Guilty plea – Significant progress on supervised bail – Familial support – Good prospects for rehabilitation

Legislation Cited:     Sentencing Act 1991 (Vic)

Cases Cited: Hogarth v The Queen [2012] VSCA 302; DPP v Meyers [2014] VSCA 314

Sentence:48 days’ Imprisonment (time served) combined with a community correction order for a period of 2 years; 150 hours of unpaid community work and treatment conditions

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Tatas	Office of Public Prosecutions
For the Accused	Mr D. Carolan	James Dowsley & Associates

HER HONOUR:

1Lachlan Williamson, you have pleaded guilty to one charge of aggravated burglary.  That, as you know, is a serious offence.  One measure of seriousness is the maximum penalty declared by parliament, which is 25 years' imprisonment.  The circumstances of the offending reflect very little credit upon you.

2On 10 February 2021 you, with a terrible combination of Tequila and temazepam in your system, went to the house of a man who had previously been a good friend of yours but with whom you had fallen out.  What was in your mind is hard to know but you were armed with a large kitchen knife, and a bottle of Tequila from which you have clearly been sustaining yourself.  You were angry when you arrived at the property and demanded to be let in and to see Mr Rickard, your former friend.  He was not home. Instead, his partner, a friend of theirs, and Mr Rickard's dog were at the home.

3You demanded entry but Mr Rickard's partner, Ms Crosby, refused to let you in and told you that Mr Rickard was not home. You continued to demand to be let in, to call out his name and to shout in a loud and angry voice.  This, not surprisingly, disturbed the dog, who started to bark.  It would appear the dog's barking enraged you even further and despite Ms Crosby refusing to open the door and telling you to go away and that Mr Rickard was not home, you ultimately managed to force the door open and force your way in.  The dog was still at the door, barking, and you lunged at it with the knife that you were holding.

4Either because of terror, or a lack of fierceness the dog, far from attacking you, ran away and took refuge in a room where the occupant, Ms Crosby and Mr Rickard's friend, was able to lock the door to keep you out.

5You remained in the house for some time.  Ms Crosby was eventually able to persuade you to hand the knife over to her.  She was obviously terrified and distressed. The other occupant had already called police and Mr Rickard.

6You remained in the house until Mr Rickard returned.  He entered through the back door, so without you initially knowing, and you demanded that he go outside with you. It would appear you had some form of confrontation in mind.
Mr Rickard went outside with you and you then chased him down the street.  Police arrived and you were arrested. Your state of impairment from intoxication was such that you were unfit to be interviewed. It is those circumstances that give rise to this charge to which you have pleaded guilty.

7This is, as Ms Tatas on behalf of the prosecution correctly submits, properly classified amongst a range of aggravated burglaries as a confrontational aggravated burglary, and it is clear that Parliament has declared, and the courts have declared, that confrontational aggravated burglaries must be viewed seriously and must be punished in a way that is commensurate with the objective gravity of the offending and seen against the benchmark or the yardstick of the maximum sentence prescribed.[1] It has been many years since Parliament called for an increase in sentences for such offences as a reflection of the seriousness and prevalence of such terrible conduct.

[1]Hogarth v The Queen [2012] VSCA 302 [56]–[58].

8It is important in assessing the seriousness of this offending and its objective gravity that this charge to which you have pleaded guilty is not put on the basis that you entered as a trespasser intending to assault a person but, rather, to attack the dog.  The dog was, as I said, not surprisingly, barking in response to your angry voice, your banging on the door and your ultimately successful attempts to gain entry to the house when you were clearly not welcome.

9So the case is put on the basis that you intended to attack the dog with the knife you were carrying, particularised in legal terms as entry as a trespasser with intent to damage property, the property being the dog, and the damage being to try and stab it. In assessing the relative seriousness of the offence, therefore, I accept, as it would appear Mr Carolan did on your behalf, the characterisation of its objective seriousness as falling within the mid-range of seriousness for an aggravated burglary and I accept, as it again would appear Mr Carolan did, the matters identified by Ms Tatas as relevant to the assessment of its objective gravity.

10Ms Tatas did so by reference to the features identified by the Court of Appeal in the DPP v Meyers,[2].Those factors include, relevantly for these circumstances:

(1) your intent at the point of entry, here the intent to harm the dog;

(2) your mode of entry.  Here forced entry through the front door after you had been refused entry by the occupant, and damaging the door in the process;

(3) whether you were carrying a weapon. And here, you were carrying a large knife;

(4) whether you were in company.  Here not so.  You were alone;

(5) the time of day in which the burglary took place.  Here, 6 pm, daylight but late afternoon or evening, not late at night when people are likely to be asleep in their beds;

(6) what you knew or believed about who would be there, and here you knew from the time you arrived at the house that Ms Crosby was there.  You believed that Mr Rickard would there but you were told he was not.  It would appear you did not accept that or you were not prepared to wait in any event;

(7) whether you were someone of whom your victims were particularly frightened.  There is no evidence regarding this.

[2]DPP v Meyers [2014] VSCA 314 [48].

11In addition, Mr Tatas identified the following matters:  

(1) that you and Mr Rickard and Ms Crosby were known to each other and, indeed, you used to be best mates until your falling out;

(2) that having been denied entry a number of times you ultimately forced your way in;

(3) that you clearly made Ms Crosby frightened and caused her distress;

(4) that you were in possession of the knife;

(5) that you were so severely intoxicated that not only were you later deemed unfit to be interviewed but that clearly in itself means your judgment and your self-control was impaired. As a result, your behaviour was much less easily able to be predicted or controlled and you were less able to control yourself.  So you posed a real threat to others and a real difficulty for them in terms of seeking to manage you.

(6) And finally, evidence that even after you had achieved your end of getting in and even after Mr Richard had come home, you were not placated.  You told him you wanted to see him outside and you chased him down the street when he tried to get away from you.  So again you were pursuing and perpetuating the circumstances. 

12It is for those reasons that I accept and, sensibly, Mr Carolan did not contest, that this falls within that mid-range of seriousness.  It is clear, therefore, that subject to considerations personal to you, denunciation, deterrence and just punishment must loom large in the sentencing mix.

13You are a mature adult, now 44, 42 at the time, at an age where we expect maturity and ability to engage in consequential thinking and an ability to manage and control your behaviour. However, you are a man whose adult life has seen periods of substance abuse dominating your life and impairing your relationships with your family and your ability to maintain consistent employment, interspersed with periods of stability, when you have been abstinent or when your substance abuse has not impaired that ability to maintain proper and respectful relationships to fulfil your responsibilities and to hold down meaningful employment.

14It would appear that the end of your schooling to your late 20s, was an unstable time marked by periods of substance abuse and what might be called erratic employment. The birth of your first child when you were in your late 20s followed soon enough with the same partner by the birth of two more boys, led to a period of greater stability and acceptance of responsibility. When your youngest was only 18 months old your partner relapsed into drug use and effectively left not only the relationship with you but also your children, and so for the last 10 years or so you have been their sole parent. After, it would appear, about five years of doing it solo, you and the boys living in a family home together, you and the boys moved back in with your parents.

15During that time, it would appear you had relapsed into substance abuse again and that had had a significant impact on your ability to maintain consistent employment and a positive attitude to life and responsibility generally.  As a consequence, although you may well have still been the person who should have been primarily responsible for the children, your parents had assumed a level of responsibility for those boys to ensure that they were safe and looked after and were getting the parental care that you were not always to give and which their mother had certainly not been able to give for a long time. This offending, as I have already detailed, occurred when you were clearly substance impaired, not only by the description of the offending itself, but by the police assessment of your state and the inability for you to be interviewed.

16I am told that you had in the period leading up to the offending been abusing methamphetamine again for a considerable period and had yet again tried to stop but stop by self-medicating rather than by engaging in a combination of sensible counselling and medical practitioner supervised medication.  This dangerous mix of alcohol and temazepam (which I imagine was either non-prescribed or not used in accordance with prescription recommendations), taken ostensibly to ease your withdrawal from ice, actually placed you in a position where you were a danger to other people. Your judgment was impaired,  and the dangerousness of that combination of temazepam and alcohol is so clearly demonstrated by not just the seriousness of the offence itself, but by the description of your conduct.

17Following your arrest you spent 48 days in custody.  You were then bailed and since then you have shown a consistent turnaround.  You were assessed as being suitable for CISP support but in fact it appears you demonstrated a motivation and capacity to engage in drug rehabilitation and counselling without CISP supervision, and the support provided by your family and the relationship between you and your parents were such as you were seen to be able to be in a position where you should be able to manage that without the additional supports provided by CISP bail. Indeed, you have shown that the trust put in you to do that has been well placed.

18You have maintained your motivation to engage in drug rehabilitation.  You appear to have maintained your capacity to remain substance free, and you have regained the trust of your parents.  You have been permitted to return to live with them.  You have re-assumed parental responsibility for your sons.  Your parents, who sound like absolutely remarkable people, have not only provided you with support, love and encouragement to show you can do it, but have also set very clear boundaries.  So they do not make excuses for your bad behaviour.  They make it very clear they expect more of you, and to your credit you appear to have lived up to that.

19They provided what I thought was a very powerful testimonial.  If only more people in trouble, whether they are youthful offenders or mature adults like you, had parents who clearly could manage that boundary between loving support and not excusing bad behaviour, and therefore provide a stable framework to help somebody help themselves, we would have far fewer offenders before the courts and our rehabilitation services would not be stretched so far.  I say that not just to give credit where it is obviously due to your parents, but because part of the consequences of this is that sense of enormous responsibility I think you should feel for what your parents have done for you, the debt you owe them, and the responsibility therefore to repay it by continuing on the path of rehabilitation that you have taken.

20I am told that one of the hardest things that you had to do was to confront the fact that you had to tell your children that you were in custody and why. I am not quite sure whether they were brought to visit you in custody or it was not until you came home that you had to sit down and explain what you had done, but I accept that the shame of having to actually face it and explain to three trusting little boys that their father had fallen well short of the role model he would like to be for them, and that the knowledge that you would have to work to regain their trust of someone they could look up to and respect, and to whom you could model the behaviour you would like them to start adopting as they grow into young men themselves, were shaming but powerful motivating forces for you and has been of considerable assistance in your managing to remain relapse free, substance free and offence free in the 18 months since released on bail.  In other words you have shown a sustained capacity for rehabilitation and a motivation to maintain that.

21Perhaps the sobering effect, in every sense of the term, of that 48 days in custody has assisted as well as the personal aspect of your relationship with your parents and your boys in giving you that motivation in what I know is a difficult task every day to wake up, get up and say, I am not going to relapse into substance use today.  It is not as easy as saying, I will change, and then you change forever.  Every day is a battle and your effort in that 18 months is properly to be recognised, commended and built upon.

22What then against that personal background and the circumstances of the offence were then relied upon by Mr Carolan in support of the submission he ultimately made, which was for a combination sentence, that is a term of imprisonment followed by release on a community correction order?  Well, he identified the following matters, all of which are well based.

23Your guilty plea, which was not entered until after committal, but then entered in circumstances where the prosecution accepted that the correct characterisation of the indictable offence that you intended to commit when you entered as a trespasser was the harm to the dog, not to harm any of the people inside.  So although not at the earliest possible stage, and both Ms Crosby and Mr Rickard had to give evidence at committal, it did result in a different framing of the charge from that which had been originally framed.  That means you are entitled to the benefit of an early guilty plea, and that you are not disadvantaged by the fact that this occurred after the victims had had to be put through the ordeal of having to recount what had happened.

24The utilitarian benefit of your guilty plea comes not only because of what section 6AAA of the Sentencing Act provides, but also because it must be properly recognised in a further reduction in sentence by reason of the effect on the reduction of the backlog of the cases before this court as a result of the COVID-19 pandemic.

25I accept too in the circumstances, for the matters that I have already identified, that it is in itself an indication also of your genuine remorse and has been demonstrated by the serious and strenuous efforts you have made to turn your life around.

26The next matter was the lengthy period of stability achieved on bail, your compliance with your bail conditions and, importantly and something I have not yet mentioned, your finding and maintaining full time or permanent employment since your release. Those employment hours are not full time.  They are 9.30 until 2.30.  That is for two reasons: predominantly so that you can assume that responsibility for taking your children to school and picking them up and being home for them when they are home from school, something that otherwise would be a burden that would fall on your parents, but also because you have some physical restrictions on your capacity to work by reason of a pre-existing back injury or back degenerative complaint and arthritic condition in your hands. The fact that you are prepared to find and manage three quarter time employment so as to manage your physical condition and work with your family life and find an employer who is prepared to accommodate that, speaks well for you and your commitment. All of that shows a sustained capacity to change.

27You have limited prior convictions. One back in your youth that counts very little. One more recently, also at a time when you were abusing substances. Both, interestingly, were dealt with by way of a non-conviction outcome, which reflects the court's assessment of the objective seriousness of those offences.  So the present offending is out of character with your previous offending and although this is now your third court appearance, you are not what one would call a hardened recidivist offender. So they are limited priors and not of the same nature or gravity.  That does, to a significant extent, reduce the weight that otherwise might have to be given to specific deterrence.

28Next, relied on by Mr Carolan, was your abstinence from illicit substances and the work that you have done to address your history of substance misuse.  You have engaged in, and successfully completed, a period of drug counselling and rehabilitation and the letter from Ms Moore, the counsellor, attested powerfully to that.  When you were assessed for suitability for a community correction order, you were found not to be in need of a drug rehabilitation or alcohol rehabilitation assessment and treatment condition on your order because of your successful exit from treatment.

29Next is the needs of your three children and the parental responsibility you have and are discharging. Whilst it was not ultimately pressed that the children's needs were such that that would constitute exceptional circumstances, and it is clear that your parents still play a significant role in assisting and supporting you, you are nevertheless the primary carer and a sole parent and your responsibility to those boys over their life is something that should and does count to your credit. This, along with your renewed understanding of that and what you have to model as they grow into adulthood is a significant factor.

30Finally, the restrictions and hardships associated with custody in this COVID-19 environment. That is clearly relevant, not only to the 48 days you have already spent in custody because it was spent in COVID restrictions, but it is also relevant if I were to return you to custody, because although there is an easing of restrictions that has just been announced by Corrections, there are still restrictions and there is still the risk of COVID outbreaks in the enclosed environment of a prison. In accordance with what the Court of Appeal has directed, this clearly must be taken into account in assessing in this COVID or post-COVID time, the appropriate sentence.

31The other matter relevant to that is that you have spent 18 months since your release engaged in active rehabilitation and there is an added cruelty or unfairness in returning a person to custody when they had demonstrated significant rehabilitation to date.

32A combination of all of those matters, therefore, satisfies me that the sentencing submission made by Mr Carolan, namely that the combination sentence involve a term of imprisonment no greater than that which you have already served followed by a community correction order, is the appropriate sentence and that is what I propose to do.

33I am not going to impose conditions, as I had initially thought would be likely, for drug or alcohol rehabilitation because Corrections has indicated you do not need it, and current research shows that adding unnecessary conditions to people who are assessed as at low risk of reoffending as you are, actually increases the risk of recidivism rather than decreases it.  So the only behavioural condition that I intend to impose is one in relation to mental health assessment and treatment, consistently with the MHARS report.  That means I have reassessed how to balance the punitive needs of the overall order, and so although I had said to Mr Carolan I was considering imposing a modest level of unpaid community work, I have increased that slightly because you do not have to engage in those other rehabilitative programs.  However, so far as the mental health assessment and treatment condition is concerned I am going to direct that all successfully completed hours of mental health assessment and treatment are to be counted as hours of unpaid community work.

34Balancing the time that you have spent in custody, the need therefore to have still some punitive aspect to the CCO whilst you are in the community, and the absence of the other rehabilitative conditions, compliance with which would have worked off some of your unpaid community work hours, has led to what  I still think it is a modest level of unpaid community work. It takes into account, as best I can, your responsibility to your sons, the limited capacity you have got for physical work because of your physical restrictions, and your working hours. Both you and Corrections appear to be confident that all of that can be accommodated, and there are many non-physically arduous unpaid community work tasks that Corrections has available to it.

35So that is what I propose to do.  Could you now please stand, Mr Williamson?

36Lachlan Williamson, on the one charge of aggravated burglary to which you have pleaded guilty, you are convicted.  You are sentenced to be imprisoned for a period of 48 days and then to be released upon a community correction order for two years.  I declare that you have already spent 48 days in custody and direct that that be counted and reckoned as part of the sentence already served.  That means you will be released immediately on the community correction order.

37So the CCO lasts for two years.  It commences today, 14 September 2022, and ends on 13 September 2024.  There are mandatory terms that apply to all community correction orders and they are these:

you must not commit another offence for which you could be imprisoned during the time the order is in force.  Most offences including serious driving offences and many street offences carry terms of imprisonment.  So that means in effect you must remain offence free;

you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011. That means you must not be impaired by drugs, alcohol or any other substances, and when you attend at Correction in compliance with any conditions of your order, and you must submit to drug or alcohol testing as directed;

you must report to, and receive visits from, the Secretary or delegate;

you must report to the Sunshine Community Correctional Services Centre at the Sunshine Court Complex, 499 Ballarat Road, Sunshine, within two clear working days after the commencement of this order, and you have to work out with Corrections whether that initial attendance is to be face to face or by telephone, but the responsibility is on you to initiate that contact.  It is not for Corrections to chase you;

you must let a Community Corrections officer know within two clear working days if you change your address or your job;

you must leave Victoria without first getting permission to do so from the Secretary or delegate, and you must obey all lawful instructions from, and directions of, the Secretary or delegate.

38In addition to those core conditions that apply all CCOs, you must perform 150 hours of unpaid community work over the period of two years of the order, as directed by the regional manager. I direct that all hours of treatment and rehabilitation satisfactorily undertaken by you are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition, and if you fail to comply with this unpaid community work condition, the secretary to the Department of Justice or his delegate may give you a direction to perform additional hours of unpaid community work in accordance with s83AU of the Sentencing Act, and you must undergo any mental health assessment and treatment.  That may include psychological, neuropsychological, psychiatric treatment or treatment in a hospital or residential facility as directed by the regional manager.

39Do you understand the effect and conditions of this order, Mr Williamson?

40OFFENDER:  Yes, I do, Your Honour.

41HER HONOUR:  And do you consent to it being made?

42OFFENDER:  Yes, I do, Your Honour.

43HER HONOUR:  Very well, I will have that handed to Mr Carolan and ask him to take it down to you and have you sign it.

44MR CAROLAN:  Your Honour, might I approach the dock?

45HER HONOUR:  Of course.

46MR CAROLAN:  Thank you.

47HER HONOUR:  You have signed it.  I have counter-signed it.  A copy of that will be made when I have left the Bench and after you have received that and you will be free to go.

48I declare pursuant to section 6AAA of the Sentencing Act that but for your plea of guilty I would have sentenced you to a term of imprisonment of four years and I would have fixed a period of two years as the time you would have had to serve before being eligible for parole.  That in itself indicates, Mr Williamson, the weight that I have given to those mitigatory factors to your rehabilitation and to the effect of COVID on the impact of custody and the impact on the courts.

49Is that forfeiture order, the draft of which was provided sought, Ms Tatas?

50MS TATAS:  It is, Your Honour.

51HER HONOUR:  And I make the forfeiture order sought.  That is in respect of the knife, is it not?

52MS TATAS:  It is, Your Honour.

53HER HONOUR:  Yes, all right.  No further orders?

54MS TATAS:  No, Your Honour.

55HER HONOUR:  And orders correctly reflect what I said I intended to do?

56MS TATAS:  Yes.  Thank you, Your Honour.

57MR CAROLAN:  Yes, Your Honour.

58HER HONOUR:  Thank you.  All right, I very much hope I do not see you back before this court on a breach, Mr Williamson, and I hope that you continue that work that you have so obviously done and so well to rehabilitate yourself and that you continue to have that supportive and wonderful relationship with your parents.   They are the unsung heroes, or perhaps slightly sung heroes in this story.  Thank you.

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