Director of Public Prosecutions v Wright (a pseudonym)

[2024] VCC 806

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIEN WRIGHT (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE MANOVA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 May 2024
DATE OF SENTENCE:	4 June 2024
CASE MAY BE CITED AS:	DPP v Wright (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 806

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Home invasion – intentionally cause injury – early plea of guilty – low to mid-range offending – limited remorse other than full and frank admissions – moral culpability reduced on account of childhood factors, drug and alcohol abuse and mental health conditions – vigilante action – good prospects of rehabilitation if drug and alcohol abuse remedied – Bugmy and Verdins principles enlivened – parity – mandatory imprisonment as no exceptions advanced – general deterrence and denunciation of paramount important – specific deterrence

Legislation Cited:      Crimes Act 1958 (Vic), s18 and s77A; Sentencing Act 1991 (Vic), s3, s5(2H), s6AAA

Cases Cited:DPP v Whiteside [2000] VSCA 142; Bugmy v The Queen [2013] HCA 37; Verdins and Buckley v The Queen [2007] VSCA 102; Wallace v The Queen [2012] VSCA 114

Sentence:                  Sentenced to four years and six months’ imprisonment with a non-parole period of two years and five months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Z Petric (Plea) Mr S Marshall (Sentence)	Office of Public Prosecutions
For the Accused	Ms J McGarvie	Stary Norton Halphen

HER HONOUR:

Introduction

1Damien Wright,[1] you have pleaded guilty to one charge of home invasion, contrary to s77A of the Crimes Act 1958 (Vic) and one charge of intentionally causing injury, contrary to s18 of the same Act. You committed these offences on 8 March 2023 in company with others. Two of them were present and participated at the time of entry into the victim’s home and have also pleaded guilty before me. Two others were also involved.

[1]A pseudonym

2The maximum penalty for home invasion is 25 years, being level 2 imprisonment.

3The maximum penalty for causing injury intentionally is 10 years, being level 5 imprisonment.

Circumstances of offending

4The circumstances of your offending are set out in the Amended Summary of Prosecution Opening for Plea dated 10 May 2024 (Crown Opening).[2] Through your counsel, you accepted the contents of that Crown Opening as an accurate summary of the events in question. I will briefly set out the pertinent facts upon which you will be sentenced.

[2]Exhibit 1

5

On 5 and 6 March 2023, your daughter contacted Anthony Rowell[3] and told him she had been raped by Ryan Stiles,[4] a young man she had met at a nightclub on

4 March 2023. Mr Rowell contacted Michael Estrada[5] and enlisted his help to deal with the alleged rapist.

[3]A pseudonym

[4]A pseudonym

[5]A pseudonym

6The agreed Crown Opening clearly outlines that your daughter had sex with the victim at his home but that it was consensual sex.

7On 7 March 2023, your daughter told you she had been raped and that her friend, Mr Rowell, had a plan. You indicated you wanted to be involved in that plan.

8On 8 March 2023, the two co-accused, Mr Rowell and Mr Estrada, attended your daughter’s home. You, your daughter and your de facto wife were present. Your daughter described being anally raped by the victim at his home. All five of you discussed what would be done to the victim as payback. You said:

“Are we going to deal with it, are we going to go round there.”[6]

[6]Exhibit 1 at paragraph [17]

9The discussion focussed on assaulting the victim and your daughter said that you were not to kill him or cut his penis off. Your daughter provided the victim’s address, a photograph and plan of his house from realestate.com. Your de facto wife drove the three of you to the address, in a suburb in Melbourne’s east, parking in a nearby lane.

10All three of you had balaclavas and one of you was in possession of an extendable baton. However, the Crown could not say which one and did not allege that this was used as part of the assaults.

11At approximately 8.30pm on 8 March 2023, you and the two co-accused exited your de facto wife’s vehicle and approached the victim’s address. You knocked on the door and when there was no answer, smashed the glass front door allowing you to enter the premises. Mr Estrada sustained a cut to his left forearm on the broken glass.

12

The victim was in the hallway when the three of you entered his home. Mr Estrada pushed the victim into the bathroom and onto the floor. You kicked the victim to the mouth and, together with Mr Estrada, both punched and kicked him.

Mr Rowell acted as lookout at the bathroom door.[7]

[7]Exhibit 1 at paragraph [24]

13During the assault, you told the victim you were looking for ‘[Ryan]’, whom you called “a fucking rapist”.[8] The victim sustained cuts to the head and upper body.

[8]Exhibit 1 at paragraph [25]

14After the assault, the victim was instructed not to call the police and you and the other two co-accused went back into the awaiting vehicle being driven by your de facto wife. She drove all of you to your daughter’s home where first aid was applied to Mr Estrada’s cut forearm, and your daughter was informed of the details of the assault.

15Members of the Lilydale Crime Scene Service attended the victim’s address and later your daughter’s home to investigate the offences and gather evidence.

16You were interviewed on 18 May 2023 and told police that the victim had raped your daughter and you went and did something about it. You also said that your daughter provided the address, a plan of the victim’s house and that your intention in attending his home was to seriously assault him. You admitted that you had discussed these plans with all co-accused. You made admissions to the offending at the victim’s home.

Victim impact

17The victim had committed no crime. He was in his home where he was entitled to feel safe.

18The Victim Impact Statement describes the fear the victim felt during the assault. These offences have had a profound impact on the life of a young man who was just starting to gain his independence from his parents. Aside from the physical injuries he sustained in the assault, there have been ongoing emotional consequences including fear, anxiety, inability to go to work or complete his apprenticeship. He is too scared to live on his own again.[9]

[9]Exhibit 2 – Victim Impact Statement of Ryan Stiles dated 3 May 2024

19I am satisfied that these offences have had an enormous impact on Mr Stiles.

Personal circumstances

20You are 44 years old. You have one adult daughter who was, according to the agreed Crown Opening, involved in the commission of these offences. You are in a de facto relationship with a woman who was also, according to the agreed Crown Opening, involved in this offending. Your counsel described the relationship with your daughter and partner as loving and supportive.

21You were born in Lilydale in Victoria. Your childhood was chaotic, unstable and damaged by family violence, and you had exposure to substance use, parental separation and physical and verbal abuse.[10] Your stepfather was an alcoholic and abused your mother. Sadly, both your mother and your stepfather physically abused you. That abuse took place when you were between the ages of 8 and 15 years. It ended when you were left home at the age of 15.

[10]Exhibit B – Psychological Report of Daniella Kocic dated 27 March 2024 at paragraph [20]

22You experienced learning difficulties and you were frequently absent from school. After being expelled from three secondary schools, you completed Year 8 and went on to a roof plumbing apprenticeship which you did not complete. You went on to do a Certificate III in Engineering and Mechanics and became a qualified fitter and turner. You have worked in a range of industries including demolitions, factories and brick paving.

23In the last 15 years, you engaged in fly-in/fly-out work in the mines. Just prior to the offences in question, you had been working in the Northern Territory on a fortnightly basis. Just after the offences, you commenced work for a trucking company as a maintenance fitter but ceased this work after six weeks due to the criminal proceedings.

24I accept your counsel’s submission that you have been a contributing member of the community and have a good work history. That has been a stabilising feature in your life.

25Sadly, your life has been affected by drug and alcohol abuse. At times, your daughter was living with her mother and due to your drug use, and on some weekends, you were unable to care for her when she was a child.[11] In the six months prior to these offences, your daughter had been living with you and your partner.

[11]Exhibit B at paragraphs [34] to [36]

26Although you have not previously been diagnosed with a mental health condition, you have had significant drug and alcohol abuse which commenced at the very young age of nine and has continued to this day. More recently, you have been drinking about a litre of spirits a day which is consistent with a very significant alcohol abuse problem. You have used all types of drugs including methylamphetamine which use lead to criminality, in order to support your habit.

27Your cardiologist has diagnosed a cardiac condition of atrial fibrillation which appears to be related to your consumption of alcohol. Although you are on no particular treatment, you have been advised to be aware of symptoms which might require medical attention.

Sentencing considerations

28It was appropriately conceded by your counsel that this offending is serious and warrants a term of imprisonment which requires both a head sentence and non-parole period. The offence of home invasion is objectively a very serious offence as shown by the maximum term of 25 years’ imprisonment.

29However, your counsel also argued there was a basis on which the court could set a longer than usual parole period to facilitate your rehabilitation with the supports associated with a grant of parole.

30The prosecutor did not make a specific response to this submission but urged on the court the importance of general deterrence for offences of this kind. That is, that an aspect of the sentence I impose on you should be aimed at deterring others who might think about engaging in this type of conduct.

The nature and gravity of the offence

31The prosecutor submitted this offending was not of the most serious kind for offences of this type.

32The offending occurred with some element of pre-planning by you. It was at night, while the victim, who was a tradesman, was getting ready for bed. You and your co-offenders had balaclavas and one of your number had a baton, although it is not alleged against you that you were aware of the baton.

33Your counsel submitted that this home invasion was reasonably serious offending but at the mid-range of seriousness. In particular, your counsel relied on the lack of weapons such as knives or guns, and that the baton had not been used in a menacing way or used to assault the victim. The actual time inside the premises was not extended. I accept those submissions.

34The charge of intentionally causing injury was constituted by punching and kicking the victim but without the use of a weapon to inflict injury. Your counsel submitted that there was no requirement for significant medical treatment and the injuries fall within the lower end of the scale of seriousness.

35The agreed Crown Opening provides that, as a result of the assaults, the victim  sustained some cuts to his head and body region. The victim was punched and kicked by you and your co-accused, intending to inflict injury for a perceived wrong. It must have been a terrifying experience for him.

36Assessing the overall gravity of the offences requires me to consider your motive.

37The prosecution submitted that this offence falls squarely within the category of vigilante offending as described by the Court of Appeal,[12] and that the vigilante motive significantly increases the gravity or seriousness of the offending

[12]DPP v Whiteside [2000] VSCA 142 at paragraphs [20] and [23] to [24]

38Your counsel submitted that you were taking the law into your own hands and such conduct must be denounced by the court. However, your counsel submitted that the offence was out of character and you had acted under impaired capacity to engage in rational decision making and to appreciate the wrongfulness of your conduct.[13]

[13]Defence Further plea submissions dated 3 June 2024

39Even accepting that it was out of character for you or that your decision making capacity may have been impaired somewhat, these offences were committed by you in order that you might punish the victim whom you believed had raped your daughter. So much is clear from the agreed Crown Opening and from the report of Ms Kocic which provides:

“... it was unlike him to act in an aggressive manner however he noted ‘I’d be a piss poor dad if I didn’t do anything about it’.”[14]

[14]Exhibit B at paragraph [65]

40As it turns out, your victim had committed no crime. He was at home and completely defenceless against three intruders. The experience of the law is that often, the victims of these types of offences are innocent of any offence whatsoever.

41There were three of you who attended to commit the assault, two others were involved in the planning and one of those was also involved in driving you to the address. Five people planned an assault on a man in the context of a rape allegation against him. The motivation to assault a supposed rapist and administer corporal punishment upon him has been considered to fall squarely within the definition of “vigilante conduct” by the Court of Appeal.[15]

[15]DPP v Whiteside [2000] VSCA 142 at paragraphs [23] to [24]

42The vigilante motive elevates the seriousness of the offending because it undermines or compromises the rule of law and the expectation of the community that if a crime has been committed, the proper processes of law should be followed. Vigilante action is considered to elevate the gravity of an offence.[16] Such conduct is a step towards a return to the law of the jungle. Those who engage in such action must expect condign punishment.

[16]Ibid

43While the actual offences of home invasion and assault are not in the most serious range, the vigilante motive does elevate their seriousness. I accept the prosecutor’s submissions that the offending falls in the mid to upper range of seriousness because of its vigilante features.

Moral culpability

44Your counsel submitted that your moral culpability was reduced because of your impaired mental functioning and major depressive disorder. Also, there were aspects of your childhood such as physical abuse and substance abuse which continue to play a role in your behaviour, which were not of your making.

45Ms Kocic relayed a history of long term alcohol abuse by you and intoxication on the night of the offences. You have shown some insight into the relationship between your offending behaviour and intoxication in your recognition of the need to address your alcohol abuse, which you believe will assist you to prevent yourself from offending.

46Ms Kocic considered that:

“At the time of offending, [your] capacity to engage in rational decision- making and appreciate the wrongfulness and consequences of your conduct were likely impaired. [Your] alcohol use would have heightened [your] risk-taking behaviour, impulsivity and behavioural disinhibition …”[17]

…

[17]Exhibit B at paragraph [125]

“[Your] major depressive disorder and history of trauma played an underlying role to [your] offending, as well as having perpetuated [your] alcohol use as a means of coping …”[18]

[18]Exhibit B at paragraph [126]

47Your counsel appropriately conceded that any damage done to your mental health and contribution to the offending by alcohol abuse is not a matter for mitigation and the court must separate out the relevant features.

48It has been a difficult exercise to disentangle these matters in your case.  You began using cannabis and alcohol before your teens. Possibly, the abuse you received at home made it more likely you would resort to self-medication with drugs and alcohol.[19]

[19]Exhibit B at paragraph [49]

49Your psychologist considered you were suffering from a depressive episode at the time of the offences, your anxiety was heightened by the financial stress of irregular employment. These matters caused a challenge to your ability to regulate your responses when your daughter told you she had been raped.

50I accept that your moral culpability is less than it would be had you not been a person whose childhood was affected by violence and substance abuse,[20] and had you not been affected by depression and anxiety.

[20]Bugmy v The Queen [2013] HCA 37 at paragraph [40]

51On the other hand, your resort to a solution of violence on the background of heavy alcohol abuse also raises the question of protection of the community and considerations of your prospects of rehabilitation. As Ms Kocic said in her report, your risk of reoffending is also perpetuated by your alcohol use, your mental health condition and the lack of routine structure in your life.[21]

[21]Exhibit B at paragraph [126]

General and specific deterrence

52These offences require weight to be given to general deterrence, denunciation and just punishment. The community and the court consider that such offending is serious. People who might think of taking the law into their own hands and committing these types of offences must understand that they will be required to serve substantial terms of imprisonment.

53Your counsel submitted your prior criminal history was relatively limited. I accept this submission.

54You have only one relevant prior conviction for recklessly causing injury in 1999. Otherwise, your prior convictions are mostly drug related. I accept that this sentencing purpose is less important than it would be otherwise.

55However, there must be some component of your sentence aimed at deterring you specifically from taking the law into your own hands again. You have expressed limited remorse and your counsel appropriately submitted this is relevant to specific deterrence, which has some role to play in the sentence I will shortly impose.

Role and parity

56The prosecutor submitted that while you were not the original instigator of the plan to commit these offences, you did participate from its early stages, once the plan became known to you.

57As father of the young woman allegedly raped, you considered you had an obligation to be involved in the offending, to demonstrate how much of a father you were. You were a keen participant in the plan hatched by the others.

58Otherwise, the three of you participated to the same extent and degree in the home invasion. You and Mr Estrada were more active participants in the assault on the victim, both of you engaging in punching and kicking him, while Mr Rowell acted as a look out.

59Mr Rowell has no prior criminal history and Mr Estrada has numerous priors for aggravated burglary and other offences, and has previously been sentenced to terms of imprisonment.

Rehabilitation prospects

60You have one prior conviction for recklessly causing injury in 1999 for which you received a $500 fine without conviction. You have also been dealt with for drug related matters, one driving matter and you have one prior for dishonesty in 1997. I accept your counsel’s submission that this offending is out of character for you.

61Given the very difficult childhood you endured, together with your drug and alcohol abuse over many years, it is remarkable that you do not have a more significant prior criminal history.

62Your counsel submitted that these offences were explained by your particular life circumstances at the time.

63In the lead up to the offences, you had been experiencing under-employment and financial difficulties and had been drinking alcohol in increasing amounts. Your motivation was to avenge what you believed had been a rape committed on your daughter. You made that unfortunate decision in the context of compromised decision making due to impaired mental functioning and you were intoxicated.[22]

[22]Exhibit B at paragraph [64]

64Ms Kocic considers you pose a low to moderate risk of reoffending. This assessment was based on your levels of alcohol consumption, association with a group of people who might commit criminal offences, untreated mental health and under-employment or financial difficulties.

65In her report, Ms Kocic refers to your recognition of the role played by alcohol in the offences and of the need to address your alcohol abuse as a way to reduce the risk of future offending.

66You have linked the offences to your alcohol consumption, which shows some degree of insight into the causes of your offending behaviour. If you are able to participate in treatment for your alcohol abuse and for your mental health condition, your prospects of rehabilitation are good.

Mandatory sentencing considerations

67Home invasion is a category 2 offence.[23] Pursuant to s5(2H) of the Sentencing Act 1991 (Vic), the court must impose a custodial order unless an exception applies. Your counsel did not submit any of the exceptions applied in your case.[24]

[23]Pursuant to s3 of the Sentencing Act 1991 (Vic); the definition of category 2 offence incudes an offence against 77A(3) of the Crimes Act 1958 (Vic), being home invasion.

[24]Exhibit A – Defence Plea Submissions dated 9 May 2024 at paragraph [23]

Current sentencing practice

68I have taken into account the current sentencing practice for these types of offences in the very helpful summary provided by your counsel. However, no two cases are exactly alike and I am sentencing you for this offending in your unique circumstances.

Factors in mitigation

Plea of guilty and remorse

69You made full and frank admissions when interviewed by police. The charges were laid by police in May 2023. You entered a plea of guilty at the earliest available opportunity, at the second committal case conference held on 2 November 2023. This is evidence of remorse and of preparedness to facilitate the course of justice. Your plea has saved the community the expense of a committal and trial, and your victim the trauma of giving evidence. You are entitled to a significant discount for your plea and cooperation.

70Aside from these matters, your counsel appropriately submitted that there have been limited expressions of remorse by you.

The role of your mental health and childhood trauma

71Your counsel submitted that factors arising from your childhood contributed to your psychiatric functioning. Ms Kocic’s report refers to both violence towards you by your parents and drug and alcohol abuse commencing at a very young age. The adverse childhood questionnaire Ms Kocic administered showed you have a level of 7/10, which Ms Kocic considered to be clinically significant.

72The effects of childhood trauma continue throughout a person’s life and create risks for mental health, relationship problems, substance abuse disorders high stress and inability to control anger.[25] It appears that to some degree you have been affected by all of these, and I take into account that this has been the result of circumstances which you did not create.[26]

[25]Bugmy v The Queen [2013] HCA 37 at paragraphs [40] to [44]

[26]Exhibit 2 at paragraphs [80] to [89]

73Ms Kocic refers to your childhood experiences contributing to your inability to regulate your emotions and make choices which are of benefit to you and your community rather than harmful to you and others around you.

74You are entitled to have these matters taken into account in your favour in mitigating your punishment. I have endeavoured to avoid double counting and have applied the factors to my consideration of what might have contributed to your offending as well as how imprisonment might affect you.

75The law says that if you have a mental health condition and there is a serious risk that imprisonment will have a significant adverse effect on that condition and if, because of a mental health condition, imprisonment will be more difficult for you, these factors can be taken into account in moderating your sentence.[27]

[27]Verdins and Buckley v The Queen [2007] VSCA 102 (limbs 5 and 6)

76Ms Kocic’s report provides that with a major depressive disorder you are at risk of significant mood fluctuations, and the volatile nature of the prison environment can further worsen your symptoms and your depression. Ms Kocic also considers that you would be at risk of experiencing distress and emotional deterioration in the prison environment because of your childhood trauma and lack of coping skills.[28]

[28]Exhibit B at paragraphs [129] to [132]

77I accept the submissions made by your counsel that prison will be more difficult for you because of your mental health conditions and that there is a risk they may deteriorate in the prison environment.

78I have moderated your sentence on account of these factors.

Sentence

79I will now announce sentence. Would you stand up please Mr Wright.

80On the charge of home invasion you will be convicted and sentenced to four years’ imprisonment.

81On the charge of intentionally cause injury you will be convicted and sentenced to one year imprisonment.

82I direct that six months of the sentence on Charge 2 be served cumulatively on the sentence on Charge 1.

83That makes a total effective sentence of four years and six months.

84I accept your counsel’s submission that you have good prospects of rehabilitation and, given the various matters in the report of Ms Kocic, are a person who would benefit from a shorter than usual non-parole period. It is in the interests of the community to encourage offenders to rehabilitate themselves and the supervision you receive on parole should help you to do that.

85Although there is no “usual non-parole period”,[29] I have in your case ordered a non-parole period which is shorter than it otherwise would have been because of your good prospects of rehabilitation.

[29]Wallace v The Queen [2012] VSCA 114

86I order that you serve a minimum of two years and five months before you are eligible for release on parole. I consider the period on parole to be a significant enough period to afford you the opportunity to address your alcohol abuse and mental health in a meaningful way. You make take a seat, Mr Wright.

87I declare that you have served 21 days’ imprisonment, and this is a period which should be reckoned to be a period of imprisonment already served by you.

88Pursuant to s6AAA of the Sentencing Act 1991 (Vic), I declare that but for your plea of guilty, I would have sentenced you to a total effective sentence of six years and six months’ imprisonment, with a non-parole period of four years and five months’ imprisonment.

89HER HONOUR: Are there any other matters?

90MR MARSHALL:  No other matters from me, Your Honour.

91MS McGARVIE:  No, Your Honour.  As Your Honour pleases.

92HER HONOUR:  Thank you.  Thank you, Mr Wright.

93OFFENDER:  Thank you, Your Honour.

94HER HONOUR:  Good luck.