Director of Public Prosecutions v Yanner

[2015] VCC 1481

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT HORSHAM
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON ANDREW YANNER

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Horsham
DATE OF HEARING:	4 November 2015
DATE OF SENTENCE:	4 November 2015
CASE MAY BE CITED AS:	DPP v Yanner
MEDIUM NEUTRAL CITATION:	[2015] VCC 1481

REASONS FOR SENTENCE
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Subject:Aggravated burglary – false imprisonment – intentionally causing injury –

threat to inflict serious injury (x2) – unlawful assault.

Sentence:Total Effective Sentence – 2 years imprisonment – 18 month Non-Parole Period     .

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Moran	Acting solicitor for Public Prosecutions
For the Accused	Mr N. Graham	Vines Lawyers

HIS HONOUR: 

1Jason Yanner, you have pleaded guilty to one count of aggravated burglary; one count of false imprisonment; one count of intentionally causing injury; two counts of making a threat to inflict serious injury; one summary count of unlawful assault; and a further summary count of committing an indictable offence on bail.  The maximum penalties are set out in the Crown opening.

Circumstances

2The circumstances of the offence were set out in the Crown opening, Exhibit A, which I also incorporate by reference. It was not the subject of any dispute by your counsel.

3

In brief outline, the two complainants in this matter were known to you,

Mr Merchant and his son, Mr Renouf, and on the day of the offending, which took place in Stawell on 9 May or early on 10 May 2015, Mr Merchant had gone from his home in Stawell to Ararat.  You happened to be in Stawell, and Mr Merchant's son was there as well, and at some stage at the night, early in the morning, Mr Renouf was at the house as well as his father, Mr Holmes, and another person, Mr Green. They had been there for a short time, because Mr Renouf wanted to speak to Mr Green, and you then proceeded to attend at the house and walk straight in without any invitation.

4That is the count of aggravated burglary.  You had no permission to go into that house.  It was agreed on the basis of the plea that you entered the house for the purpose of stealing drugs or money, or something in lieu of your son's property, which allegedly had been taken from him as security for some sort of alleged drug deal between his mother and Mr Merchant.

5When Mr Merchant was not home, you became angry and your anger was initially directed at Mr Renouf, who was a 17-year-old youth at the time.  So as you came into the property, you walked towards Mr Renouf who was on the couch, and you proceeded to ask him where his father was, and then when you were told by him that his father was away or out, you then proceeded to punch him to the left side of the jaw.  That offence was the offence of unlawful assault; an unprovoked attack on Mr Renouf.

6

You were then ranting about your son, and saying that Mr Merchant had stolen property from your son and been in dispute with your former partner

Ms Slater, the mother of the child.  Mr Renouf tried to explain to you that the property that you alleged had been destroyed or damaged, was in fact at the premises, but you would not listen to hm.

7You proceeded in telling him not to move until Mr Merchant arrived.  At that point there was a phone call to a Mr Becker who was present, and you told him not to tell the police that you were there.  And then at that point, you returned to speaking to Mr Renouf, and said that Mr Renouf had to remain there until his father arrived, or you would hurt him.

8

At that point, for some 30 minutes you were waiting for Mr Merchant to arrive, and you took possession of a baseball bat and used that to make sure that

Mr Renouf would not leave the house.  And that point he was fearing for himself and for his father upon his return.  And that half hour restraining

Mr Renouf's movement with the baseball bat was the second indictable offence of false imprisonment.

9Around five in the morning, Mr Merchant arrived back from Ararat, entered by the rear door, and as soon as he entered the house you proceeded to assault him using the metal baseball bat, with hits around the head a few times.  He was unaware of who you were for a short time, and the two of you then wrestled, and you ended up being on top of him, and you were still yelling at him about the alleged involvement of Mr Merchant in your son being taken into care by the Department.

10Mr Renouf was also involved at this point, and then you threatened to inflict serious injury on Mr Renouf unless he obeyed your orders.  You continued to hit Mr Merchant in the head and legs using the baseball bat.  So the threat to Mr Renouf was the count of threat to inflict serious injury, then you demanded Mr Merchant provide you with drugs and threatened to open up his head unless he did so, and that was Charge 5, threaten to inflict serious injury.

11He then provided you with some heroin, and then you demanded that he show you the property that you alleged had been taken from your son, and eventually he got up off the floor and went outside and showed you the property, which was undamaged.  And then after you had calmed down, you left the premises.

12And at the same time, you were demanding that Mr Renouf stand in front of his father and threatened him, "Next time it won't be your father, it'll be you", and again you threatened Mr Renouf if he called the police.  There was a further verbal tirade between you and Mr Renouf, and finally you left.

13Mr Renouf did not receive any physical injuries, but Mr Merchant attended the Stawell Medical Centre a couple of days later, where there were multiple bruises, some swelling to his cheek, but medical treatment was not required; he had been attended to by Mr Merchant's girlfriend the night before.

14The baseball bat was recovered from the scene, and I have ordered that that be forfeited.

15You were arrested two or three days later in Red Cliffs, after police attended the property in relation to unrelated family violence proceedings.  You were at the time drug-affected.  You were subsequently interviewed, and basically you denied your involvement in this offence, although you admitted that you knew Mr Merchant and made allegations against him that he had stolen something from your son.

16A couple of weeks before this, on 30 April, you had been charged with possessing and using cannabis after a warrant had been executed in Stawell, and you were released on bail.  And so, these offences occurred while you were on bail, and that relates to the summary offence of committing an indictable offence on bail.

The seriousness of the offending

17In considering the seriousness of the offending here, the first matter to note is that you were, at the time of the offending, on bail.  This is an aggravating factor.

18Next, only about three months previously, you had been released after serving a sentence for offences including threat to destroy property; unlawful assault; and committing an indictable offence whilst on bail.

19Next, on your own admission to Mr Ball forensic psychologist, you were under the influence of drugs.

20The offence of aggravated burglary, as I have said, is put on the basis that you entered the property as a trespasser with intention to steal drugs or something instead of your son's property, from the complainant Mr Merchant, and when he was present, you took out your anger on his son.  It must have been clearly obvious to you that you had no permission to enter that property, and you were intending to engage in self-help against Mr Merchant.

21Whilst aggravating features of the offence of the aggravated burglary such as being in company and possessing a weapon were not present in this case, it is proper to characterise the offending as being in the mid-range of seriousness for the very serious offence of aggravated burglary, which carries a maximum penalty of 25 years' imprisonment.

22Next, when you were in the premises, without any provocation whatsoever, you proceeded to assault Mr Renouf, a youth of 17.  Whilst he did not sustain any injury, he received a punch to the cheek unprovoked, which is the offence of unlawful assault.  For a short time, you proceeded to restrain his liberty by forcing him to remain there until his father arrived, and all the while you were in possession of a metal baseball bat to enforce your restraint upon him.

23Next, when Mr Merchant did arrive, you proceeded again in an unprovoked manner to attack him with the baseball bat.  Whilst his injuries did not require any medical treatment, they did involve scratches and bruises to the head and legs.  There was thus a degree of seriousness associated with striking him to the head with a metal object.

24

You then proceeded to threaten both Mr Merchant and his son, and then demanded from Mr Merchant that he provide you with drugs.  The use of a metal baseball bat is evidence of significant intent in relation to the injury to

Mr Merchant, even if a significant injury did not ensue.

25Looking at your offending overall, there is a degree of seriousness associated with it, particularly given the fact that you were drug-affected; the fact that it took place in a house at night; the fact that you were on bail at the time; and given your prior record.

Victim impact

26An additional matter going to the seriousness of the offending here, as far as the complainant Mr Merchant is concerned, is the impact on him.  He has filed a victim impact statement indicating that he now feels very stressed.  He is having difficulty sleeping, and does not feel secure in his own home.  He feels unable to protect himself.  He feels he is having mood changes, and believes it has affected his ability to obtain fulltime employment.  He is now very nervous of anything going on outside his house.

27

Although Mr Renouf has not filed a victim impact statement, I accept the submission of the prosecutor that he would have been shaken up by these events.  All these matters go to the seriousness of your offending against

Mr Merchant and Mr Renouf, and particularly the fact that Mr Merchant is suffering from continuing psychological effects of this offending.

Prior convictions

28As I have indicated, you have a significant criminal record.  You are now aged 45, and your criminal record commenced in 1987, when you were dealt with for a count of manslaughter and placed on probation for three years.  You breached that sentence and were resentenced to two years and six months in a youth training centre.  On the day of your conviction for that offence, you were also sentenced to 12 months at a youth training centre for intentionally causing injury.

29In the period since 1988 when you were aged 18, to date you have numerous court appearances in Magistrates' Courts for assault; breaching intervention orders, intentionally or recklessly causing injury; public order offences; driving offences; and possession and use of drugs.  You have been sentenced to periods of imprisonment, as well as to community-based dispositions and intensive Corrections orders, and you have breached a number of those orders.

30In this Court on 7 December 2004 on counts of trafficking a drug of dependence; negligently causing serious injury; unlawful assault; and possessing a drug of dependence, you were sentenced to a total effective term of 12 months with a non-parole period of six months.

31In Horsham Magistrates' Court on 2 February 2005, you were sentenced to 70 days' imprisonment for criminal damage and unlawful assault.

32On 30 June 2009, you were sentenced to one months' imprisonment for unlawful assault.

33I will not repeat all your other criminal appearances, but on 6 June 2013 on offences of contravening a family violence order; and an aggravated assault on a female, you were sentenced to 27 days' imprisonment.

34And on 24 June 2013, you were sentenced on one count of making a threat to kill and one count of unlawful assault, to a community-based order.  You breached that order, and on resentencing were resentenced to four months' imprisonment on 24 August 2013.  You were dealt with for driving offences on the same date.

35On 26 June 2013, on a count of contravening a family violence order and one count of recklessly causing injury, you were sentenced to 12 months' imprisonment.

36As I have indicated, on 29 October 2014, on counts of using OxyContin; theft; threat to destroy property; unlawful assault; and committing an indictable offence on bail; and possessing OxyContin, you were sentenced to an aggregate sentence of four months.

37In conclusion, your criminal record as I have indicated contains a number of offences of violence, theft, and contravening orders.  Those matters go to heighten your moral culpability for these offences, and make considerations of specific deterrence and protection of the community salient.

Personal circumstances

38Your personal circumstances were set out on the plea, and are substantially incorporated in a report from Mr David Ball, which I incorporate by reference.

39I have noted that you are aged 45, and according to Mr Ball you are one of seven siblings from a grossly dysfunctional family of origin.  You were the subject of violence at the hands of your father, and then at the hands of your siblings.  You only achieved year eight at school, and it does not appear you have a substantial record of employment.

40I do note, and have taken into account, a number of vocational certificates that you have tendered in undertaking courses, and that your current aim is to establish your own business upon release.

41You have been in two significant long-term relationships, and from the second of those relationships you now have a child who is aged nearly three.  According to Mr Ball, you described that relationship as toxic, as the partner was addicted to substances, and that gave rise to the dispute which led you to commit this aggravated burglary, to retrieve some property allegedly held by Mr Merchant.  The relationship with the partner has now ceased.

42You have a significant drug and alcohol history, and this includes use of cannabis and other drugs including heroin and amphetamines, as well as morphine and the use of ice.  According to Mr Ball, you understand the impact of the use of drugs on your behaviour and on your life, and you are now determined to lead a drug free life.  You have been drug free since you went into custody.

43Part of the explanation for the offending was that you were seeking to recover from Mr Merchant a medical device that was necessary for your nearly three-year-old son's health.  On the plea your counsel Mr Graham put that you regard your son, as the most important person in your life, and you wish to become more involved in his upbringing upon your release, as you regard his mother as unsuitable.  While this may overall explain your offending, it cannot in any way provide an excuse.

Other matters

44In a comprehensive report, Mr Ball has indicated that he finds that you are suffering from several stimulant abuse disorders in early remission.  He notes that you explained your drug-dependence as self-medicating your long-term depression, anxiety, and unresolved grief.  You have been prescribed an antidepressant for the last seven years.

45In addition to the disorders identified by Mr Ball, he found you would qualify as having antisocial personality disorder.  It is his opinion that you are such that:

"Mr Yanner's personality disorder is a raft of antisocial, impulsive and self-defeating personality features that clearly compound and aggravate his depression and anxiety.  He tends to be moody and taciturn, with rapid changes to his feeling and behaviour.  He is easily upset and has a low tolerance for frustration."

46Mr Ball goes on that:

"Mr Yanner's drug-dependence comorbid with the pervasive deficits in his personality were operating at the time of his offences and underpinned his behaviour.  In the absence of appropriate management and treatment his condition is likely to persist into the future."

47Your counsel did not invoke Verdin's considerations to reduce your moral culpability, and I would not accept that they did in any event.  This is because you were the subject of drug influence at the time.

48On the plea, your counsel emphasised the need for a disposition that will focus on your rehabilitation.  In particular, he referred to the conclusions of Mr Ball that you required treatment and support within the community, and also to address your offending behaviour in relation to drug relapse prevention; your PTSD; and deficits in your personality and with mood management.

49Mr Ball noted that there may be difficulties with your compliance and attendance for supervision, treatment and support in the community.  Having regard to the submissions of your counsel and the material of Mr Ball's report, I regard your prospects of rehabilitation as guarded.

50In reaching this conclusion, it is clear that you have significant personality difficulties of long standing.  At the same time, you have not been the subject of a significant sentence of imprisonment, although you have served a number of sentences of imprisonment, and then reoffended upon release.  You clearly require significant support upon release in order to address the issues of drug dependence; antisocial personality disorder; and Post-Traumatic Stress Disorder.

51It was the submission of Mr Graham that you are now drug free, and have used this opportunity to reflect on your life, and are determined to lead a drug-free life in the community.  Ultimately, it will be a matter of time to see whether you are able to achieve this end.

Sentencing submissions

52Mr Graham submitted that an appropriate disposition would be a community corrections order.  I have carefully considered his submission, but I do not accept it, given the seriousness of the offending here, and the need for protection of the community, given your prior criminal history.

53Mr Graham made a further submission in relation to your pre-sentence detention.  You have been in custody since you were arrested in May.  For a period of six weeks in that time, you were on suicide watch in solitary confinement.  In addition to that, since the events in the MRC in June, you have effectively been in lockdown for periods of up to 23 hours a day.

54It is appropriate to consider the conditions of your custody on remand for two different periods.  First, I do take into account the period that you have been in confinement upon suicide watch before those disturbances.  This is a matter that I take into account, and must be related to your mental condition and thus made your remand more onerous than a normal, able-bodied remandee.

55The prosecutor submitted that I should not take this into account, but I do not accept that submission for reasons that were discussed in the course of the plea.  I regard it as an analogous to conditions under which a sentenced prisoner may be required to undertake, and thus is a matter where the period in remand has been more burdensome than for a normal, able-bodied remandee.

56In relation to the period following the disturbances, I was referred to a number of cases where how to deal with those matters is the subject of conflicting authority of other judges.  As the circumstances of the lockdown were at the instigation of the authorities, I regard it as appropriate not to take the matter into account, and note that there are administrative remedies available to you in relation to that.

57In sentencing you overall, I am, however, taking into account the various psychological conditions identified by Mr Ball, including the fact that you have depression, PTSD and substance dependence disorders.  And those matters will make imprisonment more burdensome for you, and I do take them into account.

58I have taken into account the other matters put on your behalf by Mr Graham in mitigation.  First, you have pleaded guilty and it was an early plea.  You get credit for that.  You have facilitated the course of justice; and obviated the need for a committal and a trial.  The plea is also evidence of your remorse, and you are to be given credit for that, and I take it into account.

Purposes of sentencing

59The basic purposes for which a court may impose a sentence are punishment; deterrence both specific and general; rehabilitation; denunciation; and protection of the community.  In sentencing, I must have regard to a range of factors such as the seriousness of the offences; your culpability for them; your personal circumstances; and those of the victim, if any.  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.

60In sentencing you here, considerations of general deterrence and specific deterrence are salient.  The Court of Appeal has on a number of occasions emphasised the maximum penalty for the offence of aggravated burglary, and the need to deter persons from invading other people's houses in order to address personal grievances.

61Next, in your case specific deterrence remains an important consideration, given your prior convictions for violence and your underlying antisocial personality disorder and substance dependence, which have been manifested in a number of prior convictions.  Protection of the community is also important, given that these offences occurred while you were on bail, and having regard to your prior criminal history.

62Notwithstanding all those matters, rehabilitation is always a consideration.  This is the most significant sentence that has been imposed upon you, and at your age must have a salutary effect on you.  In some ways, you can be seen as at a fork in the road, where given you are now aged 45, you must be getting to a situation where, with an enforced period of being drug free, at the end of that period upon release, you may have seen the errors of your ways and seek to go drug free for the rest of your life.

63So, given I regard to your rehabilitation prospects as guarded, but I have sought to reduce the sentences to the minimum possible, to give you some hope in the future that you can in fact lead a law-abiding life upon release.  Could you please stand.

Sentence

64Weighing all the competing considerations, I sentence you as follows.  On the charge of aggravated burglary, you are sentenced to two years' imprisonment.  That is the base sentence.

65On the charge of false imprisonment, you are sentenced to nine months' imprisonment.

66On the charge of intentionally causing injury to Mr Merchant, you are sentenced to nine months' imprisonment.

67On the charge of making a threat to seriously injure Mr Renouf, you are sentenced to six months' imprisonment.

68On the charge of making a threat to seriously injure Mr Merchant, you are sentenced to six months' imprisonment.

69On the charge of unlawful assault on Mr Renouf, you are sentenced to one month's imprisonment.

70On the charge of committing an indictable offence on bail, you are sentenced to one month's imprisonment.

71I direct that two months of the sentence of Charge 2, false imprisonment, be served cumulatively on the base sentence.

72I further direct that three months of the sentence of intentionally cause injury on Mr Merchant be served cumulatively on the base sentence, and on the sentence on Charge 2. 

73I direct that two months of the sentence of making a threat to Mr Renouf be served cumulatively on the base sentence, and on the other two sentences that I have just mentioned. 

74I direct that two months of the sentence of making a threat to Mr Merchant be served cumulatively on the base sentence, and on the other sentence that I have cumulated.

75I direct that the other sentences be served concurrently.  This makes a total effective sentence of two years and nine months, and I order that you be eligible for parole after serving a minimum term of 18 months' imprisonment.

76I declare 174 days' presentence detention, excluding today, and I declare that had you not pleaded guilty, I would have imposed a total effective sentence of four years' imprisonment, with a non-parole period of three years.

77I have made the forfeiture order for the baseball bat as requested.  Are there any other matters, Madam Prosecutor?

78MS MORAN:  No, thank you, Your Honour.

79HIS HONOUR:  Mr Graham?

80MR GRAHAM:  No, Your Honour.

81HIS HONOUR:  I want to thank you for your assistance, Mr Graham, and the learned prosecutor.  And adjourn until 10 am tomorrow.

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