Director of Public Prosecutions v Yarde
[2013] VCC 1308
•8 August 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00256
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL YARDE |
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JUDGE: | Her Honour Judge Patrick | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 8 August 2013 | |
CASE MAY BE CITED AS: | DPP v Yarde | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1308 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P N Rose SC | |
| For the Accused | Ms P Murphy |
HER HONOUR:
1 Daniel Raymond Yarde, you have pleaded guilty to two charges of reckless conduct endangering a person, which are Charges 1 and 2. The maximum penalty for that offence is five years imprisonment.
2 You have pleaded guilty to an additional charge of negligently causing serious injury. That is Charge 3 and the maximum penalty in relation to that charge is ten years imprisonment.
3
In brief, the circumstances of your offending are as follows: Between
19 August 2011 and 17 September 2011, you were living with your then girlfriend and your newborn baby son. You were 18 and your then girlfriend was 17.
4 Charges 1 and 2 concern two occasions when you shook your son. On the first occasion, which is the subject of Charge 1, your baby son woke during the night. Your then girlfriend observed that the baby was crying. You were holding him by the upper arms and telling him to "shut up". You shook him so that his head was moving around and his lower arms and legs were flopping. He was crying.
5 The second occasion, which is the subject of Charge 2, was observed by a friend. Your baby was crying. You picked him up under the arms and shook him hard, yelling at him to "shut up".
6 The third occasion is the subject of Charge 3. You were caring for your baby when his mother was out. He was crying and you tried to settle him. You were getting agitated and became angry. Your baby continued crying. You admitted that you shook your baby. He stopped crying. He went limp. Your friend phoned the baby's mother, who spoke to you at some point. You said what was happening, she came home and an ambulance was called.
7 Your baby was then about four weeks old. He was admitted to hospital with subdural haemorrhages, as a result of head trauma and abuse. He also had a fracture in his ankle.
8 The brief medical report provided, says that he was assessed at ten months and at that stage, all appeared to be normal, although developmental and learning difficulties could occur over time.
9 I have taken into account in sentencing your personal circumstances, as set out in counsel's submissions and the reports provided.
10 Your home environment was one where there was a considerable amount of chronic illness, due to conditions of your older brother and sister, your grandmother and your father. You father was verbally violent towards your mother. Both of your parents engaged in what might be described as alcohol abuse from time to time. Your parents separated about five years ago. Your mother has had some mental health issues, but is now working as an aged care worker. She was and is supportive of you. In recent times you have been living with her.
11 Your schooling was difficult and limited. You have generally worked since leaving school in Year 8. You have been employed in casual labouring work. You have the offer of full-time employment to commence next week, which you would like to take up.
12 You are now in a relationship with a young woman who appears to have a stabilising influence on you. She has given you an ultimatum that you must stop using cannabis or she will not be in a relationship with you. She says that you have now stopped using cannabis. You and she would like to live together. You have not been able to live together so far because of your bail conditions.
13
You have suffered from problems with your moods since you were young.
Ms Pamela Matthews, psychologist, is of the opinion that around the time of your son's birth, you were suffering from a major depressive disorder, which as I understand, it was untreated at that time. You have had times, including quite recently, when you have been suicidal. Ms Matthews examined you in July this year. She says that at that time, you were suffering from moderate depression. She describes you as being still in the adolescent stage of development. She also says that at the time of your son's birth, you were not developmentally ready to be a parent.
14
Ms Matthews also refers to your cognitive difficulties. She relies on a diagnosis by Dr Loretta Evans, clinical psychologist, which support a conclusion that you have an acquired brain injury. As Ms Matthews says, "It is difficult enough for any first time parent to feel confident in interpreting their baby's needs. In Mr Yarde's case, the effects of his acquired brain injury would indicate that he would have struggled more than others." It is
Ms Matthews’ opinion that you require consistent mental health treatment, men's behavioural change intervention parenting courses and education and support services in regard to your acquired brain injury.
15 You were on remand for a period of 31 days, due to your non-appearance in the Magistrates' Court. Ms Matthews says that your mental state, clearly suffered whilst you were in custody. It is her opinion that your mental state would deteriorate very quickly if you were incarcerated, and she says that there would be an immediate and escalating risk of suicide if you were imprisoned. She describes you as a "Young, immature man with persistent mental health problems, with an overlay of acquired brain injury."
16 You have admitted a prior Children's Court criminal history. That criminal history is limited but it is concerning that involves an assault which led to you being placed on probation. I am told that that incident occurred in the context of you deciding to collect some money owed to you. It remains of concern that you have previously assaulted a person.
17 It is clear from a number of reports provided, that in the past you have had difficulties in getting to some appointments and in engaging with professional support services.
18 As I have indicated, Ms Matthews is of the opinion that you would benefit from continuing to support. Indeed from her report, it would seem to me absolutely necessary for you to engage in some form of ongoing treatment and support.
19 Your offending is serious, especially the offending covered by Charge 3. Your son was a few weeks old and very vulnerable. You ought to have been protecting him. Instead you lost control of your own behaviour and shook him. Shaking is very dangerous for any baby, especially one so young. The shaking caused injury to his brain and to his ankle. It is to be hoped that he will suffer from no long term consequences. This is an example of what can happen when a person loses control of their behaviour and shakes a young baby. As I have said earlier, babies test the patience of parent. No matter how difficult or stressful the situation is, people must not shake babies. It is incredibly dangerous.
20 I accept that you did not intend to harm your son and that you had tried to care for him. I accept that the situation you were in was generally stressful, due to the living circumstances and the young age of you and your partner. The situation was particularly difficult for you because of your depression, mood disorder and acquired brain injury.
21 I have taken a number of matters into account in mitigation of sentence. You are entitled to a significant discount of sentence because of your plea of guilty. That plea of guilty meant that there was no contested committal and no trial. That saved the expense, time and trauma of a trial. Your plea of guilty is an indication of your acceptance of responsibility. I also consider that your plea of guilty is an indication of your remorse. You have said things to various people, which have been set out in the reports, which indicate to me that you are genuinely sorry about what happened. It is to be hoped that over time, you will be able to re-establish contact with your son.
22 The delay is of relevance in this circumstance, particularly because you have not further offended in that time.
23 I have considered the effect of your mental functioning. I consider that there is some reduction in moral culpability, because of your difficulties, but not to a significant degree. I do consider that there ought to be some moderation of the application of general deterrence and specific deterrence because of your impaired mental functioning. I also consider that imprisonment would be more difficult for you than it would be for others and that there would be a considerable risk that your mental health would deteriorate if you were imprisoned.
24 Your young age is a very significant factor in sentencing you. Your rehabilitation ought to be given very significant sentencing consideration. Your rehabilitation is not only in your interests but in the interests of the community. You have pleaded guilty and are remorseful. You have a very limited prior criminal history. You have a stable and supportive relationship. You have the support of your mother. You have the prospect of employment. You have stopped using cannabis. All of those matters give cause to be positive about your prospects for rehabilitation.
25 Given the matters set out in the reports, particularly Ms Matthews' report, I consider that you do need long term professional support and assistance, in order to be able to be a contributing and positive member of the community.
26 I consider that a Community Corrections Order would best meet the sentencing objectives of denunciation, just punishment, moderated general deterrence and specific deterrence, as well as providing support for your rehabilitation. You have already spent a short period of time in gaol and I have no doubt that that has been a significant matter deterring you from further offending. It is clear that you do not wish to return to gaol. That should provide an incentive for you to comply with a Community Correction Order. In my view sending you to gaol would certainly be absolutely counter-productive, in terms of your rehabilitation.
27 I have had you assessed as to your suitability for a Community Correction Order. The report says that you are suitable for such an order.
28 I am going to tell you what conditions that I propose to impose. I understand that you have talked to the Community Corrections officer, is that correct?
PRISONER: Yes I have.
HER HONOUR: I understand that you have been told about and understand the core conditions, the basic conditions of such an order.
PRISONER: Yes I do.
29
HER HONOUR: Right. And those core conditions include a number of matters being matters that you need to notify Corrections about. They also include the requirement that you not commit any other offence during the time of the order. You understand that if you do commit an offence during the term of the order, you will be brought back before this court and that I can
re-sentence you. Do you understand that?
PRISONER: Yes I do.
30 HER HONOUR: The same thing applies if you do not comply with the conditions of the order. Now that is that you can be brought back before me for re-sentencing if you do not obey all the conditions in the order.
31 You have had the core conditions explained to you and I am now going to tell you what the special conditions are that I intend to impose. In considering the length of the order and in the conditions of the order, I have taken into account your age and stage of life. I have also taken into account that there has been quite a long delay since the offending. I have also taken into account that you spent already 31 days in gaol.
32 I propose that the order should last for two years. I propose that you should do 100 hours of unpaid community work, over two years. In setting that amount I have taken into account what has already happened and also that you will be spending quite a lot of time with Community Corrections officers or with professionals that you are sent to, given the assessment and treatment conditions I intend to impose.
33 You will be under the supervision of a Community Corrections officer, which means that you have to go and regularly meet with a person and discuss your situation. In terms of treatment and rehabilitation, you must undergo assessment and treatment, including testing for drug abuse or dependency, as directed. You must undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuropsychological and psychiatric, in a hospital or residential facility as directed. You must undergo programs or courses aimed at addressing factors relating to your offending, as directed. So those are the terms and conditions I would impose, if you consent to the order.
34 Now I want to make something very plain to you, Mr Yarde, especially because you have had difficulties in the past, in matters such as getting to appointments and engaging with support services. This order will not work unless you commit to it working. It is one thing to stand here now and say that that is what you want to do, in order to avoid going to gaol. But the order will not work unless you can keep it up over the next two years. It is not easy to do a Community Correction Order. It means you have to get to places on time. It means you have to tell people certain things. It means you have to be patient with Community Correction officers. For example, sometimes they cancel appointments or new people come along or various things happen and you have to be patient with those things.
35 It means that you have to put this order as a priority, ahead of things like employment, ahead of things like enjoying yourself obviously, or any of those sorts of things. I want you to think very hard about that. It is not just a matter of saying, "Yes, well I agree and consent to the order." When I am asking you whether you consent to the order, I am asking you whether you are prepared to make that commitment over the next two years. Do you consent to the order and the terms that I have set out?
PRISONER: Yes I do.
36 HER HONOUR: All right. Now, as I have explained to you, if you do not do it, or if you re-offend, then you will be brought back to me and do not expect any sympathy from me. I have been very clear with you. It is serious offending. Because you are young and because of the circumstances, I am very reluctant to put you in gaol, but that does not mean that gaol is completely off the agenda if you break the order. Do you understand that?
PRISONER: Yes I do.
37 HER HONOUR: All right. In that case, I will now formally sentence you. I am sentencing you to an aggregate sentence in respect of Charges 1, 2 and 3. You are convicted and required to serve a Community Correction Order, which goes for two years, commencing today. It will end on 7 August 2015. You must attend Dandenong Community Correctional Services within two days after the commencement of this order. The conditions are those that I have already set out.
38 I hope you are able to comply with the order, Mr Yarde. If you do, I think it will work well for you and that at the end of the two years, you will be in a much better position. Thank you. Could you please take your seat.
39 But for your plea of guilty, I would have had you assessed for a Youth Training Centre Order and if you had been suitable, I would have sentenced you to a period of detention of 18 months in Youth Training Centre.
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