Director of Public Prosecutions v Yates

[2024] VCC 1769

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-02124

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEVAN YATES

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 November 2024
DATE OF SENTENCE:	7 November 2024
CASE MAY BE CITED AS:	DPP v Yates
MEDIUM NEUTRAL CITATION:	[2024] VCC 1769

REASONS FOR SENTENCE

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Subject:Guilty Plea – Sentence

Catchwords:  Imprisonment – Threat to kill – Aggravated Burglary –                  Persistent contravention of Family
            Violence Order – intentional property damage – Alcohol
            and Drug treatment – Violent Offending – Repeat Offence

Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Verdins v R (2007) 16 VR 269; Bugmy v The Queen (2013) HCA 37; Muldrock v The Queen [2011] HCA 39

Sentence:3 years 1 month, Non-parole period of 2 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	M. Weinman	Office of Public Prosecutions
For the Accused	E. George	Middleton Maisner Legal

HIS HONOUR: 

1Bevan Yates, you have pleaded guilty to aggravated burglary, making a threat to kill, persistent contravention of a family violence intervention order, common law assault, and intentionally damaging property, all occurring between 3 March and 25 June 2023.

Summary of offending

2The basis for your guilty plea is set out in the prosecution opening dated
1 June 2024. 

3In summary, you and the complainant, MK, were in an intimate relationship which ended about 10 years ago.

4On 3 March 2023, the Mildura Magistrate's Court made an intervention order that you not contact or go near her, or the address where she was at the time of offending.  That order was served on you at the Mildura police station.

5At about 10pm on 24 June 2023, however, you went to that address where the complainant was with friends.  You walked in the front door and stayed for 15 minutes or so, staring at MK without saying anything.  After a while, you left and began phoning her on her phone.

6Between 10:13 and 10:44pm, so over about half an hour, you sent her audio and text messages including threats to kill her, to smash her, for what you say was 'bringing all that shit up'.  You also sent a text message with a photograph of a hammer and a large machete.

7On 25 June 2023, at about 12am, so early in the morning the next day, you went back to that address holding a 50cm machete in your hand and when you entered the address you were yelling out 'where MK, I just want to talk to her'. 

8MK was hiding in the bathroom where you gained access, grabbed her by the hair and dragged her to the kitchen.  You started smashing dinner plates, you punched a hole in the wall, and cornered her, holding the machete against her throat.

9MK recalls the machete being long enough to become extremely scared.  You then spat in her face, which contained blood, and punched her to the right shoulder and the back of her head. 

10She managed to escape and hid in the yard.  You went out looking for her but unsuccessfully.  After you left the address, one of her friends called 000 requesting police.

11Police attended and arrested you without incident in the laneway near the address.  They took you to Mildura police station where they interviewed you. 

12During the interview you acknowledged the intervention order in place and its conditions.  You said you were drinking next door the address and went to the address to visit friends.  You also said you were not aware that MK was there at the time.

13They showed you photographs of the phone messages you sent to her, and you admitted that it was your phone number and that you made threats to her.  You also admitted sending photos of your hammer and meat cleaver.

14You denied what happened in the bathroom and being in possession of the machete.

15MK gave a victim impact statement dated 7 May 2024 (Exhibit A).  In it, she spoke of her fear and flashbacks about what happened.  She suffers from bad anxiety and panic attacks and finds it difficult to socialise because of what happened.  She dreams about what you did and wakes up with the horrors.  She takes prescribed medication in order to sleep.  These are significant consequences of what you did.

Procedural History

16After your arrest on 25 June 2023, you were remanded in custody, and you have remained there since.  The case was listed for a committal proceeding on
13 December 2023 and it resolved soon afterwards in April 2024 at a Directions Hearing in this Court.

17You entered your plea on 24 May 2024 and that hearing was adjourned on 1 July in Mildura and proceeded on 25 July 2024. 

18Your plea, I accept, shows that you are willing to take responsibility for what you did, and it represents your willingness to help the processes of justice, and it indicates, in my view, some remorse.  You have spared MK a trial and your plea has value to the community because of the time and cost that it saves everybody. I have reduced your sentence accordingly.

Personal Circumstances

19On your plea, Ms George relied on a number of exhibits.  The first was a report of Warren Simmons from 2013 by way of background (Exhibit 1).  Exhibit 2 is a report dated 7 April 2021 from psychologist David Ball and an addendum to that report dated 28 April 2021.  Exhibit 3 is the report dated 17 July 2024 and addendum dated 7 August 2024 from Clinical Psychologist Mirabel McConchie.  Exhibit 4 is a report by Dr Linda Borg dated 21 October 2024.  Exhibit 5 is a letter from the ACSO ReStart program dated 24 October 2024.

20You are now 37 years old.  You are an Aboriginal man, and you have spent the entirety of your life in the Mildura area.  Although your parents separated when you were young, you had a good relationship with your mother and stepfather.  You are the youngest of five kids and you have a good relationship with them.

21You reported suffering from abuse as a child, but I have no further details about that.

22You went to Mildura Central School. You had difficulties with reading and writing, you got into fights there, and you did not find it easy to make friends.  After leaving that school as requested, you went to Mildura West, and you attended the Koori Open Door Education school until Year 9. 

23You and the complainant, MK, over the years, had two children – two daughters aged 14 and 15 – and they live with your mother.  Your relationship with MK deteriorated as you both started using drugs and had fights about your drug use and being absent from home.  Your relationship with her ended after you were charged with rape and found guilty by a jury.  You blamed her for involving police and still have mixed feeling of anger and love towards her.  I accept that.

24You have a very limited work history, and you have had some short-term farm work over the years. 

25You have a history in the criminal courts, both in New South Wales for driving offences, drugs and assaults, but you were never remanded into custody there. 

26You have a relevant history in Victoria, and you have been before the County Court at three separate times. On each, you were convicted and sentenced to imprisonment, and this offending before me was in breach of a bond that was imposed on 26 April 2023 that went for two years.

27Your first case in the County Court was the one I mentioned about rape, in 2013.  Judge Wilmoth accepted that you had an intellectual disability and that you had an extensive history of drug use and very limited work history.  Her Honour accepted that the principles in the case of Bugmy about childhood deprivation applied to your case and considered Verdins in relation to whether your moral responsibility for what happened was lowered.  Her Honour also accepted that you would be vulnerable in custody, and you were a high risk of reoffending.

28The next year, in 2014, you appeared in this Court for two charges of armed robbery.  Her Honour Judge Harbison accepted that you had a partly normal childhood and noted you were supported by your family, but she also acknowledged that you suffered with an intellectual disability, did not have a proper education, and that you cannot read or write well.  Her Honour relied on the principles in Verdins and accepted that if you were able to keep your control on your drinking and drug taking, you would have good prospects for the future.

29Another decision based on similar offending as the case before me, but regarding a different complainant, occurred in 2021.  There, Judge David Sexton accepted that you were diagnosed with an attention deficit disorder, you had very limited work history, and your drug use commenced when you were a teenager. 

30An expert report confirmed that you suffered with an intellectual disability with a significant impairment in the exercise of good judgment and planning.  His Honour indicated that you had a relatively stable childhood and so did not really consider the Bugmy principles to apply, but he did accept that your early commencement of drug use was regarded as something that should lower your sentence.  He found your prospects of rehabilitation to be guarded.

31As to your physical and mental health, you have Type 2 Diabetes, but you did not take your medication all the time when you were in the community.  In custody you have been prescribed Seroquel, an antidepressant, and Suboxone, for addiction. 

32You are currently on a Disability Support Pension, and you have support and a package approved by the NDIS available to you on your release.

33Over the years you have not always been well.  You have attempted to hurt yourself pretty seriously a couple of times, including by driving a car into a tree.  You have been depressed and your low mood has gotten worse for you in custody. 

34Before your arrest you were smoking cannabis and using ice daily.  Before your remand, you almost overdosed on GHB, twice.  But in custody you have remained clean and that is to your credit. 

35You have been drinking alcohol since about 15 and in your 20’s that became heavy drinking.  You admit that you can get angry and violent when you get too intoxicated.

36Dr McConchie assessed you and provided a report dated 17 July 2024.  She said you were cooperative, and you felt lost and depressed.  She said your insight, so your understanding of yourself, was fair, and your judgment, your ability to make decisions about your life, was intact.  She also said that you were not feeling so depressed that you wanted to hurt yourself like you had in the past, but you accepted that you had a long history of using different drugs.

37You told her that alcohol causes you to change your behaviour, and that increases your aggression and violence, and that this had an effect on your relationship with MK.  You were honest with her about having mixed feelings about MK.  You hated the things she would say but you still have love for her, and you cannot cope with, you said, seeing her out and not managing her life very well, particularly with drugs.  Ms McConchie said that you should be assessed to confirm your strengths and weaknesses in terms of your disability.

38Your lawyers, including Ms George, arranged for you to see Dr Linda Borg who is a specialist, and she assessed and gave a report dated 21 October 2024.  She confirms that for reasons beyond your control you have a disability, and that that is likely to be relevant to why you offended in the way you did.  But she also said you have got reasonable insight. 

39So, you have got some understanding of what happens for you and your disability does not reflect your ability in the community.  That is, you can function pretty well when you are not drinking or taking drugs and that is important. 

40Nevertheless, because of the diagnosis I will apply the principles according to Muldrock and the discussion the High Court had in that case, and Verdins.  But I note that your risk in the future of drug use and the effects that might have on your brain, your physical brain, are high risks and I accept that when situations are complex or heightened, as she used that word, means that your ability to control yourself and make good decisions decreases.

41When you are released, getting support and doing the right thing about your drinking and drug-taking is crucial.  You have the capabilities to work with support workers and to engage in therapy.  You can do it and until you do that, your risks of future offending remain significant. 

42Very positively, you have engaged with Ms Barnes from ReStart. Exhibit 5 confirms that you have been assessed and that you will be assisted upon your release by that group, including about drug use. They noted that you have a funding package from NDIS in place, which can also provide support for you.  It says that you will need assertive outreach, that means somebody to contact you and keep up with you, to keep you on the straight and narrow.  I accept that. 

43When you are released, I expect the Parole Board will have regard to the ReStart program, the NDIS package, and the examination of Dr Borg when assessing what needs to be done for you.

Sentencing Issues

44As to sentencing issues, the maximum penalty for Charge 1, aggravated burglary, is 25 years in prison.  For Charges 2 and 5, it is 10 years each, and for Charges 3 and 4, it is five years each.

45In light of the undisputed application of the principles in Verdins and to some degree Bugmy, I find your moral culpability to be reduced somewhat.  That is, in complex situations things get out of hand more easily for you than for somebody without your condition. 

46Nevertheless, when it comes to looking at what happened on this night, you were the sole offender, you were responsible for all of your actions and the explanation for your offending related really to your inability to move on from the relationship, particularly when you were drink and drug affected and, I suggest, an unhealthy degree of disrespect for MK’s right to live her own life.

47It is important for you to realise that MK, for good or ill, has a right to live her own life and you must let her do that, even if you disagree with how she is doing it. 

48It is important ultimately that I sentence you in a way that deters others from doing what you did.  Your sentence will also serve to denounce you, what you did, and to punish you personally. 

49You have a significant criminal history including for violence against women.  So even though I have made the comments I have about things being harder for you in heightened situations, I have to attach some weight in sentencing you to deter you specifically.  That is, to send you a message that if you keep doing this you will go back to gaol. 

50When it comes to community protection however, the weight I give to that factor is not reduced because of your moral culpability.  Your repeat offending against MK means that every time you offend there will be increasing focus on removing you from the community, where you harm others.

51Given the related circumstances in this case, of course, I have had regard to the totality principles, which means that I will impose concurrency at least to a degree between the sentences, so that the total of what you did is reflected in the total sentence. 

52I note that you have been in custody since 25 June 2023, which is a long time.  All of that time I accept as being in protection or at least in high security prisons, because of your remand status.  Serving time in those circumstances, I accept, is more difficult for you than for a person who is not kept in protection or high security.

53In all the circumstances I find your prospects for rehabilitation to be guarded.  That is, your future looks dim if you do not get on top of the drinking and drugs.  Both the prosecutor and your barrister submitted that your sentence should attract a non-parole period, and I agree. 

54I sentence you as follows:

On charge 1, aggravated burglary, you are to be imprisonment for 2 years and 3 months;

On Charge 2, threatening to kill, 10 months;

On Charge 3, persistent contravention of intervention order, 6 months;

On Charge 4, common law assault, 1 year 3 months; and

55On Charge 5, damaging property, 6 months.

56Three months of the sentence on Charge 2, two months of the sentence on Charge 3, and five months of the sentence on Charge 4 are to be served cumulatively upon each other and upon the sentence on Charge 1. That makes a total effective sentence of 3 years 1 month.

57I fix a non-parole period of 2 years.

58I declare that you have already served 501 days pre-sentence detention, and I direct that this be reckoned as a period already served under this sentence.

59In accordance with s6AAA of the Sentencing Act 1991, if you had not pleaded guilty but you were found guilty of these charges, I would have imposed a sentence of 4 years and fixed a non-parole period of 2 years 9 months.

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