Director of Public Prosecutions v Yeoman

[2019] VCC 781

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00526

DIRECTOR OF PUBLIC PROSECUTIONS

v

PATRICK YEOMAN

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2019
DATE OF SENTENCE:	29 May 2019
CASE MAY BE CITED AS:	DPP v Yeoman
MEDIUM NEUTRAL CITATION:	[2019] VCC 781

REASONS FOR SENTENCE
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Subject:  Criminal law – Sentencing

Catchwords:  Home invasion – causing injury recklessly – possession of a drug of dependence – immediate term of imprisonment imposed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Teo with Mr J Cain	John Cain, Solicitor for the Director of Public Prosecutions
For the Accused	Mr L. Richter	Stary Norton Halphen

HER HONOUR: 

1Patrick Yeoman, you have pleaded guilty to one charge of home invasion, contrary to s.77A of the Crimes Act 1958; one charge of causing injury recklessly, contrary to s.18 of the Crimes Act 1958; and one charge of possession of a drug of dependence, namely Cannabis-L, contrary to s73(1) of the Drugs, Poisons and Controlled Substances Act 1981.

2The charges are serious and that is reflected in the maximum penalty that is proscribed by law and in respect to home invasion, that is 25 years' imprisonment. In addition, home invasion is a Category 2 offence as defined in s.3 of the Sentencing Act 1991. The provisions of s.5(2H) of the Sentencing Act therefore apply. The court must make a custodial order under Division 2 of Part 3, (other than a sentence of imprisonment imposed in addition to the making of community correction order in accordance with s.44), unless satisfied as to the circumstances contained within s.5(2H)(a) to (e).

3Mr Richter on your behalf, acknowledged that those circumstances do not apply in your case and that a period of imprisonment must therefore be imposed. 

4In respect to the recklessly cause injury charge, the maximum penalty is five years' imprisonment; and in relation to the charge of possess drug of dependence, Cannabis-L, I accept it was a small amount for personal use only, therefore, the lesser penalty of five penalty units applies. 

5I shall now proceed to sentence you in respect to this offending, on the basis of the Crown opening that was read by the prosecutor, Mr Teo at the plea hearing and is marked Exhibit 1.

6The offending the subject of the first two charges on the indictment, took place on 16 December 2018.  You were in company with Joshua Vicendese and two other, unknown male persons. 

7You were aged 26 at the time of the offending and Mr Vicendese aged 19. 

8The victims in the matter are Tony Dagher and Katherine Telenta.  They were both unknown to you at the time of the offending. 

9At about 12.30 am on 16 December 2018, Dagher and Telenta returned to their home address which was a bungalow located at the rear of 188 Edward Street, Brunswick East. 

10A short while later, you together with a third unidentified male offender, entered the property through a side gate and made your way towards the rear of the bungalow.  At the time of entry, you and the unidentified
co-offender were in possession of baseball bats.  Vicendese was in possession of an imitation firearm, concealed in his waistband. 

11You and the unknown
co-offender concealed your identities with masks.  Mr Vicendese's face was not concealed.

12Upon reaching the bungalow, the other unidentified male, opened the bungalow door and stepped inside.  You remained outside.  The victims had been expecting a friend to arrive, but instead they observed the unknown male offender who had entered their bungalow.  Dagher said to that man, 'Who are you?', to which the unknown male replied, 'You know me.  Where's the cash?'.  The victims and the third co-offender began to argue, as they did not know that person and did not believe that they owed that person any money.

13Whilst outside the bungalow, Vicendese attempted to conceal his face by lifting his shirt over his mouth and raising his jacket over his head.  He removed the imitation firearm from his waistband.  You then took the imitation firearm from Vicendese and turned on a light attached to the top of the firearm.  You reached into the bungalow and pointed the firearm in the direction of both victims.  These facts constitute Charge 1, home invasion.

14Dagher continued to argue with you all and approached your group.  You and the unidentified male retreated from the bungalow to where Vicendese has remained.  Vicendese then took a baseball bat.  Dagher closed the glass door of the bungalow in order to keep you three out.  As he attempted to lock the door, the other unidentified male swung his baseball bat and smashed the glass door.  Dagher's hand went through the glass, causing approximately a 15-centimetre laceration to his right forearm.  That constitutes Charge 2, causing injury recklessly.

15The shattering glass caused you and the third unidentified male to fall backwards.  You all then ran from the area.  Dagher chased after your group and observed you all getting into a black coloured Mercedes sedan that was parked nearby.  The vehicle took off at a fast rate of speed. 

16Dagher was conveyed to St. Vincent's Hospital where he was operated upon and he received plastic surgery to the laceration to the arm.  Medical evidence confirmed that he had injured a tendon.

17Police arrested your co-accused, Vicendese on 20 December 2018.  You were intercepted by police whilst driving that same day and arrested.  During your arrest, a small amount of cannabis was located and that constitutes Charge 3, possession of a drug of dependence, as well as a mobile phone that was located in your pocket. 

18Following a search of your premises, various items were located including two baseball bats that matched those that were depicted in the CCTV footage that was taken at the scene of your offending; a black and white coloured face mask, matching that which was shown to be worn by one of the offenders on the CCTV footage; a black hat, believed to be worn by the unidentified male co- offender; and a black coloured glove. 

19Telephone charge call records showed consistent communications between yourself and Vicendese throughout the night of the offending.  You were arrested and participated in a record of interview.  You provided no comment answers in relation to most of the questions.  You did identify one of the individuals, whom you knew as “Josh”, from a CCTV footage still but when asked further whether you recognised him, you answered no comment.

20You identified an object in the CCTV footage as a fake gun, which fired water pellets.  You said that you had seen the gun outside the front of the gun owner’s house, but you were not prepared to say who the person was, or where the house was located.  You confirmed that a mask shown on the CCTV footage looked like your brother's mask, which had been left at your house and you recognised people from the footage, but you are not prepared to tell police who they were.  You asserted that the victim in this matter, Mr Dagher, was a methamphetamines dealer.  Following your arrest, you were remanded in custody.

21At your plea hearing, you admitted your prior criminal history.  There is a limited prior criminal history.  However, you do have court appearances for violent offences recorded.  In 2010, you were dealt with in the Broadmeadows Children's Court for a recklessly cause injury charge and theft.  At that time, you were aged 17 and the matter was adjourned for a period of one year without conviction.

22On 15 August 2018, at Broadmeadows Magistrates' Court you were dealt with in respect to one charge of intentionally damage property and three charges of unlawful assault, for which you were without conviction fined an aggregate fine of $2,000.  Your counsel, Mr Richter, was unable to provide much detail concerning that prior court appearance, other than to say it related to a dispute with a taxi driver that occurred after a work break-up party.

23I have had regard to the context of the offending.  At the time, you were consuming a large combination of drugs and mixing with known drug associates, whom you had met through mutual methamphetamines use.  You do not know why you were participating in this offending.  You admit that you did not know the victims.  Your offending can be seen in the context that you offended in company, whilst you were in a drug affected state, with known drug associates and you were living a very disorganised and shambolic lifestyle.

24You had known Mr Vicendese for about a year, but you did not know the other male.  Whilst providing context for the offending and some explanation as to why you would engage in this outrageous behaviour, it does not excuse your behaviour and it must be condemned.  General deterrence, specific deterrence and the protection of the community are significant factors in your sentence.

25I have had regard to your background and history.  I note that you do have considerable support in the community and your mother, step-father together with your brother and sister were present in court for the plea hearing and they remain supportive of you. 

26You are 26 and you are a qualified plumber.  You were raised in the Essendon area and your parents separated when you were about 13 or 14.  Following separation, you moved backwards and forwards between your respective parent's homes. 

27Your father was diagnosed with liver cancer in 2017 and died on 8 January 2018.  You provided care to your father with the support of your sister, Zoe at the time of his illness and death and you were profoundly affected by grief, following his death. 

28For the future, it is expected that you will be living with your mother and brother in the community.  Your family members have all provided written materials to the court and they have observed that you have become more reflective since you have been in gaol and you are remorseful for your offending behaviour.

29I noted that you left school in Year 11 after being expelled, due to misbehaviour. Notwithstanding that, you were successful in undertaking and completing a plumbing apprenticeship.  Following your father's death, you were working full time as a plumber in the eight months prior to your arrest. 

30It is anticipated that you will not have any difficulty in obtaining employment upon your eventual release. 

31You are a person who has a significant history of drug and alcohol abuse and you commenced using alcohol combined with cannabis, from around age 15 and methamphetamines from about age 17.

32Following your father's death, you abused Xanax and methyl amphetamine as well as oxycontin.  You had a seizure due to your abuse of Xanax and also suffered a psychotic episode, following his death.  You received some treatment at the Royal Melbourne Hospital, in a psychiatric ward for about two weeks and you were prescribed the anti-psychotic drug, Paliperidone for treatment.  However, you are not continuing to take that drug.

33Since you have been in custody, you have been prescribed another drug, Citralapram. 

34I have had regard to Dr Aaron Cunningham, consultant psychologist report dated 17 May 2019.  He confirms that you would benefit from engaging with a grief and loss counsellor, as well as a drug and alcohol counsellor, when you return to the community.  He further states that you would benefit from maintaining stable accommodation, a return to full time employment as a plumber, and abstaining from drug use to reduce your risk of reoffending and improve your prospects for rehabilitation.

35Mr Yeoman, the offending is very serious involving as it did, entering a property in the early hours of the morning, in company, whilst you were disguised and armed with baseball bats and one of your co-accused was armed with an imitation firearm.  There were two people present, whom you did not know.  Your actions in invading their home, having regard to the circumstances that I have already described, shows a real disregard for their personal safety and security.  They would have been terrified by their experience.  There have been no victim impact statements filed, but common sense dictates that that would be the case.

36Your spiral into heavy drug use and the fact that you were mixing with heavy drug users does explain the behaviour, but as I said before, it does not excuse your behaviour and on behalf of the community I must formally condemn your behaviour. 

37I have had regard to all the material that has been filed on your behalf, including the reference material from family members and friends, each of whom have known you for several years. 

38The message that comes through those references is that you are not considered to be a violent or antisocial individual and that this behaviour, on this night, is uncharacteristic.  Each of the people who have written references, describe their surprise and shock at the hearing of your involvement in this offending.  Subsequent to your arrest and remand, it is the case that they have noted that you have become more reflective, remorseful, embarrassed and ashamed of your behaviour.  Collectively, they express real hope for you for the future. 

39In formulating the appropriate sentence, I have had regard to and accept all the matters that were put on your behalf in mitigation by Mr Richter.  I accept that your plea of guilty was entered at the earliest opportunity, at the first committal mention.  Through your plea you spared the witnesses the trauma of having to come to court to give evidence at trial and also committal.  I consider the plea has real utility.  It also evidences a genuine willingness to facilitate the course of justice and is reflective of genuine remorse on your behalf.  Your sentence will be discounted accordingly.

40Since being in custody, you have utilised your time well and you are currently working as a billet.  You are committed to remaining drug free.  You look forward to returning to live with your mother and taking up employment opportunities.  You have expressed a desire to no longer mix with undesirable peers.  You want to be drug free and lead a more law-abiding life in the future. 

41Overall, having regard to all the matters that have been put on your behalf and your behaviour following your detention, I consider that you have reasonable chances of rehabilitation. 

42I note that you have not ever had any therapeutic or rehabilitation in terms of drug rehabilitation in the past and recommend that that be considered by the authorities for the future.  All in all, I consider that the support that you have had and continue to have from your mother, step-father, siblings and friends is such that there is real hope for you for the future and that there is every likelihood that you will be a more law- abiding citizen, provided you do not further engage with taking illicit drugs.

43In all the circumstances, I will fix a non-parole period that is shorter than it would otherwise have been, because of your efforts towards and prospects of rehabilitation. 

44Mr Richter and the prosecutor, Mr Teo, have both agreed that the offending is a reflection of mid-range offences for this charge of home invasion and you will be sentenced accordingly.  Could you please stand now, Mr Yeoman and I will announce the formal court orders?

45In respect to the charge of home invasion, you will be convicted and sentenced to four years' imprisonment;

46In respect to causing injury recklessly, you will be convicted and sentenced to one years' imprisonment; and

47In respect to possess drug of dependence, you will be convicted and discharged.

48I make the following order for cumulation.  I order that six months of the sentence imposed with respect to Charge 2, be cumulative upon the sentence imposed on Charge 1.  That makes a total effective sentence of four years and six months and I fix a non-parole period of two years' imprisonment. 

49I make the following declaration of pre-sentence detention.  I declare that you have already undertaken 160 days' pre-sentence detention and direct that that be entered into the records of the court. 

50I make the disposal order sought and the forensic sample order sought.  That is on the basis that I have had regard to the seriousness of the circumstances of the offending and also consider that the granting of the order is in the public interest.  I note that the order is by consent.

51Finally, I make the s.6AAA declaration.  But for your plea of guilty, I would have imposed a term of seven years to serve five years' imprisonment.

52Mr Yeoman, the only matter that needs to be said in relation to those orders, is that at some stage whilst you are in custody, you will be asked to undergo a forensic procedure.  You will be given a little cotton bud to place inside your mouth, to rub on your cheek, to provide to the authorities and provided you do that, you comply with the order.  But if you do not consent to the taking of a mouth scraping under supervision of an authorised member of the police force, then the sample can be taken by way of a blood sample, and police may use reasonable force to enable that to be conducted.  But hopefully that will not be necessary.  So that completes my orders.

53MR RICHTER:  As Your Honour pleases.

54HER HONOUR:  And completes the sentence.

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