Director of Public Prosecutions v Young

[2016] VCC 450

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-02184

DIRECTOR OF PUBLIC PROSECUTIONS

v

CASEY YOUNG

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 April 2016
CASE MAY BE CITED AS:	DPP v Young
MEDIUM NEUTRAL CITATION:	[2016] VCC 450

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Goddard	Office of Public Prosecutions
For the Offender	Ms K. Blair	Michael Brugman Solicitors

HIS HONOUR: 

1Casey Young, between 4 and 5 am, on 19 July 2015, you went to the home of your ex-partner.  She was at home asleep with her two children.  Also there was a new male friend of hers and his young child. 

2You knocked on the door and when the male answered the door you pushed the door so forcefully that the male victim fell to the ground.  While he was down and not presenting any threat you came into the house and punched him to the head and face.  Your ex-partner got up and saw this outburst of violence and tried to pull you off.  You pushed her away into the hallway wall with enough force to damage the plaster.  You then returned to the male victim and, in a cowardly way, took to kicking him in the head and body as he was on the ground.  All of this was not done in silence, rather you threatened to kill the male victim with chilling words.  You then left the house, leaving the victims in turmoil. 

3At this point your criminal conduct was very serious, but unfortunately for the victims and for you this was not the end of your violence.  Ten minutes or so passed and you returned.  By this time the children, who had been woken by the earlier rampage, were up and upset and frightened. 

4You went to the front door and kicked it in.  You started looking for the male victim, intent on further attacks upon him.  While searching for the male victim, you pushed your ex-partner to the ground.  The male victim escaped from the house.  In your angry search you caused damage to the house.  You then continued to assert yourself, demanding your ex-partner give you the keys to the car.  You told her if she did not you would then kill them all.  In fear she gave you the keys and you drove off in her car.

5It seems in your rampage you had cut your arm deeply and ultimately you went to the local medical centre.  You were arrested there.  It is noted that the victim received relatively minor injuries.  That said, your violence was serious.

6Your ex-partner's victim impact statement has been taken into account and she was confused and frightened by what occurred as it is, in her mind, not the sort of man that she knows you to be.  She considers that now things have improved and she does not intend to keep the children from seeing you or anything of that kind.  She has attended court in respect of both the plea and, as I see it, she is here today.

7I am required to assess the gravity of your crimes.  On any measure, your bursting twice into your ex-partner's home in the early hours and attacking her and her new friend while children were in the house, is very serious offending.  People are entitled to feel safe in their homes.  You diminished that sense of safety for the victims and the children.

8Your ex-partner and you had met seven or so years ago when you were teenagers.  You have two children.  You had children at a very early age.  The relationship has been up and down with splits and reconciliations, however there has been no previous violence.

9As has been said in these courts too many times, women are entitled to leave relationships and remain safe.  They are entitled to find and form new relationships without a jealous, violent ex-partner attacking them, the new man and then frightening children.  Cowardly men need to be made to understand if they break into a family home and attack an ex-partner and her new male friend then the courts will punish with severity.

10In your case your counsel said that you believed that there was again a prospect of reconciliation with your ex-partner.  You thought your partner's new relationship was itself over.  You were taken by surprise when he opened the door and you reacted spontaneously.  In that sense this was not a case, like others, of planned retribution. 

11While I accept that is probably the case, against you is that you had time to think about your dreadful behaviour after the first outburst, but instead of departing you violently broke back into the house on the second occasion.  This returning to the house makes your moral culpability that much worse. 

12I note you were affected by alcohol which had clouded your thinking, but in the end that is no proper excuse.  In the end your moral culpability is high.  Taking your ex-partner's car in all the circumstances where she told you you were too drunk to drive, reveals a sense of entitlement.

13You are still a relatively young man, now 25 years old.  You have never been in trouble with the law and thus you are entitled to seek a merciful penalty, that is a second chance.

14Your plea of guilty was an early one and your sentence will be less because of your plea of guilty.  You are remorseful.  Your plea of guilty is evidence of this.  It is not the only evidence.  I have read letters from your family members and family friends who speak of how you are sorry for this outburst of violence which they see as being out of character. 

15You are from a good and supportive family.  You gained work after school and held a number of jobs before becoming unemployed for a period.  Your offending was while you were unemployed.  However things have markedly improved in that regard of late.  You have in recent times gained a job as a scaffolder.  You remain employed and an letter from your employer was glowing.  You have many attributes that would indicate that you will have a good working life and become a responsible member of our community.  These are all important matters in respect of your rehabilitation.

16You were for a time prescribed antidepressants by your general practitioner.  There is no report from your general practitioner as to what prompted that.  
Dr Cunningham, the medico legal psychologist, wrote a report.  He did not speak to your general practitioner.  He wrote this:

"Mr Young went on stress leave from work two years ago.  He was prescribed antidepressant medication from his general practitioner.  He found it difficult to talk about his problems.  He has difficulty communicating with others.  He becomes quiet due to feeling socially anxious.  He has symptoms of panic in large groups.  He has been suicidal in the past.  He has feelings of worthlessness.  He is trying to stay positive.  He stated that he feels good for periods of time, then experiences depressive breakdowns.  He becomes clumsy when subject to scrutiny.  He was always shy and had difficulty relating to others.  He always wanted to be ordinary as a child."

17Having said that, Dr Cunningham then expressed his opinion in the following brief terms:

"In summary, Mr Young meets the Diagnostic and Statistical Manual of Mental Disorders Vol.5, criteria for major depressive disorder.  He presents with depressive moods, loss of interest in pleasurable activities, feelings of worthlessness, guilt, sleep disturbance and difficulty concentrating and thoughts of death."

18As it were, Dr Cunningham diagnosed you as having a major depressive disorder.  He went further in his opinion to say:

"In my opinion Mr Young presents with a diagnosis of major depressive disorder."

19It was submitted that your punishment ought be moderated because in prison it would be more difficult for you and would likely make you more depressed.  This was of course based on Dr Cunningham's opinion expressed in his report in those terms that prison might make your depression worse.

20As the Court of Appeal said in the important case involving aggravated burglary, being the case of DPP v Meyers, the court said this, firstly in respect of Mr Meyers' undoubted physical injuries.  They said:

"The burden of imprisonment is another matter, however there is no dispute about Mr Meyers chronic pain or his high dependency on morphine for pain relief.  Nor would we have any doubt that pain management is more difficult in prison than elsewhere.  From a psychological side, the position is less clear.  Being depressed in gaol is unfortunately very common and understandable and in the ordinary case would not justify a reduction in sentence."

21Prison is a hard place.  It is meant to be.  It is the punishment of last resort.  I can only send you to prison if it is the only way all sentencing purposes can be satisfied.  I will return to this shortly, but in the end I do not ignore your personal characteristics including your depression, but it cannot mitigate significantly in all the circumstances.

22Recently the Court of Appeal provided guideline judgment on the use of community corrections orders.  What is clear is that I am required to recalibrate what had previously attracted mid-range imprisonment.  Those crimes could now be punished by a community corrections order.

23In later decisions the Court of Appeal has emphasised that the guideline judgment in the decision of Boulton & Ors v The Queen does not mandate non-custodial dispositions as if it were, to use the words of Priest JA, a "get out gaol free card."  The key is to consider whether all sentencing purposes can be satisfied by imprisonment that is non-custodial.  It is the case that a community corrections order can simultaneously provide punishment and rehabilitation, a combination that is hard to obtain in prison.

24Denunciation and deterrence are promoted by a community corrections order.  However the key consideration is whether the sentencing purposes of denunciation, deterrence, just punishment and rehabilitation are in this case properly satisfied by a community corrections order alone.  The parties part way on this question.  It is the key matter in this difficult case. 

25In order to ensure I was fully informed, I had you assessed by the Office of Corrections.  Unsurprisingly they report that you are suitable for a community corrections order.  The programs that they considered you should undertake involve alcohol abuse, mental health treatment and programs that are directed to reduce your re-offending.

26The gravity of your crimes requires that my denunciation have a practical component beyond words of condemnation.  Also the message of deterrence to others must be unambiguous, the message being that serious punishment awaits those who break into domestic homes in the dead of night, who angrily commit violence and utter threats in circumstances where the ex-partner is in another relationship and children are present and thus frightened. 

27While it cannot be said that gaol is simply inevitable in such situations, compelling circumstances would have to be present for the sentencing synthesis to result in a community corrections order solely.  That is the thrust of the Court of Appeal decisions in the important cases of Hogarth v The Queen and Meyers v The Queen which I have mentioned.  Indeed, commonly, gaol and longer than would allow for any community corrections order would likely be the outcome.

28In your case the matters in mitigation are of real importance.  They have not been overlooked or given mere lip service.  On the contrary.  Those matters have caused me to give anxious consideration as to what to do.  It is always a grave step to send a young man to gaol for the first time.  I can only do so if there is no other option.  That is the situation here.

29I intend to impose a sentence of imprisonment combined with a lengthy community corrections order.  I will impose in this case an aggregate sentence.

30For committing the crimes on the indictment of the single charge of aggravated burglary, the common law assaults, the threat to kill, the criminal damage and the robbery of the car, I sentence you to an aggregate term of six months' imprisonment, together with a community corrections order of two years and six months.  You will have to do 200 hours of unpaid community work and undergo treatment and rehabilitation in relation to alcohol abuse, mental health and programs that are directed at reducing your re-offending.

31Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of three years and four months with a
non-parole period of two years.

32Ms Goddard and Ms Blair, does that deal with all the offences?  I cannot recall if in this case there was - it is not a matter of much moment if there was any summary offences uplifted.

33MS GODDARD:  No summary offences, Your Honour.

34HIS HONOUR:  Thank you.  I sometimes get caught out and I just felt that I covered everything, but I just had to be sure.  Is there any other orders that are sought?

35MS GODDARD:  No.  No orders sought, Your Honour.

36MS BLAIR:  Your Honour, just with the 6AAA was that three years four months?

37HIS HONOUR:  Yes.

38MS BLAIR:  And two years on the bottom?

39HIS HONOUR:  On the bottom, aggregate.

40MS BLAIR:  Thank you, Your Honour.

41HIS HONOUR:  Is there anything further required?  There is no pre-sentence detention, is there?

42MS BLAIR:  No.

43MS GODDARD:  There is none, Your Honour.

44HIS HONOUR:  Thank you.  I will just get an order printed out.  Mr Young, the terms of the community corrections order are as follows, two and a half years, so 30 months.  It commences on the completion of the imprisonment that I have imposed of six months. 

45Certain conditions apply to all community corrections order and naturally they apply to you.  You must not commit any offence or which you can be imprisoned during the time the order is in force.  If you do that, you come back before me and I resentence you, so let this be the only time you come to court.

46You must comply with any obligations or requirements of the Office of Corrections in relation to the sentencing regulations.  That will be they will need to know details and take photos to show who you are when you go out to community works, just comply with all that.  You must report to and receive visits from the Office of Corrections.  You must report to the Community Corrections Centre, that is the one in Geelong at the State Government Offices in Little Malop Street.  You must do that within two clear working days of release from prison.  You must let the Community Corrections Officer know within two clear working days if you change your address or your job.  You must not leave Victoria without getting permission to do so and you must obey all lawful instructions of the Office of Corrections.  Those are the conditions that apply to everyone.

47In addition to that, the conditions that apply to you are you must do 200 hours of unpaid community work over the period of time that the order lasts.  You must consider that, Mr Young, that is not anything other than mandatory.  Turn up on time, do the hours, get them over and done with.  You must undergo assessment and treatment for alcohol abuse.  You must undergo any mental health assessments and treatment that they indicate you should undertake.  You must participate in any programs that they consider that it would be suitable for you, maybe anger management or the like.  When they recommend them, do those programs.

48Will you sign the order please. 

49(Community corrections order signed and acknowledged.)

50Thank you.  Copies of that will be provided, Mr Young. 

51The court is not set up so that you can spend any time with those that care for you.  Ms Blair will assist them with her experience as to what happens next.  You have to go with the prison authorities now and our family will be able to be in contact with you as soon as that is permitted, but not in the court room as we are now.  I am sure you would behave and they would too, but there is a rule because some people do not behave and it gets out of hand, so if you would not mind going with the prison authorities now.

52I thank Ms Blair and Ms Goddard and Ms Mahoney for their assistance in this case.

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