R v Dolan
[2008] VSC 618
•19 December 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1407 of 2008
| THE QUEEN |
| v |
| BRETT ANDREW DOLAN |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 December 2008 | |
DATE OF SENTENCE: | 19 December 2008 | |
CASE MAY BE CITED AS: | R v Dolan | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 618 | |
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CATCHWORDS: Criminal law – Sentence – Possession of a drug of dependence – Robbery – Causing injury recklessly – Threat to kill – Pleas of guilty – Forgiveness of victim – Offences committed on bail – Remorse.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C. BealeC | Office of Public Prosecutions |
| For the Accused | Mr M. Thomas |
HER HONOUR:
Brett Andrew Dolan, you have pleaded guilty to possession of a drug of dependence, robbery, causing injury recklessly and making a threat to kill. You have admitted 54 prior convictions from 11 court appearances.
In March of this year you were living with your grandmother, Patricia Inglis, at her home in Braybrook. She is approaching 80. On 8 March you had asked your grandmother for money and she gave you $50. The following morning you went into her bedroom where she lay in bed and demanded that she give you more money. She refused and you responded by assaulting her as she lay in her bed. You grabbed her by the ankles and pulled her further down the bed and then you picked her up and threw her roughly back down. You then jumped on the bed and straddled her and hit her about the head with a pillow and placed the pillow over her face. You then punched her to the head repeatedly and then put your hands around her neck and began strangling her. As a result of your violent assault upon her, Mrs Inglis reneged and gave you $60 from her purse. This conduct forms the subject of Counts 2 and 3 on the presentment, that of robbery and recklessly causing injury.
After the assault, you then left the house and used the money to purchase heroin, and this forms the subject of Count 1.
Your grandmother, in the interim, rang your mother, her daughter, and then rang the police. She was subsequently taken to the Sunshine Hospital Emergency Department where she was examined and was found to have evidence of bruising to her face, neck, both upper arms and right ankle.
A week later, on 17 March, you rang your grandmother and remonstrated with her for having called the police and you threatened her, saying words to the effect, “You’ll be sorry, I’m going to fucking kill all of you” and this forms the subject of Count 4 on the presentment, making a threat to kill.
You were arrested on 27 March 2008 and have been in custody since that date. When interviewed that day, you denied assaulting your grandmother and instead said only that you had argued with her and thrown a pillow at her. You admitted making the telephone call, but you did not admit to threatening her. You did, however, admit to using the money she had given you to purchase heroin.
You are 36 years old and have admitted 54 prior convictions from 11 court appearances. You were on bail at the time you committed these offences, and since 14 April 2008 you have been serving a sentence of 14 months' imprisonment with a non‑parole period of eight months in respect of sentences previously imposed, which you had breached.
A report by a psychologist, Warren Simmons, was tendered in evidence as Exhibit 2, that report details matters personal to you which I accept. Your parents separated when you were two and your mother repartnered and you regard your stepfather as your father. You have one older sibling. Your primary and secondary education was marked by learning difficulties, misbehaviour and truancy and it is said that you are now barely literate. There is a suggestion that your behaviour at the time as a child was consistent with ADD or ADHD although you have never been diagnosed with either condition.
After school, you commenced a gas fitting and plumbing apprenticeship but lost the chance to complete the qualification when you were made redundant.
For a time you lived and worked in Queensland and otherwise you have worked intermittently as a trades assistant, forklift and truck driver.
Your working capacities were disadvantaged when you sustained injuries in a motor vehicle accident when, as a pedestrian, you were struck by a drunk driver. The injuries sustained make it impossible for you to work.
You have been using drugs, initially cannabis, since you were 14 and it is said that one of the consequences of the motor vehicle accident was that you started using amphetamines.
You have had three significant relationships with women, one of which produced two children with whom, as I understand it, you have lost contact, and another relationship led you to heroin use. So it is that you have had a significant drug habit over the years and, indeed, this is reflected in your prior history and no doubt was the genesis of your offending on this occasion. You have also used cocaine and in the past have been a substantial drinker of alcohol.
In 1997 you underwent a course at Moreland Hall and from time to time you have been abstinent from drugs but without success.
Prior to your arrest and no doubt mindful of the inevitability of your situation, you went on to the methadone program, as I understand it, so that you could better handle your time in prison. Your methadone has been increased while in prison and you are attending regular drug and alcohol counselling and I accept that these are genuine efforts on your part to address your drug use.
Your counsel has submitted that you now have insight into your offending conduct and its nexus with your drug use. You have expressed remorse for your offending and you have acknowledged to Mr Simmons that what you have done, is wrong, that you felt guilty and remorseful and that you would never have committed these offences if you had not been drug affected at the time.
To your credit you did not seek to justify your actions to Mr Simmons and this is consistent with the matters put on your behalf by Mr Barker. Mr Barker submitted that these were crimes which offend any standards of decency and that in respect of Counts 2 and 3 this was a cowardly assault on an elderly lady in the sanctuary not only of her home but of her bedroom.
Mr Barker described this as a cruel breach of trust which was compounded by your threat to kill a week later.
You had been living with your grandmother on and off because you were homeless and she had taken you in and given you shelter.
It is difficult to imagine more reprehensible conduct. Your elderly grandmother, who had given you love and support over the years and shelter in your time of need, is robbed and injured in her own home so that you can get money for your next hit.
Nothing can be said which mitigates your offending conduct, and your actions a week later in threatening her because she reported the matter to the police indicates that at least in the intervening week you did not reflect upon what you had done and, indeed, at the stage that you made the threats you were not only not remorseful, but you may be said to have displayed a significant degree of animosity towards her simply because she had quite properly sought the assistance of the police.
Your grandmother made a statement of no complaint to the police on 23 July 2008, and a letter addressed to the presiding magistrate dated 12 September 2008 was tendered in evidence as Exhibit 1. It speaks in similar terms to the victim impact statement Mrs Inglis made on 12 November 2008, tendered in evidence as Exhibit C, that statement is a powerful testament to the relationship between the two of you. Mrs Inglis describes it in the following terms: “I have a good relationship with Brett and always have. He has been like a son to me and has always been there when I need anything. I have always found him to be loving towards me, gentle. He would sooner do good than harm anyone.” She concludes that she still loves you very much and does not feel any animosity towards you.
Mr Barker has submitted that you reciprocate those feelings and that you do not bear any animosity towards Mrs Inglis. Indeed, it is put that upon your release she is once again prepared to have you live with her.
Your counsel has submitted that he confirmed with your grandmother that she does forgive you for your actions although she did not expressly say so in her statement.
The attitude of the victim is a matter to be taken into account in the exercise of the sentencing discretion. Although a statement favourable to you does not usurp the sentencing function, nonetheless it is relevant because the sentiments expressed suggest that you have not done irreparable damage to your relationship with your grandmother and that she continues to support you, so that these are factors which are relevant to your prospects for rehabilitation.
Your counsel has submitted that with the support of your family, and I note in that regard the presence of your mother and grandmother during the plea, your insight into your offending conduct and your remorse, your prospects for rehabilitation may be said to be favourable.
Mr Barker had submitted that a wholly or partially suspended sentence of imprisonment is here appropriate. I cannot accept that submission. A wholly suspended sentence would not appropriately address the relevant sentencing considerations and, in any event, may only be imposed in respect of the count of threat to kill if exceptional circumstances can be shown because that count is a serious offence under the Sentencing Act and in my view neither the circumstances of the commission of that offence or matters which go in mitigation amount to exceptional circumstances. A partially suspended sentence is not appropriate because it does not address your prospects for rehabilitation which are most likely achieved by having the benefit of a structured period in the community on parole.
You were originally charged and presented with attempted murder, two counts of reckless conduct endangering life, criminal damage, intentionally causing injury, two counts of possession of a drug of dependence and making a threat to kill. As I understand it, because of the nature of these charges, there was a contested committal and your grandmother was required to give evidence.
The counts to which you have now pleaded guilty do not attract the exclusive jurisdiction of the Supreme Court and accordingly had you been charged with these offences initially you could have been dealt with at the Magistrates’ Court and that is a relevant consideration in the exercise of the sentencing discretion.
The maximum penalty for the crime of robbery is 15 years’ imprisonment; for making a threat to kill, 10 years’ imprisonment; for recklessly causing injury, five years’ imprisonment; and for possession of a drug of dependence, here because it was for your personal use, one year’s imprisonment and/or 30 penalty units. It is apparent that Parliament regards these as serious offences and in sentencing you I must take into account the nature and gravity of the offences here committed.
Putting the possession of the drug of dependence to one side, the robbery and recklessly causing injury are here committed to a significant degree. The fact that the offences were committed upon a family member do not make the offences any less serious but neither do they aggravate the offences. The fact that you were “hanging out,” as you describe it to Mr Simmons, does not mitigate your offending conduct and the threat to kill uttered a week later and in response to your grandmother having called the police is a particularly nasty example of that offence.
Your grandmother has expressed the view that she is sorry that she called the police. Mrs Inglis is not responsible for your current predicament. You and you alone must bear the responsibility for the consequences of your conduct.
Any sentence imposed must also act in denunciation of your conduct and serve to punish you. Specific deterrence must also be given due weight in circumstances where previous dispositions have failed to deter you and in particular where you have failed to take advantage of the opportunities presented by various non‑custodial dispositions. Any sentence imposed must also give due weight to general deterrence so that like‑minded members of the community will know that if they commit offences such as these they can expect condign punishment.
In sentencing you I take into account all matters personal to you, including your educational and vocational limitations, your efforts to address your drug use and your genuine remorse. I take into account also that you have no prior convictions for offences of violence and that you have served your sentence to date without incident. I take into account also in fixing the head sentence and the non‑parole period the fact that you have been serving a sentence of imprisonment since 14 April 2008, which period is not included in your pre‑sentence detention and, further, that your non‑parole period expired on 13 December 2008, so that since that date it has been open to you to apply for parole, which opportunity will now be lost to you in the short term by reason of the sentences I propose to impose.
I take into account also your pleas of guilty and give you a discount for them. I take into account that the plea was entered on 5 November 2008 and no doubt negotiations had occurred prior to that time to enable those pleas to be achieved. I take into account that by reason of your pleas you have saved the community the cost of a trial and your grandmother the ordeal of having to give evidence. I take into account also that by reason of your pleas you have facilitated the administration of justice.
I also take into account that by reason of the attitude displayed by your grandmother and her continued support and the support of your mother, your prospects for rehabilitation are not without hope.
Accordingly, you are convicted and sentenced as follows:
Count 1, possession of a drug of dependence, two months’ imprisonment; Count 2, robbery, three years’ imprisonment; Count 3, recklessly causing injury, two years’ imprisonment; Count 4, threat to kill, nine months’ imprisonment.
As you committed these offences while on bail, by operation of s.16(3)(c) of the Sentencing Act the sentences in respect of all counts are to be served cumulatively with each other and upon any uncompleted sentences unless otherwise directed.
In order to address the principles of totality and proportionality and to reflect that although the offences in respect of Counts 2 and 3 occurred as part of the one episode, clearly your conduct went beyond the violence necessary to effect the theft of money, accordingly I propose to otherwise direct that one year of the sentence on Count 3 be served cumulatively with the sentence on Count 2, which is the base sentence, that is four years, and five months of the sentence on Count 4 and one month of the sentence on Count 1 be served cumulatively with the sentences so imposed on Count 2, that is four years and six months.
In order to address your prospects for rehabilitation and in the interests of justice taking into account that you have been serving a sentence of imprisonment since April of this year, I propose to order that you serve a non‑parole period of two years.
I further otherwise direct that the sentences so imposed this day be served concurrently with the sentences you are presently undergoing, which I understand will expire on 13 June 2009, and I declare that you have already served by way of pre‑sentence detention a period of 18 days.
Pursuant to s.6AAA of the Sentencing Act I declare that but for your plea of guilty I would have imposed a sentence in the vicinity of seven years with a non‑parole period of five.
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