R v Frawley and O'Donoghue

[2014] VCC 1967

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

AT BENDIGO

CRIMINAL DIVISION

CR-14-00356
CR-14-00355

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMUEL FRAWLEY
and
MATTHEW O’DONOGHUE

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JUDGE:	HIS HONOUR JUDGE PUNSHON
WHERE HELD:	Bendigo
DATE OF HEARING:	6 and 20 November 2014
DATE OF SENTENCE:	20 November 2014
CASE MAY BE CITED AS:	R v Frawley and O’Donoghue
MEDIUM NEUTRAL CITATION:	[2014] VCC 1967

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	Mr J.  Jassar	Office of Public Prosecutions Victoria
For the Accused Frawley For the Accused O’Donoghue	Mr N.  Rolfe Mr M.  Mahady	NWJR NWJR

HIS HONOUR:

1       Samuel Frawley and Matthew O’Donoghue, you have each pleaded guilty to one charge of aggravated burglary.  In addition, Mr Frawley you have pleaded guilty to intentionally causing injury and Mr O’Donoghue, you have pleaded guilty to one charge of recklessly causing serious injury. 

2       The maximum penalty for aggravated burglary is 25 years' imprisonment, for recklessly causing serious injury it is 15 years' and for intentionally causing injury it is 10 years'. 

3       The prosecutor opened the circumstances of the offending by reading from a 'Summary of Prosecution Opening' which was tendered. 

4       In short, on 2 March 2013, after drinking at the Rochester Hotel, you both went to the complainant’s home, arriving at about 2.30 am.  This was opposite your family home, Mr Frawley, to which you were both going prior to spontaneously deciding to confront the complainant. 

5       

Mr Frawley, you unlocked the back door and entered, followed by you,

Mr O’Donoghue.  You both went to the complainant’s bedroom.  He woke and was grabbed, dragged out of bed and punched to the face and body by both of you, resulting in scratches and bruises.  The complainant tried to defend himself with an iron bar but it was taken from him.  A wall was damaged in the course of wrestling.  The struggle continued into the backyard.  When outside and “once separated” the complainant picked up a wooden chair but was then punched by you Mr O’Donoghue, causing him to fall to the ground.  He suffered fractures of his left cheekbone, nose and jawbone. 

6       During submissions this morning I sought clarification concerning what was meant by “once separated” in the agreed prosecution opening and what was occurring immediately prior to the complainant picking up the chair.  It is common ground that although there was a break in the wrestling, the complainant was still under attack or threat by you Mr O’Donoghue and picked up the chair to defend himself. 

7       The disturbance was heard by your mother, Mr Frawley.  She attended, yelled at you both to get home and you both left. 

8       When interviewed, each of you admitted attending the complainant’s house but denied assaulting him as alleged. 

9       

No prior criminal history was alleged against either of you.  However,

Mr O’Donoghue, you volunteered through your counsel that you were fined $500 for unlawful assault in the Magistrates' Court in May 2013.  This offending occurred in November 2012 but the finding of guilt was subsequent to the current offending.  No conviction was recorded. 

10      You are both aged 23 and were each 21 at the time of the offending, each of you being born in the second half of 1991. 

11      Your relative youth and absence of prior criminal history is important.  Your subsequent finding of guilt, Mr O’Donoghue, for conduct prior to the current conduct is relevant but I note that no conviction was imposed. 

12      

You are both employed.  Mr Frawley, you work as a construction labourer.  

Mr O’Donoghue, you work as a bar manager in your family’s hotel. 

13      The complainant is a 50 year old solidly built man about 6 foot tall.  You are both tall men and well built.  The immediate reason for the attack seems to be that you Mr Frawley were told at the hotel that the complainant had threatened to kill your mother as well as throwing a beer bottle in her direction which smashed and cut her leg. 

14      Mr O’Donoghue, you had previously lived at the Frawley home and were intending to sleep there on the night of the offending.  You had been best friends with Mr Frawley for ten years, having played sport together from a young age.  You consider Mr Frawley’s mother as a second mother to you and regarded the threat made by the victim against Mr Frawley’s mother as if it were a threat made against a member of your family.  Additionally there was a previous history of animosity between yourself and the victim where I consider you justifiably considered yourself to be the recipient of threats by him.  I will return to this later. 

15      In your interview with police, Mr Frawley, you say you confronted the complainant so he could tell you what he said to your mother. 

16      It seems that the complainant had been a friend of your family, Mr Frawley, but some dispute had arisen concerning a debt.   

17      Plea submissions began on 6 November but were adjourned to today to allow additional material to be obtained, family to attend and further legal research to be undertaken. 

18      Mr Frawley, you gave evidence before me on 6 November stating that you were told at the hotel that the complainant had threatened to kill your mother and had thrown the bottle cutting her leg.  This was not challenged by the prosecutor. 

19      The complainant was dealt with in the Magistrates' Court  concerning the threat to kill your mother (although it seems this charge was reduced to the summary charge of making a threat) and throwing a missile.  He was also charged and dealt with concerning threats made to you, Mr O’Donoghue, as well as other conduct around the time of his ejection by you from your family hotel. 

20      It seems that the complainant left the area soon after the incident. 

21      No victim impact statement was tendered.  However, it is obvious that to be woken in the early hours of the morning in his own home by you two, both affected by alcohol, and assaulted would have had a significant impact on him. 

22      Mr Frawley, you said on oath before me that you appreciate how terrifying the incident must have been for the complainant, that you were incredibly sorry and what you did was the worst decision you have ever made.  You also gave evidence about your work history, sporting activities and your father’s stroke in February 2013.  I was particularly impressed by you. 

23      

A body of character material was tendered.  First, a letter from Bendigo Health which details your father's stroke, setting the context for the family stress and pressure you were experiencing at the time of the offending.  The letter also referred to your remorse and embarrassment, the high regard in which you are held and how your offending is out of character.  There were references from two teachers who also wrote of your remorse, concern for others and excellent reputation of both you and your family.  The letters also refer to your participation in sport, cricket and football in particular.  A letter from

Ms Maureen Scott described you as an outstanding young member of the community.  A more recent testimonial from Ms Pauline Marrone described you as pleasant, polite, hardworking and trustworthy. 

24      All in all the character material is very impressive.  I accept that you are regarded as an exceptional young man in the Rochester community.  In particular, the letters confirm your preparedness to assist others. 

25      You are a skilled footballer and came to Bendigo to pursue your football career.  You completed an apprenticeship as a cabinet maker in 2013 and went into the construction industry when you moved to Bendigo this year. 

26      A letter from your current employer was also tendered.  Although working as a labourer, your trade skills are particularly beneficial to your employer.  You are regarded as a very capable and reliable employee with considerable career potential. 

27      

Plea submissions on your behalf, Mr O’Donoghue, did not commence on

 

6 November but I was provided with references from Cr Leigh Wilson,

Cr Paul Jarman and Michelle Gibson, which were tendered today. 

28      Prior to the resumption of the plea I received additional material on behalf of both of you in the form of written 'Further Submissions on Sentence' from your counsel, Mr Frawley, including a table of what were submitted to be “like matters”.  This table was a summary of nine County Court cases with the full sentencing remarks in each case also being provided. 

29      The written submissions on your behalf, Mr O'Donoghue, were headed 'Submissions on Sentence'.  They referred to the same cases that I have just noted.  The submissions also referred to a recent publication of the Sentencing Advisory Council titled 'Community Correction Orders in the Higher Courts: Imposition, Duration, and Conditions'.  Part of the report, concerning the imposition of CCOs versus short terms of imprisonment in cases where aggravated burglary was the principal offence was copied into the written submissions.  The report also contains other helpful material including  a similar analysis of cases of causing serious injury. 

30      I accepted these written submissions prepared by each counsel as exhibits.  The written submissions concerning you, Mr O’Donoghue, were edited to remove paragraph 10 and the first line of paragraph 13 in order to reflect the agreed statement of facts between you and the prosecution. 

31      Mr Frawley, you must benefit from your pleas of guilty.  They have the utilitarian benefit of saving time, expense and the need for witnesses to give evidence and additionally they are reflective of remorse which is also supported by other material as noted by your counsel. 

32      You pleaded guilty to aggravated burglary at the first reasonable opportunity.  Your plea to intentionally causing injury came relatively late but it was the result of negotiation between you and the prosecution where the prosecution agreed to no longer pursue the original charge against you of intentionally causing serious injury. 

33      I have already noted my impression of your character and the high regard in which you are held.  You have a highly commendable work history.  I accept that your offending conduct was aberrant, precipitated by concern for your mother and highly unlikely to be repeated.  In my view, you have excellent prospects for rehabilitation.  As noted in discussion, I do not consider it necessary to give your offending a description such as "unusual" or "exceptional" as your counsel suggested. 

34      Your conduct was completely unacceptable and the superior courts have emphasised the seriousness of home invasions and the usual consequences of such offending.  However, the prosecution fairly acknowledged that your offending is at the lower end of the scale for cases of aggravated burglary.  I was referred by the prosecution to many cases from the Court of Appeal in a table headed ‘Overview of aggravated burglary sentenced as the principal offence’ extracted from the Sentencing Manual.   In particular, I am aware of leading cases such as Hogarth (2012), Suckling (2013) and Anderson (2014). 

35      The courts have consistently condemned vigilante action and you were wrong to try and redress the wrong you believed had been done to your mother.  However, given your particular motivation, the spontaneity of your actions, your relative youth, your absence of prior criminal history, the high regard in which you are held, the aberrant and out of character nature of your actions, your excellent work record, your pleas of guilty, your remorse, the salutary lesson you have already been taught, your excellent rehabilitative potential, I believe that the relevant sentencing objectives can be met by the imposition of a community corrections order. 

36      Such a course is a sanction that I consider offers the ability to achieve denunciation, punishment and deterrence, both general and specific, while avoiding the criminogenic effects of imprisonment.  I am particularly mindful of what it would mean to send a young person such as you to prison for the first time.  The superior courts have consistently emphasised that such a course is to be avoided unless there is no other option. 

37      I had you assessed and you were found suitable.  I propose to convict you on both charges and release you on a CCO for two years.  You will be under supervision, be required to undergo assessment and treatment for alcohol use, be required to undergo offender behaviour programs as directed and undertake 200 hours of unpaid community work. 

38      I reject the prosecution submission that a period of immediate imprisonment should be imposed even though it was submitted that such terms should be combined with a CCO. 

39      

Mr O’Donoghue, your counsel set out in some detail the events of

15 February 2013 that occurred at your family hotel, the Shamrock in Rochester, where it seems the complainant and another threatened and abused a staff member, swung a barstool at you and the staff member and was then ejected from the hotel by you.  You allege he tried to assault you outside the hotel and later made threats and complaints to your father over the phone which were directed at the staff member.  These threats were later repeated to the staff member personally and he told you.  It seems that the complainant was not only charged with offending against Mr Frawley’s mother but also with offending against you and the staff member, with all matters being dealt with in the Magistrates' Court at the same time. 

40      These events combined with you being informed of the threats to Mr Frawley’s mother were the setting in which you decided to accompany Mr Frawley to confront the complainant. 

41      Your circumstances are complicated by the addition of the more serious charge of recklessly causing serious injury, a charge that even by itself would ordinarily result in imprisonment.  In your case the prosecution submits that immediate imprisonment should be imposed. 

42      

Whilst it is true that you struck the complainant causing fractures when he picked up a wooden chair to use as a weapon, he was still under threat from you and had just been assaulted by you acting in combination with

Mr Frawley. 

43      

As with Mr Frawley you must benefit from your pleas of guilty which I accept are reflective of remorse, as evidenced in the character references.  Your plea to aggravated burglary came at the earliest opportunity.  The plea to recklessly causing serious injury came late (it seems in October as with

Mr Frawley) but it was part of a settlement where the prosecution decided not to pursue the charge of intentionally causing serious injury. 

44      The character references also make it clear that your offending was out of character as seen by others.  Of course I am conscious of the subsequent assault charge.  The character references note that you have engaged in voluntary community service to assist others. 

45      

Your personal particulars were set out by your counsel.  You completed

Year 11 at school and are the oldest of six children.  Your parents separated when you were about 18 with your father moving to the Northern Territory.  Your parents had been hotel operators and this ceased when your father moved interstate.  However, he returned in 2011 and purchased the Shamrock in Rochester.  Since this time you have been assisting your father to run the hotel.  You are a keen sportsman. 

46      Alcohol has obviously played a part in both your and Mr Frawley’s conduct.  You told your counsel you had been binge drinking leading up to the offending.  You have reduced your drinking and it seems regret and remorse for your conduct has taught you a salutary lesson.  Cr Wilson noted your increased reserve. 

47      Cr Wilson described you as a polite and well-mannered young man.  He could not believe you could have engaged in the offending.  He considered that you had learnt “an incredible life lesson” and firmly believes you can contribute a lot to the community.  Cr Jarman confirmed that your conduct was out of character as he saw it.  He believes you can put the incident behind you and go on to have a productive and law abiding future, particularly with the support of your family.  Ms Gibson wrote that you always respect and show compassion to others. 

48      Concerning the charge of aggravated burglary, there is little to distinguish between you and Mr Frawley.  You entered the premises together with similar motives and animosity towards the complainant.  You had an additional grievance and as I stated earlier, that can never excuse you determining to mete out punishment to the complainant.  You assaulted the complainant in combination although the charge of recklessly causing serious injury relates specifically to the incident particular to you outside the house. 

49      Had you not struck the complainant causing serious injury I would have readily and confidently concluded that you also should be released on a CCO. 

50      The question is whether this option is available given the additional charge. 

51      I had you assessed for suitability for release on a CCO and you were found suitable. 

52      This decision has caused me much anxiety but in the end, despite the seriousness of the combined offending, I am not prepared to conclude that only immediate imprisonment is open.  However, the balance is fine. 

53      The principal factors in mitigation that have driven me to conclude that the final step of immediate imprisonment is not yet required are my assessment of the gravity of the aggravated burglary given all the surrounding circumstances and the appropriateness of the prosecution concession concerning the gravity of this offence, your relative youth and absence of serious antecedents, the fact that I am persuaded that you acted against your normal character, the high regard in which you are held in your local community and your usual concern for others and commitment to community service, your pleas of guilty, your remorse, regret and reaction to the offending including the lesson you have learnt, including your changed drinking habits, the support you enjoy and my confidence that you will not reoffend. 

54      The imposition of a CCO can, as I see it, meet the relevant sentencing objectives. 

55      I am repeating myself but I am sure you understand from comments I have already made that I have reached this conclusion with some reservations.  Accordingly, you should understand that you are merely being given an opportunity and should you not seize it, you can expect to be immediately imprisoned. 

56      You will be released on a CCO for 30 months.  You are to perform 250 hours of unpaid community work.  You are to be under supervision and are to undergo assessment and treatment for alcohol use and to undergo offending behaviour programs as directed. 

57      I am conscious that each of you has had the current matters hanging over your head for a considerable time and that this will continue for another substantial period, in each of your cases. 

58      Time spent undergoing programs is not to be credited against unpaid community work in each of your cases. 

59      We will have the documents prepared.

60      MR JASSAR:  As the court pleases.

61      MR ROLFE:  May it please the court.

62      MR MAHADY:  May it please the court.

63      HIS HONOUR:  Do you want me to leave the bench, Anthony, while you're doing that?

64      ASSOCIATE:  No, Your Honour.

65      HIS HONOUR:  Anthony, do you want me to leave the bench while you do that or not?  It shouldn’t be?  I'll just check.  I'm just checking where the report required attendance.  It's the Bendigo Community Corrections Service in each instance.  Your client lives in Rochester.

66      MR MAHADY:  Yes, the closest - on the system at least it needs to say Bendigo, however they can report at Echuca.

67      HIS HONOUR:  I think we had this issue the other day - - -

68      MR MAHADY:  Yes.

69      HIS HONOUR:  - - - with a different matter.  All right.  I follow that.

70      MR MAHADY:  Thank you, Your Honour.

71      HIS HONOUR:  Bill, would you provide that to Mr Mahady and Mr Jassar just to check for me?

72      MR JASSAR:  All fine, sir, with that.

73      HIS HONOUR:  Same thing for Mr Rolfe and Mr Jassar.

74      MR JASSAR:  All fine, sir.

75      HIS HONOUR:  All right, would you get your clients to sign the documents, please?  Nothing else?

76      MR JASSAR:  No, sir.  That covers it.

77      HIS HONOUR:  Nothing else at all?

78      MR JASSAR:  Well there was the compensation orders, sir, but I've pulled the plug on that.  It seems rather excessive.

79      HIS HONOUR:  I'm more concerned about nothing else in the circuit.

80      MR JASSAR:  No, sir.  That is the end of the circuit.

81      HIS HONOUR:  There's nothing for tomorrow, is there?

82      MR JASSAR:  Not that I know of.

83      HIS HONOUR:  Not that I know of either.

84      MR JASSAR:  I might get surprised.  I never know.

85      HIS HONOUR:  All right.  Thank you very much.

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